ITEMID: 001-58263
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF F.E. v. FRANCE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (access to court);Violation of Art. 6-1 (length of proceedings);Non-pecuniary damage - financial award;Pecuniary damage - financial award
JUDGES: C. Russo;R. Pekkanen
TEXT: 7. The applicant was born in 1971. On 27 October 1985, when he was 14, he was admitted to a clinic for a tonsillectomy. During the operation, on 29 October 1985, the surgeon, with the anaesthetist’s agreement, gave him a transfusion of three packs of fresh plasma and one ampoule of PPSB (a
blood product containing coagulation factors) supplied by the blood transfusion centre of Colmar Hospital (département of Haut-Rhin).
8. Blood tests carried out on 26 November 1985 revealed anomalies in the composition of the applicant’s blood.
9. In 1987 infectious mononucleosis was diagnosed.
10. On 7 December 1988 and 27 January 1989 serological tests for the human immunodeficiency virus (HIV) gave positive results.
11. By a decision of 4 October 1991 the President of the Colmar tribunal de grande instance ordered an expert opinion. In a report of 28 February 1992 the medical expert concluded that there was a strong probability of a causal connection between the administration of the ampoule of PPSB to Mr F.E. and his infection with HIV.
12. Relying on this report, the applicant applied to the Colmar tribunal de grande instance and, by a decision of 25 May 1992, was given leave to institute civil proceedings in that court against the Fondation Saint-Marc, owners of the clinic, the Strasbourg Primary Health Insurance Office and the mutual insurance scheme of the national education service. He asked the court to rule that the Fondation Saint-Marc bore sole liability for his infection and order it to pay him full compensation for the consequences.
13. By a judgment of 26 August 1992, following a hearing on 23 June 1992, the court held that proof of a causal connection had not been established as there was still serious doubt as to the cause of the infection. It accordingly dismissed the applicant’s claim as ill-founded.
14. On 14 September 1992 the applicant appealed. In his statement of the grounds of appeal, of 28 December 1992, he assessed the damage he had sustained at 2,500,000 French francs (FRF) and asked the Colmar Court of Appeal to take note of the fact that he had applied to the Compensation Fund for Transfusion Patients and Haemophiliacs (“the Fund” – see paragraph 23 below). He pointed out that the Fund had not yet taken a decision but that the sums of compensation it had proposed were lower than those awarded by the courts. The Fund joined the proceedings on its own initiative on 10 June 1993 in order to preserve its right by subrogation to pursue a claim in the event of the Fondation Saint-Marc being declared negligent.
15. On 6 December 1994 the Colmar Court of Appeal set aside the impugned judgment. On the merits of the case, the Court of Appeal found the Fondation Saint-Marc liable in respect of the applicant’s infection and awarded him compensation in the sum of FRF 2,500,000, with the Fund being subrogated to his right to the first FRF 1,500,000 of compensation (see paragraph 24 below). It therefore ordered the clinic to pay Mr F.E. FRF 1,000,000, corresponding to that portion of the damage for which no compensation had been paid by the Fund. In response to the Fondation Saint-Marc’s argument that section 47 of the Act of 31 December 1991 (see paragraph 31 below) excluded any possibility of compensation other than that provided by the Fund, since the latter paid full compensation, the Court of Appeal ruled as follows:
“Before any other analysis, reference should be made to section 47 of the Act …, subsection (III) of which provides for ‘full’ compensation to be paid by the Fund set up for that purpose in respect of damage sustained by the victims of infection by the human immunodeficiency virus (HIV) during transfusion of blood products where such transfusion has been carried out within the territory of the French Republic.
However, section 47(VI) requires the victim to ‘inform the Fund of any judicial proceedings pending’ and ‘if any legal proceedings are brought’. Section 47(IX) provides: ‘The Fund shall be subrogated, for an amount no higher than the sums paid out, to the victim’s rights against the person liable for the damage and against persons required, for whatever reason, to make full or partial reparation for that damage, within the limits of those persons’ liabilities. However, the Fund may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence.’
The victim’s obligation to inform the Fund of judicial proceedings pending or if legal proceedings are brought, like subrogation of the Fund ‘for an amount no higher than the sum paid out’ to the victim, show that in providing victims with an expedited compensation procedure Parliament did not intend to do away with the possibility of direct applications by the victims against any persons they considered responsible.
The Act did not exclude the possibility of damage being assessed by the courts applied to at a higher figure than the sum awarded by the Fund, but was intended to prevent compensation being paid twice over (both through the obligation to provide information about pending proceedings and through subrogation of the Fund).
This is all the more incontestable since, the Fund not being a ‘court’, its decisions are not binding. The documents that it requires the patients who accept its proposals to sign refer to section 47(VI) and the obligation to ‘inform it of any pending or future judicial proceedings’.
In the present case, moreover, E. and co-plaintiffs all declared, in the letter they sent on 21 April 1993 to the Compensation Fund for Transfusion Patients and Haemophiliacs, that they accepted ‘for the present’ the sums proposed but made it clear that they considered them ‘insufficient’ and F.E., who formally accepted the proposal, went on to say: ‘I retain the right to bring proceedings against any liable third party, it being my responsibility in that case to inform the Fund, which shall be
subrogated for an amount no higher than the sums paid out, as provided in section 47 of the Act of 31 December 1991’, which shows that he always considered that full compensation had not been paid for the damage he sustained and that he therefore still had an interest giving him standing to bring proceedings. In any case, the agreement reached could not be classed as a settlement within the meaning of Article 2052 of the Civil Code.
Consequently, [F.E.]’s action is admissible and his acceptance of the compensation offered by the Fund does not deprive him of standing.”
16. On 1 March 1995 the Fondation Saint-Marc gave notice of intention to appeal on points of law. It filed its statement of the grounds of appeal on 1 August. The applicant replied on 19 August 1995. By a pleading of 26 October 1995 the Strasbourg Primary Health Insurance Office lodged a third-party cross-appeal against the same judgment. The blood transfusion centre filed submissions on 2 November 1995. Mr F.E. filed additional observations on 10 January 1996 and his reply to the third-party cross-appeal on 13 February 1996.
The case was allocated to the Second Civil Division of the Court of Cassation on 21 February 1996. After the reporting judge had made his report and this had been transmitted to the Advocate–General, the Division considered the case on 29 January 1997 and decided that it should be referred to the plenary court, regard being had to the Bellet judgment delivered by the European Court of Human Rights (4 December 1995, Series A no. 333-B).
17. On 6 June 1997 the Court of Cassation, sitting in plenary, quashed and annulled the judgment of 6 December 1994 without remitting the case for reconsideration. It gave the following reasons:
“Having regard to section 47 of the Act of 31 December 1991 and Article 1382 of the Civil Code;
Whereas these texts require the Compensation Fund for Transfusion Patients and Haemophiliacs infected with the human immunodeficiency virus (‘the Fund’) to pay victims full compensation for the damage they have sustained; whereas victims who do not accept the Fund’s proposals may bring proceedings in the Paris Court of Appeal; whereas they may obtain compensation from the ordinary courts only in respect of heads of damage for which they have not already been compensated by the Fund;
Whereas, according to the impugned judgment, [F.E.] was infected with the human immunodeficiency virus when a blood product was administered to him during an operation carried out at the Fondation Saint-Marc; whereas he instituted proceedings against the Fondation Saint-Marc for compensation in respect of the specific damage caused by his infection; whereas he subsequently accepted the compensation offered by the Fund on that account;
Whereas, in upholding [F.E.]’s action against the clinic, the judgment stated that the Act did not exclude the possibility of damage being assessed by the courts applied to at a higher figure than the sum awarded by the Fund and that [F.E.]’s acceptance of the compensation offered by the Fund did not deprive him of an interest giving him standing to bring proceedings;
Whereas in so doing the Court of Appeal misapplied the provisions cited above;
And having regard to Article 627 § 1 of the New Code of Civil Procedure;
Whereas the quashing of a judgment does not imply that the case should be remitted for reconsideration;
For these reasons and without finding it necessary to rule on the second ground of appeal,
[The Court] quashes and declares null and void in all its provisions the judgment delivered on 6 December 1994 between the parties by the Colmar Court of Appeal;
Holds that the case shall not be remitted for reconsideration.”
18. The applicant was obliged to pay back the sum of FRF 1,000,000, which had been paid to him in execution of the Colmar Court of Appeal’s judgment.
19. In the meantime, by an application of 30 December 1992, the applicant, his parents, his two sisters and his partner, who became his wife in July 1993, had asked the Strasbourg Administrative Court to order Colmar Hospital – which ran the blood transfusion centre (see paragraph 7 above) – to pay them compensation totalling FRF 4,000,000 in respect of the damage they had sustained on account of the applicant’s HIV infection.
20. By a judgment of 10 February 1994 the Administrative Court ruled that the hospital was liable in respect of the applicant’s HIV infection and deferred its decision on damages in order to give the Fund (see paragraphs 23 and 31 below) time to produce observations on the compensation claims.
