ITEMID: 001-108604
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF LAHTONEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1970 and lives in Helsinki.
6. The applicant is a journalist and the editor-in-chief of a monthly magazine called Alibi, which specialises in crime reporting and has a circulation of approximately 32,000. The publisher of Alibi is Yhtyneet Kuvalehdet Oy.
7. On 29 July 2003 J., a police officer, stopped a person unknown to him on the road and used his police identity card to take possession of the person’s car for emergency reasons, as he put it. He then drove off at high speed. After the car appeared to break down, J. tried to acquire another vehicle in the same manner. The persons in the second car turned out to be two police officers in civilian clothing, who were monitoring the traffic. After having threatened the police officers with violence, J. continued towards his destination. His speed alternated between 160 and 185 km/h in a zone where the limit was set at 80 and 100 km/h. At his destination, J. was apprehended by the police and charged with stealing the vehicle and various other offences.
8. Soon after his arrest, J. gave an exclusive interview, for a fee, to a weekly magazine called 7-Päivää. His real name was not revealed in the interview but his picture (face in profile) was used and the article mentioned that he was, at the time, undergoing involuntary treatment in a mental hospital. J. had also offered an interview to Alibi (and the applicant) against payment but the offer was refused by the applicant.
9. On 3 February 2004, in the hearing before the District Court (käräjäoikeus, tingsrätten), J. pleaded guilty to most of the charges. The court ordered J., in accordance with his own request, to undergo psychiatric examination to establish whether he was, at the time, criminally responsible for his actions.
10. In the March 2004 edition of Alibi an article was published about J. and his case. The article was written by the applicant. The information in the article was based on the public court documents acquired by the applicant from the District Court after the hearing on 3 February 2004. The article included J.’s name, year of birth, some background information about him and his current place of work, details of the incident of 29 July 2003 and information that J. had wished to undergo a psychiatric evaluation before the court’s decision was made and that he had been ordered to do so by the court.
11. On 26 May 2004 the Mustasaari District Court found J. guilty of all charges but, because he had been found not to have been criminally responsible for his actions, the court waived the sentence.
12. On 15 April 2004 J. lodged a complaint with the Finnish Council for Mass Media (Julkisen sanan neuvosto, Opinionsnämnden för massmedier) about the subject-matter of the case. On 18 August 2004 the Council found that the applicant had violated good journalistic practice by publishing J.’s name and information about his psychological examination. The Council gave the applicant a warning.
13. On 19 September 2004 J. requested the police to investigate whether the applicant had committed an offence of “dissemination of information violating private life” (yksityiselämää loukkaavan tiedon levittäminen, spridande av information som kränker privatlivet) on account of his article. J. also requested the applicant to pay, in addition to his legal fees, 15,000 euros (EUR) in damages for mental suffering caused by the article in question.
14. On 31 December 2004 the public prosecutor decided not to prosecute as he did not find proof or probable cause to support the indictment. He found that a psychiatric assessment and the decision to order a person to undergo such an assessment were integral parts of crime reporting. No further comments about J.’s health had been made in the article. Moreover, when balancing the freedom of expression against the protection of privacy, he agreed that the latter required non-disclosure of J.’s name. However, the reasons for disclosing J.’s name, namely the fact that J. was a police officer, the gravity of the charges against him and the need to clear other local police officers, weighed heavier. No crime had thus taken place.
15. On 23 March 2005 J. lodged a complaint with the Prosecutor General (valtakunnansyyttäjä, riksåklagaren) who on 20 July 2006 ordered charges to be brought against the applicant.
16. On 15 June 2007 the District Court convicted the applicant of dissemination of information violating private life and sentenced him to pay 30 day-fines, a total of EUR 1,170, adjusted to his taxable income. In addition, the applicant was ordered to pay J.’s legal fees in the amount of EUR 5,896.21 plus interest. J.’s claim for non-pecuniary damages was dismissed without examining the merits as he had not directed his compensation claim against the publisher of Alibi, Yhtyneet Kuvalehdet Oy, who bore the primary responsibility according to the law. The court noted that J. was an experienced police officer whose duties involved the exercise of public power but that he was not of high rank. The crimes had not been committed in office but had taken place during J.’s free time. The judgments convicting J. as well as the information about his lack of criminal liability and wish to undergo psychiatric evaluation were public. However, all public information was not necessarily publishable. The crimes committed by J. had been ordinary and not very serious. On the other hand, the local interest in the case had been so exceptional that it had been reasonable to write about acts committed by J. and about his state of mind. The applicant had been aware of the fact that J. had been mentally ill at the time of the publication. The publication of J.’s name did not strengthen the applicant’s journalistic message nor was it well-founded in any other way. J.’s name had not been disclosed in any other publication. The fact that J. had given an interview to the press did not change the outcome of the applicant’s case as J. had not been able to evaluate the repercussions of his actions due to his mental illness.
17. Following the applicant’s conviction, various media published a story about it, mentioning his name and profession. Some of them also included the applicant’s picture. He did not consent to the media reports.
18. By letter dated 12 July 2007 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten), claiming, inter alia, that the publication of public information could not fall within the scope of Chapter 24, section 8, of the Penal Code and that, in any event, the intention was lacking.
19. On 10 July 2008 the Court of Appeal upheld the lower court’s decision. The legal fees to be paid by the applicant were lowered to EUR 4,000 plus interest. The request for non-pecuniary damages was rejected as premature because the compensation claim had not been directed against Yhtyneet Kuvalehdet Oy. The court found, in addition to the District Court’s reasoning, that a crime was not the perpetrator’s private matter. However, J.’s trial had still been pending when the impugned article was published. Due to his mental illness, he had not been able to understand that his acts or trial would attract more publicity than usual. The applicant’s act was intentional as he must have known that it was probable that the publication of the information would be conducive to suffering or damage to J.
20. By letter dated 8 September 2008 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Court of Appeal.
21. On 4 December 2008 the Supreme Court refused the applicant leave to appeal. J. was granted leave to appeal with regard to the question of nonpecuniary damages.
22. On 6 May 2009 the Supreme Court referred the issue of nonpecuniary damages back to the Helsinki District Court for examination as Yhtyneet Kuvalehdet Oy had not been summoned as a defendant in the case or been reserved an opportunity to be heard in the matter.
23. On 23 March 2010 the Helsinki District Court found the applicant liable for damages. It ordered the applicant to pay J., jointly with Yhtyneet Kuvalehdet Oy, EUR 10,000 plus interest as well as EUR 3,200 for costs and expenses. Moreover, the applicant alone was ordered to pay J. costs and expenses in the amount of EUR 5,728.86. The court found that the publication of J.’s name had caused him and his family mental suffering, especially as his delusions had been mentioned in the article. The article had affected J.’s reputation permanently and it had made it difficult for J. to continue to live a normal life. J. had given an interview to another magazine in which his identity had not been disclosed. Therefore, the fact that he had given the interview did not make his suffering any less. At the time of the interview J. had been mentally ill and was not able to assess the consequences of the interview. J.’s name had been published by the applicant seven months after J. had committed the crimes and during the District Court proceedings.
24. By letter dated 21 April 2010 the applicant and Yhtyneet Kuvalehdet Oy appealed against the District Court decision to the Helsinki Court of Appeal, requesting that the claim for damages be rejected or at least reduced. They contended that the non-pecuniary damage suffered by J. was not due to the applicant’s article but the result of the crimes he had committed.
