ITEMID: 001-59339
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF HILAL v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;No violation of Art. 13;No separate issues under Art. 6 and 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award
JUDGES: Nicolas Bratza;Simon Brown
TEXT: 8. The applicant was born in Pemba, one of the Zanzibar islands, in 1968. Zanzibar is part of the United Republic of Tanzania. It has its own President, parliament and government and enjoys considerable autonomy.
9. According to the applicant, in 1992 he joined the Civic United Front (“the CUF”), an opposition party in Zanzibar. He was an active member, attending meetings and contributing money to the party funds. In August 1994 the applicant was arrested by Chama Cha Mapinduzi (“the CCM”, the ruling party) officers because of his involvement with the CUF. He was detained at Madema police station in Zanzibar for three months, where he was tortured. He was repeatedly locked in a cell full of water for days at a time so he was unable to lie down. He was hung upside down with his feet tied together until he bled through the nose, and he was also subjected to electric shocks.
10. In November 1994 the applicant stated that he was released from detention following pressure from CUF leaders on the Tanzanian government. He was admitted to hospital, where a medical officer recorded that the applicant was haemorrhaging severely through the nose as a result of his treatment and had been subjected to harm endangering life.
11. The applicant stated that his brother had been taken into detention shortly before he was. He had been ill-treated and died in January 1995 in hospital where he had been taken from prison.
12. Following his release, the applicant stated that he only contributed funds to the CUF. In January 1995 the police came looking for him while he was out. The police detained his wife overnight and questioned his friends. He decided to leave his home and Tanzania, fearing for his safety.
13. On 9 February 1995 the applicant arrived in the United Kingdom and claimed asylum. That day a pro forma interview was held with an immigration officer, where the applicant was assisted by an interpreter. According to the form, the purpose of the interview was to enable the immigration officer to take down the initial details of the asylum application. When asked what the basis of his asylum claim was, the applicant was noted as having said: “Because of the problems in the country and my safety. I have been threatened a lot by the ruling party so I decided to leave the country.” The applicant stated that he had been a member of the CUF since 1992.
14. At the full asylum interview held on 15 March 1995, the applicant was recorded as stating that he had had no problem in obtaining a passport as he was a businessman, and that he had organised his passage to the United Kingdom himself. When asked what the basis for his asylum claim was, he stated that he had been taken away and detained for three months, from August to November 1994, at Madema police station, where he had been tortured. He had been locked in a room with a very low ceiling, where he could not stand up, and then placed for one and a half days in a room filled with water up to the chest, where he could not lie down. He was taken out and returned there twice a week. A few days before he was released he was hung upside down and given electric shocks. He had been arrested because he gave money to the CUF. He was told that he had been released because the CUF leaders had approached the authorities in Dar es Salaam. After his release, he was treated in a private clinic. He produced his CUF card. He had been an ordinary member, doing nothing more than give money. He had not taken part in the demonstration which had been allowed. He mentioned that his brother had been arrested in January 1995 and died after being in police custody. His brother had been badly beaten and was vomiting blood, so they had released him to hospital on 20 January 1995 as they knew he was going to die. His uncle had helped him to leave, obtaining an income-tax clearance and an airline ticket. His uncle checked in with the ticket for him and he was able to board the plane.
15. On 29 June 1995 the Secretary of State refused asylum, finding the applicant’s account implausible and noting inconsistencies in his answers. The applicant’s appeal to a special adjudicator was dismissed on 8 November 1996. During the proceedings the applicant had claimed that the Tanzanian authorities intercepted the letters he was sending home, knew that he had claimed asylum, and had summoned his parents to explain
“about [their] son who [was] in a foreign country to abuse the government which [was] in power ...”
He provided correspondence from the Royal Mail concerning his enquiries about money which had gone missing from a registered letter dated 27 November 1995 which he had sent to his parents in Tanzania.
16. In his decision the special adjudicator noted inconsistencies between the evidence given by the applicant before him and the answers given in his asylum interviews. He placed considerable weight on the fact that the applicant had not mentioned his arrest and torture at his first asylum interview and did not accept the applicant’s explanation that the interviewing officer told him that it was not necessary to give details at this stage or that he was having difficulties with the interpreter. He also noted that the evidence concerning his brother’s arrest was contradictory and that no documentary evidence such as a death certificate had been produced. He therefore did not accept that the applicant’s brother was arrested, tortured or killed. He also observed that the applicant had not provided documentary evidence that the Zanzibar authorities were accusing him of tarnishing Tanzania’s good name, and therefore did not accept that it existed. Looking at the evidence as a whole, he concluded that there was no well-founded fear of persecution for a Convention reason established to the required standard.
17. Leave to appeal to the Immigration Appeal Tribunal was refused on 10 January 1997.
18. The applicant obtained a copy of his brother’s death certificate and a medical report which recorded that his brother died on 20 January 1995, after being brought to hospital from prison with a history of severe chest pain and general body weakness associated with a fever. He also obtained the summons from the Pemba police headquarters to his parents dated 25 November 1995 requesting their attendance to explain the applicant’s unlawful conduct in embarrassing the government and country. He made representations to the Secretary of State dated 30 January 1997, providing copies and requesting that his letter be considered as a fresh asylum application.
19. By letter dated 4 February 1997 the Secretary of State expressed the view that the police summons was self-serving and not significant, while the death certificate did not disclose proof that his brother, who died of a fever, had been murdered by the authorities. He had, accordingly, decided not to treat the representations as a fresh application for asylum, but to reconsider the original asylum application on all the evidence available to him. He refused on that basis to reverse his decision.
20. By letter dated 4 February 1997 the applicant’s representatives requested, alternatively, that the new material be referred to the special adjudicator under section 21 of the Immigration Act 1971. By letter dated 5 February 1997 the Secretary of State informed them that he had decided not to refer the material in question.
21. By letter dated 29 April 1997 the applicant’s representatives submitted to the Secretary of State a medical report about the applicant’s treatment following detention in Zanzibar, and requested that the new materials be submitted to the special adjudicator under section 21. They submitted further representations on 26 March 1998.
The hospital medical report, dated 8 November 1994, from a medical officer recorded that the applicant had suffered a severe nasal haemorrhage, that this was of a “dangerous harm” degree and that the injury had been inflicted by hanging upside down.
22. By letter dated 23 April 1998 the Secretary of State informed the applicant that he had considered the new material, but that this evidence did not cause him to reverse his decision to refuse asylum. He noted that the documents would have been available to the applicant at the time of his appeal hearing but were not produced, which cast doubt on their authenticity. Even if the medical certificate and police summons were authentic, however, he saw no reason why the applicant could not return to live safely and without harassment in mainland Tanzania. He refused to make a reference under section 21.
23. The applicant applied for leave to apply for judicial review of the Secretary of State’s refusal to refer the new material to the special adjudicator. He submitted an expert opinion confirming that the documents were genuine. The Secretary of State submitted that the documents were irrelevant because the applicant could live safely in mainland Tanzania. He relied on a letter from the British High Commission in Tanzania dated 8 April 1998 which stated that in general there was no evidence of politically motivated detentions on the mainland, although there were “more general human rights problems such as arbitrary detentions and poor penal conditions” on the mainland.
24. On 1 July 1998 the application for leave was rejected by the High Court. Mr Justice Jowitt stated:
“The Secretary of State’s decision [is] that things have changed and that as matters now stand, whatever was or was not the case in November 1996 and whatever ought or ought not to have been the outcome of the appeal heard then, the applicant can safely return to his home country, provided he goes to the mainland. Having looked at the letter [from the British High Commission], I can see no arguable grounds for saying that the Secretary of State has acted with Wednesbury unreasonableness in concluding that in the light of this new material he has no need to refer the matter to the Special Adjudicator and this application must be refused.”
25. The applicant appealed to the Court of Appeal arguing that the Secretary of State’s refusal was wrong in law and “Wednesbury unreasonable” and that, in claiming that the applicant could live safely on the mainland, he was not complying with international obligations by failing to take into account the applicant’s specific case or documentation.
26. On 1 December 1998 the Court of Appeal refused leave to apply for judicial review. In its judgment it noted that the hospital records showed that his brother had died of fever and did not support the applicant’s evidence that his brother had been tortured. Even assuming that the medical report on the applicant and the summons by the police to his parents were genuine, there was no evidence to suggest that the conclusion reached by the Secretary of State that the applicant could live without harassment on the mainland was wrong.
27. On 23 December 1998 the applicant was notified that he would be removed to Zanzibar on 11 January 1999.
28. On 22 February 1999 the applicant’s wife arrived in the United Kingdom and claimed asylum shortly afterwards. It was recorded that she stated in her interview that the police had harassed her due to her husband’s involvement with the CUF. She had been detained for one day in April 1995 and questioned about her husband’s whereabouts. The police came to her house on 12 February 1999, wanting to know if her husband was back in Zanzibar as there was a rumour that the United Kingdom had sent back most of the asylum-seekers from Zanzibar. They were angry because he had claimed asylum and tarnished the name of the President. They threatened to arrest her instead.
29. Asylum applications are determined by the Secretary of State, pursuant to paragraph 328 of the Immigration Rules and section 3 of the Immigration Act 1971 (“the 1971 Act”). Where leave to enter is refused by the Secretary of State pursuant to section 4 of the 1971 Act, the person may appeal against the refusal to a special adjudicator on the grounds that the removal would be contrary to the United Kingdom’s obligations under the Geneva Convention (section 8 of the 1971 Act).
