ITEMID: 001-5902
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: R.G. v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello
TEXT: The applicant is a citizen of Sri Lanka of Tamil ethnic origin, born in 1976. He currently resides in Greece. He is represented before the Court by Mrs A. Sykiotou-Androulaki, a lawyer working for the Greek Council for Refugees.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s father was killed by the Indian Peace Keeping Forces (IPKF) in 1987. His elder brother, who was with the Eelam People Revolutionary Liberation Front (EPRLF), has disappeared since 1987. The applicant’s sister arrived in the United Kingdom in 1995 and claimed asylum. On 7 December 1998 the Special Adjudicator concluded that she had a well-founded fear of persecution and allowed her appeal. Reference was made in this decision to the applicant’s own activity.
The applicant states that he was a member of the Liberation Tigers of Tamil Eelam (LTTE) from 1993 to 1997. In 1997 he expressed the wish to withdraw from the group, but its leaders prevented him from doing so and he was forced to stay. In February 1998 he tried to escape from the group’s camp in Glinotsi, but he was arrested and held at the camp as a prisoner. In May 1998 he managed to escape and fled to Colombo. There he was arrested by the police because he had no identity card. While in detention his co-detainees recognised him as being a member of the LTTE. Following that, he claims that he was tortured by police officers. He was detained for three days (from 21 to 24 May 1998). Then he managed to escape with the help of his uncle who bribed some police officers. He was told he had to leave the country immediately because his life was in danger.
The applicant arrived in Greece on 12 December 1998 and was arrested when trying to escape to Italy holding a false passport. On the same day, administrative decision N° 3/753554–15250 ordered the applicant’s expulsion from Greece and his detention pending expulsion.
On 18 February 1999 the applicant sought asylum. He identified himself under a false name because he feared for his safety if he had to return to Sri Lanka.
On 21 April 1999 the Minister of Public Order rejected the applicant’s request. On the same day the applicant appealed against this refusal. During the hearing before the competent administrative committee the applicant was assisted by an interpreter of Tamil ethnic origin.
On 20 May 1999 the Minister of Public Order concluded that the applicant had not established a well-founded fear of persecution within the meaning of the 1951 Refugee Convention and refused his application. This decision was served on the applicant on 27 May 1999.
On 1 June 1999 the applicant appealed against the decision of 12 December 1998 ordering his expulsion. During the hearing before the competent administrative committee the applicant was assisted by an interpreter of Tamil ethnic origin. His appeal was rejected on 18 June 1999. The applicant claims that he was informed of this decision orally on 21 June 1999.
In the meantime the applicant was informed about his sister’s whereabouts. When he learned that his sister’s request for asylum in the United Kingdom had been upheld, he made a new application for asylum on 8 July 1999.
His request was rejected on 5 August 1999. This decision was served on the applicant on 6 August 1999. On 12 August 1999 he lodged an appeal against this decision with the Council of State. He also applied for a suspensive effect of his appeal.
On 23 August 1999 the Council of State ordered the temporary stay of execution of the administrative acts relating to the applicant’s expulsion.
On 31 August 1999 this decision was served on the applicant, who was then released and given a certificate stating that he remains in the country under tolerance.
1. Section 27 § 6 of Law No. 1975/1991 provides that the Minister of Public Order may, in the public interest and if the person to be expelled is dangerous or there is a risk of him absconding, order his detention until his deportation from Greece becomes feasible.
2. The application for annulment is the main remedy before the Council of State. This remedy is modelled on the French recours pour excès de pouvoir, and may be used to challenge both administrative action and inaction. The application for annulment may assert lack of competence, infringement of an essential procedural requirement, substantive violation of the law or abuse of discretionary power. A judgment for the petitioner declares the contested decision to be null and void erga omnes. The authorities are obliged to take the measures called for by the judgment, or to refrain from any action declared to be unlawful.