25. On 5 November 2010 the Helsinki Court of Appeal partly accepted the applicant’s appeal and ordered him to pay J., jointly with Yhtyneet Kuvalehdet Oy, EUR 5,000 plus interest as well as EUR 2,140 for costs and expenses. Moreover, the applicant alone was ordered to pay J. costs and expenses in the amount of EUR 4,200. The court found that information about a person’s mental health was sensitive information the publication of which, together with J.’s name, was conducive to causing J. suffering. The applicant’s conviction and order to pay non-pecuniary damages to J. did not represent an unreasonable sanction, even bearing in mind that the case concerned an exception to the freedom of expression. The fact that J. had given an interview to a magazine prior to the publication of the impugned article had caused him suffering already. The applicant could be held responsible only for the additional suffering caused to J. thereafter by the impugned article.
26. On an unspecified date all parties to the proceedings appealed to the Supreme Court.
27. On 21 June 2011 the Supreme Court refused leave to appeal.
28. Article 8 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides that no one shall be found guilty of a criminal offence or be sentenced to a punishment on the basis of a deed, which has not been determined punishable by an Act at the time of its commission. The penalty imposed for an offence shall not be more severe than that provided by an Act at the time of commission of the offence.
29. Article 10 of the Constitution guarantees everyone’s right to private life. According to it,
“Everyone’s private life, honour and the sanctity of the home are guaranteed. More detailed provisions on the protection of personal data are laid down by an Act.
The secrecy of correspondence, telephony and other confidential communications is inviolable.
Measures encroaching on the sanctity of the home, and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, may be laid down by an Act. In addition, provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home, at trials and security checks, as well as during the deprivation of liberty may be laid down by an Act.”
30. Article 12 of the Constitution concerns the freedom of expression and provides the following:
“Everyone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act.
Documents and recordings in the possession of the authorities are public, unless their publication has for compelling reasons been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.”
31. Chapter 24, section 8, of the Penal Code (rikoslaki, strafflagen; Act no. 531/2000) reads as follows:
“Dissemination of information violating private life: A person who unlawfully (1) through the use of the mass media, or (2) in another manner publicly spreads information, an insinuation or an image of the private life of another person, such that the act is likely to cause that person damage or suffering, or subject that person to contempt, shall be convicted of injuring personal reputation and sentenced to a fine or a maximum term of two years’ imprisonment.
The spreading of information, an insinuation or an image of the private life of a person in politics, business, public office or a public position, or in a comparable position, shall not constitute injury to personal reputation, if it could affect the evaluation of that person’s activities in the position in question and if it is necessary for the purposes of dealing with a matter of importance to society.”
32. According to the travaux préparatoires (see government bill HE 184/1999), the content of this provision corresponds to the former Chapter 27, section 3(a), of the Penal Code. The amendments and clarifications made to the existing provision were mainly technical. The provision thus still restricts the protection of the private life of persons exercising important political or economic powers. Functions in respect of which the protection of private life is narrower in scope under paragraph 2 include political functions, business functions and public functions or duties. The matter must have social significance. This restriction, however, applies only to the persons referred to, not to their close friends and family. According to the Parliamentary Law Committee’s Report (lakivaliokunnan mietintö, lagutskottets betänkande LaVM 6/2000), the purpose of that provision is to permit the dissemination of information on the private life of such persons if the information may be relevant in assessing the performance of their functions.
33. The government bill HE 184/1999 further provides that in the assessment of interferences with private life, the lawfulness of the interference and the concept of private life are taken into account. The publicity of a document does not automatically give the right to present in the mass media information concerning one’s private life included in the document. A person’s consent to the provision of information has relevance in the assessment of the lawfulness of the interference. Without explicit consent, there is usually no reason to believe that the person in question would have consented to the publication of information relating to private life (see Parliamentary Law Committee’s Report LaVM 6/2000). Moreover, private life is, in particular, protected against dissemination of information which may be correct as such. In order for the act to be punishable, it is necessary that the information concerns the private life of the person in question (see government bill HE 184/1999). With regard to the concept of private life, a reference is made to the explanatory works concerning the Constitutional provisions on fundamental rights and to the government bill HE 84/1974.
34. In the travaux préparatoires concerning the former Chapter 27, section 3(a), of the Penal Code (see government bill HE 84/1974), there was no precise definition of private life but matters such as, inter alia, family life, spare time activities, health and relationships and such conduct in socially significant positions that had no significance to the relevant exercise of power, were considered as a part of private life. It was further required that the act might have caused damage or suffering. Such damage might have also been “immaterial damage, which might have manifested itself in problems with social interaction or respect”. An ordinary person enjoyed the strongest protection of private life. His or her involvement in an incident of importance to society might have warranted an exception to the protection. In any case, if an offence was of such a kind that it could not be regarded as having social significance, it was a matter to be protected as belonging to the sphere of private life, otherwise the protection of private life did not restrict publishing. Moreover, the publishing could not be to a greater extent than was necessary. Thus, the necessity of mentioning a person’s name or other description of a person enabling identification was always subject to careful consideration.
35. The Act on the Openness of Government Activities (laki viranomaisten toiminnan julkisuudesta, lagen om offentlighet i myndigheternas verksamhet; Act no. 621/1999) contains provisions on the right of access to official documents in the public domain, officials’ duty of non-disclosure, document secrecy and any other restrictions of access that are necessary for the protection of public or private interests, as well as on the duties of the authorities to achieve the objectives of the Act. However, there are specific provisions that apply to court hearings.
36. According to section 22 of the Act on the Publicity of Court Proceedings in General Courts (laki oikeudenkäynnin julkisuudesta yleisissä tuomioistuimissa, lagen om offentlighet vid rättegång i allmänna domstolar; Act no. 370/2007), the court decisions are public unless the court orders that they be kept secret. The parties and the public have the right to be present when the decisions are pronounced.
37. According to the preparatory works of the Act (see government bill HE 13/2006),
“... the case files are to a large extent public and the publicity does not limit itself to publicity of oral hearings. On the other hand, in Finland the publicity of the case files does not automatically mean that all public documentation could as such, for example, without invading privacy, be published in the media. This right of the media to publish is limited not only by its self-regulation but also for example by the provisions of the Penal Code concerning the protection of privacy. It can, thus, be said that publicity is wider and the control of the protection of privacy is done mostly retrospectively. It is for the media themselves to consider which of the public documentation they shall publish.”
38. Section 39 of the Freedom of the Press Act (painovapauslaki, tryckfrihetslagen; Act no. 1/1919), as in force at the relevant time, provided that the provisions of the Tort Liability Act applied to the payment of compensation for damage caused by the content of printed material.
39. Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974, as amended by Act no. 509/2004), stipulates that damages may also be awarded for distress arising, inter alia, from an offence against liberty, honour, home or private life. Under Chapter 5, section 1, of the said Act, damages shall constitute compensation for personal injury and damage to property. Section 2 provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury, as well as loss of income and maintenance and pain and suffering.
40. According to the government bill to amend the Tort Liability Act (HE 116/1998), the maximum amount of compensation for pain and suffering from, inter alia, bodily injuries had in the recent past been approximately FIM 100,000 (EUR 16,819). In the subsequent government bill to amend the Tort Liability Act (HE 167/2003, p. 60), it is stated that no changes to the prevailing level of compensation for suffering are proposed. In the recommendation of the Personal Injury Advisory Board (Henkilövahinkoasiain neuvottelukunta, Delegationen för personskade-ärenden) in 2008, compensation awards for distress in defamation cases can go up to EUR 10,000 and in cases concerning dissemination of information violating personal privacy up to EUR 5,000. On the other hand, the maximum award for, for example, attempted manslaughter, murder or killing varies between EUR 3,000 and EUR 5,000.