21. By a judgment of 23 March 1995 the same court ordered Colmar Hospital to pay the Fund the compensation it had awarded to the applicant, his parents and his two sisters and to pay the applicant’s wife, to whom the Fund had made no award, the sum of FRF 40,000.
22. On appeal by Colmar Hospital against both judgments and by the applicant and his family against the last-mentioned judgment, the Nancy Administrative Court of Appeal, in a judgment of 27 June 1996, set aside both judgments and dismissed the claims of the applicant and his family on the ground that Colmar Hospital could not be held liable for the damage resulting from the infection.
23. On 24 November 1992, in proceedings brought concurrently with his civil and administrative actions, the applicant applied to the Compensation Fund for Transfusion Patients and Haemophiliacs, set up by the Act of 31 December 1991 (see paragraph 31 below).
24. On 19 March 1993 the Fund offered him compensation in the sum of FRF 2,000,000, of which FRF 1,500,000 were to be payable on acceptance of the proposal and FRF 500,000 if and when the onset of Aids was diagnosed. The Fund also offered compensation of FRF 150,000 for each of his parents and FRF 20,000 for each of his sisters.
The compensation proposal sent to the applicant contained the following information:
“At its sitting on 25 February 1993 the Compensation Board decided to make you an offer of compensation corresponding to the whole of your specific damage resulting from infection, that is to say the current and future damage resulting from HIV infection, and thereafter, if applicable, from the onset of Aids.
On the basis of your actual, personal and individual situation and with reference to the compensation awarded to date in similar cases, the Board has decided to offer you compensation amounting in total to FRF 2,000,000.
...
If you accept this offer, you should do so by registered letter with recorded delivery...
Naturally, the award of this compensation does not prevent you from claiming other compensation in respect of pecuniary damage you may sustain or already have sustained, provided, of course, that you can furnish proof of it.
If this proposal is not acceptable to you, you may bring legal proceedings in the Paris Court of Appeal and have two months from notification of the present proposal in which to do so...
I would draw your attention to the provisions of section 47(VI) of Law no. 91-1406 of 31 December 1991, which require you to inform the Fund of any judicial proceedings brought on account of your infection, whether pending or still to come.”
25. In a letter of 21 April 1993 the applicant and his family declared that they accepted the various sums offered, but added the following proviso:
“… I consider that these sums are insufficient. I must accept them for the present in view of the financial situation in which my family and I find ourselves.
Consequently, I formally accept your proposal but retain the right to bring proceedings against any liable third party, it being my responsibility in that case to inform the Fund, which shall be subrogated for an amount no higher than the sums actually paid out, as provided in section 47 of the Act of 31 December 1991.
…”
26. After receiving this acceptance, the Fund paid FRF 1,500,000 to the applicant, who acknowledged receipt on 11 May 1993.
27. In a report of 5 December 1991 that he laid before the National Assembly on behalf of the Cultural, Family and Social Affairs Committee, Mr Boulard, MP, indicated that a victim could seek better compensation after accepting an offer from the Fund:
“That the compensation procedure is quite distinct is confirmed by the fact that it is possible for victims or their heirs to continue civil or criminal actions they may have brought in the administrative courts or even to institute them where they did not do so when submitting a claim to the Fund. Compensation by the Fund is therefore not a ‘settlement’ which precludes judicial remedies, unlike the aid granted by the public and private funds set up in 1989, but a compensation scheme based on the concept of risk and independent of any attempt to determine fault.
A victim must, however, inform the Fund and the court of the various actions brought. This provision is necessary because the Fund is subrogated to the victim's rights against the person liable for the damage or against those who are, for one reason or another, under a duty to provide compensation.”
28. During the debate in the National Assembly on 9 December 1991 several speakers advocated making it possible to bring proceedings in the ordinary courts after acceptance of a compensation proposal. The official summary report of proceedings contains the following contributions:
“Mr Chamard: ‘… it must remain possible to take legal proceedings.’
Mr Préel: ‘In any case, infected persons must be able to continue the proceedings they have brought against the transfusion centres. And what will happen if the sum they are awarded by the court is higher than the sum they have been paid in compensation?’
Mr Bianco, Minister of Social Affairs and Integration: ‘It is clear that the compensation proposal does not deprive victims of the right to bring proceedings, particularly for the purpose of determining liability… It would be inconceivable for acceptance of compensation offered by the Fund to bar a victim’s entitlement to a larger sum awarded by a court. Its decisions are therefore not binding and there is accordingly nothing to prevent a court from awarding additional compensation, it being understood that the Fund will be subrogated to the victim’s rights vis-à-vis the causer of the damage.’”
29. On 28 April 1994, following the Court of Cassation's judgment of 26 January 1994 in the Bellet case (see paragraph 34 below), Mr Mazeaud, MP, proposed an interpretative Act in order to remove the drafting ambiguities which had given rise to that judgment. He considered that it had interpreted the Act of 31 December 1991 in a way that achieved a result opposite to the one sought by the legislature. The bill was not passed.
30. In the opinion of 12 December 1991 that was submitted to the Senate on the bill then before it on behalf of the Committee on the Constitution, Legislation, Universal Suffrage, Regulations and General Administration, Senator Thyraud wrote, inter alia:
“The bill is a response to an exceptional situation. The arrangements it proposes may be regarded as being likewise exceptional. Independently of the current investigation into the apportionment of liability, including criminal liability, the community must afford the best redress it can for the consequences of such a tragedy.
...
As indicated in the introduction to this commentary, the intention of those who have framed the bill was to set up a fully independent scheme that could not be interpreted as in any way validating recent trends in the case-law on this matter. Simultaneously, victims’ possibility of resorting to the procedures of ordinary law, whether in the civil or administrative courts or in the criminal courts, has been preserved.
However, the bill’s wording is not fully explicit on this subject, and the text before us is silent as to the possible effects of earlier court decisions on the Compensation Board's decisions, and also as to the effects of the Board's decisions on subsequent judgments of other courts. The bill does not, for example, make it possible to determine whether or not the Board’s decisions imply recognition of liability or a presumption of guilt. Similarly, it does not state whether the Board is bound by earlier decisions of the courts.”
31. Law no. 91-1406 of 31 December 1991 “making miscellaneous social-welfare provisions” set up a special scheme for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products. The distinctive feature of the system, which is based on solidarity, is that it enables reparation to be made for the consequences of HIV infection independently of the investigation of liability. Section 47 provides:
“I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of the French Republic shall be compensated in the manner set out below.
II. No final settlement clause whereby a victim undertakes not to pursue any proceedings or action against any third party in respect of his infection shall be a bar to the procedure herein provided for.
III. Full compensation for the damage defined in subsection (I) shall be provided by a Compensation Fund, having legal personality, presided over by a serving or retired divisional president or judge of the Court of Cassation and administered by a compensation board.
A council whose members shall include representatives of the associations concerned shall be established to assist the chairman of the Fund.
IV. In their claims for compensation, victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives.
...
Victims or their heirs shall communicate to the Fund all the information in their possession.
Within three months of the receipt of a claim, a period which may be extended at the request of the victim or his heirs, the Fund shall consider whether the conditions for payment of compensation have been fulfilled. It shall investigate the circumstances under which the victim was infected and make any necessary inquiries, which may not be resisted on grounds of professional secrecy.
...
V. The Fund shall be required to make an offer of compensation to any victim referred to in subsection (I) within a time-limit laid down by decree, which may not exceed six months from the day on which the Fund receives full proof of the damage...
...
VI. The victim shall inform the Fund of any judicial proceedings pending. If legal proceedings are brought, the victim shall inform the court of his application to the Fund.
VII. ...
VIII. The victim shall not be entitled to take legal action against the Compensation Fund unless his claim for compensation has been dismissed, no offer has been made to him within the time-limit referred to in the first paragraph of subsection (V), or he has not accepted an offer made to him. Proceedings shall be brought in the Paris Court of Appeal.
IX. The Fund shall be subrogated, for an amount no higher than the sums paid out, to the victim's rights against the person liable for the damage and against persons required, for whatever reason, to make full or partial reparation for that damage, within the limits of those persons' liabilities. However, the Fund may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence.
The Fund may intervene in proceedings in the criminal courts, even if it does not do so until the appeal stage, where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection (I). In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law.
If the acts which caused the damage have given rise to criminal proceedings, the civil court shall not be required to defer its decision until there has been a final decision by the criminal court.
X. Unless otherwise provided, the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the Conseil d’Etat.
XI. ...
XII. The Compensation Fund's sources of revenue shall be specified in a subsequent Act.
XIII. ...
XIV. ...”
32. In three judgments of 9 April 1993 the Judicial Assembly of the Conseil d’Etat ruled that “the State is wholly liable in respect of persons infected with the human immunodeficiency virus following a transfusion of non-heat-treated blood products between 22 November 1984 and 20 October 1985”.