30. An appeal lies from the special adjudicator to the Immigration Appeal Tribunal (section 20 of the 1971 Act).
31. Section 21 of the 1971 Act provides:
“(1) Where in any case:
(a) an adjudicator has dismissed an appeal, and there has been no further appeal to the Appeal Tribunal, or the tribunal has dismissed an appeal made to them ...; or
(b) the Appeal Tribunal has affirmed the determination of an adjudicator dismissing an appeal ... the Secretary of State may at any time refer for consideration under this section any matter relating to the case which was not before the adjudicator or Tribunal ...”
32. Rule 346 of the Immigration Rules provides that the Secretary of State will treat representations as a fresh application if the claim advanced is sufficiently different from the earlier claim. He disregards, in considering whether to treat the representations as a fresh claim, material which is not significant, or is not credible, or was available to the applicant at the time when the previous application was refused or when any appeal was determined.
33. There have been a number of domestic cases where special adjudicators have rejected “internal flight” possibilities for CUF members from Zanzibar. In Masoud Mussa v. the Secretary of State (30 July 1998), the Government pointed out that the Secretary of State’s counsel had not been present to argue the point. In Omar Machano Omar v. the Secretary of State (24 June 1998), the asylum claimant was an escaped prisoner from Zanzibar and a target for internal extradition proceedings. In Salim Saleh Salim v. the Secretary of State (15 January 1998), the adjudicator found that there was no evidence before him to show that the claimant would be any safer on the mainland than in Zanzibar.
34. In the case of Adam Houiji Foum v. the Secretary of State (10 January 2000), the Immigration Appeal Tribunal allowed the appeal of a Tanzanian asylum-seeker who had been involved in CUF activities, on the basis that, as he had suffered torture in Zanzibar and a summons had been issued against him in Tanzania generally, there was a very reasonable prospect that he would be picked up by the police and undergo ill-treatment similar to that previously received in Zanzibar, either at the hands of the Zanzibar authorities or of the police in mainland Tanzania who also exercised brutality on prisoners in their custody. It therefore rejected the “internal flight” option.
35. Decisions of the Home Secretary to refuse asylum, to make a deportation order or to detain pending deportation are liable to challenge by way of judicial review and may be quashed by reference to the ordinary principles of English public law.
36. These principles do not permit the courts to make findings of fact on matters within the jurisdiction of the Secretary of State or to substitute their discretion for the minister’s. The courts may quash his decision only if he has failed to interpret or apply English law correctly, if he has failed to take account of issues which he was required by law to address, or if his decision was so irrational or perverse that no reasonable Secretary of State could have made it (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223).
37. In the recent case of R. v. Home Secretary, ex parte Turgut (28 January 2000), concerning the Secretary of State’s refusal of asylum to a young male Turkish Kurd draft evader, Lord Justice Simon Brown, in the Court of Appeal’s judgment, stated as follows:
“I therefore conclude that the domestic court’s obligation on an irrationality challenge in an Article 3 case is to subject the Secretary of State’s decision to rigorous examination and this it does by considering the underlying factual material for itself to see whether it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed.
All that said, however, this is not an area in which the Court will pay any especial deference to the Secretary of State’s conclusion on the facts. In the first place, the human right involved here – the right not to be exposed to a real risk of Article 3 treatment – is both absolute and fundamental: it is not a qualified right requiring a balance to be struck with some competing social need. Secondly, the Court here is hardly less well placed than the Secretary of State himself to evaluate the risk once the relevant material is before it. Thirdly, whilst I would reject the applicant’s contention that the Secretary of State has knowingly misrepresented the evidence or shut his eyes to the true position, we must, I think, recognise at least the possibility that he has (even if unconsciously) tended to depreciate the evidence of risk and, throughout the protracted decision-making process, may have tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather than reassess the position with an open mind. In circumstances such as these, what has been called the ‘discretionary area of judgment’ – the area of judgment within which the Court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant’s removal ... – is decidedly a narrow one.”
38. In January 1997 the US Department of State released the Tanzania Country Report on Human Rights Practices for 1996. It stated:
“The Government’s human rights record did not improve and problems persisted. Although the 1995 multiparty elections represented an important development, citizens’ right to change their government in Zanzibar is severely circumscribed. Although new opposition parties were competitive in many 1995 races and won in some constituencies, police often harassed and intimidated members and supporters of the opposition. Other human rights problems included police beatings and mistreatment of suspects, which sometimes resulted in death. Soldiers attacked civilians, and police in Zanzibar used torture, including beatings and floggings. Prison conditions remained harsh and life threatening. Arbitrary arrest and prolonged detention continued and the inefficient and corrupt judicial system often did not provide expeditious and fair trials ...
Since the 1995 election, police in Zanzibar, particularly on Pemba, have regularly detained, arrested and harassed CUF members, and suspected supporters. Despite orders from the Union Government’s Inspector General of Police, officers in Zanzibar continue these activities ...
The Wairoba Commission found that pervasive corruption affected the judiciary from clerks to magistrates. Clerks took bribes to decide whether or not to open cases and to hide or misdirect the files of those accused of crimes. Magistrates often accept bribes to determine guilt or innocence, pass sentence, withdraw charges or decide appeals ...
There are reports of prisoners waiting several years for trial because they could not pay bribes to police and court officials. Authorities acknowledge that some cases have been pending since 1988. The Government initiated efforts as early as 1991 to highlight judicial corruption and increased its oversight ...
In the 2 years since the election, government security forces and CCM gangs harassed and intimidated CUF members on both of the two main Zanzibar islands, Pemba and Ugunja. Because CUF won all 20 seats on Pemba, Pembans living on Ugunja were regarded as CUF supporters and as a result were harassed. CUF members accused police of detaining dozens of its members ... Safety is not ensured in Pemba, where security forces dispersed gatherings, intimidated and roughed up individuals ...”
39. In the Amnesty International Annual Report 1997, it was stated:
“Prisoners of conscience were among scores of government opponents arrested and briefly detained on the islands of Zanzibar and Pemba. Many were held without charge or trial; others faced criminal charges and were denied bail. Scores of political prisoners were tortured and ill-treated on the islands ...
Criminal charges such as sedition, vagrancy and involvement in acts of violence, often accompanied by the denial of bail for periods of two weeks or more, were also used as a method of intimidating government critics or opponents.”
40. In their 1998 report, Amnesty International stated:
“In December [1997], 14 possible prisoners of conscience on Zanzibar were charged with treason and refused bail. The men, supporters of the CUF, were arrested and initially charged with sedition in November and December, during the week the CUF won a by-election to the Zanzibar House of Representatives.”
41. On 8 July 1998 Amnesty International issued a press release expressing concern that the vice-chairperson of the CUF might be arrested on a fabricated treason charge. In Tanzania it noted treason carried a mandatory death penalty. On 24 July 1998 Amnesty called for the immediate release of eighteen leading CUF members or supporters, most of them imprisoned since November 1997 on fabricated treason charges. It expressed concern about their deteriorating health and a denial of adequate medical treatment.
42. The 1998 US State Department report on Tanzania noted that serious problems remained in that government’s human rights record.
“... the police regularly threaten, mistreat or beat suspected criminals during and after their apprehension and interrogation. Police also use the same means to obtain information about suspects from family members not in custody ... Police in Zanzibar use torture ... Repeated reports from credible sources indicate that the police use torture, including beatings and floggings in Zanzibar, notably on Pemba Island. Both the Zanzibar and Union Governments have denied these charges. Police have not yet explained the deaths of six detainees in the town of Morogoro who were electrocuted at the end of 1997 ...
Prison conditions remained harsh and life-threatening. Government officials acknowledge that prisons are overcrowded and living conditions are poor. Prisons are authorised to hold 21,000 persons but the actual prison population is estimated at 47,000 ... The daily amount of food allotted to prisoners is insufficient to meet their nutritional needs and even this amount is not always provided ... Earlier the Commissioner of Prisons stated that his department received inadequate funds for medicine and medical supplies. Prison dispensaries only offer limited treatment, and friends and family members of prisoners generally must provide medication or the funds with which to purchase it. Serious diseases, such as dysentery, malaria and cholera are common and result in numerous deaths. Guards continued to beat and abuse prisoners.
... There were no reports of political prisoners on the mainland. At the year’s end, there were 18 political prisoners in Zanzibar.”
43. The report noted that in January 1998 the police had searched the offices of the CUF party in Tanzania and removed files. In the three years since the election in 1995, government security forces and CCM gangs harassed and intimidated CUF members on both the main Zanzibar islands of Pemba and Ugunja.
44. The Amnesty International 1999 Report for Tanzania stated that:
“Eighteen prisoners of conscience, including three arrested during the year, were facing trial for treason on the island of Zanzibar, an offence that carries the death penalty. Scores of other opposition supporters in Zanzibar were imprisoned for short periods; some were possible prisoners of conscience. More than 300 demonstrators arrested on the mainland in the capital Dar es Salaam were held for several weeks and reportedly tortured. Conditions in some prisons were harsh ...”