41. The Union of Journalists in Finland (Suomen Journalistiliitto, Finlands Journalistförbund ry) publishes Guidelines for Journalists (Journalistin ohjeet, Journalistreglerna) for the purposes of self-regulation. The 1992 Guidelines were in force at the material time and provided, inter alia, that matters falling in the sphere of private life, being detrimental to the relevant party or his or her near relative, should not be published unless the matters were of general significance (Article 24). The principles concerning the protection of an individual also apply to the use of information contained in public documents or other public sources. Information being public does not always mean that it is freely publishable (Article 29).
42. New Guidelines came into force in 2005, which noted that when publishing public material regard must be had to the protection of private life. Highly delicate information relating to one’s personal life may only be published with the consent of the person in question, or if such matters are of considerable public interest (Article 27).
43. Also the Council for Mass Media (Julkisen sanan neuvosto, Opinionsnämnden för massmedier), which is a self-regulating body established in 1968 by publishers and journalists in the field of mass communication and whose task it is to interpret good professional practice and defend the freedom of speech and publication, has issued a number of resolutions and statements, inter alia, in 1980 and 1981. The former concerned the content of private life and the latter disclosure of names in crime news coverage.
44. In its statement of 1980, the Council for Mass Media stated, inter alia, that the protection of private life applies, in principle, to all citizens. The greater and more profound social implications a matter has, the more important it is to be able to publish information thereon. The Council divided persons into three groups as to the level of protection of identity: (1) persons exercising political, economic or administrative power; (2) other public persons, for example in the sectors of entertainment, sports, arts or science; and (3) ordinary citizens. The Council noted that the protection of identity is narrowest for group 1 and most extensive for group 3. However, this scale was not to be used formally but the extent of protection should be interpreted on a case by case basis. A person’s position had a great significance in determining the protection of private life but that alone could not be considered as a decisive factor. The significance of a matter also had an important impact. The conduct of a well-known person appearing in public in connection with his or her professional tasks or public role does not as such belong to such person’s protected sphere of private life. On the contrary, information concerning lifestyle does normally belong to such person’s sphere of private life even though his or her sphere of protection is narrower than that of an ordinary citizen. In some cases information concerning a person’s lifestyle can be closely connected to his or her professional tasks in a way that its publication is justified. It is required, however, that the matter in question does have considerable general significance. Also, the publishing should not extend further than is necessary for the consideration of the matter. Finally, it is in accordance with good journalistic practice to see to it that the publishing does not cause undue suffering for the person in question or for his or her relatives.
45. On 10 July 2003 the Committee of Ministers of the Council of Europe adopted Recommendation No. Rec(2003)13 on the provision of information through the media in relation to criminal proceedings. In points 1, 2 and 8 of the principles appended to the recommendation, it stated as follows:
“The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles.
Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused.
The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-102209
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: M.v. v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Ms M.V., is a Slovak national of Romani ethnic origin. She was born in 1975 and lives in Ruskov. She was represented before the Court by Ms V. Durbáková and Ms B. Bukovská, attorneys, who act in cooperation with Poradňa pre občianske a ľudské práva, a nongovernmental organisation with its registered office in Košice.
On 25 March 1999, during the delivery of her second child, the applicant was sterilised by means of tubal ligation at the University Hospital of L. Pasteur in Košice, a public hospital under the administration of the Ministry of Health.
Prior to her sterilisation the applicant had not given her informed consent to the intervention and it had not been approved by a sterilisation commission.
As a result of the intervention the applicant has suffered serious medical and psychological consequences, including medical side effects and problems with her husband.
On 9 May 2005 the applicant lodged an action for protection of her personal rights with the Košice II District Court. Her claim was rejected on 9 April 2008. On 4 March 2009 the Košice Regional Court upheld the first instance judgment. The courts found that the applicant had been sterilised following her request. No shortcomings in the procedure had been established.
On 5 June 2009 the applicant lodged a constitutional complaint. She relied, inter alia, on Articles 3, 6 § 1, 8, 13 and 14 of the Convention.
On 3 June 2010 the Constitutional Court found that the Regional Court had breached the applicant’s rights under Article 6 § 1 of the Convention, in conjunction with Articles 3 and 8. It quashed the Regional Court’s judgment and instructed that court to re-examine the case. The Constitutional Court further awarded 1,500 euros (EUR) to the applicant as just satisfaction and ordered the Regional Court to reimburse the applicant’s costs. The Constitutional Court dismissed the remainder of the applicant’s complaint.
The judgment stated that the Regional Court had failed to consider in an appropriate manner the facts of the case in the light of the applicant’s arguments including those under the Convention and other international instruments. The Constitutional Court instructed the Regional Court to take further evidence with a view to establishing whether, and if so, when and in which circumstances the applicant (i) had requested sterilisation, (ii) had been informed about the consequences of such intervention, and (iii) had given informed consent to it. It expressly instructed the Regional Court to examine the applicant’s arguments from the viewpoint of her rights under Articles 3 and 8 of the Convention.
As to the alleged discrimination of the applicant, the Constitutional Court held that it did not consider it necessary to examine the applicant’s complaint under, inter alia, Article 14 of the Convention as it considered primordial the alleged breach of Article 6 § 1. Following its above decision the Regional Court was obliged to take a position as to the alleged breach of the applicant’s rights under international instruments. Finally, the Constitutional Court expressed the view that Article 14 of the Convention implied Contracting States’ positive obligation to incorporate antidiscrimination principles and measures in their law. As such, it was not directly applicable by public authorities in individual cases.
The relevant domestic law, practice and international materials are set out in V.C. v. Slovakia (dec.), no. 18968/07, 16 June 2009, and I.G., M.K. and R.H. v. Slovakia (dec.), no. 15966/04, 22 September 2009.


ITEMID: 001-97087
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SİNAN IŞIK v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection joined to merits (victim);Preliminary objection dismissed;Violation of Art. 9
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 5. Mr Işık was born in 1962 and lives in İzmir. He is a member of the Alevi religious community, which is deeply rooted in Turkish society and history. Their faith, which is influenced, in particular, by Sufism and certain pre-Islamic beliefs, is regarded by some Alevi scholars as a separate religion and by others as the “essence” or “original form” of Islam. Its religious practices differ from those of the Sunni schools of law in certain aspects such as prayer, fasting and pilgrimage (see Hasan and Eylem Zengin v. Turkey, no. 1448/04, § 8, 9 October 2007).
6. The applicant stated that his identity card, issued by the registrar of births, marriages and deaths, contained a “religion” box which indicated “Islam”, even though he was not a follower of that religion.
7. On 7 May 2004 he applied to the İzmir District Court seeking to have his identity card feature the word “Alevi” rather than the word “Islam”. The relevant parts of his application read as follows:
“... the word ‘Islam’ featuring on my identity card does not reflect the true situation. As an Alevi citizen of the Republic of Turkey, I thought, on the basis of my knowledge and beliefs, that a person could not be at once ‘Alevi’ and ‘Islam’ (sic!). As a citizen of the secular Republic of Turkey, which, under its Constitution, protects freedom of religion and conscience, I refuse to continue to bear the weight of this injustice and this contradiction stemming from the desire to offset a fear, which is wholly unfounded and deeply offensive.”
8. On 9 July 2004, following a request by that court, the legal adviser to the Directorate of Religious Affairs issued his opinion on the applicant’s request. He considered in particular that to indicate religious interpretations or subcultures in the religion box on identity cards was incompatible with national unity, republican principles and the principle of secularism. He argued in particular that the word “Alevi”, designating a sub-group within Islam, could not be considered to be a separate religion or a branch (mezhep) of Islam. It was an interpretation of Islam influenced by Sufism and having specific cultural features.