33. At the request of the Paris Administrative Court in respect of the Vallée case, on which the European Court has had to rule (Vallée v. France judgment of 26 April 1994, Series A no. 289-A), the Conseil d’Etat gave its view on the consequences of bringing concurrent proceedings in the administrative courts and before the Compensation Fund. Sitting in its judicial capacity on 15 October 1993, it gave the following opinion:
“1. The decree of 12 July 1993 ..., which is applicable to cases pending at the date of its publication, ... provides a solution to the problem raised by the Administrative Court.
2. ... An administrative court asked to make such an award should raise of its own motion the fact that the damage complained of has already been wholly or partly indemnified by a third party, when the evidence shows this to be the case, even if that party does not file submissions – on the basis of its subrogation to the rights of the victim – seeking reimbursement of the amounts it has paid as compensation for the damage suffered by the latter.
Accordingly, an administrative court to which a claim for compensation for damage suffered as a result of infection with the human immunodeficiency virus has been submitted must, when it has been informed by one of the parties that the victim or his heirs have already received compensation for the damage complained of, deduct of its own motion such compensation from the amount payable in respect of the damage.
...
Where the sum offered by the Fund has been accepted by the claimants, ... it should be held that all or part of the damage complained of has been actually and finally compensated for by the Fund. Consequently, it is incumbent on an administrative court which has been informed that this is the case to deduct, of its own motion, the amount thus owed by the Fund from the compensation which it orders the public authority liable for the damage to pay to the victim.”
34. By a judgment delivered on 26 January 1994 in the Bellet case, the Court of Cassation (Second Civil Division) gave a ruling for the first time on the question whether a person who had accepted a proposal of compensation from the Fund still had standing to bring judicial proceedings, holding as follows:
“The Court of Appeal, having found that the damage compensated by the Fund was the same as that for which compensation was being sought from the [National Blood Transfusion Foundation] and that acceptance of the offer of compensation for the specific damage resulting from infection that had been made to him by the Fund fully compensated Mr Bellet, rightly concluded – on that sole ground and without infringing Article 6 § 1 of the European Convention on Human Rights, as it had been open to the victim to apply to a court to have compensation assessed for his damage – that Mr Bellet’s action was inadmissible as he lacked any interest enabling him to bring proceedings.”
The Social Division of the Court of Cassation, in a judgment of 26 January 1995 (Bull. 1995, no. 42, p. 30), adopted the same reasoning. It held that acceptance of an offer from the Fund barred any subsequent appeal against a judgment refusing the victim compensation in respect of the specific damage caused by his infection. The First Civil Division followed the same line on 9 July 1996 (D-1996, 20). Criticising a judgment of the Rouen Court of Appeal, it ruled as follows:
“The victim’s acceptance of a compensation proposal – which, according to the provisions of section 47(III) of the Act of 31 December 1991, constitutes full compensation for the specific damage caused by his infection – deprives him of standing to claim further compensation under the same head of damage; it follows that the Court of Appeal, which found that the non-pecuniary damage it held to have been established corresponded to the specific damage resulting from infection, did not draw the correct legal conclusions from its own findings.”
After the plenary court’s judgment of 6 June 1997 in the present case, the Second Civil Division of the Court of Cassation, in a judgment of 14 January 1998 (Bull. 1998, no. 16, p. 11), followed the same line, pointing out that if a victim claimed compensation in an ordinary court under heads of damage different from those for which the Fund had paid compensation, the court concerned could not declare the action inadmissible but was obliged to rule on its merits. It ruled as follows:
“Section 47 of the Act of 31 December 1991 states that the Fund provides full compensation to victims in respect of the specific damage they have sustained. Victims who do not accept the Fund’s proposals may bring proceedings in the Paris Court of Appeal. They may not obtain compensation in the ordinary courts except in respect of heads of damage for which they have not already received compensation from the Fund.”
35. Decree no. 93-906 of 12 July 1993 adds Articles 15–20 to Decree no. 92-759 of 31 July 1992 on proceedings brought in the Paris Court of Appeal under section 47 of Law no. 91-1406 of 31 December 1991 (see paragraph 31 above). It applies to all proceedings pending at the date of its publication, 17 July 1993.
Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection (I) of section 47 of the aforementioned Act of 31 December 1991
In order to bring the action by subrogation provided for in subsection (IX) of section 47 of the aforementioned Act of 31 December 1991, the Fund may intervene in proceedings in any of the administrative or ordinary courts, even if it does not do so until the appeal stage. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law.
The registries of the administrative and ordinary courts shall send the Fund by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection (I) of section 47 of the aforementioned Act of 31 December 1991.
Within one month of receipt of the letter referred to in Article 16, the Fund shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and, if so, what stage the procedure has reached. It shall also state whether or not it intends to intervene in the proceedings.
Where the victim has accepted the offer made by the Fund, the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted. The Fund shall, where relevant, indicate the stage reached in proceedings instituted in the Paris Court of Appeal under the provisions of Part I of this decree and forward any judgment delivered by that court.
The registry shall notify the parties of the information communicated by the Fund.
The registry shall send the Fund copies of the decisions given at first instance and, where relevant, on appeal in proceedings in which the Fund has not intervened.
...
The provisions of Articles 15 to 19 shall be applicable to cases pending on the date of entry into force of [this] decree...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69494
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KOZANECKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Ryszard Kozanecki, is a Polish national who was born in 1951 and lives in Łódź, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 November 1993 the applicant lodged a claim for compensation with the Łódź Regional Court (Sąd Wojewódzki).
The proceedings were terminated on 19 February 2002. On 2 August 1999, the date on which the application was lodged with the Court, they were pending before the Łódź Regional Court.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-72688
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF BLECIC v. CROATIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection allowed (ratione temporis)
JUDGES: Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Egil Levits;Elisabeth Steiner;Françoise Tulkens;Giovanni Bonello;Ireneu Cabral Barreto;Jean-Paul Costa;John Hedigan;Lech Garlicki;Loukis Loucaides;Lucius Caflisch;Luzius Wildhaber;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Snejana Botoucharova;Stanislav Pavlovschi;Vladimiro Zagrebelsky
TEXT: 12. The applicant was born in 1926 and currently lives in Rome, Italy.
13. In 1953 the applicant, together with her husband, acquired a specially protected tenancy (stanarsko pravo) of a flat in Zadar. After her husband’s death in 1989 the applicant became the sole holder of the specially protected tenancy.
14. On 19 June 1991 the Specially Protected Tenancies (Sale to Occupier) Act came into force. It regulated the sale of publicly owned flats previously let under a specially protected tenancy.
15. On 26 July 1991 the applicant went to visit her daughter who lived in Rome. She intended to stay with her daughter for the summer. The applicant locked the flat in Zadar and left all her furniture and personal belongings in it. She asked a neighbour to pay the bills in her absence and to take care of the flat.
16. However, by the end of August 1991 armed conflict had escalated in Dalmatia, resulting in severe travel difficulties in that area, including the town of Zadar. From 15 September 1991, the town of Zadar was exposed to constant shelling and the supply of electricity and water was disrupted for over a hundred days.
17. The applicant submitted that in October 1991 the Croatian authorities had stopped paying her war widow’s pension and that the payments had resumed in April 1994. The Government submitted that the applicant’s pension had been paid by the Yugoslav Military Pension Fund in Belgrade rather than the Croatian Pension Fund and that it was the Belgrade authorities which had stopped paying the pension in December 1991.
18. According to the applicant, she also lost the right to medical insurance. The Government maintained that her medical insurance had never been stopped or interrupted.
19. Given these circumstances, the applicant decided to remain in Rome.
20. In November 1991 a certain M.F., with his wife and two children, broke into and occupied the applicant’s flat in Zadar. The applicant claimed that M.F. had been assisted by an official of the municipality who had provided him with a list of empty flats in Zadar, including hers.
21. On 12 February 1992 the Zadar Municipality (Općina Zadar) brought a civil action against the applicant before the Zadar Municipal Court (Općinski sud u Zadru) for termination of her specially protected tenancy on the ground that she had been absent from the flat for more than six months without justified reason, contrary to section 99 of the Housing Act.
22. In her submissions to the domestic court, the applicant explained that she had been forced to stay with her daughter in Rome from July 1991 until May 1992. She had not been able to return to Zadar since she had no means of subsistence and no medical insurance and was in poor health. Furthermore, during her stay in Rome she had learned from her neighbour that M.F. had broken into her flat with his family. When she had enquired about her flat and her possessions in it, M.F. had threatened her over the telephone.
23. On 9 October 1992 the Zadar Municipal Court terminated the applicant’s specially protected tenancy. The court found that the applicant had left Zadar on 26 July 1991 and had not returned until 15 May 1992. It stated that during the relevant period the citizens of Zadar had not been ordered to evacuate the town on account of the escalation of the armed conflict and that each citizen had had the choice to leave the town or to stay. On that basis the court found that the war in Croatia could not justify the applicant’s absence.