The eighteen prisoners, CUF members, included fifteen arrested in 1997 and three arrested in Zanzibar in May 1998, and many had reportedly fallen ill due to a denial of access to medical treatment. According to the report, the conditions in some mainland prisons amounted to cruel, inhuman and degrading treatment, which in the case of Mbeya Prison led to forty-seven deaths in the first half of the year.
45. In its press release of 27 January 2000 Amnesty International, reporting on the imminent trial of the eighteen CUF members, referred to them “as prisoners of conscience who are imprisoned solely on account of their non-violent opinions and peaceful political activities”. It described how between the 1995 and the 1998 elections, numerous CUF supporters had been arrested on trumped-up criminal charges, tortured in custody and imprisoned. On more recent events, it commented:
“Following lengthy attempts by the Secretary General of the Commonwealth and the United Nations Secretary General to settle the political crisis in Zanzibar, an agreement was finally reached between the CCM and CUF in April 1999. Far-reaching reforms for democratisation, human rights and fair elections were set out in the Commonwealth Agreement, but few have yet been implemented. Although the CUF is allowed to operate more freely, the Zanzibar government continues to press ahead with the trial, intent on convictions and death sentences.”
46. In the 1999 US State Department report on Tanzania, issued on 25 February 2000, it was reported, inter alia, that the authorities had been responsible for a number of extrajudicial killings and that several prisoners had died as a result of harsh prison conditions, including inadequate nutrition, medical care and sanitation:
“... the police regularly threaten, mistreat or occasionally beat suspected criminals during and after their apprehension and interrogation ... Repeated reports indicate that the police use torture, including beatings and floggings, in Zanzibar, notably on Pemba island.”
The situation in Zanzibar was less favourable in a number of respects. It was stated that, except in Zanzibar, Tanzanian citizens generally enjoyed the right to discuss political alternatives freely and opposition party members openly criticised the government, although the government had used the provision prohibiting “abusive language” against the leadership to detain some opposition figures. Opposition parties had generally been more able to hold rallies, although CUF meetings in Zanzibar had been far more restricted than those of other parties. Police continued to break up meetings attended by persons thought to be opposed to the Zanzibar government. In Pemba the security forces broke up gatherings and intimidated opposition party officials and the government continued to arrest opposition politicians for holding meetings.
“In the four years since the election, government security forces and CCM gangs harassed and intimidated CUF members on both main Zanzibar islands, Pemba and Ugunja ... The CUF accused police of detaining dozens of its members including several local leaders ... citizen’s safety is not assured in Pemba, where security forces dispersed gatherings and intimidated persons ... Almost all international donors have suspended direct assistance to Zanzibar in response to the authorities’ human rights abuses. Under pressure from the international community, the ruling CCM party and the main opposition party, the CUF, signed a political agreement in June to make the political process in Zanzibar fairer; however the provisions of the agreement were not fully implemented by the year’s end and observers believe that the Government did not act in good faith in the period following the signing of the agreement.”
47. In a letter dated 8 April 1998 the British High Commission in Dar es Salaam commented that there were concerns about the situation in Zanzibar but that on the mainland there had been no evidence of political killings, disappearances or politically motivated arrests. There were more general human rights problems, such as arbitrary detentions and poor penal conditions, which were systemic and not related to political activity.
48. In a letter dated 25 May 1998 Michael Hodd of the University of Westminster commented that there was evidence of human rights violations in Zanzibar, including a list of sixty-six missing persons. Although there was a good human rights record in mainland Tanzania, it was possible for the Zanzibar government to demand extradition, which had been successful in the case of Abdallah Kassim Hanga, whom a well-informed source reported as having been beheaded.
49. According to a report dated 16 March 1999 obtained by the applicant, Professor Parkin, professor of social anthropology at All Souls College, Oxford, an expert on Uganda, Kenya and Tanzania, stated that while there was less likelihood of persecution in mainland Tanzania than on Zanzibar, he observed a deteriorating situation also affecting the mainland. He referred to particular members of the Zanzibari CCM visiting the mainland and harassing and persecuting CUF dissidents who had taken refuge there. The Zanzibari CUF leader was living in Dar es Salaam but only ever moved out of his flat surrounded by CUF party aides able to protect him.
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-6016
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: CICEK v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant, Serdal Çiçek, is a Turkish national of Kurdish origin, born in 1979 and was expelled from the Netherlands to Turkey shortly before the introduction of the application. He is represented before the Court by Mrs G.E.M. Later, a lawyer practising in The Hague.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 19 January 1999, the applicant was apprehended and detained for the purposes of establishing his identity, nationality and residence status. On 20 January 1999, an order for his expulsion was issued and he was placed in aliens’ detention for the purposes of expulsion (vreemdelingenbewaring) under Article 26 § 1 (a) of the Aliens Act (Vreemdelingenwet).
On 21 January 1999, the applicant filed an asylum request and was consequently placed in aliens’ detention under Article 26 § 1 (c) of the Aliens Act. On the same day, he filed an appeal with the Hague Regional Court (Arrondissementsrechtbank) against his placement in aliens’ detention and requested this court to award him compensation.
By decision of 4 February 1999, following a hearing held on 2 February 1999, the Hague Regional Court rejected the applicant’s appeal of 21 February 1999 as well as his request for compensation. It held that it had not been argued and that it had not appeared that the applicant’s apprehension and placement in aliens’ detention had been unlawful. It found established that the applicant did not have a valid residence title or any identity papers and that he did not have sufficient means for his subsistence or to finance his return journey. The Regional Court considered that the serious suspicion expressed by the State Secretary of Justice (Staatssecretaris van Justitie) to the effect that the applicant would seek to find ways of avoiding his expulsion were not unfounded. Since the applicant’s statements about the date of his arrival in the Netherlands were contradictory, the Regional Court rejected the applicant’s account that he had only arrived on 16 January 1999 as not credible. The Regional Court concluded that the applicant’s placement in aliens’ detention was in the interest of public order.
As regards the applicant’s request for asylum, the Regional Court held that there were no indications that this should be considered as standing chances of success. The applicant’s mere contention that he was a deserter was held to be insufficient for a finding that his request for asylum might be successful. The Regional Court concluded that the State Secretary could correctly adopt the position that, pending the proceedings on the asylum request, the applicant should remain in aliens’ detention.
On 10 February 1999, the State Secretary of Justice declared the applicant’s request for asylum inadmissible on the basis of Article 15b § 1 (f) of the Aliens Act. In accordance with Article 18a of the Aliens Act, the State Secretary further ordered that the applicant’s freedom of movement be restricted by assigning him to an asylum seekers centre, this order was to be suspended until the measure of the applicant’s placement in aliens’ detention was lifted otherwise than through a departure from the Netherlands. The applicant filed an appeal against this decision with the Hague Regional Court.
As the applicant’s appeal was denied suspensive effect by the State Secretary as to his expulsion, the applicant requested the President of the Hague Regional Court on 12 February 1999 for an injunction on his expulsion pending the appeal proceedings.
By decision of 9 April 1999, following a hearing held on 2 April 1999, the Acting President of the Hague Regional Court rejected the appeal and the request for an injunction. The Acting President held, insofar as relevant:
“4. The president finds that the <State Secretary> has correctly declared the asylum request inadmissible pursuant to Article 15b § 1 (f) of the Aliens Act. He considers on this point that the applicant has made contradictory statements as to the date of entry to the Netherlands. According to the formal record of findings (proces-verbaal van bevindingen) of 29 January 1999 drafted under oath of office (ambtseed) by the Haaglanden police, the applicant stated that he had been in the Netherlands for three months. During the questioning in relation to his placement in aliens’ detention on 20 January 1999, the applicant stated that he had been in the Netherlands for about one week, whereas during the proceedings on the appeal filed against the order on deprivation of liberty under Article 26 of the Aliens Act he stated that he had arrived in the Netherlands on 16 January 1999. ... Since the applicant has only filed the request at issue on 21 January 1999 after having been apprehended on 19 January 1999, whereas it has by no means been established on what date the applicant has arrived in the Netherlands, the president finds that the <State Secretary> has declared the request for entry ... inadmissible on reasonable grounds.
5. The inadmissibility of the asylum request ... does not dispense the <State Secretary> from the obligation to examine whether the facts and circumstances submitted by the applicant form an obstacle to expelling the applicant to his country of origin if this would be contrary to Article 33 of the Convention relating to the status of refugees ...
6. The president agrees with the <State Secretary> that it has not been established that the applicant can be considered as a refugee within the meaning of the Convention <relating to the status of refugees>. It is considered at the outset that there are serious doubts about the sincerity of the applicant’s request for asylum. The applicant submits to fear persecution from the side of the Turkish authorities on grounds of evasion of military service. However, the applicant has only invoked the protection of the Convention <relating to the status of refugees> two days after he had been apprehended, during a public transport check, for travelling without having a valid ticket. This course of action does not indicate that the applicant finds himself in a situation requiring his immediate flight.
7. … the president considers that the general situation for members of the Kurdish population in Turkey is not such that the fact that an alien belongs to the Kurdish population group in Turkey makes him automatically a refugee. The applicant must therefore make it plausible that there are facts and circumstances relating to his person which justify his fear for persecution within the meaning of <the Convention relating to the status of refugees>.