9. On 7 September 2004 the court dismissed the applicant’s request on the basis of the following considerations:
“1. ... the religion box on identity cards contains general information about citizens’ religion. It is accordingly appropriate to examine whether the Alevi faith (Alevilik) constitutes a separate religion or an interpretation of Islam. It is clear from the opinion issued by the Presidency of the Directorate of Religious Affairs that the Alevi faith is an interpretation of Islam which is influenced by Sufism and which has specific cultural features ... Accordingly, that faith constitutes an interpretation of Islam and not a religion as such, in accordance with the general principles laid down in this regard. Furthermore, only religions in general are indicated on identity cards and not an interpretation or branch of any particular religion. No error has therefore been made in indicating ‘Islam’ on the identity card of the applicant, who claims to be ‘Alevi’.
2. Books and articles submitted by the applicant reveal that Ali1 is described as the ‘lion of Allah’ or similar. The fact that certain poems contain different expressions does not mean that the Alevi faith is not part of Islam. Since Ali is one of the four caliphs of Islam and the son-in-law of Muhammad, he must be considered to be one of Islam’s eminent personalities ...
3. For example, in Christianity too, there are sub-groups such as Catholics and Protestants, which nonetheless have their basis in Christianity. That is to say that when someone adheres to a particular interpretation of Islam, it does not mean that that interpretation is not part of Islam ...”
10. On an unspecified date the applicant appealed to the Court of Cassation. He complained that he had been obliged to disclose his beliefs because it was mandatory to indicate his religion on his identity card, without his consent and in breach of the right to freedom of religion and conscience within the meaning of Article 9 § 1 of the Convention. He further alleged that the indication at issue, deriving from section 43 of the Civil Registration Act (Law no. 1587), could not be considered to be compatible with Article 24 § 3 of the Constitution, which provided that “no one shall be compelled ... to reveal his or her religious beliefs and convictions”. He also stated that he had lodged two applications, the first to have the word “Islam” describing his religion on his identity card deleted, and the second, to have the word “Alevi” inserted into the relevant box. He stated that the court of first instance had been able to examine the two requests separately, allowing the first and rejecting the second, finding that the indication at issue was not compatible with Article 24 § 3 of the Constitution. Lastly, he challenged the proceedings rejecting his application, in which the Directorate of Religious Affairs had described his faith as an interpretation of Islam.
11. On 21 December 2004 the Court of Cassation upheld the judgment of the court below without giving any other reasoning.
12. The relevant parts of Article 10 of the Turkish Constitution provide as follows:
“All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.
...
State bodies and administrative authorities shall act in compliance with the principle of equality before the law in all circumstances.”
13. The relevant parts of Article 24 read as follows:
“Everyone shall have the right to freedom of conscience, belief and religious conviction.
...
No one shall be compelled to participate in prayers, worship or religious services or to reveal his or her religious beliefs and convictions; no one shall be censured or prosecuted for his or her religious beliefs or convictions. ...”
14. Article 136 provides:
“The Directorate of Religious Affairs, which is part of the general administration, shall perform the duties entrusted to it by virtue of the specific law which governs it, in accordance with the principle of secularism, and shall be removed from all political views or ideas, with a view to national solidarity and integrity.”
15. The relevant passages of section 43 of the Civil Registration Act (Nüfus Kanunu), as in force at the material time, read as follows:
“The civil registers shall contain the following information concerning individuals and families ...
(a) Information concerning civil status:
(1) Forename and surname, gender, forenames and surnames of parents, maiden name;
(2) Place and date of birth and date of registration (year, month and day);
(3) Corrections ...
(b) Other information:
...
(2) Religion;
...”
16. By a judgment of 21 June 1995, published in the Official Gazette on 14 October 1995, the Constitutional Court declared section 43 of the Civil Registration Act to be in conformity with Article 2 (secularism) and Article 24 (freedom of religion) of the Constitution. The judges of the Constitutional Court held, in particular:
“The State must be aware of the characteristics of its citizens. That information is required for the purposes of public policy, the general interest, and economic, political and social imperatives ...
The secular State must remain neutral in terms of religion. Accordingly, the indication of religion on identity cards must not engender inequality among citizens ... In a secular State, all religions rank equally. No one may interfere in the beliefs or lack of beliefs of another. Furthermore, the rule at issue applies to all beliefs and cannot therefore give rise to discrimination ...
The rule that ‘[n]o one shall be compelled ... to reveal his or her religious beliefs and convictions’ cannot be interpreted as a prohibition on indicating that person’s religion in official registers. The Constitution forbids compulsion.
Compulsion concerns the disclosure of religious beliefs and convictions. The notion of ‘religious beliefs and convictions’ is not limited by the provision of information concerning each individual’s religion in the State’s civil registers for demographic purposes. That notion is wide-ranging and covers many factors relating to religion and belief.
The rule that ‘[n]o one shall be compelled ... to reveal his or her religious beliefs and convictions’ must be read in conjunction with the rule that ‘no one shall be censured or prosecuted for his or her religious beliefs or convictions’. In no circumstances does this amount to compulsion, censure or prosecution.
Furthermore, under Article 266 of the Civil Code, ‘a person of legal age shall be free to choose his or her religion’. Consequently, anyone wishing to change his or her religion as indicated in the civil register may submit a request to that effect to the registration authorities. The amendment will be made on the instruction of the decentralised authority. Likewise, anyone wishing to have that information deleted or to record another belief which cannot be accepted as a religion may apply to the civil courts ...
To conclude, Article 43 of the Civil Code cannot be considered to entail compulsion. It relates to information concerning a person’s religion which is provided to the civil registry for the purposes of public policy, general interest and social need ...”
Five of the eleven Constitutional Court judges did not share the majority opinion, finding that the indication of religion in the State’s civil registers and on identity cards was incompatible with Article 24 of the Constitution. One of the judges in the minority considered in particular that:
“Under the Civil Registration Act, the parents or legal representatives of children are obliged to declare the religion of their children, failing which no entry will be made. The inclusion of religion in the family record and on identity cards, before the child reaches the age of majority and without his or her consent, constitutes de facto mandatory disclosure of religion in daily life ... That disclosure obligation, stemming from the indication of religion on a document confirming civil status, and the presentation of that document when registering at a school or when carrying out military service formalities, does indeed amount, in my view, to ‘compulsion’.”
17. The relevant passages of sections 7 and 35 of the Civil Registry Services Act (Nüfus Hizmetleri Kanunu), which came into force on 29 April 2006 (repealing the above-mentioned Civil Registration Act), read as follows:
“(1) A civil register is established for each district or village. The civil registers shall contain the following information:
...
(e) Religion.
...”
“(1) No entry in the civil registers may be corrected without a final judicial decision ...
(2) Information relating to a person’s religion shall be entered or amended in accordance with the written statements of the person concerned; the box for this purpose may be left blank or the information may be deleted.”
18. The relevant parts of section 82 of the implementing provisions of the Civil Registry Services Act, adopted on 29 September 2006, read as follows:
“Any information concerning an individual’s religion shall be entered, amended, deleted or omitted in accordance with that individual’s written statements. Requests for amendment or deletion of data relating to religion shall be subject to no restrictions whatsoever.”
19. The Directorate of Religious Affairs was created by Law no. 633 of 22 June 1965 on the Creation and Functions of the Presidency of Religious Affairs, published in the Official Gazette of 2 July 1965. Section 1 thereof provides that the Presidency of Religious Affairs, reporting to the Prime Minister, is responsible for dealing with matters of belief, worship and moral principles of Islam and administering places of worship. Within the Directorate, the Supreme Council of Religious Affairs constitutes the supreme decision-making and consultative authority. It is made up of sixteen members appointed by the Directorate president. It is competent to answer questions concerning religion (section 5 of Law no. 633).
