ITEMID: 001-69206
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KISMIR v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Feyyaz Gölcüklü
TEXT: 9. The applicant, a Turkish citizen of Kurdish origin, was born in 1948 and lives in Diyarbakır.
10. The facts of the case, particularly concerning events which took place between 6 and 12 October 1994, are disputed by the parties.
11. The facts as presented by the applicant are set out in Section B below (paragraphs 12-25). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 26-35). Documentary evidence submitted by the Government and the applicant are summarised in Sections D (paragraphs 36-57) and E (paragraphs 58-62) respectively.
12. On 6 October 1994 at about 1.30 a.m., seven police officers from the Diyarbakır Police Headquarters came to the applicant’s house in Diyarbakır and questioned the applicant about her son Aydın’s whereabouts. Aydın had previously been taken into police custody on 26 August 1993, placed in detention on remand on 8 September 1993 and released on 10 November 1993. As he was afraid to find himself in the hands of the police once again, he was hiding at his relative Barış Kalkan’s house in Diyarbakır. Aware of her son’s fears, the applicant told the police officers that Aydın had gone to Istanbul.
13. The police officers also questioned the applicant’s two other sons, İrfan and Turan, who, like the applicant, stated that their brother Aydın had gone to İstanbul. The officers conducted a search of the house and took a certain amount of German marks. Five of the police officers left, taking İrfan and Turan with them. The remaining two police officers stayed in the applicant’s house and continued questioning the applicant and her daughter, Saniye, until the following morning.
14. In the morning the applicant’s husband Mersin returned home. The police stayed for two days and two nights, changing shifts at 8 a.m. and 8 p.m. each day. After the second day, the police forced the applicant’s husband to sign a document.
15. The police officers took İrfan and Turan to the Police Headquarters where they were questioned about Aydın for an hour and a half. Thereafter, İrfan and Turan were taken to the Diyarbakır State Hospital to be examined by a doctor. From the hospital they were taken back to the Police Headquarters and again interrogated about Aydın.
16. The police asked İrfan about his relative Barış. İrfan informed them that he knew Barış, who was both a childhood friend of Aydın’s and a relative, and gave the police his address. The police officers then went to Barış’s house, taking İrfan with them.
17. On the morning of 6 October 1994, Barış’s mother saw a number of police vehicles in front of her building and warned Aydın. Aydın and Barış tried to run away but were caught by police officers while they were going up onto the roof. As the police were taking Aydın, Barış and Barış’s brother Yılmaz downstairs, Aydın made another attempt at escape. Yılmaz and Barış heard one of the police officers say that he was going to kill Aydın, but the other officers said that they needed Aydın for interrogation. Aydın was caught in the doorway and made to lie face down. He was handcuffed and a gun was held to his head. According to İrfan, Aydın was beaten up; he saw that Aydın’s head was bleeding and heard him screaming.
18. The police officers put Barış and Yılmaz in one vehicle and Aydın in another. They were then taken to the Police Headquarters. After ten minutes, they were taken to the State Hospital for a medical check. They were then put back into the vehicles. Yılmaz and Barış were in the back seat. Yılmaz heard the two policemen sitting in the front say, “Aydın told the doctors at the hospital that he had been tortured and that he was going to be killed. Let him come to the ‘camp’. We’ll show him that death will not be that easy.” Yılmaz, Barış and Aydın entered the Police Headquarters together. İrfan was also brought back to the Police Headquarters. Later, he realised that Aydın had also been brought there. According to İrfan, as soon as the police officers brought Aydın to the Police Headquarters they began torturing him. İrfan heard Aydın screaming and saying that “his arm was going to break off and that he could neither clap his hands nor was he able to walk”. The rest of the time Aydın was constantly screaming and saying that he was innocent.
19. Barış and Yılmaz were put into different cells. Yılmaz was in cell no. 13, from where he could hear Aydın screaming. Yılmaz was later moved into cell no. 8, from where he could hear most of the conversations between the police officers and Aydın. He heard the police officers threaten Aydın by telling him that death would not be easy. Aydın was saying that he was innocent, and that he could neither walk nor clap his hands. The torture lasted about one hour. Yılmaz, looking through the grill in the door, saw that Aydın was being taken away by the policemen, who were holding him from his arms and dragging him along the floor.
20. On 7 October 1994 Yılmaz was taken to the interrogation room. He was asked if Aydın was a member of the “organisation” (that is the PKK - the Kurdistan Workers’ Party). He was further questioned about Barış’s relationship with Aydın and the reason why Barış’s family let Aydın stay in their house.
21. On 8 October 1994 Yılmaz signed a statement of 7 pages, which the police had drawn up. He did not know what was recorded in the statement. He was then taken to the Diyarbakır State Hospital and was forced to tell the doctor that he had not been tortured. He was released after the medical examination. İrfan was also released on 8 October 1994, following a medical examination.
22. When İrfan and Yılmaz returned home they told the applicant that Aydın was in custody and that he was being very badly tortured. The applicant went to the Diyarbakır branch of the Human Rights Association for help. In the meantime, the applicant had already submitted a petition to the Prosecutor at the Diyarbakır State Security Court (hereinafter “the Diyarbakır Court”) on 7 October 1994 and asked for information about her son. On 10 October 1994 the Prosecutor wrote on the same petition that the applicant’s son had been taken into detention at the Diyarbakır Police Headquarters.
23. On 11 October 1994 at about 6 p.m., police came to the applicant’s house and then went to Barış’s house. They told the neighbours that Barış was in a coma and that the applicant should go and pick up the body of Aydın.
24. On the morning of 12 October 1994 the neighbours informed the applicant and she went to the hospital. The police first denied any knowledge about the matter. Her brother-in-law Ahmet then arrived at the hospital and told her that the police had informed him that Aydın’s body was at the morgue. The police at the hospital continued to deny that they had Aydın’s body. Two hours later they acknowledged that Aydın’s body was indeed in the morgue. They refused the applicant permission to see her son. The Prosecutor at the hospital told Ahmet that Aydın had thrown himself from a window on the seventh floor and asked Ahmet whether he wanted to file a complaint against anyone. Ahmet told the Prosecutor that there was no use in filing a complaint as Aydın had been killed by the police who then tried to cover up his death by saying that he had thrown himself from a window.
25. Aydın’s burial certificate stated that he had died on 12 October 1994. The necessary forensic and medical examination of the body and the autopsy were performed on 12 October 1994. When the applicant requested a copy of the autopsy report, she was told that all the documents had been sent to Ankara. On 13 October 1994 Aydın was buried.
26. On 6 October 1994 Aydın Kişmir was arrested in Diyarbakır together with Barış Kalkan, Mehmet Şirin Demir, Turan Kişmir, Behçet Ekinci, İrfan Kişmir and Yılmaz Kalkan on suspicion of having collaborated with the PKK.
27. When the policemen entered Barış Kalkan’s flat to arrest Aydın, he tried to escape but lost his balance and fell, hitting a wall in the process. He was arrested at the entrance to the building. A false identity card was found on him. This version of events was confirmed by Barış Kalkan in a statement given by him to the Prosecutor at the Diyarbakır Court on 13 October 1994.
28. Immediately after his arrest, Aydın was taken to the Diyarbakır State Hospital at 6 a.m. to have his wounds treated. According to the medical report drawn up by Dr Kinyas Öztürk, the duty doctor at the hospital, Aydın had suffered two wounds, one above the right eye and another on the big toe of his right foot, which were not serious.
29. Later in the day Aydın Kişmir was again taken to the Diyarbakır State Hospital for treatment of a bleeding wound in the head, a 6 cm. long laceration in the occipital area. According to Dr Zafer Özdağ, who stitched the wound, Aydın did not require hospitalisation but he was prescribed medication. Both Dr Öztürk and Dr Özdağ were subsequently questioned by the Prosecutor at the Diyarbakır Court in relation to the report prepared by Dr Öztürk in which the injury to the head had not been recorded. Dr Öztürk stated that Aydın had not mentioned to him any injury other than the two which had been recorded in his report.
30. After having his head wound stitched, Aydın Kişmir was again taken to the Police Headquarters and put in a cell, without having been interrogated. According to the statement of Ramazan Kutlu, a detainee who was in the same cell as Aydın Kişmir, the police gave Aydın his medication regularly. In the early hours of 11 October 1994, Aydın Kişmir’s condition deteriorated. Aydın Kişmir died during the efforts to take him to hospital.
31. On 12 October 1994 an autopsy was conducted in Diyarbakır. The autopsy report stated that Aydın Kişmir’s death had occurred due to asphyxia. As the cause of asphyxia could not be identified, certain dissected body parts were sent to the Forensic Medicine Directorate in İstanbul for further forensic examinations to be carried out. According to the report of the chemical analysis section of the Forensic Medicine Directorate, which was drawn up on 7 December 1994, no toxicological evidence was detected in any of the sample tissues.