8. In the president’s opinion, the applicant has failed to do so. The applicant has not made it plausible that he has attracted the negative attention of the authorities of his country of origin. The applicant has declared that he has never been a member of any political party or movement or that he has been engaged in political activities in his country of origin. He has submitted that he was a sympathiser of the HADEP party, but it has not been argued nor has it appeared that through this he has attracted the negative attention of the Turkish authorities.
9. As regards the applicant’s submissions in relation to his refusal to fulfil his military obligations in Turkey ... the applicant has attained the age of twenty on 1 January 1999, which is the military age in Turkey. … the president finds it sufficiently established that the applicant must fulfil his military obligations and that he is considered in Turkey as having refused to do his military service.
10. <This aspect of the case> must be examined in the light of the criteria formulated in the ... decision taken by this court <on 2 July 1998>, in which it was held that a draft evader or deserter is a refugee, if he
a. has a well–founded fear of disproportionate or discriminatory punishment or execution of the punishment for refusing military service on grounds of his race, religion, belonging to a particular social group or political conviction, or if, on the basis of the above grounds, he has a well–founded fear for a different discriminatory or disproportionate punishment or execution of a punishment;
b. has refused <to fulfil military obligations> because he has serious insurmountable conscientious objections on grounds of his religious of other deep-rooted conviction prescribing a refusal to do military service, and where there is no possibility in his country of origin to fulfil instead of military service a non-military service;
c. has reached the decision to refuse military service or to desert, because he does not want to become involved in a (sort of) military action that has been condemned by the international community as being contrary to the basic principles of humane behaviour or that is in violation of fundamental norms applying during an armed conflict.
As regards the category under a. ... the president considers that it cannot be derived from information known ex officio that the punishment of Turkish draft evaders of Kurdish origin is different from that of other Turkish draft evaders. The applicant cannot, therefore, be classified as falling within this category.
As regards the category under b. ... the president considers that the applicant has only submitted during the appeal proceedings that his refusal to do his military service is connected with his Kurdish origins, without further substantiating this contention. The president finds that what has been submitted on this point is not sufficient for accepting this as a form of conscientious objection within the sense as meant here. ...
As regards the category under c. the president considers that it has not appeared in the present case that a condemnation by the international community has in fact been made of the military actions in south-east Turkey on grounds of being contrary to the basic principles of humane behaviour or on grounds of a violation of fundamental norms applying during an armed conflict. Also in this respect, the applicant’s appeal on grounds of having refused military service fails.
11. ... Having regard to the considerations under 6, 7, 8, 9 and 10 it has not been established that a forcible return of the applicant to Turkey is contrary to Article 3 of the Convention.”
On 12 May 1999, after having been notified of this decision on 7 May 1999, the applicant filed a second request for asylum or, alternatively, a residence permit on humanitarian grounds. This request was declared inadmissible by the State Secretary on 27 May 1999. On 28 May 1999, the applicant filed an appeal against this decision with the Hague Regional Court, which did not have suspensive effect as to his expulsion.
On 10 June 1999 and accompanied by Dutch police officers, the applicant was expelled to Turkey. Upon his arrival at the İstanbul airport he was handed over by the Dutch police officers to the Turkish authorities.
The applicant claims that he was blindfolded, placed in a car and driven to a place where he was detained for a period of two months. During his detention there, the applicant claims that he was interrogated about his knowledge of persons belonging to the PKK and that, during these interrogations, he was subjected to various forms of ill-treatment including beatings, kicking, hosing with pressurised cold water, squeezing of his testicles and branding with a hot iron. After his release from detention, the applicant returned to the Netherlands on 8 October 1999.
On 12 October 1999, the applicant was medically examined by a doctor of Amnesty International, who found, inter alia, eleven scars on his back in the form of a horseshoe with a diameter of about 11 centimetres. These scars were found to be healing first to second degree burn wounds. The doctor concluded that a connection between the scars on the applicant’s back and his account of torture was very plausible and that the applicant’s psychological and physical condition could very well fit a recently suffered serious trauma.
By letters of 17 November 1999 and 17 January 2000, the applicant requested the State Secretary to withdraw the decision of 27 May 1999 and to grant him asylum or a residence permit on the basis of Article 3 of the Convention. On 25 January 2000, the State Secretary advised the applicant to file a fresh request for asylum or a residence permit. On 26 January 2000, the applicant filed an objection (bezwaar) with the State Secretary against the contents of the letter of 25 January 2000.
On 3 May 2000, as the State Secretary had failed to determine the applicant’s objection timely, the applicant filed an appeal with the Hague Regional Court.
In its decision of 4 August 2000, the Regional Court noted that, on 30 May 2000, the State Secretary had in fact withdrawn the decision of 27 May 1999, but that no new decision on the applicant’s second request for asylum or a residence permit on humanitarian grounds had been taken by the State Secretary. It ordered the State Secretary to do so within six weeks after the notification of the decision. On 9 August 2000, the parties were notified of the decision of 4 August 2000.
On 8 January 2001 the applicant filed a new appeal with the Hague Regional Court since no decision had yet been taken by the State Secretary. These proceedings are currently still pending.
Article 15b of the Aliens Act, insofar as relevant and as in force at the relevant time, provides:
“1. A request for admission as refugee will not be granted on grounds of inadmissibility when: ...
f. the alien does not hold a travel document required for entering the Netherlands, unless he has, with indication of the place of entry to the Netherlands, immediately applied to a public official, entrusted with border control or control of aliens, claiming to have well–founded reasons to fear persecution within the meaning of Article 15 <of the Aliens Act>.
Article 26 of the Aliens Act, insofar as relevant, provides:
“1. Where the interests of public order, public peace or of national security so require, the following persons can be placed in aliens’ detention:
a. aliens whose expulsion has been ordered;
b. aliens in respect of whom there are serious reasons for expecting that their expulsion will be ordered;
c. aliens who are not entitled to residency in the Netherlands under Articles 8-10 <of the Aliens Act>, pending a determination of a request for a temporary or permanent residence permit or a request for admission as refugees.
2. Placement in aliens’ detention will not be ordered when – and will be terminated as soon as – the alien indicates that he wants to leave the Netherlands and has the possibility to do so.
3. A placement in aliens’ detention under the first paragraph under b. or c. shall in no case exceed four weeks.”
An alien who does not have any identity papers and whose expulsion has been ordered can, in principle, remain in aliens’ detention for an unlimited period of time. The lawfulness of a placement in aliens’ detention can, however, be challenged before a court. Where the court is of the opinion that there are no prospects of expulsion within a reasonable time, it can order that the measure of placement in aliens’ detention be lifted.
According to Dutch case-law, the interest of an alien to be released from aliens’ detention increases with the passage of time. Where a placement in aliens’ detention exceeds a period of six months, it is generally held that the alien’s interest in being released is greater than the interest to keep him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, it may be that this point in time is reached at an earlier or later point in time than after six months have passed. It may be later where the alien frustrates the determination of his identity or nationality and it may be sooner where the alien concerned is unable to obtain travel documents for reasons beyond his control.
Article 34a of the Aliens Act provides:
“1. A measure taken under this Act to the effect of a restriction or deprivation of liberty shall, for the application of Article 8:1 § 1 of the General Administrative Law Act (Algemene Wet Bestuursrecht), be considered on a par with a decision (besluit) <within the meaning of that provision>.
2. On a first appeal against a decision to the effect of a deprivation of liberty, the Regional Court shall hear the alien within two weeks, either during the preliminary phase of the proceedings under Article 8:44 of the General Administrative Law Act, or at the court hearing itself.
3. If the appeal is directed against a decision referred to in the second paragraph, the Regional Court shall set the time of the hearing without delay and in any event not later than two weeks after the day on which the appeal notice has been sent. Notwithstanding the provisions of Article 8:42 § 2 of the General Administrative Law Act the time–limit referred to in that provision shall not be extended.
4. The Regional Court shall give judgment in writing within two weeks after the hearing is closed, unless it immediately gives an oral judgment during the hearing. Notwithstanding the provisions of Article 8:66 § 2 of the General Administrative Law Act, the time–limit referred to in that provision shall not be extended.
5. If the Regional Court finds that the application or execution of the measure is in conflict with this Act or, having balanced all interests involved, cannot reasonably be considered to be justified, it shall declare an appeal under this provision well–founded and order the discontinuation of the measure or an alternate method of execution.”
Although no appeal lies against a decision from the Regional Court in proceedings concerning requests for release from detention for expulsion purposes, an appeal to the Court of Appeal (Gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes. Furthermore, an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127)
There is no time-limit for filing an appeal against a decision of placement in aliens’ detention and in principle a person placed in aliens’ detention can file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens’ detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens’ detention as from the date of the last judicial decision taken on this point.


ITEMID: 001-78034
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SPASOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 7. On 5 February 1997 a murder was committed in the village of Markovo. A preliminary investigation against an unknown perpetrator was opened on the same day.
8. On 23 July 1997 another individual, Mr K., was arrested on unrelated charges. He later confessed to having committed the murder on 5 February 1997 and to having shot the victim, but claimed to have been incited to do so by the applicant.
9. On 6 August 1997 the home of the applicant was searched by the police.
10. The applicant was questioned as a witness on 8 August 1997. He admitted to having been present at the time of the murder, but denied that he had incited Mr K. and claimed to have run away fearing that he might also be killed.