20. The relevant parts of the document entitled “Guidelines for the review of legislation pertaining to religion or belief” adopted by the Venice Commission at its 59th plenary session (Venice, 18 and 19 June 2004), read as follows:
“II. Substantive issues that typically arise in legislation
...
2. The definition of ‘religion’. Legislation often includes the understandable attempt to define religion or related terms (‘sects’, ‘cults’, ‘traditional religions’ etc.). There is no generally accepted definition for such terms in international law, and many States have had difficulty in defining these terms. It has been argued that such terms cannot be defined in a legal sense because of the inherent ambiguity of the concept of religion. A common definitional mistake is to require that a belief in God be necessary for something to be considered a religion. The most obvious counter-examples are classical Buddhism, which is not theistic, and Hinduism, which is polytheistic. ...
3. Religion or belief. International standards do not speak of religion in an isolated sense, but of ‘religion’ or ‘belief’. The ‘belief’ aspect typically pertains to deeply held conscientious beliefs that are fundamental about the human condition and the world. Thus, atheism and agnosticism, for example, are generally held to be entitled to the same protection as religious beliefs. It is very common for legislation not to protect adequately (or to not refer at all to) rights of non-believers. ...
B. Basic values underlying international standards for freedom of religion or belief
Broad consensus has emerged within the OSCE [Organization for Security and Co-operation in Europe] region on the contours of the right of freedom of religion or belief as formulated in the applicable international human rights instruments. Fundamental points that should be borne in mind in addressing legislation in this area include the following major issues.
1. Internal freedom (forum internum). The key international instruments confirm that ‘[e]veryone has the right to freedom of thought, conscience and religion’. In contrast to manifestations of religion, the right to freedom of thought, conscience and religion within the forum internum is absolute and may not be subjected to limitations of any kind. Thus, for example, legal requirements mandating involuntary disclosure of religious beliefs are impermissible. ...”
VIOLATED_ARTICLES: 9


ITEMID: 001-68825
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: SCHEPER v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Mark Villiger
TEXT: The applicant, Jan C.R.R. Scheper, is a Netherlands national who was born in 1968 and lives in Rijswijk. He was represented before the Court by Mr J. Boksem, a lawyer practising in Leeuwarden.
On an unspecified date, the applicant was charged with having raped three drug-addicted street prostitutes, Ms A., Ms B. and Ms C., and an unrelated count of forgery. He was summoned to appear on 27 July 1999 before the Arnhem Regional Court (arrondissementsrechtbank) in order to stand trial on these charges. In the course of the adversarial proceedings before the Regional Court, the applicant admitted that he had had sexual intercourse with the three women, but denied having raped them. The three women were not heard before the Arnhem Regional Court.
In its judgment of 24 March 2000, the Arnhem Regional Court convicted the applicant of having raped Ms A., Ms B. and Ms C. and of forgery, and sentenced him to four years imprisonment. In addition, having found that the applicant was suffering from a personality disorder and was dangerous, it further ordered his confinement in a custodial clinic (terbeschikkingstelling met bevel tot verpleging van overheidswege). It also ordered the applicant to pay Ms A., who had joined the criminal proceedings as a civil injured party (benadeelde partij) and had filed a claim for compensation of damage incurred, an amount of 5,300 Netherlands Guilders (“NLG”; i.e. 2,405.04 euros).
The applicant filed an appeal with the Arnhem Court of Appeal (gerechtshof).
On 22 August 2000, the Court of Appeal commenced its examination of the applicant's appeal and considered the request by the defence to summon Ms A., Ms B. and Ms C., as well as two ex-girlfriends, in order to give evidence before the Court of Appeal. After having deliberated, the Court of Appeal decided to adjourn its examination of this request. It considered, finding that insufficient reasons had been given for this request, that it could not determine the necessity to hear these witnesses. It requested the defence to submit a reasoned request for hearing witnesses well before 2 November 2004 when it would resume its examination of the appeal.
The Court of Appeal resumed the proceedings on 2 November 2000. As its composition had changed in the meantime, the Court of Appeal fully recommenced its examination of the applicant's case. The applicant submitted that he had been unjustly convicted. He confirmed that he had had sexual contacts with Ms A., Ms B. and Ms C. but denied that he had raped them. He stated that Ms A. was a prostitute and he confirmed having taken her in his car.
When heard before the Court of Appeal, Ms A. stated:
“It is correct that I got into the car of the suspect. I did not know the suspect before, also not from the café. What this man has done is not normal. I had not expected the suspect to be here. This is a shock to me and I do not want to testify now. I have been heard in a detailed manner by the police for two days.
I also do not understand that I must now act as a witness. I have received from the public prosecutor's department a notification for an injured party and that is the reason for my present appearance. I want compensation for what has been done to me. I now first want to consult my mother.”
After the public prosecutor had informed the Court of Appeal that it was possible that Ms A. had only received the notification for an injured party but not the summons to appear as a witness, the Court of Appeal suspended the hearing in order to allow Ms A. to consult her mother.
When it resumed the hearing, the Court of Appeal noted that Ms A. was no longer in the court room. Her mother stated before the court:
“My daughter is now in the hall of the court. She had not expected having to appear as a witness. She no longer lives at home and has not seen the summons. My daughter does not wish to see [the applicant] anymore and does not wish to recall what has happened to her. She has tried for seven months to stop taking drugs but unfortunately without success, she is still addicted. She cannot face having to recount her story again.”
The public prosecutor informed the Court of Appeal that it did not find it necessary to hear Ms A., that the last known address of Ms B. was a Groningen aftercare organisation and the last known address of Ms C. that of an Amsterdam police station. The public prosecutor submitted that summoning these two witnesses would be pointless, unless the defence had new addresses for these witnesses. The defence stated that it was important to take oral evidence from these witnesses and that it expected that, if the judicial authorities made the necessary efforts, it would be possible to summon them.
After having deliberated, the Court of Appeal ordered the public prosecutor to make all possible efforts to take evidence from Ms A., Ms B. and Ms C. as well as from two male witnesses, Mr K. and Mr M., who had been proposed by the defence. It adjourned its further examination until 19 January 2001.
The appeal proceedings were resumed on 19 January 2001. As its composition had changed again in the meantime, the Court of Appeal fully recommenced its examination of the applicant's case. It noted, inter alia, the submission of a written record of the evidence given by Mr K. on 19 December 2000 before the investigating judge (rechter-commissaris) at the Arnhem Regional Court, and that according to information provided by the investigating judge it had not been possible to hear Ms A., Ms B., Ms C. or Mr M. The defence stated that it waived its wish to hear Mr M. The defence further submitted that, although it understood that it was pointless and superfluous to summon the three victims, the taking of their evidence remained important for the defence and that, therefore, it did not formally waive its wish to hear them. The public prosecutor agreed with the defence that summoning the three victims would be pointless and proposed that the Court of Appeal would proceed with its examination of the applicant's appeal. The public prosecutor further did not find it necessary to hear Mr M.
After having deliberated, the Court of Appeal decided that it did not see any merit in ordering fresh attempts to summon the three victims as it was unlikely that they would appear within an acceptable delay. It therefore rejected the request by the defence to summon them. Further noting that none of the parties wished to hear Mr M., it considered that it was no longer necessary to hear this witness.