32. On 12 December 1994 a second report was prepared by the histology laboratory, in which it was stated that no abnormalities had been detected in any of the body parts.
33. On 25 January 1995, a final report was issued by the First Committee of Experts of the Forensic Medicine Directorate. According to this report, the findings clearly pointed to a natural death which might have been due to Aydın Kişmir’s previous health problems.
34. On 7 November 1995 the Prosecutor at the Diyarbakır Court took a decision not to prosecute as he concluded at the end of his investigation that there had been no ill-treatment or torture, and that the death had occurred due to natural causes.
35. On 19 December 1996 the Diyarbakır Prosecutor issued another decision not to prosecute. This decision was served on the applicant on 27 January 1997 and became final on 13 February 1997 as no appeal had been lodged against it.
36. This was a verbatim record, drawn up by Ahmet Başaran, the Prosecutor at the Diyarbakır Court, and Dr Lokman Eğilmez, the director of the Diyarbakır Branch of the Forensic Medicine Directorate, during the autopsy which they carried out on the body of Aydın Kişmir at the Diyarbakır State Hospital on 12 October 1994. The report stated that Dr Kinyas Öztürk, the last doctor to examine Aydın Kişmir, was on leave and therefore could not be present during the autopsy.
37. The report began by stating that Aydın Kişmir had lost his life at the detention facility of the Diyarbakır Police Headquarters at 5 a.m. on 12 October 1994. His body had then been transferred to the morgue at the Diyarbakır State Hospital.
38. The report described the deceased as being 175 cm tall and weighing 70-75 kgs. Rigor mortis and post mortem hypostasis had set in. The Prosecutor and the doctor observed the following injuries: a 2 cm sutured wound on the top of the head; a 1 cm wound over the right eyebrow; purple bruising around the right eye; purple bruising on the outer surface of the right hand between the thumb and the wrist; a scabbed wound, measuring 2 x 2 cm, over the coccyx; purple bruising on the outside of the right arm measuring 2x 2 cm and finally a graze, measuring 2 x 2 cm, on the big toe of the right foot.
39. Other external findings noted were a slight deformation on the right side of the chest. The nailbeds, lips and ears were described as being cyanosed. There was widespread bleeding under the skin of the back. The external genitalia were normal. The epidermis was described as separating from the dermis.
40. The body was photographed both before and during the internal examination of the body.
41. The internal examination found that there was bruising and haematoma under the sutured injury. The skull was intact. There was no bleeding on either the outside or the inside of the brain membranes. The brain was described as being slightly oedematous. The sections taken of the brain and the cerebellum were normal. The bones of the skull base were not fractured.
42. The mouth, throat and neck structures were described as being normal. The chest deformation was noted to be structural and not due to trauma. There were several bleeding spots on the lung surfaces. The lungs were extensively oedematous and congested. The heart was described as being normal on external examination. Sectioning revealed a thick, narrow, mitral valve.
43. Stress ulcers seen in the stomach were associated with a little bleeding. The other organs in the abdomen were normal.
44. During the autopsy the Prosecutor and the doctor had regard to a medical report which had been drawn up at the Diyarbakır State Hospital on 6 October 1994. This report, which was numbered 4381, was not made available to the Commission or to the Court. According to a summary of this report reproduced in the autopsy report, a wound measuring 1 x 3 cm featured above Aydın Kişmir’s right eye. There was also a slight wound on the big toe of the right foot. Neither of these two wounds was life threatening.
45. The Prosecutor and the doctor had regard to an arrest report drawn up at 6 a.m. on 6 October 1994 in relation to the arrest of Aydın Kişmir. This report was also not made available to either the Commission or to the Court. It appears from the summary of this report, which was reproduced in the autopsy report, that Aydın Kişmir and two other men had been in a flat on the sixth floor of a block of flats. When they were running down the stairs, Aydin Kişmir had fallen down, injuring his right toe and also a spot above his right eye. The Prosecutor asked Dr Eğilmez whether the injuries observed during the autopsy could have been caused in the course of the sequence of events as described in the arrest report. Dr Eğilmez replied that the injuries recorded in report no. 4381 were consistent with the injuries described in the arrest report.
46. A decision was made to send the samples taken from internal organs for histology and toxicology examinations.
47. The doctor concluded that the death was due to asphyxiation and added that it would be possible to establish the cause of the asphyxiation after the examination of the body samples at the Forensic Medicine Directorate in Istanbul.
48. According to this report, the body samples taken from Aydın Kişmir’s body during the autopsy which were subjected to a toxicological examination did not disclose any poisons.
49. This was a report drawn up and signed by a number of doctors. The report referred to the conclusions set out in the above mentioned autopsy and toxicology reports. In this report there was also a reference to a histology report, which had apparently been drawn up on 12 December 1994 and had concluded that the examination of the samples from the heart, lungs, liver, kidneys and the spleen had revealed the presence of autolysis, but that nothing was seen in the brain or cerebellum. A decision was taken to seek the opinion of the Specialist Council of the Forensic Medicine Directorate.
50. This report was drawn up and signed by eight doctors, each a specialist in different areas of medicine. They based their opinions on the reports referred to above and on the photographs of the body which had been taken during the autopsy (see paragraph 40 above). The doctors also had regard to two statements taken from Ramazan Kutlu and Dr Zafer Özdağ on 13 October 1994. It appears from the summaries of these statements, which are reproduced in the report, that Ramazan Kutlu had been detained in the same place as Aydın Kişmir and that Aydın had allegedly told Mr Kutlu that he had hurt himself while trying to run away from the police during his arrest and, because of that, his right foot was swollen and he was unwell. Mr Kutlu was also said to have added that Aydın Kişmir’s condition had worsened during the night of 11 October 1994 and that he had died early in the morning.
51. Dr Zafer Özdağ was reported as having said in his statement of 13 October 1994 that Aydın Kişmir had been brought to him by officials on 6 October 1994 and that, apart from the findings he had previously observed, he had now also observed a wound, measuring 6 x 6 cm, on the top part of the head which did not require hospitalisation.
52. The Specialist Council concluded that death was due to respiratory failure related to lung oedema. The Council commented that, apart from the wounds on the top part of the head, above the right eyebrow and the big toe of the right foot, there were no other symptoms of an assault or traumatic change, which excluded the possibility of an external trauma being the cause of death.
53. The Specialist Council further commented that, although there was evidence of asphyxiation, no change was observed in the neck area under the skin and there was no evidence of any compression of the chest or abdomen to indicate that death had occurred as the result of mechanical asphyxiation. There was oedema of the lungs and brain, and ulcers in the stomach with bleeding from them, indicating general anoxia and asphyxiation findings related to extreme lung oedema.
54. This decision was taken by the Prosecutor at the Diyarbakır Court. Birol Yaman, a police officer at the Diyarbakır Police Headquarters, was referred to in the decision as the defendant. The offence in question was recorded as “death in custody on 12 October 1994”.
55. The Prosecutor stated that Aydın Kişmir “who is a member of the terrorist organisation”, had fallen down the stairs in an attempt to avoid arrest by police officers and injured himself. He had then been taken by police officers to the Diyarbakır State Hospital for treatment. The Prosecutor also referred to the medical reports above, and added that the report of 25 January 1995 (see paragraphs 50-53 above) had been submitted to the First Specialist Council of the Forensic Medicine Directorate on 26 February 1996, “to establish the cause of the oedema in the lungs, which had caused the respiratory failure”.
56. A copy of the subsequent report of the First Specialist Council of the Forensic Medicine Directorate (date unknown) was not made available to the Commission or to the Court. However, according to the decision not to prosecute, it was stated in that medical report that there was no evidence to suggest that the oedema in the lungs had been due to a technical or traumatic reason. The First Specialist Council had apparently concluded that the cause of the oedema could not be established because the body samples sent for microscopic examination had become autolysed. The Prosecutor concluded therefore that there was no evidence that the officer had committed the offence in question and he decided not to prosecute the accused.
57. This decision, which was communicated to the applicant on 27 January 1997, became final on 13 February 1997 as no objection had been lodged against it.
58. In her petition the applicant submitted that her two sons, Aydın and Turan, had been arrested in their home by the police on 6 October 1994. She asked the Prosecutor for information about her sons’ fate.
59. On 10 October 1994 the Prosecutor wrote on the applicant’s petition that “[the applicant’s sons] were taken into detention at the Diyarbakır Police Headquarters”.