11. On 11 August 1997 Mr K. was charged with the murder of 5 February 1997 and for unlawful possession of firearms.
12. Mr K. gave detailed statements to the investigation in the presence of his lawyer and claimed, inter alia, that it was the applicant who had known the victim, had indicated him as a possible target for a robbery and had insisted that they shoot him in order to avoid subsequent identification.
13. On 15 October 1997 the applicant was arrested, detained on remand and charged with being an accomplice to the murder with an avaricious intent and for inciting Mr K. to commit the offence.
14. Throughout the criminal proceedings the applicant was represented by counsel. He maintained his innocence, contested the version of events presented by Mr K. and claimed that the latter was solely responsible for the murder.
15. On an unspecified date an indictment was filed against the applicant for being an accomplice to the murder of 5 February 1997 with an avaricious intent.
16. Three hearings were conducted before the Plovdiv Regional Court between 4 February 1998 and 28 September 1998. On the latter date, the court remitted the case to the investigation stage as it found that the offence should be reclassified as a robbery accompanied by murder, which required additional investigative procedures to be performed. No such were subsequently conducted.
17. On 28 December 1998 the charges against the applicant were amended and on 5 January 1999 a revised indictment was filed against him and Mr K. for attempted robbery accompanied by murder.
18. Seven hearings were conducted before the Plovdiv Regional Court between 22 March 1999 and 1 February 2000.
19. In a judgment of 1 February 2000 the Plovdiv Regional Court found the applicant and his co-accused guilty of attempted robbery accompanied by murder, sentenced each of them to seventeen years' imprisonment and ordered them to pay damages to the victim's family.
20. Following an appeal by the applicant, on 13 June 2000 the Plovdiv Court of Appeals quashed the lower court's judgment and, for reasons not indicated by the parties, remitted the case to the investigation stage.
21. On 26 October 2000 a revised indictment was filed against the applicant and Mr K. for attempted robbery through use of force which resulted in murder.
22. The Plovdiv Regional Court started rehearing the case on 13 February 2001 and conducted a total of five hearings until 9 July 2001. The victim's family joined the proceedings as civil claimants on 1 March 2001.
23. In a judgment of 9 July 2001 the Plovdiv Regional Court found the applicant guilty of being an accomplice to attempted robbery resulting in murder and sentenced him to seventeen years' imprisonment. Mr K. was also found guilty of attempted robbery resulting in murder, as well as for unlawful possession of firearms, and was sentenced to fifteen years and six months' imprisonment. They were also ordered to pay damages to the victim's family.
24. On 6 August 2001 the applicant appealed against the judgment of the Plovdiv Regional Court. Mr K. did not appeal against the said judgment.
25. In a judgment of 4 January 2002 the Plovdiv Court of Appeals upheld the lower court's judgment, but decreased the sentence of the applicant to fifteen years and six months' imprisonment.
26. On 29 January 2002 the applicant filed a cassation appeal.
27. In a final judgment of 14 May 2002 the Supreme Court of Cassation upheld the lower courts' judgments.
28. On 15 October 1997 the applicant was arrested and detained on remand under an order of an investigator, which was confirmed by a prosecutor later on the same day.
29. The parties did not provide details about the first year and a half of the applicant's detention.
30. On 15 April 1999 the applicant appealed against his detention, claiming, inter alia, that it was no longer justified. The applicant maintained that there was no danger of him absconding and argued that if that was his intention he would already have done so as he had had sufficient forewarning that the authorities were actively investigating the murder. Purportedly, he had had ample time to abscond, if that had been his intention, between the time of the arrest of Mr K., the search of his home on 6 August 1997 and his arrest on 15 October 1997. Separately, the applicant maintained that there was no danger of him obstructing the investigation or re-offending.
31. The appeal was scheduled to be heard by the Plovdiv Regional Court on 3 May 1999 but the applicant withdrew his appeal at the start of the hearing on that day purportedly in order not to delay the criminal proceedings in which a hearing had been scheduled for 14 May 1999.
32. On 20 May 1999 a new appeal was filed by the applicant against his detention citing grounds similar to those in his previous appeal. On 31 May 1999 the applicant's father passed away and he informed the court on 1 June 1999 of the additional circumstances for consideration when assessing the grounds of his appeal. A hearing of the appeal was set for 6 June 1999, but was then postponed for 8 June 1999. The applicant claimed, which the Government did not refute, that the courts failed to rule on his appeal.
33. On 15 July 1999 the applicant filed another appeal against his detention in which he reiterated his previous arguments and complained of a violation of Article 5 §§ 3 and 4 of the Convention. A hearing date was set for 22 July 1999. The applicant claimed, which the Government did not refute, that the courts failed to rule on his appeal.
34. On 1 February 2000 the applicant was convicted and sentenced to a term of imprisonment. Following an appeal by the applicant, the judgment was quashed on 13 June 2000 and the case was remitted to the investigation stage. The rehearing of the case started on 13 February 2001.
35. On 18 April 2001 the applicant filed a new appeal against his detention on grounds similar to those in his appeal of 15 July 1999.
36. On 25 April 2001 the Plovdiv Regional Court dismissed the appeal on unspecified grounds.
37. On 2 May 2001 the applicant appealed against the decision to the Plovdiv Court of Appeals. He argued, inter alia, that there could no longer be any danger that he might abscond, re-offend or hamper the investigation.
38. On an unspecified date the Plovdiv Court of Appeals dismissed the applicant's appeal. The applicant contended, which the Government did not challenge, that the court relied on the seriousness of the offences with which he had been charged to justify his continued detention.
39. On 9 July 2001 the applicant was convicted and sentenced to a term of imprisonment. The sentence was upheld on appeal and became final on 14 May 2002.
40. The Government did not provide copies of the relevant documents concerning the applicant's appeals.
41. The relevant provisions of the Code of Criminal Procedure (the “CCP”) and the Bulgarian courts' practice before 1 January 2000 are summarised in the Court's judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)).
42. As of 1 January 2000 the legal regime of detention under the CCP was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation). The effected amendments and the resulting practice of the Bulgarian courts are summarised in the Court's judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 32-35, 10 August 2006) and Yordanov v. Bulgaria (no. 56856/00, §§ 21-24, 10 August 2006).
43. On the basis of the relevant law before 1 January 2000, when ruling on appeals against pre-trial detention of a person charged with having committed a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person's absconding or committing offences and stated that every person accused of having committed a serious offence must be remanded in custody unless exceptional circumstances dictated otherwise (see decisions of the domestic authorities criticised by the Court in the cases of Nikolova and Ilijkov, both cited above, and Zaprianov v. Bulgaria, no. 41171/98, 30 September 2004).
44. In June 2002, interpreting the amended provisions on pre-trial detention, the Supreme Court of Cassation stated that when examining an appeal against pre-trial detention the courts' task was not only to verify whether the initial decision on remand in custody had been lawful but also to establish whether continued detention was still lawful and justified. In such proceedings the courts had to examine all available evidence on all relevant aspects, including the amount of the recognisance as the case may be (TR 102 Supreme Court of Cassation).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-107119
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: FIRKINS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Lee Raymond Michael Firkins, is a British national who was born in 1974 and currently detained at HMP Whitemoor. He was represented before the Court by Ms J Hickman, a lawyer practising in London with Hickman and Rose Solicitors, assisted by Mr J. Wood QC and Mr J. Lyons, counsel.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On the evening of 5 November 2003 Mr and Mrs Fisher were shot and killed with shotguns in the course of a robbery at their house near Wadebridge, Cornwall. Forensic evidence of footwear patterns, and the fact that two windows had been smashed on different sides of the house, suggested at least two robbers. The evidence also suggested that they had been killed after 19.00. The house was adjacent to a petrol station which the couple had run.
4. That evening the applicant and his brother, Robert, had visited relatives in Foxhole and St Dennis, Cornwall, twelve miles south of the murder scene. On their own admission, they had carried out a series of crimes in the south-west of England shortly following the murder. This included the armed robbery of a petrol station which lay between St Dennis and the Fishers’ garage, which the applicant admitted to having committed. A shotgun had been fired in the course of that robbery. The brothers also admitted to robbing a B & Q store in the area. There were also three incidents of serious assaults by the brothers, during the last of which a shotgun had also been produced. After the Fishers’ murder, two shotguns were found where the brothers had buried them on a beach. Both admitted possession of them, though no specific connection with the murders was established.
5. The brothers were charged with the Fishers’ murder. Their defence was they had travelled together to visit their relatives, had tried to obtain cannabis via one relative, and had then gone to a public house while the relative sought unsuccessfully to obtain the cannabis. They had not been anywhere near the Fishers’ home or garage. However, evidence was called by the prosecution as to the use of a mobile telephone which the brothers had been carrying that evening. From records of which telephone masts had serviced the mobile telephone that evening, the prosecution sought to determine when telephone calls had been made and from where. The evidence showed that the telephone had been used up to 18.50 that evening and was then silent until 20.46 when a three minute call was received from Robert’s girlfriend. The prosecution submitted that the telephone mast evidence, particularly that relating to the 20.46 call, was consistent with it being received in a car moving away from the murder scene and that it was impossible for it to have been received at the public house, as the brothers maintained. Moreover, the evidence of the girlfriend at trial was that Robert had been in a tearful and emotional state during the call, though he denied this.