It heard the applicant, who admitted having had sexual intercourse with Ms A., Ms B. and Ms C. but denied having raped them. As regards the charges relating to Ms A. he added that he had had chocolate in his car, but denied having inserted chocolate into her vagina.. After having heard the parties' final pleadings, the Court of Appeal closed its examination and set a date for judgment.
In its judgment of 2 February 2001, the Court of Appeal quashed the judgment of 24 March 2000 and convicted the applicant of having raped Ms A., Ms B. and Ms C. and of forgery.
As regards the imposition of its sentence the Court of Appeal took into account that the applicant, in the course of a period of slightly more than one month, had on three occasions picked up a street prostitute in his car. As from the outset he then subsequently misled the woman by pretending, inter alia, that he could pay by providing drugs. He then committed very humiliating acts, in particular by inserting chocolate bars in the vagina of one of his victims. He fully ignored the victims' feelings and abused the very vulnerable position in which the victims, being street prostitutes, found themselves. Having found that at the material time the applicant was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for these offences to a limited degree, whereas there was a considerable danger of recidivism of aggressive sexual offences against women, the Court of Appeal sentenced the applicant to four years imprisonment in combination with an order for his confinement in a custodial clinic. It also ordered the applicant to pay the injured party Ms A. compensation in an amount of NLG 5,300.
The Court of Appeal based its conviction of the applicant of the rape of Ms A., Ms B. and Ms C. on the following means of evidence:
- the applicant's statement before the Court of Appeal that he had had sexual intercourse with Ms A.;
- the detailed statement given by Ms A. to the police in which she related, inter alia, that on 9 September 1998 in Arnhem she had seen her colleague and friend Ms X. sitting next to the driver in a car passing by, that shortly thereafter this car had stopped near to the telephone booth in which she had taken shelter from the rain and that Ms X. was no longer in the car, that she had then been picked up by the driver of this car who had subsequently raped her in a brutal and very painful manner in that, before forcing her to have intercourse with him, he had forcibly inserted several chocolate bars into her vagina, and that he had also taken photographs of her before he had allowed her to dress and leave the car;
- a report on a medical examination of Ms A. on 9 September 1998 according to which her vagina was considerably soiled by chocolate;
- the record of observations and findings (relaas van waarnemingen en bevindingen) drawn up by the reporting police officers M.H. and F.M., according to which staff of the Groningen police region had informed them, after the rape of Ms A. had been signalled in a police bulletin, that in August 1998 – both in Groningen and Amsterdam – a man had raped drug-addicted prostitutes in a similar manner, that in the Amsterdam case the perpetrator had also taken similar photographs as in the Arnhem case, that in all cases the suspect had been heard who had confirmed having had contacts with the victims but that these contacts had been consensual although he had not paid the prostitutes, and that the suspect had been identified as [the applicant];
- Ms X.'s recognition of the applicant as the driver of the car from a number of photographs of different persons shown to her on 2 March 1999, at which occasion she stated that his hair style on the photograph was different than when she had seen him;
- Ms A.'s recognition of the applicant as her assailant from a number of photographs of different persons shown to her on 3 March 1999;
- the detailed statement given by Ms B. to the police, in which she related inter alia that on or around 7 August 1998 in the Groningen region she had been forced to get into a car driven by a rather aggressive man who had subsequently raped her in a crude manner, and that she remembered the car's licence plate;
- the record of observations and findings drawn up by the police officer who had taken down Ms B.'s criminal complaint on 18 August 1998. According to this record the description and licence plate of the car given by Ms B. corresponded to a car that was being used by the applicant and Ms B.'s description of her assailant corresponded to the applicant's features. The record further states that, on 26 August 1998, the reporting police officer had been informed by the Amsterdam police that the driver of a car with the same licence plate and whose physical features exactly matched the description given by Ms B., was being searched for having raped, sexually assaulted, threatened and unlawfully deprived of liberty a German street prostitute in Amsterdam, Ms C., who had filed a criminal complaint on 25 August 1998;
- the applicant's statement to the police in which he confirmed that he had had sexual contacts with a prostitute in Groningen and in which he described the car in which he had then driven, the licence plate and description matching the information given by Ms B.;
- the detailed statement given by Ms C. to the police, in which she related, inter alia, that on 26 August 1998 shortly after midnight in Amsterdam she had been picked up by a client in a car, that her friend had noted down the licence plate of this car, and that she had subsequently been raped in an aggressive and very painful manner by the driver of this car; and
- the applicant's statement to the police in which he confirmed that he had had intercourse with a prostitute whom he had picked up in Amsterdam by the end of August 1998, and in which he described the car he had then driven, the description and licence plate matching the information given by Ms C.
The applicant's subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 11 June 2002. The Supreme Court found that Article 6 of the Convention did not prevent the use in evidence of the statements given by Ms A., Ms B. and Ms C. to the police despite the fact that neither the applicant nor his lawyer had been able to question them as a witness. In this respect the Supreme Court accepted as correct and not unreasonable the conclusion of the Court of Appeal that further attempts to make the three victims appear before the Court of Appeal would serve no useful purpose. The Supreme Court also accepted that the respective statements by Ms A., Ms B. and Ms C. were sufficiently corroborated by other means of evidence.


ITEMID: 001-75714
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF PYRIKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1949 and lives in the Tula Region.
5. In December 1997 the applicant was dismissed from his position.
6. On 17 December 1997, according to the applicant, and 18 February 1998, according to the Government, the applicant and three other persons lodged an action against their former employer, a private company, for payment of wage arrears and compensation for non-pecuniary damage.
7. On 13 May 1998 the Aleksin Town Court allowed the claim in part.
8. The parties did not appeal and the judgment became final.
9. On 27 September 1999 the Presidium of the Tula Regional Court granted the applicant’s request for a supervisory review, quashed the judgment of 13 May 1998 and remitted the case for a new examination.
10. In February 2000 the applicant asked the Aleksin Town Court to examine his action in separate proceedings. The Town Court granted his request and adjourned the proceedings until 10 April 2000.
11. The hearing of 10 April 2000 was adjourned until 21 August 2000 because the defendant did not attend.
12. On 21 August 2000 the proceedings were stayed for one month because the applicant asked for additional time to amend his claims.
13. On 25 September 2000 the Aleksin Town Court allowed the applicant’s claim in part.
14. That judgment was quashed on appeal by the Tula Regional Court on 10 April 2000. The case was remitted for a new examination.
15. Of the eleven hearings listed between September 2001 and April 2003, two hearings were adjourned because the judge was on sick leave, seven hearings were adjourned because the defendant did not attend or asked to stay the proceedings and two hearings were postponed at the applicant’s request.
16. On 18 April 2003 Aleksin Town Court allowed the applicant’s claim in part.
17. The judgment of 18 April 2003 was not appealed against and became final.
18. On 11 October 2001 the Sovetskiy District Court of Tula granted the applicant’s action against the Ministry of Finance for outstanding unemployment benefits and awarded him 2,828.32 Russian roubles (RUR, approximately 103 euros).
19. On 16 April 2002 the Tula Regional Court upheld the judgment on appeal.
20. On 29 May 2002 the applicant filed a writ of execution to the Ministry of Finance, but the judgment was not enforced.
21. On 2 December 2004 the judgment was enforced in full.
22. On several occasions the applicant asked the Ministry of Finance for provision of unspecified information. No response followed.


ITEMID: 001-98688
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF PETRAKIDOU v. TURKEY
IMPORTANCE: 4
CONCLUSION: No violation of Art. 8;No violation of Art. 14;No violation of Art. 3;No violation of Art. 5;No violation of Art. 6;No violation of Art. 7;No violation of Art. 11;No violation of Art. 13;No violation of Art. 14+5;No violation of Art. 14+6;No violation of Art. 14+7
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 7. The applicant was born in 1964 and lives in Nicosia.