24. The court did not accept the applicant’s explanation that she had fallen ill during her stay in Rome and had been unable to travel. It was established that she had suffered from spinal arthrosis and diffuse osteoporosis for a long time. However, this had not affected her ability to travel. Even though her left shoulder had been dislocated on 25 March 1992, she had been able to travel following the immobilisation of the injured joint. Furthermore, by 25 March 1992 she had already been absent from the flat for more than six months.
25. The applicant’s further explanation that she had stopped receiving her pension in October 1991 and thus had been left without any means of subsistence was not accepted by the court as a justified reason for not returning to Zadar. It took the view that the applicant’s daughter could have sent her money. Therefore, the court concluded that the applicant’s reasons for not having lived in the flat were not justified.
26. Following an appeal by the applicant, the judgment was quashed by the Zadar County Court (Županijski sud u Zadru) on 10 March 1993.
The County Court found that the court of first instance had not given due consideration to the applicant’s personal circumstances, namely her age and poor health and the fact that she had lost her pension and lived alone in Zadar. Furthermore, the applicant’s decision to prolong her stay in Rome should have been carefully assessed against the background of the circumstances at the material time, namely that Zadar had been exposed to daily shelling and had not had a regular supply of water or electricity, and that third parties had occupied the applicant’s flat.
The case was remitted to the first-instance court.
27. In the resumed proceedings, on 18 January 1994 the Zadar Municipal Court again ruled in favour of the municipality and terminated the applicant’s specially protected tenancy. It observed that she had been absent from the flat for over six months without justified reason and repeated in substance the findings of the judgment of 9 October 1992.
28. The applicant appealed. On 19 October 1994 the County Court reversed the first-instance judgment and dismissed the municipality’s claim. It found that the escalation of the war and the applicant’s personal circumstances justified her absence from the flat.
29. On 10 April 1995 the Zadar Municipality lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske).
30. On 15 February 1996 the Supreme Court allowed the appeal, reversed the County Court’s judgment and upheld the judgment of the Municipal Court. It found that the reasons submitted by the applicant for her absence from the flat were not justified. The relevant part of the Supreme Court’s judgment read as follows:
“During the aggression against Croatia, living conditions were the same for all citizens of Zadar and, as rightly submitted by the plaintiff, it is neither possible nor legitimate to separate the defendant’s case from the context of that aggression. To hold the contrary would mean assessing her case in isolation from all of the circumstances which characterised that time and determined the conduct of each individual.
Contrary to the appellate court, this Court, assessing in that context the defendant’s decision not to return to Zadar during the aggression but to stay in Italy, considers the non-use of the flat unjustified. The factual findings made in the case reveal that, in view of her state of health and the available travel connections, the defendant was able to come to Zadar; her health would not have deteriorated because of her stay in Zadar; and she could have taken care of herself. The assumption that she would have had to make a considerable mental and physical effort in order to provide for her basic living needs (all the citizens of Zadar who remained in the town, from the youngest to the oldest, were exposed to the same living conditions) does not justify her failure to return to Zadar and, accordingly, does not constitute a justified reason for the non-use of the flat.”
31. On 8 November 1996 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). She claimed that her rights to respect for her home and property had been violated and that she had been deprived of her right to a fair hearing.
32. On 5 November 1997 the Convention came into force in respect of Croatia.
33. On 8 November 1999 the Constitutional Court dismissed the applicant’s constitutional complaint. It found that the Supreme Court had correctly applied the relevant legal provisions to the facts established by the lower courts when holding that the applicant’s absence from the flat for more than six months had been unjustified. The Constitutional Court concluded that the applicant’s constitutional rights had not been violated.
34. The relevant provisions of the 1990 Croatian Constitution (Ustav Republike Hrvatske, Official Gazette nos. 56/1990 and 135/1997), as in force at the material time, read as follows:
“Rights and freedoms may be restricted only by law to protect the rights and freedoms of others, the legal order, public morals or health.”
“1. The home is inviolable.”
“1. The right to property is guaranteed.
2. Property implies duties. Holders of the title to property and property users shall have a duty to contribute to the general welfare.”
“3. Only certain provisions of a statute may have retroactive effects.”
“International agreements concluded and ratified in accordance with the Constitution and made public shall be part of the Republic’s internal legal order and shall be [hierarchically] superior to the [domestic] statutes.”
35. The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999), as in force at the material time, provided that individuals or legal entities could lodge a constitutional complaint with the Constitutional Court if they considered that a judicial or administrative decision, or a decision of a legal entity invested with public authority, had violated their human rights or fundamental freedoms guaranteed by the Constitution (section 59). A constitutional complaint, in principle, did not suspend the implementation of the impugned decision (section 63). If the Constitutional Court allowed a constitutional complaint, it had to quash the impugned decision and remit the case to the competent authority for a new decision (section 72).
36. The Act on Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols Nos. 1, 4, 6, 7 and 11 to the Convention (Zakon o potvrđivanju Konvencije za zaštitu ljudskih prava i temeljnih sloboda i Protokola br. 1, 4, 6, 7 i 11 uz Konvenciju za zaštitu ljudskih prava i temeljnih sloboda, Official Gazette – International Agreements, no. 18/1997) came into force on 5 November 1997. It incorporated the Convention as an international treaty into the Croatian legal system.
37. The Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993), as in force at the material time, provided that a holder of a specially protected tenancy (“the tenant”) had a right to permanent use of the flat for living purposes, to sublet part of it to someone else and to participate in the administration of the building in which the flat was located. The Act also provided that, in agreement with the provider of the flat, the tenant could exchange it for another flat and, exceptionally, use part of it for business purposes.
38. Section 67 provided that the tenant’s cohabitants could acquire the tenancy after the tenant’s death.
39. Section 99 read as follows:
“(1) A specially protected tenancy may be terminated if the tenant ... ceases to occupy the flat for an uninterrupted period exceeding six months.
(2) A specially protected tenancy shall not be terminated under the provisions of subsection (1) of this section in respect of a person who does not use the flat on account of undergoing medical treatment, performance of military service or other justified reasons.”
40. Under section 105(1) the provider of the flat had to bring a civil action in order to terminate the specially protected tenancy. The tenancy was terminated as soon as the court’s judgment, upholding the claim of the provider of the flat, became res judicata (see, inter alia, the Supreme Court’s decision no. Rev-1009/1993-2 of 15 June 1994).
41. In decisions nos. Rev-3839/93-2 of 19 January 1994, Rev-2276/00-2 of 21 November 2000 and Rev-590/03-2 of 17 December 2003, the Supreme Court interpreted section 99(1) of the Housing Act as follows:
“War events per se, without any particular reasons rendering use of the flat impossible, do not constitute a justified reason for not using it.”
42. In a series of decisions (for example, in cases nos. Rev-152/1994-2 of 23 February 1994, Rev-1780/1996-2 of 10 March 1999, Rev-1606/00-2 of 1 October 2003, Rev-998/03-2 of 4 December 2003 and Rev-590/03-2 of 17 December 2003), starting with decision no. Rev-155/1994-2 of 16 February 1994, the Supreme Court interpreted another aspect of section 99(1) of the Housing Act as follows:
“The fact that a flat that is not being used by its tenant is illegally occupied by a third person does not, per se, make the non-use [of the flat by the tenant] justified. In other words, if the tenant fails to take the appropriate steps to regain possession of the flat within the statutory time-limits set forth in section 99(1) of the Housing Act ..., then the [illegal occupation of the flat by a third person] is not an obstacle to the termination of the specially protected tenancy.”
43. The Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/1991), as in force at the material time, entitled the holder of a specially protected tenancy of a publicly owned flat to purchase it from the provider under favourable conditions.
44. The Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991 and 91/1992), as in force at the material time, provided that an appeal on points of law (revizija) lay to the Supreme Court against second-instance judgments.
In cases where a first-instance judgment had been reversed by the second-instance judgment but the Supreme Court reversed the latter and upheld the former, the first-instance judgment became res judicata when the Supreme Court delivered its decision.
45. Article 28 of the Vienna Convention on the Law of Treaties of 23 May 1969 (“the Vienna Convention”) provides:
“Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.”
46. The Permanent Court of International Justice (PCIJ) has dealt with the issue of its jurisdiction ratione temporis in several cases. In the case of Phosphates in Morocco (Preliminary Objections) between Italy and France, the Italian Government maintained, inter alia, that the dispossession of certain Italian nationals resulting from the decision of the French Mines Department of 8 January 1925, and the denial of justice that had followed, were inconsistent with international obligations incumbent on France. The ratification of the declaration by which France accepted the compulsory jurisdiction of the PCIJ was filed on 25 April 1931. In its judgment of 14 June 1938 (PCIJ, Series A/B, no. 74, pp. 10-30), when examining France’s preliminary objection based on the lack of jurisdiction ratione temporis, the PCIJ held:
“The French Government bases its objection on the following passage in its declaration: ‘...in any disputes which may arise after the ratification of the present declaration with regard to situations or facts subsequent to this ratification.’ [p. 22]
...