60. This report was prepared on behalf of the applicant by Dr Christopher Milroy, a Reader in Forensic Pathology at the University of Sheffield and consultant pathologist to the Home Office in the United Kingdom.
61. The report recounted the findings of the autopsy and of the other reports referred to above. Dr Milroy observed, inter alia, the following shortcomings:
(a) no organ weights, in particular the weight of the lungs, were recorded. Furthermore, no description of the presence or absence of petechiae was made, despite the diagnosis of asphyxiation;
(b) the 6 cm laceration described by Dr Zafer Özdağ is not described in any of the autopsy reports, even though a 6 cm wound, or a scar from such wound, should have been noticed. It seems unlikely that a 2 cm wound seen at autopsy could have been mistaken for a 6 cm wound; in any event they were described in different positions;
(c) a 6 cm wound is a large wound to be caused by a fall; this wound appears to have occurred whilst in custody, and not in the fall during the arrest;
(d) there is one area of the original autopsy report which does not appear to have been commented on, and that is the presence of diffuse bleeding under the skin of the back. Diffuse bleeding strongly suggests that blows have been delivered to the back;
(e) the post mortem findings in this case with lung oedema and congestion, some brain oedema and stress ulcers, and the absence of any natural cause of death, raise strong concerns that death has been caused by mechanical asphyxiation. In positional asphyxia, the pinning of the body and restraint may prevent proper breathing. This could, for example, be caused by the person being laid on the floor and somebody compressing his back. Bleeding into the back would support this scenario.
62. The applicant submitted to the Commission and to the Court a number of statements taken by lawyers at the Diyarbakır branch of the Human Rights Association from witnesses who had either witnessed the arrest of the applicant’s son or who had been detained with the applicant’s son. These statements formed the basis of the applicant’s submissions above (see paragraphs 12-25).
63. A full description of the relevant domestic law and practice, as well as relevant international reports, may be found in Salman v. Turkey ([GC], no. 21986/93, §§ 59-74, ECHR 2000-VII).
VIOLATED_ARTICLES: 13
2
3
38
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-95564
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SULJAGIC v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (Article 34 - Victim);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions;Possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 6. The present case relates to the issue of “old” foreign-currency deposits (foreign currency deposited before the dissolution of the Socialist Federal Republic of Yugoslavia – “the SFRY”).
7. Until the 1989/90 economic reforms (the so-called Marković reforms, named after the then Prime Minister Ante Marković), the commercial banking system of the SFRY consisted of self-managed basic and associated banks. Basic banks, founded and nominally controlled by socially owned enterprises, carried on day-to-day commercial banking activities. Two or more basic banks could form an associated bank through a self-management agreement, while preserving their legal personality. In the SFRY, there were more than 150 basic banks and nine associated banks (namely Jugobanka Beograd, Beogradska udružena banka Beograd, Vojvođanska banka Novi Sad, Kosovska banka Priština, Udružena banka Hrvatske Zagreb, Ljubljanska banka Ljubljana, Privredna banka Sarajevo, Stopanska banka Skopje and Investiciona banka Titograd).
8. Hard-pressed for hard currency as it was, the SFRY made it attractive for its expatriate workers and other citizens to deposit their foreign currency with commercial banks based in the SFRY: such deposits earned high interest (the annual interest rate often exceeded 10%) and were guaranteed by the State (see, for example, section 14(3) of the Foreign-Currency Transactions Act 1985 and section 76(1) of the Banks and Other Financial Institutions Act 1989).
9. The Foreign-Currency Transactions Act 1977 introduced a system for redepositing of foreign currency by commercial banks with the National Bank of Yugoslavia. Although the system was optional, it allowed commercial banks to shift the currency risk to the State and practically all foreign currency was thus redeposited. In addition, the National Bank of Yugoslavia was required to grant national-currency loans (initially, interest-free) to commercial banks to the value of the redeposited foreign currency. It should be underlined, however, that such redepositing was as a rule only a paper transaction, because commercial banks had insufficient liquid funds: it would appear that commercial banks redeposited in total 12.2 billion United States dollars (USD), out of which only USD 1.7 billion (approximately 14%) was actually transferred to the National Bank of Yugoslavia (see Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 36 and 39, ECHR 2008-...; see also decision AP 164/04 of the Constitutional Court of Bosnia and Herzegovina of 1 April 2006, § 53). In 1988 the system of redeposits was brought to an end (see section 103 of the Foreign-Currency Transactions Act 1985, as amended on 15 October 1988).
10. Problems resulting from the foreign and domestic debt of the SFRY caused a monetary crisis in the 1980s. The national economy was on the verge of collapse and the SFRY resorted to emergency measures, such as statutory restrictions on the repayment of foreign-currency deposits (see section 71 of the Foreign-Currency Transactions Act 1985). As a result, foreign-currency deposits were practically frozen.
11. Within the framework of the Marković reforms, the SFRY abolished the system of basic and associated banks described above. This shift in the banking regulations allowed some basic banks to opt for an independent status, while other basic banks became branches (without legal personality) of the associated banks to which they had beforehand belonged.
12. Some important features of the banking system remained, however, unaffected by the reforms. First of all, commercial banks remained under the regime of “social ownership” – a concept which, while it does exist in other countries, was particularly highly developed in the SFRY. Secondly, both commercial banks and the State had financial obligations arising from foreign-currency savings: depositors were entitled to collect their deposits at any time, together with accumulated interest, from commercial banks (see sections 1035 and 1045 of the Civil Obligations Act 1978) or, in the event of a commercial bank's “manifest insolvency” or bankruptcy, from the State (see sections 1004(2) and 1007(2) of the Civil Obligations Act 1978, section 18 of the Banks and Other Financial Institutions Insolvency Act 1989 and a decision of the SFRY Government of 23 May 1990).
13. In 1991/92 the SFRY ceased to exist. It was replaced by five successor States: Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia), “the former Yugoslav Republic of Macedonia” and Slovenia.
14. A brutal war started in Bosnia and Herzegovina shortly after its declaration of independence. During the war, Bosnia and Herzegovina took over the statutory guarantee for “old” foreign-currency savings from the SFRY (pursuant to section 6 of the SFRY Legislation Application Act 1992). Furthermore, the concept of “social ownership” was abandoned (see the Social Ownership Transformation Act 1993 and the Social Ownership Transformation Act 1994). As a result, all commercial banks based in Bosnia and Herzegovina were effectively nationalised. While the use of “old” foreign-currency savings was allowed in some exceptional situations during the war, it would appear that this possibility remained only theoretical (see a decision of the Presidency of the Republic of Bosnia and Herzegovina of 18 February 1993 and a decision of the National Bank of the Republika Srpska of 17 June 1993).
15. On 14 December 1995 the General Framework Agreement for Peace in Bosnia and Herzegovina (“the Dayton Peace Agreement”) entered into force. It confirmed the continuation of the legal existence of Bosnia and Herzegovina as a State, while modifying its internal structure (Article 1 § 1 of Annex 4 to the Dayton Peace Agreement, named the “Constitution of Bosnia and Herzegovina”). In accordance with Article 1 § 3 of Annex 4, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. The Dayton Peace Agreement failed to resolve the Inter-Entity Boundary Line in the Brčko area, but the parties agreed to a binding arbitration in this regard under UNCITRAL rules (Article V of Annex 2 to the Dayton Peace Agreement). Meanwhile, the rural parts of the pre-war Brčko municipality remained under the control of the Federation of Bosnia and Herzegovina and the town of Brčko under the control of the Republika Srpska. An arbitral tribunal issued its final award on 5 March 1999. It suspended the legal authority of the Entities within the whole territory of the pre-war Brčko municipality and transferred all of the Entity powers to the newly-created Brčko District under the exclusive sovereignty of Bosnia and Herzegovina and international supervision. The Brčko District was formally inaugurated on 8 March 2000. Nevertheless, Entity legislation continued to apply in the District until modified by the Supervisor of Brčko or the District Assembly. All Entity legislation ceased to have legal effect in the District on 4 August 2006.
16. On 28 November 1997 the Federation of Bosnia and Herzegovina assumed full liability for “old” foreign-currency savings in locally based commercial banks in order to prepare them for privatisation (in accordance with section 3(1) of the Claims Settlement Act 1997 and the Non-Residents' Claims Settlement Decree 1999). While withdrawal remained impossible, residents of that Entity were given the possibility of using their “old” foreign-currency savings to purchase the State-owned flats in which they lived (where this was indeed the case) and certain State-owned companies (see section 18 of the Claims Settlement Act 1997, as amended on 21 August 2004 and on 7 November 2007).