8. The applicant claimed that her home had been in Exo Metochi in northern Cyprus. The house concerned had belonged to the applicant’s mother and was located on a large site with trees (covering an area of 711 square metres); it was registered under plot no. 151, sheet/plan 22/20. On 17 April 2002 the applicant’s mother had transferred it to Mr Georgios Sotiri Petrakides (the applicant’s brother) by way of gift.
9. Since the 1974 Turkish intervention the applicant had been deprived of her home, which was located in the area under the occupation and control of the Turkish military authorities, who had prevented her from having access to and using the property.
10. On 19 July 1989, the applicant joined an anti-Turkish demonstration in the Ayios Kassianos area in Nicosia in which the applicants in the Chrysostomos and Papachrysostomou v. Turkey (see below) and Loizidou v. Turkey ((merits), 18 December 1996, Reports 1996-VI) cases also took part.
11. According to the applicant, the demonstration of 19 July 1989 was peaceful and was held on the fifteenth anniversary of the Turkish intervention in Cyprus in support of the missing persons and to protest against human-rights violations. In the course of the demonstration the applicant was seized by the hair and violently beaten on the head, back and bottom and assaulted by Turkish military personnel and/or other personnel acting under Turkish control. They continually grabbed hold of her breasts. She was dragged to a bus through a crowd that spat and swore at her and then taken to the so-called “Pavlides Garage” with other women. On her arrival there the applicant was searched and forced to sit on the floor. The toilet facilities were filthy and she was refused water. Two UN soldiers were present, but were not allowed to note down the names of the detainees. The crowd outside the garage was swearing, and shouting abuse and threats as well as throwing stones at the garage, some of which came through the roof.
12. On 20 July 1989 the applicant was interrogated in the garage for more than an hour. She refused to sign a statement, which was written in Turkish. The applicant and the other detainees were provided with food and at the same time were photographed and filmed by a television crew.
13. On the same day, the applicant was taken to court and remanded in custody for two days. She was transferred to Ortakeuy Prison, where she was kept in a cell with another woman. The conditions of detention were appalling and there were not enough beds for all the women detainees; during the night she and the other detainees were harassed by the guards.
14. On 21 July 1989 the applicant was taken to court to stand trial. She had no legal representation or proper interpretation; she had not previously seen the exhibits which were produced at the trial. Outside the court a crowd had gathered and was constantly shouting.
15. On the 22 July 1989 the court sentenced the applicant to three days’ imprisonment and a fine of 50 Cyprus pounds (CYP – approximately 85 euros (EUR)), with five additional days in prison in default of payment within 24 hours. After the trial she was taken back to the prison.
16. In the course of her detention, the guards constantly made a lot of noise both during the day and at night, repeatedly entered the cells and turned on the lights. On two occasions the applicant had to sign documents written in Turkish in order to get her personal effects back. After an incident between the detainees and some Turkish photographers, the applicant was hit by one of her guards and put in an isolation cell, which was filthy, dark, and very hot and had no ventilation. While in the cell, the applicant was attacked and beaten by one of the guards, receiving severe blows to the face, head and arms. Her arm was badly injured and she lost consciousness. She was visited by a person claiming to be a doctor who said that she needed treatment, but none was given. The applicant remained in the isolation cell until her release on 24 July 1989. She was examined by a UN officer, who bandaged her arm; she was then taken by bus to southern Cyprus.
17. In support of her claim of ill-treatment, the applicant produced two medical certificates. The first was issued by Doctor Andreas Hadjiloizou, a pathologist practising in Ayios Dhometios, on 20 December 2002. It reads as follows:
“Mrs Petrakidou visited me at my clinic on 25.7.1989 after she was released by the Turks and complained of headaches, difficulty in moving her head and pain in the right lower part of the arm following violent twisting.
From the examination it was established that she had mild concussion, difficulty in moving her head and pain in the right lower part of the arm due to violent twisting.
She was advised to remain in bed for one week.
She has since visited me several times complaining of dizziness and headaches. ”
18. The second certificate was a “medical opinion” issued on an unspecified date by Doctor Simos Nissiotis, a specialist orthopaedic surgeon practising in Nicosia. It reads as follows:
“The patient Alkiviadous Petrakidou Marianna has been followed by me from 26/7/1989 for various problems that have been troubling her since the ill-treatment she was subjected to in the prisons of the Turkish-Cypriot pseudo-state in Nicosia.
The patient participated in an anti-occupation demonstration on 19 July 1989, and was arrested by the authorities of the pseudo-state. During her arrest as well as during her detention she was beaten and ill-treated by the above authorities.
She was released on 27/7/1989 and was immediately taken to Nicosia General Hospital to be examined by doctors and to be administered medical treatment.
On 26 July 1989 she visited me in my clinic for further examination and treatment. She presented the following picture:
1. Injury to the head, concussion. The patient had diffuse haematomas to the head and mainly in her hair and was complaining of headache and dizziness. The patient seemed to be in a very bad shape and had a lot of phobias.
2. Contusion of the nape. The patient complained of pain and stiffness in the nape and the muscles of the nape were contracted. The movements of the head (bending, extension and rotation) were painful and limited and caused an aggravation of the headache and dizziness.
3. Contusion of the right forearm. The patient wore an elastic bandage on her right forearm and was complaining mainly of pain with movements in the extensor and flexor. I removed the bandage and she had a haematoma in the area of the round extensor.
For the orthopaedic problems of the patient I recommended anti-inflammatory, muscle relaxant and analgesic medicines. I put her forearm in a special sock and recommended that after the acute phase (approximately 10 days) she start doing exercise and swimming.
For her concussion I recommended that she avoid gazing fixedly and exposure to the sun.
The patient then returned to work on 7 August 1989, though still having problems resulting both from her contusions and her concussion, which however decreased in frequency with the passage of time.
Ever since then and until today the patient has been suffering mainly from pain in the neck, particularly in the cold months. During these attacks she takes her medicines and the problems disappear. This is due to the weakness of the muscles of the nape caused to her old injury.
As regards the problems resulting from her concussion, her phobias and her psychological problems, she is being treated by a specialist colleague.
From an orthopaedic point of view, I recommend that she takes her medicines during attacks and that she swims in the summer in order to strengthen her muscular system. This will help her to have rarer and milder attacks of neck pain.”
19. The applicant produced a photograph of herself with a bandage on her right arm. This photograph was allegedly taken on her return home after her release by the authorities of the “Turkish Republic of Northern Cyprus” (the “TRNC”).
20. The Government alleged that the applicant had participated in a violent demonstration with the aim of inflaming anti-Turkish sentiment. The demonstrators, supported by the Greek-Cypriot administration, were demanding that the “Green Line” in Nicosia should be dismantled. Some carried Greek flags, clubs, knives and wire-cutters. They were acting in a provocative manner and shouting abuse. The demonstrators were warned in Greek and English that unless they dispersed they would be arrested in accordance with the laws of the “TRNC”. The applicant was arrested by the Turkish-Cypriot police after crossing the UN buffer zone and entering the area under Turkish-Cypriot control. The Turkish-Cypriot police intervened in the face of the manifest inability of the Greek-Cypriot authorities and the UN Force in Cyprus to contain the incursion and its possible consequences.