[The Court’s compulsory jurisdiction] only exists within the limits within which it has been accepted. In this case, the terms on which the objection ratione temporis submitted by the French Government is founded, are perfectly clear: the only situations or facts falling under the compulsory jurisdiction are those which are subsequent to the ratification and with regard to which the dispute arose, that is to say, those which must be considered as being the source of the dispute. [p. 23]
...
...The situations and the facts which form the subject of the limitation ratione temporis have to be considered from the point of view both of their date in relation to the date of ratification and of their connection with the birth of the dispute. Situations or facts subsequent to the ratification could serve to found the Court’s compulsory jurisdiction only if it was with regard to them that the dispute arose. [p. 24]
...
[The] decision of the Mines Department, owing to its date, falls outside the Court’s jurisdiction. The Italian Government has sought to avert this consequence by arguing ... that the decision of 1925 constituted only an uncompleted violation of international law; that this violation only became definitive as a result of certain acts subsequent to the crucial date and of the final refusal to remedy in any way the situation created in 1925, and that these acts gave rise to the dispute between the two Governments. [p. 27]
...
The Court cannot regard the denial of justice alleged by the Italian Government as a factor giving rise to the present dispute. In its Application, the Italian Government has represented the decision of the Department of Mines as an unlawful international act ... That being so, it is in this decision that we should look for the violation of international law – a definitive act which would, by itself, directly involve international responsibility. This act being attributable to the State and described as contrary to the treaty right of another State, international responsibility would be established immediately as between the two States. In these circumstances the alleged denial of justice ... merely results in allowing the unlawful act to subsist. It exercises no influence either on the accomplishment of the act or on the responsibility ensuing from it. [p. 28]
...
... [T]he complaint of a denial of justice cannot be separated from the criticism which the Italian Government directs against the decision of the Department of Mines of January 8th, 1925, for the Court could not regard the denial of justice as established unless it had first satisfied itself as to the existence of the rights of the private citizens alleged to have been refused judicial protection. But the Court could not reach such a conclusion without calling in question the decision of the Department of Mines of 1925. It follows that an examination of the justice of this complaint could not be undertaken without extending the Court’s jurisdiction to a fact which, by reason of its date, is not subject thereto.
...
In conclusion, the Court finds that the dispute submitted to it by the Italian Government ... did not arise with regard to situations or facts subsequent to the ratification of the acceptance by France of the compulsory jurisdiction, and that in consequence it has no jurisdiction to adjudicate on this dispute. [pp. 28-29]”
47. The issue of temporal jurisdiction arose also in a number of cases before the International Court of Justice (ICJ). In Certain Property (Liechtenstein v. Germany), Preliminary Objections, Liechtenstein maintained that certain decisions by German courts delivered in the period between 1995 and 1998 declaring inadmissible the action of Prince Hans-Adam II of Liechtenstein for restitution of a painting, which had been confiscated by Czechoslovakia on 21 June 1945 under “the Beneš Decrees”, were in breach of international law. In these inadmissibility decisions the German courts relied on the Convention on the Settlement of Matters Arising out of the War and the Occupation, signed in 1952, as amended in 1954, which had come into force on 5 May 1955 (“the Settlement Convention”). In order to found the jurisdiction of the ICJ, Liechtenstein relied in its Application on Article 1 of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957, which came into force between Liechtenstein and Germany on 18 February 1980. In its judgment of 10 February 2005, when examining Germany’s preliminary objection based on the lack of jurisdiction ratione temporis, the ICJ held:
“47. The Court will now consider whether the present dispute has its source or real cause in the facts or situations which occurred in the 1990s in Germany and, particularly, in the decisions by the German courts in the Pieter van Laer Painting case, or whether its source or real cause is the Beneš Decrees under which the painting was confiscated and the Settlement Convention which the German courts invoked as ground for declaring themselves without jurisdiction to hear that case.
48. The Court observes that it is not contested that the present dispute was triggered by the decisions of the German courts in the aforementioned case. This conclusion does not, however, dispose of the question the Court is called upon to decide, for under Article 27 (a) of the European Convention for the Peaceful Settlement of Disputes, the critical issue is not the date when the dispute arose, but the date of the facts or situations in relation to which the dispute arose.
...
51. ...The Court ... finds that the decisions of the German courts in the Pieter van Laer Painting case cannot be separated from the Settlement Convention and the Beneš Decrees, and that these decisions cannot consequently be considered as the source or real cause of the dispute between Liechtenstein and Germany.
52. The Court concludes that, although these proceedings were instituted by Liechtenstein as a result of decisions by German courts regarding a painting by Pieter van Laer, these events have their source in specific measures taken by Czechoslovakia in 1945, which led to the confiscation of property owned by some Liechtenstein nationals, including Prince Franz Josef II of Liechtenstein, as well as in the special regime created by the Settlement Convention. The decisions of the German courts in the 1990s dismissing the claim filed by Prince Hans-Adam II of Liechtenstein for the return of the painting to him were taken on the basis of Article 3, Chapter Six, of the Settlement Convention. While these decisions triggered the dispute between Liechtenstein and Germany, the source or real cause of the dispute is to be found in the Settlement Convention and the Beneš Decrees. In light of the provisions of Article 27 (a) of the European Convention for the Peaceful Settlement of Disputes, Germany’s ... preliminary objection must therefore be upheld.”
48. The relevant provisions of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, as adopted by the International Law Commission on 9 August 2001 (for the text of the Draft Articles and Commentary, see Report of the International Law Commission on the Work of its Fifty-third Session, Official Records of the General Assembly, Fifty-sixth Session, Supplement no. 10 (A/56/10), chap. IV.E.1 and chap. IV.E.2, pp. 46 and 133-45) read as follows:
“An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.”
“1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue.
2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation.
3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.”
49. On 5 November 1997, when depositing the instrument of ratification of the Convention with the Secretary General of the Council of Europe, the Croatian Minister for Foreign Affairs made the following declarations (contained in the instrument of ratification):
“The Republic of Croatia recognises for an indefinite period of time, in accordance with Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of Protocol No. 4 and Article 7 of Protocol No. 7, the competence of the European Commission of Human Rights to deal with petitions addressed to the Secretary General of the Council of Europe by any person, non-governmental organisation or group of individuals claiming to be the victim of a violation of the rights set forth in the Convention and its Protocols, where the facts of the alleged violation of these rights occur after the Convention and its Protocols have come into force in respect of the Republic of Croatia.
The Republic of Croatia recognises for an indefinite period of time, in accordance with Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of Protocol No. 4 and Article 7 of Protocol No. 7, as compulsory ipso facto and without special agreement the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention and its Protocols and relating to facts occurring after the Convention and its Protocols have come into force in respect of the Republic of Croatia.”


ITEMID: 001-57895
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 1994
DOCNAME: CASE OF MURRAY v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 5-1;No violation of Art. 5-2;No violation of Art. 5-5;No violation of Art. 8;No violation of Art. 13
JUDGES: John Freeland;N. Valticos;R. Pekkanen
TEXT: 9. The six applicants are members of the same family. The first applicant, Mrs Margaret Murray, and the second applicant, Mr Thomas Murray, are husband and wife. The other four applicants are their children, namely their son Mark Murray (born in 1964), their twin daughters Alana and Michaela Murray (born in 1967) and a younger daughter Rossina Murray (born in 1970). At the relevant time in 1982 all six applicants resided together in the same house in Belfast, Northern Ireland.
10. On 22 June 1982 two of the first applicant’s brothers were convicted in the United States of America ("USA") of arms offences connected with the purchase of weapons for the Provisional Irish Republican Army ("Provisional IRA"). The Provisional IRA is included among the organisations proscribed under the special legislation enacted in the United Kingdom to deal with terrorism in Northern Ireland (see paragraph 35 below).
11. On 26 July 1982 at approximately 6.30 a.m. Corporal D., a member of the Women’s Royal Army Corps, attended an Army briefing at which she was told that the first applicant was suspected of involvement in the collection of money for the purchase of arms for the IRA in the USA, this being a criminal offence under section 21 of the Northern Ireland (Emergency Provisions) Act 1978 ("the 1978 Act") and section 10 of the Prevention of Terrorism (Temporary Provisions) Act 1976. The corporal was instructed to go to the first applicant’s house, arrest her under section 14 of the 1978 Act (see paragraphs 36-38 below) and bring her back to the Army screening centre at Springfield Road in Belfast.