17. Similarly, the Republika Srpska assumed full liability for “old” foreign-currency savings in commercial banks based there (see section 20 of the Opening Balance Sheets (Banks) Act 1998, as amended on 8 January 2002). However, unlike in the Federation of Bosnia and Herzegovina, where the liability shifted simultaneously with respect to all commercial banks, in the Republika Srpska the liability shifted for each commercial bank upon its privatisation. The relevant dates for the two main commercial banks with “old” foreign-currency deposits, the Banjalučka banka and the Kristal banka, were 18 January and 17 April 2002 respectively. The privatisation process was completed in the Republika Srpska in respect of commercial banks on 31 December 2002. Residents of that Entity were also given the possibility of using their “old” foreign-currency savings to purchase the State-owned flats in which they lived and certain State-owned companies (see section 19 of the Privatisation of Companies Act 1998).
18. In the course of 2002 all commercial banks in the Brčko District were privatised by the Entities through an agreement with the District and with the approval of the Supervisor of Brčko.
19. Legislation providing for the use of “old” foreign-currency savings in the privatisation process had limited appeal and, moreover, led to abuses: an unofficial market emerged on which such savings were sometimes sold for no more than 3% of their nominal value. In 2004, in an attempt to remedy the situation, the Entities and the District agreed to recompense “old” foreign-currency savers in cash and government bonds and set up repayment schemes to this effect. However, pursuant to decision U 14/05 of the Constitutional Court of Bosnia and Herzegovina of 2 December 2005, the three repayment schemes were replaced by one for the entire territory of Bosnia and Herzegovina (see “Relevant domestic law and practice” below).
20. The applicant was born in 1935 and lives in the vicinity of Srebrenik, in Bosnia and Herzegovina.
21. He worked across Europe as a mailman, construction worker and handyman in the 1970s and 1980s and deposited foreign currency earned abroad with a basic bank based in Tuzla, a member of the Privredna banka Sarajevo. During the Marković reforms the bank became a separate entity, named Tuzlanska banka. In 1994 it was nationalised (see paragraph 14 above) and in 1998 it was sold to a commercial bank based in Slovenia (Nova Ljubljanska banka).
22. After several failed attempts to withdraw his funds, the applicant complained to the Human Rights Chamber (a human-rights body set up under Annex 6 to the Dayton Peace Agreement). By a decision of 6 April 2005 (decision CH/98/375 et al.), the Human Rights Commission, the legal successor of the Human Rights Chamber, found the contemporary legislation to be contrary to Article 6 of the Convention (on account of the lack of procedural guarantees) and Article 1 of Protocol No. 1 to the Convention (on account of the lack of a fair balance between the relevant interests). Besides some general measures, it awarded the applicant 500 convertible marks (BAM) in respect of non-pecuniary damage and legal costs.
23. On 29 December 2006 the competent verification agency assessed the amount of the applicant's “old” foreign-currency savings at BAM 269,275.21 (see paragraph 27 below).
24. On 11 June 2007 the applicant received BAM 1,000 (see paragraph 29 below). On 14 May 2009 he received the first instalments of the principal debt and of interest on the bonds, both due on 27 September 2008, in the total amount of BAM 4,237.44 (see paragraph 31 below).
25. It would appear that the government bonds due on 31 March 2008 have not yet been issued (see paragraph 30 below) and that the second instalment of interest on the bonds, due on 27 March 2009, has not yet been paid (see paragraph 31 below).
26. For the relevant law and practice, see the admissibility decision in Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005XII; Suljagić v. Bosnia and Herzegovina (dec.), no. 27912/02, 20 June 2006; and the judgment in Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006-XII.
27. Furthermore, the Old Foreign-Currency Savings Act 2006 entered into force on 15 April 2006 (“the 2006 Act”). Bosnia and Herzegovina undertook to recompense original deposits in locally based banks and interest accrued by 31 December 1991 at the original rate, less any funds already used (see paragraphs 14 and 16-17 above). Interest accrued from 1 January 1992 until 15 April 2006 is to be cancelled and calculated afresh at an annual rate of 0.5%. The assessment of the amounts due to each claimant is to be carried out under an administrative procedure by verification agencies. The deadline for submitting an application to this effect has been extended on several occasions.
28. The Constitutional Court of Bosnia and Herzegovina has examined the constitutionality of the provision concerning the reduction of the interest rate to 0.5% for the period from 1 January 1992 until 15 April 2006 and considered it to be justified given the overall circumstances, notably the need to reconstruct the national economy following a devastating war (see decision U 13/06 of 28 March 2008, § 28).
29. All claimants that have obtained verification certificates (see the penultimate sentence of paragraph 27 above) are entitled to a cash payment of up to BAM 1,000 in the Federation of Bosnia and Herzegovina and the Brčko District and up to BAM 2,000 in the Republika Srpska. Any remaining amount will then be reimbursed in government bonds.
30. In accordance with the 2006 Act, government bonds were to be issued by 31 March 2008. They should be amortised by 31 December 2016 at the latest and earn interest at an annual rate of 2.5%. While it had initially been planned to issue State bonds through the Central Bank, on 12 January 2008 the Republika Srpska passed its own Old Foreign-Currency Savings Act 2008 (“the RS Act”), cutting the amortisation period for government bonds down to five years, and issued its own Entity bonds on 28 February 2008. On 4 October 2008 the Constitutional Court of Bosnia and Herzegovina declared the RS Act constitutional (decision U 3/08 of 4 October 2008). It decided that the constituent units (the Entities and the District) had jurisdiction to regulate the matter of “old” foreign-currency savings, provided that they remained within the framework of the 2006 Act. Following this decision, the Central Bank refused to issue government bonds only for some constituent units. As a result, the Federation of Bosnia and Herzegovina and the Brčko District had to issue their own bonds. While the Brčko District did so on 30 June 2009, it would appear that bonds have not yet been issued in the Federation of Bosnia and Herzegovina.
31. Meanwhile, amortisation plans were adopted on 21 February 2008 for the Republika Srpska and on 9 April 2008 for the Federation of Bosnia and Herzegovina and the Brčko District. On 24 June 2009 a new amortisation plan was adopted for the Brčko District which is along the lines of that of 9 April 2008.
In the Republika Srpska, bonds are to be amortised by 28 February 2013 in ten instalments (on 28 February and 28 August every year from 28 August 2008 to 28 February 2013) together with interest on the bonds (at an annual rate of 2.5%). The first three instalments were paid, as planned, on 28 August 2008, 28 February and 28 August 2009. In the event of late payment, default interest is to be paid at the statutory rate.
In the Federation of Bosnia and Herzegovina, bonds are to be amortised by 27 March 2015 in eight instalments as follows: 7.5% of the entire debt is to be paid on 27 September 2008, 9% on 27 September 2009, 11% on 27 September 2010, 12% on 27 September 2011, 13% on 27 September 2012, 15% on 27 September 2013, 15.5% on 27 September 2014 and 17% on 27 March 2015. Interest on the bonds (at an annual rate of 2.5%) is to be paid on 27 March and 27 September every year from 27 September 2008 to 27 March 2015. The first instalments of the principal debt and of interest on the bonds (both due on 27 September 2008) were paid on 14 May 2009. It would appear that the instalments due on 27 March and 27 September 2009 have not yet been paid.
Lastly, under the old amortisation plan, the Brčko District paid the first instalments of the principal debt and of interest on the bonds (both due on 27 September 2008) on 24 December 2008 and the second instalment of interest on the bonds (due on 27 March 2009) on 11 June 2009. Pursuant to the new plan, bonds are now to be amortised by 31 March 2015 in seven instalments as follows: 9.5% of the entire debt is to be paid on 30 September 2009, 11.5% on 30 September 2010, 12.5% on 30 September 2011, 14% on 30 September 2012, 16.5% on 30 September 2013, 17.5% on 30 September 2014 and 18.5% on 31 March 2015. Interest on the bonds (at an annual rate of 2.5%) is to be paid on 31 March and 30 September every year from 30 September 2009 to 31 March 2015. The instalment due on 30 September 2009 has been paid in time. In case of the late payment of any forthcoming instalment, default interest is to be paid at the statutory rate.
32. Since government bonds are redeemable before their maturity, once issued, they may be traded on the Stock Exchange. In the Republika Srpska, their current trade price on the Stock Exchange is around 90% of their nominal value. Given that government bonds have been issued in the Brčko District only recently, their trade price on the Stock Exchange has not yet consolidated. As mentioned above, it would appear that bonds have not yet been issued in the Federation of Bosnia and Herzegovina.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1
P1-1-2


ITEMID: 001-93849
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: SANKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Oleg Valeryevich Sankov, is a Russian national who was born in 1969 and lives in Novocherkassk. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.
The local police organised an undercover drug purchase operation targeting the applicant, who was suspected of involvement in drug dealing.