6. In addition to this evidence, and the telephone evidence above, the prosecution relied on what it considered to be the improbability of the brothers’ account of travelling so far as they did to buy a few pounds’ worth of cannabis. It also relied on the fact that the brothers claimed to have left the public house without finding out if their relative had successfully obtained the cannabis. The prosecution further relied on the evidence of two other witnesses who had heard conversations between the brothers: one testified that Robert had said to Lee “what are we going to do about this Wadebridge thing?”; the other testified that Robert had spoken about Wadebridge. Finally, the prosecution were allowed to rely on the other robberies and one of the assaults which the applicant and his brother had committed as evidence of their propensity to commit robbery and to use sudden and exceptional violence.
7. At trial, against Robert only, the prosecution led additional evidence from three prisoners who alleged that, while in prison on remand before the trial, Robert had either admitted or had made incriminating remarks regarding the shootings. The most significant of the three witnesses was a police informant, Z, who testified that Robert had admitted the shootings. The second of the three witnesses testified inter alia that Robert had returned to his cell, after being interviewed by the police, worried about the telephone evidence. The third testified that he had overhead Robert tell someone that Lee was going to take the blame for the shootings and that he, Robert, had done them.
8. At the close of the defence case, the prosecution conceded that the evidence which had been led against the applicant was insufficient to permit a jury to return a guilty verdict against him. However, it maintained that a guilty verdict could be returned by way of the Hayter approach (see relevant domestic law and practice below). This would allow the jury to consider first the case against Robert (including the additional evidence against him which had been given by the three prisoners) and then, if they found Robert guilty, to apply that conclusion in determining whether the applicant was also guilty. The jury were accordingly directed by the trial judge as follows:
“... you must consider the case against each defendant separately. The evidence against each defendant is different, and therefore your verdicts need not be the same. It is a matter for you how you set about your task and in which order you consider the cases against the defendants, but I suggest that you approach your deliberations first by considering the case against and for Robert Firkins. Much of the evidence in the case has relevance both to Robert Firkins and to Lee Firkins, but the evidence of [the three witnesses] about the confessions, or incriminating remarks, that Robert Firkins allegedly made is evidence only in the case against Robert Firkins, and is not evidence in the separate case against Lee Firkins. The reason is simply that an admission of guilt by one defendant, even if it includes an assertion of the guilt of another defendant, cannot be evidence against that other defendant. It would make no difference whether the alleged admission was to a fellow prisoner or to the police in interview; it is only evidence against the defendant who says it, and not against the other defendant who is not present when it is said.
So here, if you find that Robert Firkins made all, or any, of the alleged confessions or incriminating remarks, Lee Firkins was not present, had no chance to hear and dispute the truth of the admissions, and such admissions and assertions are not evidence against him. Thus, in the case of Robert Firkins there is additional evidence, should you accept it, of [the three prison witnesses] which is not evidence against Lee Firkins. That is why, as I have already said, the evidence against each defendant is different, and therefore your verdicts need not be the same.
However, there is a further and crucial consideration which is relevant when you go on to consider the case against and for Lee Firkins, and it is this. If, as a result of considering the evidence of [the three witnesses], together with the other evidence in the case against Robert Firkins, you are sure that Robert Firkins was guilty of the murders of Carol and Graham Fisher, you could properly use that finding of guilt in your consideration of the case against Lee Firkins. You would not then be treating the evidence of [the three prison witnesses] as evidence against Lee Firkins; what you would be doing - and it is a matter for you whether, and to what extent, you do - what you would be doing would be using the fact that you had found Robert Firkins guilty as a fact in the case against Lee Firkins.
If you think about it, that is perfectly logical. While certain evidence – [the three witnesses] – cannot be evidence against Lee Firkins for the reasons that I have explained, it would be odd, would it not, if, having considered all the evidence against Robert Firkins and found him guilty, the fact of his guilt could not be taken into account, together with all the evidence, as a fact in the case against Lee Firkins.
But you could only take it into account in the case of Lee Firkins if you were sure of the following matters - (1) as I have said, that Robert Firkins is guilty; (2) that the two defendants were together at all material times on the night of 5th November, and therefore they were together at the murder scene. There is of course no dispute that they were together at all material times. (3) that the murders involved two people acting together in what the law calls a joint enterprise, of which more in a moment; and (4) that the deaths of Mr. and Mrs. Fisher resulted from the carrying into effect of that joint enterprise.”
9. Having directed the jury on the applicable law of joint enterprise, the trial judge continued:
“Should you choose to adopt my suggestion first to consider the case against Robert Firkins, then your approach should be as follows. If you have found Robert Firkins guilty, then, when looking at the case of Lee Firkins, if you are sure that, with the intention to commit the offences of murder, he took some part in committing them with Robert Firkins, then, he, Lee Firkins, is also guilty. As I have said, if you found Robert Firkins guilty you could use the fact of his guilt in your consideration of Lee Firkin’s case.
However, I emphasise you must not take into account in the case against Lee Firkins any of the evidence of [the three prison witnesses] as to what Robert Firkins may have said to them, or have been overhead to say, either about his own involvement or his brother’s involvement. That evidence remains inadmissible in the case against Lee Firkins.
It is for these reasons that I strongly advise you, as a matter of logic and good sense, to consider first the case of Robert Firkins. If you find him guilty, you may use the fact of his guilt in the way I have just described, together with all the other evidence, both against and for Lee Firkins, in your consideration of the case of Lee Firkins.
If, in following that advice, you found Robert Firkins not guilty, you would be compelled to find Lee Firkins not guilty, because the evidence against Lee Firkins, without using the conviction of Robert Firkins as evidence against him, is, I direct you, insufficient to find Lee Firkins guilty.”
10. The jury were also warned that they should treat the evidence given by the three witnesses as to what Robert had said in prison with caution, given the potential risks associated with such “cell confession evidence”.
11. On 26 January 2006, the applicant and his brother were convicted of both counts of murder by the jury. They appealed against their convictions to the Court of Appeal. The appeals were dismissed on 17 December 2008. In respect of the applicant’s contention that the Hayter approach had been unfairly applied in his case, the Court of Appeal observed:
“The Crown had made it clear before the trial began that it would contend that the Hayter approach was likely to apply in this case, so that if on the evidence admissible against him Robert were to be convicted, and the jury was sure that he was with Lee at all material times that evening, Lee’s conviction could properly follow. The Judge was invited to refuse to leave the case to the jury on that basis; it was submitted that Hayter should be confined to the case where the conviction of A is a legal pre-condition to the possible conviction of B, and that the effect of leaving the Hayter approach to the jury would be to make the confession of Robert in effect admissible against Lee although in law it was not. The first argument is not pursued here: Hayter was not so limited. The second is also not pursued and is precisely the submission which was rejected by the Lordships in Hayter.
Mr Wood [counsel for the applicant]’s argument here is that the Judge should have refused to leave the Hayter approach to the jury because it put the conduct of Lee’s defence in an impossible position. He had, he suggests, no locus standi to challenge the evidence of ‘Z’ and others and could not for example apply under s 100 Criminal Justice Act 2003 to put in bad character material against them. We are very doubtful about that. If, via Hayter, there was evidence which was potentially damaging to Lee, it seems to us that Lee must be able to challenge it. The wording of s 100 does not seem to us to shut him out from contending that there is a matter of substantial importance in issue in the proceedings. But this question of law does not arise, and we have not heard full argument about it. That is because Mr Wood conceded with proper frankness that for tactical reasons (doubtless sound) Lee had decided not to challenge the evidence of ‘Z’ but to rely on the challenge mounted by Robert. Thus the Judge was never called upon to rule what steps Lee could or could not take.
We agree that there is a judgment to be made by the Judge in any case in which the Hayter line of approach is advanced, and that if the reasoning from the conviction of A to the conviction of B would be unsafe, he should not leave it to the jury. But in the present case it was not unsafe. If Robert had committed this offence, and Lee and Robert were, as they both insisted and the other evidence strongly suggested, together throughout the evening, then so had Lee. The Judge set out with absolute precision the conditions under which this line of reasoning could be applied. ....Like other aspects of his direction, this had been submitted in draft to counsel for their consideration.
Mr Wood submitted that the Judge should have warned the jury of the possibility that Robert and Lee might be lying about being together, perhaps because Lee was sheltering Robert. No one suggested that when the directions were under consideration, and we are unable in any event to see why the Judge should have been under any such duty when not one of the three parties in the trial had ever suggested any such thing to the jury.”
12. Defendants who are charged with joint offences are normally tried jointly, unless, in the interests of justice, an order is made for them to be tried separately.
13. Where defendants are tried separately, section 74(1) of the Police and Criminal Evidence Act 1984 allows the prosecution to adduce the fact that a person other than the accused has been convicted of an offence, for the purpose of proving that that person committed the offence.
14. Under section 76 of the same Act, a confession made by an accused person may be given in evidence against him. At common law, such a confession is not normally admissible against any other person implicated in it.