ITEMID: 001-97604
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ADIYAMAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza
TEXT: The applicant, Ms Kaside Adıyaman, is a Turkish national who was born in 1950 and lives in Mersin. She was represented before the Court by Mr H. Yılmaz, a lawyer practising in Mersin. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 June 1993, at around 10.50 a.m., the applicant's husband, Eyüp Adıyaman and his friend, Muhterem Demir, were shot by unknown perpetrator(s) in the centre of Silvan, a district attached to Diyarbakır. The security forces, arriving shortly after the incident, transferred the applicant's husband and Mr Demir to a state hospital, where they died.
On the same day the security forces drafted an incident report and drew up a sketch map. Twelve spent 9-mm cartridges were found at the scene and sent for ballistics examination. According to the incident report, when the police officers arrived at the scene of the incident, Mr Adıyaman and Mr Demir were lying on their backs in a pool of blood, surrounded by a crowd of about hundred to two hundred people. They were immediately transferred to the hospital. Afterwards the police officers collected evidence and tried to collect eyewitness statements. However, no one was able to testify as to what had happened, since they all claimed only to have heard gunshots. The report also mentions that Mr Adıyaman and Mr Demir were known to be PKK (Workers' Party of Kurdistan) sympathisers.
On the same day, a post-mortem examination of Eyüp Adıyaman's body was carried out by two pathologists in the presence of the Silvan public prosecutor and Mr Fuat Adıyaman, the deceased's brother. According to the verbatim record, the deceased was forty-three years old, 175 cm tall and weighed eighty-five kilograms. He had black hair, brown eyes and a brown moustache. The record further described the deceased's clothing and personal items found on his person. Rigor mortis and post-mortem hypostasis had not yet set in. An external examination revealed the following injuries: a bullet entry wound 2 cm in front of the right ear lobe and a bullet exit wound on the left side of the head which had destroyed the left ear lobe. A bullet entry wound 2 cm below the right ear lobe and a bullet exit wound on the left occipital bone, which had broken the bone. Two further bullet entry wounds on the right side of the head were identified together with a single bullet exit wound from the left side of the head. A bullet entry wound on the right elbow and a bullet entry wound on the right arm were observed. The experts also noted a bullet entry wound on the front of the left shoulder, an exit wound on the left front shoulder 6 cm from the previous entry wound, and another bullet entry wound on the chest, on the left next to the sternum.
The doctors concluded that the cause of death was haemorrhage and damage to the cerebral tissue as a result of wounds caused by firearms. They considered that there was no need to carry out a classical autopsy as the cause of death was clear from the findings of the external examination. The prosecutor agreed. Afterwards the body of the deceased was given to the family for burial and a bullet extracted from the body of the deceased retained as evidence.
On the same day, the preliminary investigation into the killings was instigated by the Silvan public prosecutor. He requested the Silvan Security Headquarters to secure the presence of family members of the deceased in order to take statements from them.
On an unspecified date the applicant moved to Mersin with her children because other family members had received death threats. Fearing for her safety the applicant neither pursued the investigation into the death of her husband nor lodged a civil or administrative action with the authorities, as she did not want her address to be known.
On 10 June 1993 the Silvan Security Headquarters submitted an additional incident report to the Silvan prosecutor's office, which contained the same information as that of the first incident report. This report stated that it had been established that the deceased were active PKK sympathisers.
On the same day, the police took witness statements from four people who either lived or worked in the street where the killing took place. Mrs L.E. claimed that she was not at home at the time of the incident. Mr H.S. submitted that his shop was closed on the day of the incident. Mrs A.T. and Mrs S.K. claimed to have heard gunshots but that they were not witnesses to the incident.
In the meantime the Regional Criminal Police Laboratory conducted a ballistics examination of the twelve spent cartridges found at the scene. The report issued on 10 June 1993 stated that the cartridges examined were 9 mm parabellum cartridges of two different groups of foreign origin and that they were fired from two different guns.
On 9 August 1993 the Silvan public prosecutor heard the applicant's brother-in-law and Mr Demir's father. They both submitted that they did not know who could have committed the killing and requested that those responsible be brought to justice.