On 17 April 2002 a plain clothes police officer came to the applicant’s flat and asked if he could purchase opium. The applicant allegedly agreed and asked for 150 roubles (RUB) for a sachet of opium. The police officer presented the applicant with RUB 150 in marked bills, took the sachet and went down to a lower landing in the building where he handed the sachet with the opium to the other police officers in the presence of three attesting witnesses B., K., and Ya. The police officers and the said witnesses went to the applicant’s flat. The police conducted a search and found the marked bills and more opium. The applicant was arrested and detained pending investigation and trial.
On 29 April 2002 the investigator dismissed the applicant’s lawyer request for a dactylographic expert examination of the banknotes found at the applicant’s flat. In particular, the investigator indicated as follows:
“The fact that [the applicant] was guilty of selling 0.17 grams of opium to L. has been fully and objectively proven by the [evidence collected].”
During the trial the applicant maintained his innocence, alleging that the police had set him up. According to him, on 17 April 2002 an acquaintance, M., came to his flat to see his wife. As his wife was not home, M. left. The applicant was about to close the door after her when several policemen burst into the flat. One of them handcuffed him. Another one put three fifty-rouble bills on the cupboard. When the police checked them, they turned out to be marked. Then another policeman “found” opium in the breadbin. The opium was shown to B., K. and Ya., the three witnesses who had come with the police.
The court granted the prosecutor’s request to read out the records of the testimonies given by B., K. and Ya in the course of the investigation. The court overruled the applicant’s objection, noting that those persons did not live at the addresses they had indicated and that their current whereabouts were unknown to the authorities.
On 1 November 2002 the Novocherkassk Town Court of the Rostov Region found the applicant guilty of drug dealing and sentenced him to five years’ imprisonment.
The court based its findings on the following evidence: testimonies given in court by three policemen who had been involved in the undercover drug purchase, the applicant’s arrest and the search of his flat; records of the testimonies given by B., K. and Ya., who had been questioned in course of the criminal investigation and confirmed the policemen’s account of the events of 17 April 2002; records concerning the organisation of the undercover operation by the police, including the marking of the money bills, photocopies of the bills, and the report on the search of the applicant’s flat; and reports on forensic examination of the money bills, opium, and wipe samples from the applicant’s hands.
The court also heard evidence from M., who confirmed the applicant’s version of the events. The court, however, found her testimony unreliable, having regard to the fact that she was a friend of the applicant’s wife.
The applicant appealed. He complained, inter alia, that the money bills had not been subject to fingerprint examination and that he had not had the opportunity to confront witnesses B., K. and Ya.
On 4 March 2003 the Rostov Regional Court upheld the applicant’s conviction on appeal. As regards the fingerprint examination requested by the applicant, the court noted that it could not be performed because the bills had already been subjected to a series of other expert examinations that would render the results unreliable. As for the trial court’s failure to obtain the attendance of three witnesses, the court noted that the witnesses could not be found at the addresses they had indicated.
On 10 June 2004 the Pervomaiskiy District Court of Rostov-on-Don reviewed the applicant’s conviction to take account of recent amendments to the Russian Criminal Code and reduced his sentence to four years and six months’ imprisonment.
On 14 October 2004 the Presidium of the Rostov Regional Court reclassified the charges against the applicant and reduced his sentence to four years and five months’ imprisonment.
On 30 November 2006 the Deputy General Prosecutor of the Russian Federation asked the Supreme Court of the Russian Federation for the supervisory review of the applicant’s conviction. The prosecutor argued, inter alia, that the trial court had failed to duly obtain the attendance of witnesses B., K., and Ya.
On 18 January 2007 the Presidium of the Supreme Court of the Russian Federation quashed the judgments of 1 November 2002 and 4 March 2003 by way of supervisory review and remitted the matter for fresh consideration. As regards the trial court’s use of the statements made by B., K. and Ya. the Supreme Court acknowledged that the trial court’s failure to obtain the witnesses’ attendance amounted to a violation of the applicant’s right set out in Article 6 § 3 (d). The Supreme Court noted that the authorities’ attempts to find the missing witnesses had not been satisfactory. According to the Supreme Court’s findings, all three witnesses had been students at the material time and had been residing in Novocherkassk temporarily. They had also provided the police with the addresses of their permanent residence. However, the trial court had kept on serving process on them at their old temporary addresses, and no attempt had been made to locate them at the permanent addresses they had indicated.
On an unspecified date the Novocherkassk Town Court of the Rostov Region opened a new trial. The court requested the bailiffs to obtain the attendance of witnesses B., K. and Ya. by serving process on them at their permanent residence.
On 21 May 2007 a bailiff in the town of Belaya Kalitva certified that witness B. could not be found at the address he had indicated and that his whereabouts were unknown.
On 22 May 2007 a bailiff in Novocherkassk certified that witness Ya. could not be found at his permanent place of residence. According to Ya.’s family, he had been working abroad since 2006 and they did not know when he was coming back.
On 21 September 2007 the Novocherkassk Town Court of the Rostov Region found the applicant guilty of drug dealing and sentenced him to four years and four months’ imprisonment. The court based its findings, as before, on the testimonies of the police officers and witnesses B., K. and Ya., records concerning the undercover operation, as well as forensic evidence. Witness K. testified in court, while witnesses B. and Ya. could not attend. The court read out statements obtained from them in the course of the investigation.
Both the applicant and the prosecutor appealed. The applicant maintained his innocence, claiming that the trial court had based its findings on contradictory evidence; that the investigator had failed to inform him of the decisions to commission forensic expert reports; that the trial court had failed to promptly examine M., who had later died and been unable to testify on his behalf.
On 27 November 2007 the Rostov Regional Court upheld the applicant’s conviction on appeal dismissing the applicant’s arguments as unsubstantiated.


ITEMID: 001-107185
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF BALITSKIY v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1 and 6-3-c;Non-pecuniary damage - finding of violation sufficient
JUDGES: Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1979 and lives in Kharkiv.
6. On 9 May 1998 the Frunzenskiy District Prosecutor’s Office instituted criminal proceedings in connection with the murder of Mr T.
7. On the same day the applicant was arrested by the police for hooliganism and taken to the police station. According to the applicant, the police severely beat him in order to force him to confess to the murder of Mr T. who had lived with him in the same apartment block.
8. On 11 May 1998 the applicant was brought before the Frunzenskiy District Court. The court found him guilty of an administrative offence (hooliganism), committed on 9 May 1998 at 1 p.m., and ordered his administrative arrest for fifteen days. The applicant was then returned to the police station, where, according to him, the police ill-treated him again. On the same day he was questioned as a witness in connection with the murder of Mr T.
9. On 12 May 1998 the applicant confessed to the murder and theft. He was questioned from 6.45 p.m. to 8 p.m. on suspicion of the murder of Mr T. At 9 p.m. he was formally arrested as a suspect. The applicant also signed a waiver from a lawyer indicating that he did not need legal representation at that point and would decide on his representation later.
10. On 13 May 1998 the applicant underwent a medical examination. In his opinion of 14 May 1998, the forensic expert noted that the applicant had abrasions on his wrists that could have been caused by handcuffs. He further had three abrasions on his left elbow, one abrasion on the lower part of the abdomen and one abrasion on his leg. According to the expert opinion, the applicant had maintained that the police had not applied force to him and that the abrasion on his abdomen had been caused by falling in his garage two weeks prior to the examination. The expert concluded that the abrasions on the wrists could have been caused by handcuffs one to three days prior to the examination and the other injuries had no relevance to the events indicated in the referral for the medical examination.
11. On 15 May 1998 the applicant was charged with murder. During the questioning he refused the assistance of lawyer T., who had been engaged by his father, and was questioned as an accused without a lawyer.
12. On 1 June 1998 the criminal case against the applicant was transferred to the Kharkiv City Prosecutor’s Office for further investigation. Shortly afterwards, the applicant received assistance from lawyer G.
13. On 22 June 1998 the applicant was examined by a forensic expert who established that the applicant had a broken rib, a scar on his head and three scars on his left arm, two scars on his right arm and a broken tooth. On some later date another X-ray examination was carried out which found that the applicant’s rib was not broken.
14. On 26 June 1998 the applicant was examined by a dentist who established that the applicant’s tooth had split into two as a result of tooth decay.
15. On 27 July 1998 the investigator reclassified the applicant’s offence as murder for profit, which was punishable by life imprisonment and required the obligatory legal representation of the applicant.
16. On 10 January 1999 the investigation was completed and the case against the applicant was referred to the Kharkiv Regional Court.