12. At 7 a.m. Corporal D., who was unarmed but accompanied by five armed soldiers, arrived by Army vehicle at the applicants’ home. The first applicant herself answered the door and three of the male soldiers, together with Corporal D., entered the house. Corporal D. established the identity of the first applicant and asked her to get dressed. Corporal D. went upstairs with the first applicant. The other applicants were roused and asked to assemble in the living room. The soldiers did not carry out any search of the contents of the house, but made written notes as to the interior of the house and recorded personal details concerning the applicants. At about 7.30 a.m. in the hallway of the house Corporal D., with one of the soldiers acting as a witness, said to the first applicant, "As a member of Her Majesty’s forces, I arrest you." On being asked twice by the first applicant under what section, Corporal D. replied, "Section 14."
13. The first applicant was then driven to the Army screening centre at Springfield Road, Belfast. She was escorted into a building and asked to sit for a short time in a small cubicle. At 8.05 a.m. she was taken before Sergeant B. who asked her questions with a view to completing part 1 of a standard form to record, inter alia, details of the arrest and screening procedure and personal details. The first applicant refused to answer any questions save to give her name and she refused to be photographed. The interview ended four minutes later. She was then examined by a medical orderly who endeavoured to establish whether she suffered from certain illnesses, but she again refused to co-operate and did not answer any of his questions.
14. At 8.20 a.m. she was taken to an interview room and questioned by a soldier in civilian clothes in the presence of Corporal D. She was asked, inter alia, about her brothers and her contacts with them, but she still refused to answer questions. After the interview, which ended at 9.35 a.m., she was returned to the reception area and then taken back to the medical orderly who asked her if she had any complaints. She did not reply to this query.
At some stage during her stay in the centre she was photographed without her knowledge or consent. This photograph and the personal details about her, her family and her home were kept on record.
She was released at 9.45 a.m. without being charged.
15. The standard record form, called the "screening proforma", recorded the first applicant’s name, address, nationality, marital and tenancy status, the chronological details about her arrest, the names of the Army personnel involved, the names of the other applicants and their relationship to her, her physique and her attitude to the interview. Under the heading "Additional information ... concerning the arrestee (as reported by the arresting soldier)", it stated: "Subject is the sister of C... M... who was arrested in USA. Questioned on the above subject." Nothing however was recorded under the heading "Suspected offence". It noted that the applicant had refused to answer questions and that no information had been gained from the interview.
16. Some eighteen months later, on 9 February 1984, the first applicant brought an action against the Ministry of Defence for false imprisonment and other torts.
17. In those proceedings one of the principal allegations made by the first applicant was that her arrest and detention had been effected unlawfully and for an improper purpose. Her allegations were summarised in the judgment of Murray J. given on 25 October 1985:
"The plaintiff’s counsel launched a series of attacks on the legality of the plaintiff’s arrest and detention which varied in thrust between the very broad and the very narrow. In the former class, for example, was an attack in which they alleged that the use of section 14 of the [1978 Act] in this case was an example of what they called ‘an institutionalised form of unlawful screening’ by the military authorities, with the intention of obtaining what counsel termed ‘low level intelligence’ from the plaintiff, and without (a) any genuine suspicion on the part of those authorities that she had committed a criminal offence or (b) any genuine intention on their part of questioning her about a criminal offence alleged to have been committed by her."
18. In support of this case the first applicant’s counsel not only called and examined the applicant herself but extensively cross-examined the two witnesses called on behalf of the defendants, namely Corporal D. and Sergeant B.
19. The evidence given by the first applicant is recorded in a note drafted by the trial judge, there being no transcript of the first day of the trial as a result of a technical mishap with the recording equipment. The first applicant explained how she had found the conditions of her arrest and detention distressing for her. She had been angry but had not used strong language. She testified that whilst at the Army centre she had refused to be photographed, to be weighed by the medical orderly, to sign any documents and to answer questions, whether put by Sergeant B., the medical orderly or the interviewer, apart from giving her name. She had made it clear that she would not be answering any questions. She alleged that Sergeant B. had told her in so many words that the Army knew that she had not committed any crime but that her file had been lost and the Army wanted to update it. She said that she had been questioned about her brothers in the USA, their whereabouts and her contacts with them, but not about the purchase of arms for the Provisional IRA or about any offence. She accepted that she had been in contact with her brothers and had been to the USA, including a visit that year (1985). She believed that the Army had wanted to obtain information about her brothers. On leaving the centre, she had told the officials that she would be seeing them in court.
20. As appears from the transcript of her evidence, Corporal D. gave an account of her briefing on the morning of the arrest. She stated that at the briefing she had been told the first applicant’s name and address and the grounds on which she was wanted for questioning, namely her suspected involvement in the collection of money for the purchase of weapons from America. She testified that "my suspicions were aroused by my briefing, and my belief was that Mrs Murray was suspected of collecting money to purchase arms".
Under cross-examination Corporal D. maintained that the purpose of an arrest and detention under section 14 of the 1978 Act was not to gather intelligence but to question a suspected person about an offence. She stated that her suspicion of the first applicant had been formed on the basis of everything she had been told at the briefing and which she had read in a document which had been supplied to her then. Corporal D. stated that she would not have effected the arrest unless she had been given the grounds on which she was expected to arrest the person. Under repeated questioning, Corporal D. maintained that she had been informed at the briefing, and that she had formed the suspicion, that the applicant had been involved in the collection of money for the purchase of arms from America.
21. Corporal D. was further examined about the interrogation of the first applicant at Springfield Road. She stated that she recalled that questions had been asked of the applicant by the interviewer and that the applicant had refused to answer any questions put to her. She recalled that the interviewer had asked a few more questions when he returned to the room after leaving it but that she could not really remember what they were about. Counsel for the defence returned to the question of the interview of the applicant towards the end of his examination of Corporal D. in the following exchange:
Q. "... Now while you were, just going back for a moment to the time when what I might call the interview, that’s when the three of you were in the room, and the two occasions you’ve said she had to leave, you took her to, she wanted to go to the lavatory. Do you just have no recollection of any of the questions that were asked?"
A. "I don’t remember the questions as they were asked. There was a question regards money. A question regards America."
No cross-examination by the first applicant’s counsel was directed to this reply of the witness.
22. Sergeant B. was examined and cross-examined about his completion of part 1 of the standard record form when standing at the reception desk. He said that the first applicant had stated her name but refused to give her address or date of birth or any further information. He expressly denied the applicant’s allegation that he had said to her that he knew she was not a criminal and that he just wanted to update her files which had been lost. He gave evidence that information recorded in 1980 on the occasion of a previous arrest of the first applicant had in any event not been lost, since it had been used to complete the details on the first page of the form when she had refused to answer any questions.
Under cross-examination Sergeant B. did not accept that the main purpose of questioning a person arrested under section 14 of the 1978 Act was to gather general information about the background, family and associates of the arrested person. He maintained that persons were only arrested and detained if there existed a suspicion against them of involvement in a criminal offence.
23. The issue of the interview of the first applicant was specifically addressed in the final submission of defence counsel, in which the following exchange is partially recorded in the transcript:
"MR. CAMPBELL: My Lord ... your Lordship has the grounds upon which the arresting officer carries out (inaudible) she then gives evidence and is present throughout the interview ... now I talk about the interview on the very last stage.
JUDGE: At the table?
MR. CAMPBELL: At the table, and said that in the course of that interview money and arms that these matters were raised, I can’t ... hesitate to use the (inaudible) now that is one point. The other point is this, that this was a lady who on her own admission was not going to answer any questions. She agreed during cross-examination that that was the attitude and so one finds that an interview takes place with somebody who is not prepared to answer any questions but at least the questions are raised with her concerning the matter on which she was arrested.
JUDGE: Is the substance of that then that because of her fairly firm refusal you would say to answer any questions there was never any probing examination of her collecting money for example?
MR. CAMPBELL: No my Lord because she ... as she said she wasn’t going to answer any questions."
24. In his judgment of 25 October 1985 Murray J. gave detailed consideration to the evidence of Corporal D. and Sergeant B. on the one hand and the first applicant on the other. Murray J. "could not possibly accept the [first applicant’s] evidence" that she had been told by Sergeant B. that she was not suspected of any offence and that he was just updating his records. He similarly rejected the applicant’s claim that Corporal D. at no time genuinely suspected her of having committed an offence. In the light of the evidence of Corporal D. herself, who was described as a "transparently honest witness", the judge was
"quite satisfied that on the basis of her briefing at Musgrave Park she genuinely suspected the [first applicant] of having been involved in the offence of collecting money in Northern Ireland for arms".
25. Murray J. also rejected the first applicant’s claim that section 14 of the 1978 Act had been used with a view to screening in order to gain low-level intelligence: he accepted the evidence of Corporal D. and Sergeant B., which had been tested in cross-examination, that the purpose of the applicant’s arrest and detention under the section had been to establish facts concerning the offence of which she was suspected.