15. In R v. Hayter [2005] 1 WLR 605, the defendant Hayter stood trial for murder with two co-accused, Bristow and Ryan. The deceased was Bristow’s husband. The prosecution’s case was that Bristow had arranged a contract killing of her husband: Ryan was the man who actually shot and killed the deceased and Hayter was the middleman between Bristow and Ryan. The evidence against Ryan was a confession he had made to his girlfriend. The trial judge directed the jury that, if they were satisfied that Bristow and Ryan were guilty of murder, it would be open to them to take account of those findings of guilt in deciding whether to convict Hayter. All three defendants were convicted. In Hayter’s appeal against conviction, a majority of the House of Lords (Lord Bingham, Lord Steyn and Lord Brown) found that the trial judge had directed the jury not to take into account Ryan’s confession in the case against Hayter. Thus, there was no infringement of the common law rule prohibiting the admissibility of one accused’s conviction against another accused. There was no good reason why Ryan’s guilt could not be used by the jury as a fact against Hayter. It was of no significance that Ryan’s guilt had been established by his own out of court confession.
16. Lord Rodger and Lord Carswell dissented. Lord Rodger observed that the effect of this approach was to give the jury the power to turn inadmissible evidence into admissible evidence. Lord Carswell observed that the majority’s conclusion impermissibly breached the principle that, in determining whether there was a case to answer against each defendant, the trial judge had to consider the evidence against each defendant as it then stood. In doing so, only the evidence admissible against each defendant could be taken into account. At that stage, the only evidence admissible against Hayter was insufficient to prove his guilt.


ITEMID: 001-92397
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: TURZYNSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Michał Turzyński, is a Polish national who was born in 1955 and lives in Blizne. The respondent Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
Between 25 August 1993 and 31 December 1993 the applicant concluded with the State Treasury’s Agricultural Property Agency (the Agency) contracts of lease concerning nine farms and on 14 January 1994 a contract permitting use of another farm. The total land in his possession amounted to over 6,500 ha.
On 13 March 1995 the Agency terminated all contracts with the applicant without notice, on the grounds of his alleged failure to pay the rent for one year. The stocktaking was to take place on the following day. The information about the termination of the contracts and the date of the stocktaking was served on the applicant’s authorised representative. On 14 March 1995 the Agency officials took over the property, in the presence of the applicant’s representative, and the applicant was immediately evicted from all the farms. He was not present.
On 17 June 1995 the applicant lodged a claim for repossession of the farms against the Agency. He claimed that his right to the peaceful enjoyment of possessions had been infringed because of an unlawful and hasty eviction. It was disputed by the parties whether the authorised representative had informed the applicant about the fact and date of taking over the property by the Agency and whether the applicant had consented to it. The amount of the rent in arrears was also in dispute.
On 14 March 2002 the Stargard District Court dismissed the claim. The court referred to Article 344 of the Civil Code. The District Court established that the authorised representative, having informed the applicant by phone about the stocktaking and the impending eviction and with the applicant’s consent, had allowed the Agency officials to proceed with the taking over of the property. The applicant had allegedly confirmed his consent in writing. The representative had been empowered to carry out a wide range of legal and factual acts on the applicant’s behalf. Therefore, the District Court concluded that the interference had not been unlawful, as the applicant had been aware of and consented to all the actions of the Agency officials.
The District Court further established that the applicant had not fulfilled properly his obligations arising from the lease contracts and at the material time had had serious financial problems. Moreover, at the time of the court’s judgment the applicant had not been working, lived on a small pension and all his immovable property had been seized by creditors. Therefore, the court considered that if it had made the repossession order in respect of the farms concerned, such an order would be in contradiction to Article 5 of the Civil Code. This provision stipulated that no one could exercise his or her right in a manner, which would contradict its “socioeconomic purpose” or the “principles of community life”. In his present financial condition the applicant could not ensure the proper management of the agricultural property of such a considerable size and value. Also, at the time of the judgment, the Agency was no longer in possession of the property previously leased by the applicant, as some farms had meanwhile been leased to other persons and some had been sold.
The applicant appealed. On 20 September 2002 the Szczecin Regional Court dismissed the appeal. However, the court emphasised serious shortcomings committed by the lower court in the assessment of the evidence. The court found that the evidence in the possession of the District Court “absolutely” did not justify a conclusion that the applicant had been aware of and had consented to the stocktaking of the property in question and to his eviction. The testimony of the authorised representative could not have reasonably led to such a conclusion. He had clearly testified that he had only spoken to a secretary, not to the applicant himself, and informed her that the applicant should come to the farm, without explaining the reason. Thus, the applicant could not have given his consent during the alleged phone conversation. Further, there was nothing in the applicant’s letter relied on by the lower court that would indicate his written consent to the stocktaking and eviction. Moreover, the scope of the power of attorney given to the representative did not authorise him to give the farms away. The infringement of the applicant’s possession was, therefore, unlawful and violated Article 342 of the Civil Code.
Nonetheless, the court dismissed the appeal, as it agreed with the final conclusion of the District Court’s judgment regarding the application of Article 5 of the Civil Code. Restoring de facto possession of the property to the applicant at that time would have been, according to the court, contradictory to the “socioeconomic purpose” of the applicant’s right. It would also breach the so-called “principles of community life”. The applicant was in a difficult financial situation and the farms had already long been in the possession of various third parties to whom the Agency had either sold or leased them. Hence, after almost eights years that had passed since the infringement of the applicant’’ property rights. For these reasons, and regardless of the infringement of the applicant’s rights as a result of his eviction in March 1995, his repossession claim had to be dismissed. The length of the proceedings and reasons for which they had taken so long were of no importance at this point.
No cassation appeal was available.
The applicant instituted several civil proceedings against the Agency. Most of them were unsuccessful (for example, the courts found some of his claims time-barred).
In 2003 the applicant lodged a compensation claim against the Agency for damages resulting from unlawful termination of lease contracts.
On 30 May 2008 the Warsaw Regional Court delivered a judgment awarding the applicant 30,090,000 PLN (approx. 8,905,528 EUR at the relevant time). The court found that the termination of the lease contracts had not been justified by the circumstances and had not been carried out in accordance with the relevant law. Consequently, the applicant had sustained loss, equal to the average profit from an agricultural farm during the period for which the contracts had been concluded.
The Agency appealed. The appeal proceedings are pending. No hearing has been scheduled yet.
The Polish Civil Code, Book Two entitled Ownership and Other Property Rights, provides for various property-like rights for a possessor in Title IV: Possession. The relevant Articles read, as far as relevant:
The possessor of property is both the person who actually controls the property as an owner (an autonomous possessor) and the person who actually controls the property as a usufructuary, the holder of a lien, a lessee, or a tenant or who has other rights associated with certain control over another person’s property (a dependent possessor).
Possession shall not be wilfully infringed even if the possessor acted in bad faith.
§ 1. The possessor can claim the restoration of the previous state [repossession of the property] and abstention from infringements against the person who wilfully infringed possession as well as against the person who benefited from the infringement occurred. That claim shall not be dependent upon the good faith of the possessor not upon the compliance of possession with the law ...
§ 2. The [repossession] claim shall expire if not pursued within one year from the date of infringement.
One of the introductory provisions of the Polish Civil Code, Article 5, reads as follows:
A person may not exercise his or her right in a manner which would contradict its socioeconomic purpose (społeczno-gospodarcze przeznaczenie prawa) or the principles of community life (zasady współżycia społecznego). Such act or omission on the part of the person entitled shall not be considered as the exercise of that right and shall not be protected by law.


ITEMID: 001-23066
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: TOUTZIAR v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens
TEXT: The applicant, Mr Ismet Toutziar, is a Greek national, who was born in 1961 and lives in Xanthi. The Government are represented by Mr V. Kyriazopoulos and Mr D. Kalogiros of the Legal Council of the State, Acting Agents.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, who considers himself a member of the Muslim Turkish minority of Thrace, is a graduate of the Special Academy for Teachers of Thessaloniki. He used to work as a teacher in the minority schools of Thrace. His conditions of employment were not different from those of other civil servants.
On 18 January 1993 the Minority Schools Office of the Prefecture of Rodopi called all the Muslim teachers of the minority schools of Rodopi to attend an educational meeting on 1 February 1993. The aim of the meeting was to present new books for the teaching of the Turkish language, which would be delivered to the directors of the schools between 2 and 5 February 1993.
A similar order was issued on 19 January 1993 by the Minority Schools Office of the Prefecture of Xanthi.
On 26 January 1993 the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement to the effect that the content of these books “was in breach of the autonomy of the Muslim Turkish Minority of Western Thrace” and failed to respect certain international agreements. The Muslim teachers were called upon not to collect these books and the Muslim pupils not to attend school between 1 and 5 February 1993, in order to voice the protest of the Muslim Turkish Minority of Western Thrace.
On 29 January 1993 the Union of Turkish Teachers of Western Thrace issued a statement to the effect that the Turkish schools of Western Thrace would be closed between 1 and 5 February 1993, because the Turkish teachers of Western Thrace were against the Turkish language books which the Greek State intended to distribute to the pupils of the minority schools. The statement also said that all the Turkish Muslim teachers of Western Thrace would participate in the strike. Reference was made to the members of the Union of Teachers of Western Thrace who were graduated of the Special Academy for Teachers of Thessaloniki. The statement specified that all those who felt they were Turkish and who wanted to learn or teach the Turkish language would take part in the boycott.
On an unspecified date, a Muslim religious leader, the mufti of Xanthi, called on the Muslim teachers who felt they were Turkish not to go to the presentation of the books on 1 February 1993.