17. On 9 September 1999 the Kharkiv Regional Court referred the case for further investigation. In so deciding, the court noted, in particular, that the applicant’s allegations of ill-treatment had not been properly investigated and the time of death of Mr T. mentioned in the medical forensic report did not correspond to the police version of the events. It also noted that, although the official time of the applicant’s arrest as a suspect was 9 p.m. on 12 May 1998, the applicant had been arrested on 9 May 1998 by the police officers who were investigating the murder of Mr T. Furthermore, according to the testimony of the witnesses, the arrest had taken place at around 8 a.m., while the police had recorded that the applicant had been arrested for hooliganism at 1 p.m.
18. On 2 November 1999 the Supreme Court upheld the decision of 9 September 1999 with minor amendments.
19. On 8 February 2000 a board of forensic experts conducted an additional forensic examination. The board established that the applicant had minor bodily injuries that might have been caused by handcuffs and a truncheon and it could not be excluded that they might have been inflicted during the period 10 to 13 May 1998. They further noted that following the conflicting findings of the previous X-ray examinations, the latest one had been conducted in the presence of testifying witnesses and the result showed no fractures in the applicant’s ribs.
20. Between February 2000 and July 2001 the criminal case against the applicant was referred to the Kharkiv Regional Court several times for examination and remitted by that court for further investigation.
21. On 10 July 2001 the case was referred to the Sumy Regional Court, which assumed jurisdiction over the case.
22. During the examination of the case the court rendered a separate ruling ordering the prosecutor to look into the applicant’s allegations of ill-treatment. On 14 December 2001 the Frunzenskiy Prosecutor’s Office refused to institute criminal proceedings against the police for lack of proof of a crime. The prosecutor referred to the testimony of the police officers, who had denied any ill-treatment of the applicant. The applicant did not appeal against that decision to the court but raised the issue of ill-treatment in the ensuing criminal proceedings against him.
23. On 20 June 2002 the Sumy Regional Court found the applicant guilty of murder and robbery and sentenced him to fifteen years’ imprisonment. The court based its findings on the confessions of the applicant made between 12 and 15 May 1998 and other pieces of evidence, including the testimony of Mr Sh. and Mr To., who had seen the applicant shortly after the murder. The court rejected the applicant’s allegations of illtreatment as unsubstantiated and noted that the applicant had voluntarily waived his right to legal representation at the initial stage of the proceedings.
24. The applicant and his lawyers appealed. In their appeals they complained, among other things, that the court had based its finding on the applicant’s self-incriminatory statements, that the applicant’s right to defence had been violated, and that the court had assessed the evidence selectively. They further complained that the court refused to question a number of witnesses who could have proved an alibi for the applicant, or whose testimony needed clarification as to the exact time they had seen the applicant and the victim on the day of murder. In particular number of witnesses saw the victim until 8 p.m. and they had not been questioned by the court or their testimonies had not been included in the criminal case-file. Furthermore, several witnesses saw the applicant near the house or at home for some time between 7 p.m. and 8 p.m. when the applicant was coming and leaving.
25. On 22 October 2002 the Supreme Court upheld the judgment of 20 June 2002. The court rejected the applicant’s complaints. It noted that the time the witnesses had last seen the victim alive had been approximate and the murder, according to the applicant’s confessions, had happened quickly, in a matter of minutes. In the court’s opinion, the fact that the witnesses indicated by the applicant had not been summoned and questioned by the lower court did not require the quashing of the judgment, given that their testimony did not refute that the murder had been committed by the applicant. As to the confessions made by the applicant while under administrative arrest, the court noted that this fact did not render his confessions inadmissible and that not all of them had been made during the administrative arrest. As to unlawfulness of the actions of the police during the applicant’s initial arrest, the court noted that it was for the prosecutor to look into the matter.
26. The relevant domestic law is summarised in the cases of Yaremenko v. Ukraine (no. 32092/02, §§ 45-53, 12 June 2008) and Zhoglo v. Ukraine (no. 17988/02, § 21, 24 April 2008).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90336
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SLADKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1956 and lives in Dushanbe, a city in Tajikistan.
5. At the material time the applicant was a colonel of the Russian Border Guard Service. In 1996 he requested an early discharge for health reasons. Under domestic law, long-serving servicemen in need of better housing (the applicant met these conditions) could be discharged against their will only if the command provided them with such housing. When asking for discharge, the applicant specified that he wished to receive the housing.
6. Since no housing was provided, the applicant sued his command. On 21 January 1998 the Military Court 10514 ordered the Director of the Border Guard Service to discharge the applicant with the provision of housing in Russia, and to pay 7,000 Russian roubles (RUB) by way of non-pecuniary damages. This judgment became binding on 31 January 1998.
7. From March 1998 to August 2006 the command offered the applicant flats in Vyazma (Smolensk Region), Kursk (Kursk Region), Kovrov (Vladimir Region), Galich (Kostroma Region), Voronezh (Voronezh Region), and Krasnodar (Krasnodar Region). The applicant rejected these offers because he wished to receive a flat in Tver.
8. For this reason, the applicant once again sued his command. On 8 February 2002 the Military Court of Garrison 109 ordered the Director of the Border Guard to discharge the applicant with the provision of housing in Russia and to pay RUB 5,000 by way of non-pecuniary damages. This judgment became binding on 16 April 2002 after the appeal court had upheld it having specified that the housing should be provided in Tver.
9. In October 2006, December 2006, and June 2007 the command offered the applicant three flats in Tver. The applicant rejected these offers because he considered that the command should have first satisfied his claims for other benefits, and because he disliked the flats’ characteristics.
10. Under section 23 § 1 of the Federal Law on the Status of Servicemen, servicemen who have served ten years and more and whose housing needs to be improved, cannot be discharged against their will without the provision of such housing.
11. According to the Ruling of the Constitutional Court 322-O of 30 September 2004, after expiry of a serviceman’s contract and in the absence of his written agreement to discharge without provision of housing, he should be considered as serving voluntarily only until the provision of housing.
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-61289
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF SKAWINSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1952 and lives in Łódź, Poland.
9. On 8 December 1992, relying on information provided by a certain X, the Łódź-Górna District Prosecutor (Prokurator Rejonowy) opened an investigation against the applicant concerning theft and obstructing X’s use of certain objects.
10. On 30 July 1993 the District Prosecutor submitted the bill of indictment to the Łódź District Court (Sąd Rejonowy).
11. X and witness L. K. failed to attend the hearing of 2 February 1994. On 8 February 1994 the court requested the police to provide the address of L. K.
12. The hearing scheduled for 28 February 1994 was adjourned because of the presiding judge’s illness.
13. The court held hearings on 30 March and 4 May 1994. The hearing scheduled for 11 May 1994 was adjourned due to the absence of three witnesses and the applicant’s lawyer.
14. On 16 May 1994 the court ordered a psychiatric examination of the applicant. It considered that her behaviour in the course of the proceedings and the nature of her pleadings caused it to doubt whether she was capable of understanding the meaning of the criminal act allegedly committed by her and whether she was capable of taking part in the proceedings.
15. On 23 May 1994 the court rejected the applicant’s eight petitions concerning evidence.
16. On 14 June 1994 the examination was carried out. The applicant submitted that it had lasted a few minutes and the psychiatrists had seemed not to have read the case-file. The Government submitted that the psychiatrists had prepared a five-page opinion. On the same day the court ordered the applicant to undergo observation in a psychiatric hospital, relying on the psychiatrists’ statement that they had not been able to prepare their opinion on the basis of their single examination. The applicant appealed.
17. On 6 July 1994 the Łódź Regional Court (Sąd Wojewódzki) amended the decision under appeal by indicating that the observation would not last more than three weeks. The court dismissed the remainder of the applicant’s appeal.
18. In her letter of 14 July 1994 she requested the annulment of those decisions, alleging that they had been given by persons who were not judges.
19. On 25 July 1994 the court held a hearing. It imposed a fine on a witness for his failure to attend that hearing.
20. On 29 August 1994 the court issued an order concerning the taking of the applicant’s child into public care during her psychiatric observation, which was supposed to be carried out from 1 to 9 September 1994.
21. The applicant left Łódź with her child before the starting date of her observation. On 21 September 1994 her lawyer informed the court that he ceased to represent her in the proceedings.
22. On 14 October 1994 a legal-aid lawyer refused to represent the applicant.
23. On 18 October 1994 the court held a sitting concerning the applicant’s motion for a new expert opinion.
24. Subsequently, it adjourned a hearing at the request of the applicant, who had not accepted her new legal-aid lawyer.
25. On 28 October 1994 the Regional Court quashed the decision concerning the taking of the applicant’s child into public care.