21. No force was used against demonstrators who did not intrude into the “TRNC” border area and, in the case of demonstrators who were arrested for violating the border, no more force was used than was reasonably necessary in the circumstances in order to arrest and detain the persons concerned. No one was ill-treated. It was possible that some of the demonstrators had hurt themselves in the confusion or in attempting to scale barbed wire or other fencing. Had the Turkish police, or anyone else, assaulted or beaten any of the demonstrators, the UN Secretary General would no doubt have referred to this in his report to the Security Council.
22. The applicant was charged, tried, found guilty and sentenced to a short term of imprisonment. She pleaded not guilty, but did not give evidence and declined to use the available judicial remedies. She was asked if she required assistance from a lawyer registered in the “TRNC”, but refused and did not ask for legal representation. Interpretation services were provided at the trial by qualified interpreters. All the proceedings were translated into Greek.
23. In his report of 7 December 1989 on the UN operations in Cyprus, the UN Secretary General stated, inter alia:
“A serious situation, however, arose in July as a result of a demonstration by Greek Cypriots in Nicosia. The details are as follows:
(a) In the evening of 19 July, some 1,000 Greek Cypriot demonstrators, mostly women, forced their way into the UN buffer zone in the Ayios Kassianos area of Nicosia. The demonstrators broke through a wire barrier maintained by UNFICYP and destroyed an UNFICYP observation post. They then broke through the line formed by UNFICYP soldiers and entered a former school complex where UNFICYP reinforcements regrouped to prevent them from proceeding further. A short while later, Turkish-Cypriot police and security forces elements forced their way into the area and apprehended 111 persons, 101 of them women;
(b) The Ayios Kassianos school complex is situated in the UN buffer zone. However, the Turkish forces claim it to be on their side of the cease-fire line. Under working arrangements with UNFICYP, the Turkish-Cypriot security forces have patrolled the school grounds for several years within specific restrictions. This patrolling ceased altogether as part of the unmanning agreement implemented last May;
(c) In the afternoon of 21 July, some 300 Greek Cypriots gathered at the main entrance to the UN protected area in Nicosia, in which the UN headquarters is located, to protest the continuing detention by the Turkish-Cypriot authorities of those apprehended at Ayios Kassianos. The demonstrators, whose number fluctuated between 200 and 2,000, blocked all UN traffic through this entrance until 30 July, when the Turkish-Cypriot authorities released the last two detainees;
(d) The events described above created considerable tension in the island and intensive efforts were made, both at the UN headquarters and at Nicosia, to contain and resolve the situation. On 21 July, I expressed my concern at the events that have taken place and stressed that it was vital that all parties keep in mind the purpose of the UN buffer zone as well as their responsibility to ensure that that area was not violated. I also urged the Turkish-Cypriot authorities to release without delay all those who had been detained. On 24 July, the President of the Security Council announced that he had conveyed to the representatives of all the parties, on behalf of the members of the Council, the Council’s deep concern at the tense situation created by the incidents of 19 July. He also stressed the need strictly to respect the UN buffer zone and appealed for the immediate release of all persons still detained. He asked all concerned to show maximum restraint and to take urgent steps that would bring about a relaxation of tension and contribute to the creation of an atmosphere favourable to the negotiations.”
24. The applicant produced 21 photographs taken at different times during the demonstration on 19 July 1989. Photographs 1 to 7 were intended to show that, notwithstanding the deployment of the Turkish-Cypriot police, the demonstration was peaceful. In photographs 8 to 10, members of the Turkish-Cypriot police are seen breaking up the UNFICYP cordon. The final set of photographs show members of the Turkish-Cypriot police using force to arrest some of the women demonstrators.
25. The English translation of the “TRNC” Nicosia District Court judgment of 22 July 1989 indicates that the applicant, together with 24 other women, was charged with two offences: entering “TRNC” territory without permission (contrary to sections 2, 8 and 9 of Law no. 5/72 – see paragraph 32 below) and entering “TRNC” territory other than through an approved port (contrary to subsections 12(1) and (5) of the Aliens and Immigration Law – see paragraph 33 below).
26. The judgment was given in the presence of the accused and of an interpreter, who was reminded of his oath. The trial judge noted the following:
(i) the accused did not accept the charges against them and stated that they did not wish to use the services of a lawyer registered in the “TRNC”;
(ii) the public prosecutor called seven witnesses, whose statements were translated into Greek for the accused’s benefit;
(iii) the witnesses (mainly police officers on duty at the time of the demonstration) declared that the accused had illegally entered the “TRNC” buffer zone, shouted abuse at the Turkish-Cypriot forces, resisted arrest by pulling and pushing; knives and other cutting objects had been found in the bags of some of the demonstrators who had been arrested;
(vi) the accused had been told that they could cross-examine witnesses in turn and, if they wished, choose one of their number to cross-examine the witnesses on behalf of all the accused; however, they did not do so; some of the accused, including the applicant, put questions to the prosecution witnesses; most of the accused women did not make use of their right of cross-examination;
(v) the applicant made the following statement: “I consider our arrest as illegal, because we were arrested while we were on a territory which, however you look at it, is Hellenic, by troops we do not recognise. We had come in peace, but were faced by violence, not by the Turkish army, but by the Turkish Cypriots, who until then we had considered as brothers”;
(vi) some of the other women accused gave statements, declaring that the demonstration was peaceful, that they had not carried weapons and that they did not recognise the “TRNC” as a valid State;
(vii) relying on the statements of the prosecution witnesses, the “TRNC” District Court came to the conclusion that the accused had crossed the borders of the “TRNC” at an unapproved entry point and without permission and had resisted by various means the UN and Turkish forces which had tried to stop them; the statements made by some of the accused were mainly of a political nature and did not undermine the statements of the prosecution witnesses;
(viii) the prosecution had proved its case beyond reasonable doubt, so that the accused were guilty on both counts;
(ix) in deciding on the sentence, the “TRNC” District Court had taken into account the seriousness of the offence and the fact that the accused had shown no remorse and continued to deny the validity of the “TRNC”.
27. Section 70 of the Cypriot Criminal Code reads as follows:
“Where five or more persons assembled with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace they are an unlawful assembly.
It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.
When an unlawful assembly has begun to execute the purpose, whether of a public or of a private nature, for which it assembled by a breach of the peace and to the terror of the public, the assembly is called a riot, and the persons assembled are said to be riotously assembled.”
28. According to section 71 of the Criminal Code, any person who takes part in an unlawful assembly is guilty of a misdemeanour and liable to imprisonment for one year.
29. Section 80 of the Criminal Code provides:
“Any person who carries in public without lawful occasion any offensive arm or weapon in such a manner as to cause terror to any person is guilty of a misdemeanour, and is liable to imprisonment for two years, and his arm or weapons shall be forfeited.”
30. According to Section 82 of the Criminal Code, it is an offence to carry a knife outside the home.
31. The relevant part of Chapter 155, section 14 of the Criminal Procedure Law states:
“(1) Any officer may, without warrant, arrest any person -
...
(b) who commits in his presence any offence punishable with imprisonment;
(c) who obstructs a police officer, while in the execution of his duty...”
32. Section 9 of Law No. 5/72 states:
“... Any person who enters a prohibited military area without authorization, or by stealth, or fraudulently, shall be tried by a military court in accordance with the Military Offences Act; those found guilty shall be punished.”
33. Subsections 12 (1) and (5) of the Aliens and Immigration Law read as follows:
“1. No person shall enter or leave the Colony except through an approved port.
...
5. Any person who contravenes or fails to observe any of the provisions of subsections (1), (2), (3) or (4) of this section shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding one hundred pounds or to both such imprisonment and such a fine.”
NON_VIOLATED_ARTICLES: 11
13
14
3
5
6
7
8