On 1 February 1993 eleven teachers of the minority schools of Xanthi, including the applicant, signed a statement to the effect that they would not attend the educational meeting in the Minority Schools Office of the Prefecture of Xanthi in order to protest about certain unfair decisions against them concerning posting, transfer and secondment and their exclusion from training seminars in Thessaloniki and Strasbourg. They specified that they would not carry out their duties between 1 and 5 February 1993.
On 5 February 1993 the Executive Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement congratulating the pupils and teachers who took part in the mobilisation which showed the length to which the minority was prepared to go in order to vindicate its rights.
On 8 February 1993 the Minority Schools Office of the Prefecture of Xanthi decided to institute disciplinary proceedings under Article 206 § 1 of the Civil Servants’ Code against thirteen minority school teachers, including the applicant, for having failed to attend the educational meeting of 1 February 1993.
On 10 February 1993 the Regional Disciplinary Board of Xanthi ordered an inquiry and decided provisionally to suspend the applicant from his duties for a year pending the outcome of the disciplinary proceedings against him.
On 31 March 1993 the Ministry of Education confirmed the decision of the Regional Disciplinary Board of Xanthi regarding the provisional suspension of the applicant from his duties.
On 5 April 1994 the Regional Disciplinary Board of Xanthi issued a decision in which it considered the following:
– First, the applicant had been asked by his superiors to attend the educational meeting of 1 February 1993 but had failed to do so, arguing that attending the meeting would have disrupted his relationship with his pupils and his parents and put his personal integrity in danger. However, the Board considered that this excuse was not valid, because the meeting would have taken place in the city of Xanthi far from the applicant’s school area. Moreover, the applicant took part in a strike between 1 and 5 February 1993 complying with the order and appeal of the irregular Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993. He had accused the State of persecuting him. His illegal acts had contributed to creating tension and commotion in the minority community. The applicant had allied himself with certain subversive elements in the minority community who falsely contended that there was no equality before the law in Western Thrace. Thus, he had become agent of foreign anti-Greek powers. These facts constituted the following disciplinary offences: not having faith in and dedication to his country (Article 206 § 1–1 of the Civil Servants’ Code), refusing to discharge his duties or employing obstructive tactics (Article 206 § 1–19 of the Code), taking part in a strike in breach of Article 23 § 2 of the Constitution and the relevant legislation (Article 206 § 1–20 of the Code) and intentionally engaging in an act or omission which could damage or endanger the interests of the State (Article 206 § 1–27 of the Code).
– Secondly, the applicant had publicly criticised the Ministry of Education on the ground that the new books were distributed in breach of international agreements concluded by Greece. As a result, he had committed the disciplinary offence of criticising the actions of his superiors in public using phraseology which showed lack of respect or intentionally using unfounded arguments (Article 206 § 1–6 of the above-mentioned Code).
– Thirdly, the applicant had become an organ of irregular committees acting against the interests of the nation. His actions had stirred up trouble in the minority community and had led to the involvement of Turkish newspapers, to tension between the two countries and to criminal proceedings being instituted against parents who had disrupted the functioning of the schools. As a result, the applicant had committed the disciplinary offence of failing to respect a duty imposed by criminal law (Article 206 § 1–28 of the Code).
The Board was fully satisfied that the applicant “acting in full conscience and with intent and malice, behaving in a manner incompatible with [his] status as civil servant, acting against the nation and obeying the commands of anti-Greek power structures, aimed at destabilising the region where the situation was until then normal and creating social unrest”. In the light of all the above, the Board decided to dismiss the applicant.
On 7 April 1994 the Prefect of Xanthi ordered the applicant’s dismissal by virtue of Article 12 of Presidential Decree no. 1024/1979. Under that decree, pertaining to the appointment and career of Muslim teachers in the minority schools of Thrace, the Prefect is the competent authority to pronounce the termination of service of Muslim teachers.
On 30 May 1994 the applicant challenged the decision of the Disciplinary Board and the Prefect’s decision before the Council of State. He claimed that he did not lack faith in and dedication to his country, that he had not acted against social order, that he had the right to engage in objective and reasonable criticism of the actions of his superiors or the Government, that he had not refused to discharge his duties but had instead participated in a lawful strike, that he had not engaged in any acts which could have caused damage to the State or in any criminal offences, that he had been forced not to collect the books in person because his life had been threatened by other Muslims, that the Board had attributed wrong motives to his actions which were not anti-Greek and that his punishment aimed at his destruction. He further submitted that the hearing before the Disciplinary Board had not been preceded by a proper inquiry, that he had been punished for offences which were not mentioned in the decision instituting proceedings against him and that the Board had not heard a number of witnesses he had proposed. Finally, the applicant argued that the decision of the Board was not duly reasoned in that it failed to specify how his actions amounted to the particular disciplinary offences which should be punished with the particular penalty.
On 22 June 1995 the Council of State rejected the applicant’s appeal against the decision of the Disciplinary Board of 5 April 1994. The Council considered that the inquiry ordered on 10 February 1993 satisfied the requirements of the law and that the Board had not failed to examine any witnesses proposed by the applicant. The Council also considered that the applicant could not be punished for facts other than those which were mentioned in the decision of 8 February 1993 by which the disciplinary proceedings had been instituted. The applicant could only be punished for having failed to attend the educational meeting of 1 February 1993. However, the Disciplinary Board and the Council of State remained free to examine these facts under different legal provisions from those mentioned in the decision instituting disciplinary proceedings. The Council considered that the applicant’s failure to attend the meeting of 1 February 1993 in order to participate in a strike between 1 and 5 February 1993 amounted to the disciplinary offence of serious disobedience under Article 207 § 4–10 of the Civil Servants’ Code. The Council found that the punishment imposed was appropriate given the circumstances in which the offence had taken place. The Council referred in this connection to the statement of 26 January 1993 of the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace, the statement of 29 January 1993 of the Union of Turkish Teachers of Western Thrace and the statement of the mufti of Xanthi which called on all the Muslim teachers who considered themselves Turkish not to attend the educational meeting of 1 February 1993. The Council considered that the applicant had obviously associated his failure to comply with the order to attend the educational meeting with the above-mentioned statements of organisations which purported to represent the self-proclaimed Turkish minority of Western Thrace. Seen in the light of the above, the applicant’s actions had had as a result the disruption of the functioning of the minority schools in Western Thrace in which the State was particularly interested. They had also resulted in social unrest among the Muslim minority of this sensitive region. This in turn could have resulted in dangerous albeit unwarranted disruption of the friendly relations between Greece and neighbouring countries and in the disruption of the harmonious coexistence between the Greek citizens, Muslim and Christian, who lived in Western Thrace.
Finally, the Council considered that the decision of the Board was duly reasoned. All the elements of the disciplinary offence of serious disobedience were set out in the decision which specified that the applicant had not attended the meeting of 1 February 1993, although he had been asked to do so by his superiors. The decision also specified that the applicant had complied with the order and appeal of the irregular Coordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993 (decision no. 3595/1995).
On 4 December 1995 the Prefect of Xanthi revoked his decision of 7 April 1994 and, in compliance with decision no. 3595/1995 of the Council of State, ordered the applicant’s dismissal as from the same date.
On 4 April 1996 the Council of State struck out the proceedings instituted against the Prefect’s decision of 7 April 1994, on the ground that the decision complained of had already been revoked by the Prefect.
By decision of 2 December1997, notified to the applicant on 9 January 1998, the Prefect ordered for the third time the applicant’s dismissal.
In the meantime, the applicant had instituted several proceedings in order to recover several sums (arrears of salaries, compensation for his dismissal, etc.). The applicant claims that a set of proceedings instituted on 30 June 1997 before the First Instance Court of Rodopi is still pending. He further claims that on 12 October 1998 the Minority Schools Office notified to him a decision of the Minister of Education that his pecuniary claims had been statute-barred.
On 4 March 1998 the applicant appealed against the Prefect’s decision of 2 December 1997 to the Administrative Court of Appeal of Komotini. He claimed that all other civil servants were dismissed by ministerial decision and complained that his dismissal by prefectural decision was contrary to religious freedom. He further complained that he was not previously heard by the Prefect. The applicant further invoked Articles 6 and 14 of the Convention and 1 of Protocol No. 1.
On 22 March 2000 the Administrative Court of Appeal rejected the appeal (decision no. 80/2000). The court held that, by definition, the Prefect has a better knowledge of the local situation than the Minister; therefore, it could not be sustained that the delegation to the Prefect to pronounce the termination of service of Muslim teachers violated the religious freedom. Moreover, the court held that the Prefect’s decision aimed at complying with the relevant decisions of the Council of State; therefore, the previous hearing of the applicant was not required. The applicant did not appeal against this decision to the Council of State.
The applicant claims that he has instituted civil and administrative proceedings in order to recover several sums (arrears of salaries, compensation for his dismissal, etc.). The applicant alleges that a set of proceedings instituted on 30 June 1997 before the First Instance Court of Rodopi is still pending. He further alleges that on 12 October 1998 the Minority Schools Office notified to him a decision of the Minister of Education that his pecuniary claims had been statute-barred.
On 28 December 2001 the First Instance Administrative Court of Komotini awarded the applicant EUR 3,965 for pecuniary damage (decision no. 280/2001). The applicant did not appeal against this decision within the sixty days time-limit provided for by the Code of Administrative Proceedings.