26. On 3 November 1994 the District Court held a hearing at which it decided to make an enquiry with a psychiatric hospital about a date on which the observation could be carried out. The applicant appealed that decision, pointing out that the psychiatrists’ opinion of 14 June 1994 was of a poor quality and that the court had overlooked the fact that during her observation her child would be left without care. She submitted that her requests to be examined by other psychiatrists or to undergo short observations in a hospital with the possibility of returning home every day so as to take care of her child had been refused. The appeal was rejected as not provided for by law in such cases.
27. On 28 November 1994 the applicant submitted further pleadings.
28. On 7 December 1994 the Regional Court upheld the District Court’s order rejecting the applicant’s appeal against a decision concerning an expert opinion.
29. Between 28 November 1994 and 7 June 1995 the applicant filed with the court twenty-eight pleadings and motions.
30. On 14 June 1995 the Regional Court quashed the decision of 22 May 1995 staying the proceedings.
31. On 25 September 1995 the applicant was placed for three weeks in a psychiatric hospital. She submitted that she had been treated with strong medicines which severely affected her health and consciousness. On the basis of the observation, the psychiatrists stated that the applicant suffered from stress caused by court proceedings as well as from delusions.
32. On 20 November 1995 the District Court stayed the proceedings, considering that the applicant was unable to participate because of her mental illness.
33. On 7 May 1996 the court ordered a psychiatric opinion as to whether she was able to participate in the proceedings.
34. On 17 June 1996 psychiatrists examined the applicant and found that her health had deteriorated.
35. On 24 June 1996 the court refused the applicant’s request to remit the case to the prosecutor. On the same day it declined the legal-aid lawyer’s request to be released from the duty to represent the applicant.
36. On 4 September 1996 the Regional Court dismissed the applicant’s appeal against the decision staying the proceedings.
37. The applicant failed to appear at the psychiatric observation scheduled for 30 September 1996.
38. On 21 July 1997 the court rejected the applicant’s challenge to the participation in the proceedings of one of the judges.
39. On 28 August 1997 it held a sitting regarding the resumption of the proceedings. The court heard two experts in psychiatry and ordered a further opinion by other experts.
40. The applicant failed to attend the examination scheduled for 9 October 1997.
41. On 26 February 1998 the court refused her request that the proceedings be resumed. The court considered that a decision to resume the proceedings should be based on a psychiatric opinion confirming that the applicant’s health was no longer an obstacle to her participation. It noted that the opinions available to it were not persuasive in this respect, and that the applicant kept failing to attend further examinations.
42. On 11 June 1999 the court held a hearing concerning the applicant’s motion for the resumption of the proceedings. It ordered another expert opinion on the state of her mental health. The applicant having failed to attend two examinations, the experts prepared their opinion on the basis of the case-file.
43. On 24 August 1999 the court resumed the proceedings. It discontinued the proceedings in their part concerning one of the charges.
44. On 26 August 1999 the applicant filed a request concerning new evidence.
45. On 7 September 1999 she appealed against the reasoning for the decision resuming the proceedings.
46. On 9 September 1999 the court held a hearing concerning that appeal. The applicant failed to attend that hearing. She submitted that she had not been informed about that hearing. On 29 September 1999 the Regional Court upheld the reasoning challenged by the applicant.
47. In her pleadings of 30 December 1999 the applicant challenged the participation of the presiding judge in the proceedings. On 3 January 2000 she filed eight motions concerning evidence.
48. On 5 January 2000 the applicant requested that the psychiatrists who had issued the opinions on her mental health be excluded from the proceedings.
49. At the hearing of 11 January 2000 the court rejected the applicant’s motions concerning the psychiatrists and evidence.
50. Subsequently, the applicant filed four further pleadings and motions.
51. On 3 February 2000 the court held a hearing. Six witnesses failed to appear.
52. On seven occasions in February and March 2000 the applicant filed further pleadings.
53. On 1 March 2000 the court held a hearing. Six witnesses and one of the two experts summoned to the hearing failed to attend it.
54. The police informed the court that the whereabouts of witness K. K. were unknown and that witness K. P. lived in Germany, which made it impossible to serve summonses on them.
55. On 29 March 2000 the court held a hearing.
56. On 7 April 2000 the Łódź District Court gave a judgment in which it acquitted the applicant. The prosecutor appealed.
57. The hearing before the Łódź Regional Court, scheduled for 15 September 2000 was adjourned because of the presiding judge’s illness. On the same day the applicant challenged the impartiality of seven judges of that court.
58. On 2 October 2000 the court held a hearing.
59. On 12 October 2000 the Łódź Regional Court dismissed the appeal against the District Court’s judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99814
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ROMANY GAZ GROUP v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 1. The applicant, Romany Gaz Group, is a company registered in Moldova. It was represented before the Court by Mr F. Nagacevschi of “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
2. The facts of the case, as submitted by the parties, may be summarised as follows. On 25 October 2000 the applicant company concluded a contract with Comgaz-Plus (“C-P”), a State-owned company. In accordance with the contract, the applicant company undertook to produce and install several natural gas heaters and thermal energy distribution systems for the Ungheni municipality. Having fulfilled its part of the contract, the applicant company asked C-P to pay the equivalent of 160,000 United States dollars (USD) in accordance with the contract. C-P failed to pay.
3. By further agreements the parties agreed that the applicant company would produce and install several additional natural gas heating systems. CP again failed to pay, but on 1 October 2003 it concluded a new agreement with the applicant company, under which it undertook to pay the latter the outstanding amount (USD 158,862) within twenty-four months. The parties also agreed that if the amount remained unpaid for three consecutive months, the applicant company would have the right to claim the entire debt plus the damages accrued under the previous agreements, that is, USD 409,671.
4. Since C-P again failed to pay, on 27 May 2004 the applicant company initiated court proceedings, claiming the equivalent of USD 568,533. In its court action, the applicant company indicated that it was in a very poor financial situation, having no money in its bank account after the partial payment of the court fees, as borne out by the bank statement it submitted in the proceedings. It asked for an extension of the time-limit for paying the remainder.
5. On 1 June 2004 the Appeals Chamber of the Economic Court decided not to examine the court action on account of the applicant company's failure to pay the court fees (15,000 euros (EUR)) in full. It gave the applicant company one month to pay in full. On 23 June 2004 the same court extended the time-limit for payment of the court fees until 15 September 2004.
6. The applicant company appealed, referring to its poor financial situation. It argued that Article 6 of the Convention would be violated if the courts refused to examine its case because it had no means to pay the court fees.
7. On 15 July 2004 the Supreme Court of Justice rejected the appeal, finding that the applicant company had failed to pay the court fees in full. In reply to the complaint under Article 6 of the Convention, the court stated that the lower court “had had the power to take into account the applicant company's request to pay the court fee in instalments on the ground of its poor financial situation and to order an extension of the time-limit for paying the court fee which had been set on 1 June 2004”. There was therefore no violation of the applicant company's right of access to a court.
8. On 15 September 2004 the Appeals Chamber of the Economic Court returned the applicant company's court action without examining it on account of its failure to pay the court fees in full. The applicant company did not challenge that decision before the Supreme Court of Justice.


ITEMID: 001-57641
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF COSSEY v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;No violation of Art. 12
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 9. The applicant, who is a British citizen, was born in 1954 and registered in the birth register as a male, under the male Christian names of Barry Kenneth.
10. At the age of 13 the applicant realised that she was unlike other boys and, by the age of 15 or 16, she understood that, although she had male external genitalia, she was psychologically of the female sex.
In July 1972 she abandoned her male Christian names and assumed the female Christian name of Caroline, a change which she confirmed by deed poll (see paragraph 16 below) in March 1973. Since July 1972 she has been known under that name for all purposes, has dressed as a woman and has adopted a female role.
11. In December 1974 the applicant, who had previously taken female hormones and had had an operation for breast augmentation involving implants, underwent gender reassignment surgery in a London hospital, to render the external anatomy nearer that of the female gender.
A medical report dated 8 February 1984 describes Miss Cossey as a pleasant young woman, states that she has lived a full life as a female, both psychologically and physically, since the surgery and records that a genital examination showed her to have the external genitalia and vagina of a female. As a post-operative female transsexual, she is able to have sexual intercourse with a man.
12. In 1976 the applicant was issued with a United Kingdom passport as a female (see paragraphs 16-17 below). From about 1979 to 1986 she was a successful fashion model, featuring regularly in newspapers, magazines and advertisements.
13. In 1983 Miss Cossey and Mr L., an Italian national whom she had known for some fourteen months, wished to marry each other.