Murray J. also believed the evidence of Corporal D. that there were questions addressed to the matters of which the applicant was suspected. He stated:
"As regards the interviewer, the plaintiff accepted that he was interested in the activities of her brothers who shortly before the date of the interview had been convicted on arms charges in the USA connected with the Provisional IRA but the [first applicant], who seems to have been well aware of her rights, obviously had decided not to co-operate with the military staff in the centre. In particular she had decided (it seems) not to answer any of their questions and in this situation, and with the short detention period permitted by the section, there was little that the interviewer or any of the other staff in the centre could do to pursue their suspicions."
26. Murray J. likewise rejected the first applicant’s argument that the photographing of her gave rise to a cause of action. His understanding of the law was that merely taking the photograph of a person, even against their will, without physically interfering with or defaming the person was not tortious.
27. The first applicant’s action before the High Court was therefore dismissed.
28. The first applicant thereupon appealed to the Court of Appeal. She again challenged the legality of her arrest on the grounds, inter alia
"(1) that the arresting officer did not have, or was not sufficiently proved to have, the requisite suspicion; (2) that she did not have sufficiently detailed knowledge or understanding of what was alleged against the plaintiff to warrant the conclusion that it was an offence which would justify arrest".
In its judgment of 20 February 1987 the Court of Appeal unanimously rejected both these grounds. In delivering judgment, Gibson LJ noted:
"[The trial judge had] found, and his finding was amply justified by the evidence, that [Corporal D.] genuinely suspected the plaintiff of having been involved in the offence of collecting money in Northern Ireland for arms to be purchased in America for use by a proscribed organisation."
In particular, as to the second ground Gibson LJ observed:
"Suspicion is something less than proof, and may exist without evidence, though it must be supported by some reason."
29. The Court of Appeal further unanimously rejected the first applicant’s complaint that the purpose of her arrest and detention, and the whole purport of her questioning, was a fishing expedition unrelated to the matters of which she was suspected and designed to obtain low-grade intelligence about the applicant and others. In rejecting this complaint, the Court of Appeal took account of the evidence which had been adduced on both sides:
"Corporal D. who was present during the interview had very little recollection of the course of the questions. The only other witness as to the conduct of this interview was the [first applicant]. Her account also is sketchy, though in somewhat more detail. What is clear from both witnesses is that the [first applicant] was deliberately unhelpful and refused to answer most of the questions. What is certain is that she was asked about her brothers ... who in the previous month had been convicted of offences connected with the purchase of firearms in the USA for use by the IRA [and for which offences they had been sentenced to terms of two and three years’ imprisonment]. It is clear that it was for such a purchase that the [first applicant] was suspected of having collected money, as she stated the interviewer asked her whether she was in contact with them. There is no doubt, therefore, that the interviewer did attempt to pursue the subject of the suspicion which had been the occasion for her arrest but was unable to make any headway."
30. The first applicant’s appeal to the Court of Appeal also concerned certain related matters such as the legality of the search of the applicants’ house, in respect of which the Court of Appeal found that there was a sufficient basis in section 14(3) of the 1978 Act (see paragraphs 36 and 38(d) below). The Court of Appeal held that the implied authority granted to the Army under section 14 included a power to interrogate a detained person and, as a practical necessity, a power to record personal particulars and details concerning the arrest and detention. It further found that the standard record form known as the "screening proforma" contained no information which might not have been relevant to the resolution of the suspicion.
As regards the applicant’s complaint that she had been photographed without her knowledge, the Court of Appeal stated as follows:
"The act of taking the photograph involved nothing in the nature of a physical assault. Whether such an act would constitute an invasion of privacy so as to be actionable in the United States is irrelevant, because the [first applicant] can only recover damages if it amounts to a tort falling within one of the recognised branches of the law on the topic. According to the common law there is no remedy if someone takes a photograph of another against his will. Reliance was placed on section 11(4) of the [1978] Act by counsel for the [first applicant] ... This provision gives power to the police to order [in addition to the taking of a photograph] the taking of finger prints without the necessity of charging the person concerned and applying for an order of the magistrate under article 61 of the Magistrates Courts (Northern Ireland) Order 1981, which contains no comparable provision as to the taking of photographs. The taking of finger prints otherwise than by consent must involve an assault and I am satisfied that section 11(4) was enacted not to legalise the taking of photographs without consent, but to legalise the taking of photographs or finger prints in circumstances where there would otherwise have been an illegal assault. It does not involve the implication that the taking of a photograph without violence and without consent is actionable."
31. The first applicant was granted leave by the Court of Appeal to appeal to the House of Lords. This appeal was rejected on 25 May 1988 (Murray v. Ministry of Defence, [1988] Weekly Law Reports 692).
32. In the House of Lords the applicant did not pursue the allegation that she had not been arrested on the basis of a genuine and honest suspicion that she had committed an offence.
She did however pursue the complaint, previously raised before the Court of Appeal, that since she was only lawfully arrested at 7.30 a.m. she had been unlawfully detained between 7.00 and 7.30 a.m. The House of Lords found that a person is arrested from the moment he is subject to restraint and that the first applicant was therefore under arrest from the moment that Corporal D. identified her on entering the house at 7 a.m.. It made no difference that the formal words of arrest were communicated to the applicant at 7.30 a.m. In this respect Lord Griffiths stated (at pp. 698H-699A):
"If the plaintiff had been told she was under arrest the moment she identified herself, it would not have made the slightest difference to the sequence of events before she left the house. It would have been wholly unreasonable to take her off, half-clad, to the Army centre, and the same half-hour would have elapsed while she gathered herself together and completed her toilet and dressing. It would seem a strange result that in these circumstances, whether or not she has an action for false imprisonment should depend upon whether the words of arrest are spoken on entering or leaving the house, when the practical effect of the difference on the plaintiff is non-existent."
33. The first applicant had also maintained that the failure to inform her that she was arrested until the soldiers were about to leave the house rendered the arrest unlawful. This submission was also rejected by the House of Lords. Lord Griffiths held as follows (at pp. 699H-701A):
"It is a feature of the very limited power of arrest contained in section 14 that a member of the armed forces does not have to tell the arrested person the offence of which he is suspected, for it is specifically provided by section 14(2) that it is sufficient if he states that he is effecting the arrest as a member of Her Majesty’s forces.
Corporal D. was carrying out this arrest in accordance with the procedures in which she had been instructed to make a house arrest pursuant to section 14. This procedure appears to me to be designed to make the arrest with the least risk of injury to those involved including both the soldiers and the occupants of the house. When arrests are made on suspicion of involvement with the IRA it would be to close one’s eyes to the obvious not to appreciate the risk that the arrest may be forcibly resisted.
The drill the Army follow is to enter the house and search every room for occupants. The occupants are all directed to assemble in one room, and when the person the soldiers have come to arrest has been identified and is ready to leave, the formal words of arrest are spoken just before they leave the house. The Army do not carry out a search for property in the house and, in my view, they would not be justified in doing so. The power of search is given ‘for the purpose of arresting a person’, not for a search for incriminating evidence. It is however a proper exercise of the power of search for the purpose of effecting the arrest to search every room for other occupants of the house in case there may be those there who are disposed to resist the arrest. The search cannot be limited solely to looking for the person to be arrested and must also embrace a search whose object is to secure that the arrest should be peaceable. I also regard it as an entirely reasonable precaution that all the occupants of the house should be asked to assemble in one room. As Corporal D. explained in evidence, this procedure is followed because the soldiers may be distracted by other occupants in the house rushing from one room to another, perhaps in a state of alarm, perhaps for the purpose of raising the alarm and to resist the arrest. In such circumstances a tragic shooting accident might all too easily happen with young, and often relatively inexperienced, armed soldiers operating under conditions of extreme tension. Your Lordships were told that the husband and children either had commenced, or were contemplating commencing, actions for false imprisonment arising out of the fact that they were asked to assemble in the living-room for a short period before the plaintiff was taken from the house. That very short period of restraint when they were asked to assemble in the living room was a proper and necessary part of the procedure for effecting the peaceable arrest of the plaintiff. It was a temporary restraint of very short duration imposed not only for the benefit of those effecting the arrest, but also for the protection of the occupants of the house and would be wholly insufficient to found an action for unlawful imprisonment.
It was in my opinion entirely reasonable to delay speaking the words of arrest until the party was about to leave the house. If words of arrest are spoken as soon as the house is entered before any precautions have been taken to search the house and find the other occupants, it seems to me that there is a real risk that the alarm may be raised and an attempt made to resist arrest, not only by those within the house but also by summoning assistance from those in the immediate neighbourhood. When soldiers are employed on the difficult and potentially dangerous task of carrying out a house arrest of a person suspected of an offence in connection with the IRA, it is I think essential that they should have been trained in the drill they are to follow. It would be impracticable and I think potentially dangerous to leave it to the individual discretion of the particular soldier making the arrest to devise his own procedures for carrying out this unfamiliar military function. It is in everyone’s best interest that the arrest is peaceably effected and I am satisfied that the procedures adopted by the Army are sensible, reasonable and designed to bring about the arrest with the minimum of danger and distress to all concerned. I would however add this rider: that if the suspect, for any reason, refuses to accept the fact of restraint in the house he should be informed forthwith that he is under arrest."
34. Before the House of Lords the first applicant also pursued a claim that her period of detention exceeded what was reasonably required to make a decision whether to release her or hand her over to the police. In this regard the applicant complained that the standard record form (the "screening proforma") constituted an improper basis for questioning a suspect on the ground that it asked questions not directly relevant to the suspected offence; it was also suggested that the evidence did not show that the questioning of the applicant was directed to the matters of which she was suspected. The allegation was unanimously rejected by the House of Lords. Lord Griffiths observed as follows (at pp. 703F-704C):
"The member of the forces who carried out the interrogation between 8.20 and 9.35 a.m. was not called as a witness on behalf of the Ministry of Defence. There may have been sound reasons for this decision associated with preserving the confidentiality of interrogating techniques and the identity of the interviewer, but be that as it may, the only evidence of what took place at the interview came from Corporal D. and the [first applicant] and it is submitted that this evidence is insufficient to establish that the interview was directed towards an attempt to investigate the suspicion upon which the [applicant] was arrested. Corporal D. was present at that interview, she was not paying close attention but she gave evidence that she remembered questions about money which were obviously directed towards the offences of which the [applicant] was suspected. The [applicant] also said she was questioned about her brothers.
The judge also had before him a questionnaire that was completed by the interviewer. ... There is nothing in the questionnaire which the Army may not reasonably ask the suspect together with such particular questions as are appropriate to the particular case ..."
The conclusion of the trial judge that the applicant had not been asked unnecessary or unreasonable questions and the conclusion of the Court of Appeal that the interviewer had attempted to pursue with the applicant the suspicion which had been the occasion of the arrest, but had been unable to make any headway, were held by the House of Lords to be justified on the evidence.
35. For more than twenty years the population of Northern Ireland, which totals about one and a half million people, has been subjected to a campaign of terrorism. During that time thousands of persons in Northern Ireland have been killed, maimed or injured. The campaign of terror has extended to the rest of the United Kingdom and to the mainland of Europe.
The 1978 Act forms part of the special legislation enacted over the years in an attempt to enable the security forces to deal effectively with the threat of terrorist violence.
36. The first applicant was arrested under section 14 of the 1978 Act, which at the relevant time provided as follows:
"(1) A member of Her Majesty’s forces on duty may arrest without warrant, and detain for not more than four hours, a person whom he suspects of committing, having committed or being about to commit any offence.
(2) A person effecting an arrest under this section complies with any rule of law requiring him to state the ground of arrest if he states that he is effecting the arrest as a member of Her Majesty’s forces.
(3) For the purpose of arresting a person under this section a member of Her Majesty’s forces may enter and search any premises or other place -
(a) where that person is, or
(b) if that person is suspected of being a terrorist or of having committed an offence involving the use or possession of an explosive, explosive substance or firearm, where that person is suspected of being."
A similar provision had been in force since 1973 and had been considered necessary to deal with terrorist activities in two independent reviews (Report of the Diplock Commission 1972 which recommended such a power and a Committee chaired by Lord Gardiner 1974/1975).
37. In 1983 Sir George Baker, a retired senior member of the judiciary, was invited by the Government to review the operation of the 1978 Act in order to determine whether its provisions struck the right balance between the need, on the one hand, to maintain as fully as possible the liberties of the individual and, on the other, to provide the security forces and the courts with adequate powers to enable them to protect the public from current and foreseeable incidence of terrorist crime. In the resultant report specific consideration was given to, inter alia, including a requirement in section 14 of the 1978 Act that an arrest should be based upon reasonable suspicion. While expressly recognising the risk that the facts raising the suspicion might come from a confidential source which could not be disclosed in court in a civil action for wrongful arrest, Sir George Baker concluded that the inclusion of a requirement of reasonableness would not in fact make any difference to the actions of the military and recommended an amendment to the 1978 Act accordingly. That recommendation was implemented in June 1987.
38. The scope and exercise of the section 14 powers were considered by the domestic courts in the proceedings in the present case. The applicable law, as stated by the judgments in these proceedings, is that when the legality of an arrest or detention under section 14 is challenged (whether by way of habeas corpus or in proceedings for damages for wrongful arrest or false imprisonment), the burden lies on the military to justify their acts and, in particular, to establish the following elements:
(a) compliance with the formal requirements for arrest;
(b) the genuineness of the suspicion on which the arrest was based;
(c) that the powers of arrest and detention were not used for any improper purpose such as intelligence-gathering;
(d) that the power of search was used only to facilitate the arrest and not for the obtaining of incriminating evidence;
(e) that those responsible for the arrest and detention did not exceed the time reasonably required to reach a decision whether to release the detainee or hand him over to the police.
39. Section 11 of the 1978 Act, which concerns police arrest, provides in paragraph 4:
"Where a person is arrested under this section, an officer of the Royal Ulster Constabulary not below the rank of chief inspector may order him to be photographed and to have his finger and palm prints taken by a constable, and a constable may use such reasonable force as may be necessary for that purpose."
40. In the general law of Northern Ireland, as in English law, it is lawful to take a photograph of a person without his or her consent, provided no force is used and the photograph is not exploited in such a way as to defame the person concerned (see paragraphs 26 and 30 in fine above).
The common-law rule entitling the Army to take a photograph equally provides the legal basis for its retention.
41. As was confirmed in particular by the Court of Appeal and the House of Lords in the present case, the standard record form (known as the "screening proforma") was an integral part of the examination of the first applicant following her arrest, and the legal authority for recording certain personal details about her in the form derived from the lawfulness of her arrest, detention and examination under section 14 of the 1978 Act (see paragraph 30, first sub-paragraph in fine, and paragraph 34 above). The implied lawful authority conferred by section 14 of the 1978 Act to record information about the first applicant equally provided the legal basis for the retention of the information.
NON_VIOLATED_ARTICLES: 13
5
8
NON_VIOLATED_PARAGRAPHS: 5-1
5-2
5-5


ITEMID: 001-80398
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KOSTI AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;No violation of Art. 6-1
TEXT: 4. The applicants were born in 1981, 1983 and 1981 respectively and live in Şanlıurfa.
5. The applicants were arrested and taken into custody on 19 and 20 February 1999 respectively on suspicion of their involvement in the throwing of Molotov cocktails at various public buildings. On 23 February 1999 the Suruç Magistrates' Court ordered their remand in custody. The applicants were aged sixteen (Mehmet Koşti) and eighteen (the other applicants) at the time of the events.
6. On 23 March 1999 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicants and four other persons, accusing them of throwing Molotov cocktails at the Suruç primary school and the Suruç public garage on 18 February 1999 and of attempting to throw Molotov cocktail at the Suruç Atatürk primary school with a view to supporting the activities of an illegal organisation, namely the PKK (the Kurdistan Workers' Party). The charges were brought under Article 168 § 2 of the Turkish Criminal Code.
7. On 7 April 1999 the criminal proceedings against the applicants and four other accused commenced before the Diyarbakır State Security Court.
8. On 12 May 1999 the court heard the applicants who refuted the allegations against them and their earlier submissions given before the police, public prosecutor and the Magistrates' Court. They also challenged the accuracy of the arrest protocol and the report on the reconstruction of the events. The court decided to secure the testimony of those who had attended the arrest and the reconstruction of events and the submissions of the accused who were not detained. It further ordered that the birth date of Hışman Öngör and another accused be determined since they had claimed that they were actually born in 1986.
9. Between 12 May 1999 and 22 December 2000, the Diyarbakır Security Court held fifteen hearings where it took various procedural decisions and postponed the trial as the procedure concerning the determination of the age of two accused had not been completed.
10. At the hearings held on 22 December 2000 and 20 February 2001 respectively, the court requested the prosecution and the defendants to submit their observations on the merits of the case. On 10 April 2001 the applicants' lawyer requested an extension for the submission of the applicants' observations. This request was accepted by the court.
11. Throughout the proceedings the applicants' lawyer repeatedly requested that the applicants be released pending trial. He maintained, inter alia, that they were juveniles and that their acts could not be considered to constitute an offence under Article 168 § 2 of the Criminal Court. The first instance court dismissed the applicants' requests until 29 May 2001, having regard to the nature of the offence with which they were charged and the state of the evidence.
12. On 29 May 2001 the court decided to defer sentencing the applicants and their co-accused, pursuant to Law no. 4616. It therefore ordered the release of the applicants from detention.
13. The public prosecutor appealed.
14. On 20 September 2001 the Court of Cassation upheld the decision of the first instance court.
15. The relevant domestic law and practice in force at the material time are outlined in the Çobanoğlu and Budak judgment v. Turkey, (no. 45977/99, §§ 2930, 30 January 2007).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1