By letter of 22 August 1983, the Registrar General informed the applicant that such a marriage would be void as a matter of English law, because it would classify her as male notwithstanding her anatomical and psychological status. Her Member of Parliament advised her in a letter of 30 August 1983 that a change in the law would be required to enable her to marry. A reply on behalf of the Registrar General, dated 18 January 1984, to a further enquiry by the applicant stated that she could not be granted a birth certificate showing her sex as female, since such a certificate records details as at the date of birth (see paragraphs 18-20 below).
In 1985 - after the date of her application to the Commission - Miss Cossey and Mr L. ceased to be engaged to be married, though they remained good friends.
14. On 21 May 1989 the applicant purported to marry a Mr X, at a ceremony conducted at a London synagogue. However, their relationship terminated on 11 June of the same year.
Following a petition filed by Miss Cossey, who had been advised that this was her only means of obtaining financial relief, the marriage was, by decree nisi made by the High Court on 17 January 1990, pronounced to have been by law void by reason of the parties not being respectively male and female (see paragraphs 23-24 below). That decree was made final on 13 March 1990.
15. In the United Kingdom gender reassignment operations are permitted without legal formalities. The operations and treatment may be carried out under the National Health Service.
16. Under English law a person is entitled to adopt such first names or surname as he or she wishes and to use these new names without any restrictions or formalities, except in connection with the practice of some professions where the use of the new names may be subject to certain formalities (see, inter alia, Halsbury’s Laws of England, 4th ed., vol. 35, paras. 1173-1176). For the purposes of record and to obviate the doubt and confusion which a change of name is likely to involve, the person concerned very frequently makes a declaration in the form of a "deed poll" which may be enrolled with the Central Office of the Supreme Court.
The new names are valid for purposes of legal identification and may be used in documents such as passports, driving licences, car registration books, national insurance cards, medical cards, tax codings and social security papers. The new names are also entered on the electoral roll.
17. Civil status certificates or equivalent current identity documents are not in use or required in the United Kingdom. Where some form of identification is needed, this is normally met by the production of a driving licence or a passport. These and other identity documents may, according to the prevailing practice, be issued in the adopted names of the person in question with a minimum of formality. In the case of transsexuals, the documents are also issued so as to be in all respects consistent with the new identity. Thus, the practice is to allow the transsexual to have a current photograph in his or her passport and the prefix "Mr", "Mrs", "Ms" or "Miss", as appropriate, before his or her adopted names.
18. The system of civil registration of births, deaths and marriages was established by statute in England and Wales in 1837. Registration of births is at present governed by the Births and Deaths Registration Act 1953 ("the 1953 Act"), which requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. The particulars to be entered are prescribed in regulations made under the 1953 Act.
A birth certificate takes the form either of an authenticated copy of the entry in the register of births or of an extract from the register. A certificate of the latter kind, known as a "short certificate of birth", is in a form prescribed and contains such particulars as are prescribed by regulations made under the 1953 Act, that is the name and surname, sex, date of birth and place of birth of the individual. It omits, notably, any particulars relating to parentage or adoption contained in the register.
An entry in a birth register and the certificate derived therefrom are records of facts at the time of birth. Thus, in England and Wales the birth certificate constitutes a document revealing not current identity, but historical facts. The system is intended to provide accurate and authenticated evidence of the events themselves and also to enable the establishment of the connections of families for purposes related to succession, legitimate descent and distribution of property. The registration records also form the basis for a comprehensive range of vital statistics and constitute an integral and essential part of the statistical study of population and its growth, medical and fertility research and the like.
19. The 1953 Act provides for the correction, by the registrar or superintendent registrar, of clerical errors, such as the incorrect statement or omission of the year of the birth, and for the correction of factual errors; however, in the latter case, an amendment can be made only if the error occurred when the birth was registered. The birth register may also, within twelve months from the date of registration, be altered to give or change the name of a child.
Statutory provision is made for the re-registration of the birth of a child who has been legitimated by the subsequent marriage of his parents. Thereafter birth certificates supplied concerning him take the form of a certified copy of the entry of re-registration; no copy of the previous entry may be given except under the direction of the Registrar General.
Under the Adoption Act 1976, where a child is adopted, an entry (not including the names of the natural parents) will be made in a separate register known as the Adopted Children Register. In addition, the original entry in the register of births will be marked with the word "Adopted". The Registrar General keeps books to make traceable the connection between the entries in the two registers but these books are not accessible to the public, save on application by the adopted person himself or by order of a court. It is open to anyone to obtain a certified copy of the entry in the Adopted Children Register or a short certificate which contains no particulars relating to parentage.
20. The criteria for determining the sex of the person to be registered are not laid down in the 1953 Act nor in any of the regulations made under it. However, the practice of the Registrar General is to use exclusively the biological criteria: chromosomal, gonadal and genital sex. The fact that it becomes evident later in life that the person’s "psychological sex" is at variance with these biological criteria is not considered to imply that the initial entry was a factual error and, accordingly, any request to have the initial entry changed on this ground will be refused. Only in cases of a clerical error, or where the apparent and genital sex of the child was wrongly identified or in case of biological intersex, i.e. cases in which the biological criteria are not congruent, will a change of the initial entry be contemplated and it is necessary to adduce medical evidence that the initial entry was incorrect. However, no error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex.
21. Indexes are maintained of all entries in birth registers. It is open to any member of the public to search the indexes (but not the registers themselves) and obtain a certified copy of any such entry. However, identification of the index reference requires prior knowledge not only of the name under which the person concerned was registered, but also of the approximate date and place of birth and the registration district.
22. The law does not require that the birth certificate be produced for any particular purpose, although a certificate may in practice be requested by certain institutions and employers.
A birth certificate has in general to accompany a first application for a passport, but is not needed for its renewal or replacement or for an application for a driving licence. A birth certificate is also usually (though not invariably) required by insurance companies when issuing pension or annuity policies, but not for the issue of motor or household policies nor, as a rule, for the issue of a life insurance policy. It may also be required when enrolling at a university and when applying for employment, inter alia, with the Government. In the case of a religious marriage ceremony, the celebrant is not obliged nor is there any statutory power under English law to ask the parties to produce copies of their birth certificates (see also paragraph 25 below).
23. In English law, marriage is defined as a voluntary union for life of one man and one woman to the exclusion of all others (per Lord Penzance in Hyde v. Hyde (1868) Law Reports 1 Probate and Divorce 130, 133). Section 11 of the Matrimonial Causes Act 1973 gives statutory effect to the common-law provision that a marriage is void ab initio if the parties are not respectively male and female.
Under section 12 of the same Act, a marriage which is not consummated owing to the incapacity or wilful refusal of one of the parties to consummate it, is voidable.
24. According to the decision of the High Court in Corbett v. Corbett [1971] Probate Reports 83, sex, for the purpose of contracting a valid marriage, is to be determined by the chromosomal, gonadal and genital tests where these are congruent, and without regard to any operative intervention. The relevance of a birth certificate to the question whether a marriage is void only arises as a matter of evidence which goes to the proof of the identity and sex of the person whose birth it certifies. The entry in the birth register is prima facie evidence of the person’s sex. It may, however, be rebutted if evidence of sufficient weight to the contrary is adduced.
25. If, for the purpose of procuring a marriage or a certificate or licence for marriage, any person knowingly and wilfully makes a false oath or makes or signs a false declaration, notice or certificate required under any Act relating to marriage, he or she is guilty of an offence under section 3(1) of the Perjury Act 1911. However, a person contracting a marriage abroad is not liable to prosecution under this Act.
26. The biological definition of sex laid down in Corbett v. Corbett has been followed by English courts and tribunals on a number of occasions and for purposes other than marriage.
In one case concerning prostitution, a male-to-female transsexual, who had undergone both hormone and surgical treatment, was nevertheless treated as a male by the Court of Appeal for the purposes of section 30 of the Sexual Offences Act 1956 and section 5 of the Sexual Offences Act 1967 (Regina v. Tan and Others [1983] 2 All England Law Reports 12). In two cases concerning social security legislation, male-to-female transsexuals were considered by the National Insurance Commissioner as males for the purposes of retirement age; in the first case the person in question had only received hormone therapy, in the second she had involuntarily begun to develop female secondary characteristics at the age of 46, which developments were followed by surgery and adoption of a female social role some 13 years later (cases R (P) 1 and R (P) 2 in the 1980 Volume of National Insurance Commissioner Decisions). Lastly, in a case before an Industrial Tribunal a female-to-male transsexual, who had not undergone any sex-change treatment, was treated as a female by the Tribunal for the purposes of the Sex Discrimination Act 1975; the person in question had sought and received employment in a position reserved for men under the Factories Act, but was dismissed after discovery of her biological sex (White v. British Sugar Corporation Ltd [1977] Industrial Relations Law Reports 121).
NON_VIOLATED_ARTICLES: 12
8