On 16 August 1993 the Silvan Security Headquarters informed the Silvan public prosecutor that the investigation into the killings was ongoing and that the perpetrators had not yet been identified. The Government submitted numerous items of similar correspondence of various dates between the prosecutor and the Security Directorate.
On 25 July 1994 the Silvan public prosecutor relinquished jurisdiction over the case since he considered that the killing of the deceased, who were known to be active PKK sympathisers, by unknown perpetrators, fell within the jurisdiction of the public prosecutor at the Diyarbakır State Security Court.
On 19 June 1995 the Silvan Security Headquarters informed the Silvan public prosecutor that three suspects arrested following an operation conducted against Hizbullah had claimed that Mr K.A. was responsible for the killing of the applicant's husband and Mr Demir and that the security forces were working to capture the suspect.
On 13 March 1996 the prosecutor at the Diyarbakır State Security Court ordered the Silvan and Diyarbakır Security Headquarters and the Provincial Gendarmerie Command to coordinate their efforts in the search for the perpetrators. The prosecutor instructed that he be informed of any tipoffs, confessions or any other evidence regarding the incident as well as briefed on developments in the case every three months. The prosecutor also requested the collaboration of the Silvan public prosecutor in this respect.
On 28 March 1996 the Silvan Security Headquarters informed the prosecutor that they were still searching for Mr K.A.
In the meantime, on 7 May 1999, the applicant requested the public prosecutor's office at the Diyarbakır State Security Court to provide her with a copy of her husband's death certificate to be submitted to the Social Security authorities for the establishment of a pension. She personally received the relevant document on 11 May 1999.
On 26 November 1999 the applicant lodged a petition with the Silvan public prosecutor's office and requested information as regards the developments in the investigation into the death of her husband. In this petition, the applicant also stated that in her view her husband had been killed either by the security forces or by militia acting in collusion with them
On 30 November 1999 the Silvan public prosecutor informed the applicant that the case regarding the death of her husband had been transferred to the public prosecutor's office at the Diyarbakır State Security Court on 25 July 1994.
On an unspecified date the applicant lodged a request with the Silvan public prosecutor's office for information as regards the developments in the investigation into the death of her husband. The applicant noted that the documents sent to her by the prosecutor's office concerned only the investigation conducted immediately after the death of her husband. She requested to know what additional steps had been undertaken by the prosecutor and whether any new evidence had been admitted to the case file. She repeated that in her view her husband had been killed either by the security forces or by militia acting in collusion with them.
On 20 December 1999 Mr G.K., a public prosecutor at the Diyarbakır State Security Court, with reference to the applicant's request dated 26 November 1999, informed the applicant that the investigation into the killing of her husband and Mr Demir was ongoing and that the perpetrator(s) had not yet been found.
On 7 January 2000 the Diyarbakır Security Headquarters informed the prosecutor that it had not been possible to identify the gun with which the 9 mm parabellum cartridges of foreign origin had been fired, as no information had been found linking them to any gun stored in the database.
The Government submitted numerous items of correspondence of various dates in which various Security Headquarters regularly informed the prosecutor in charge of the case file about developments in the search for the alleged perpetrator of the killings.
On 6 November 2000 public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against Mr K.A accusing him of membership of an illegal armed organisation, namely Hizbullah, and of participating in armed activities on its behalf.
On 29 August 2001 Mr K.A., who was carrying a false identity card, was arrested. On 7 September 2001 he was questioned by the police. On that date, Mr K.A. submitted that in the nineties Silvan was mixed ideologically, that he had joined a religious community in 1989 and that until 1994 there was no concept of Hizbullah. Mr K.A. maintained that until February 1992 when a fellow community member Mr H.B. was killed by the PKK their only activities were to gather and to discuss Islam. After this killing it became dangerous to move from one street to another and as a result street patrols were created. Mr K.A. claimed that a few months after that incident he became part of the military wing of the community, since it had become clear to the community that if they did not fight back they would be killed by the PKK. He gave details about the subsequent structure of the organisation of the community and the killings perpetrated by him and other members on various dates. Mr K.A. was later asked to comment on a number of documents found following an operation conducted in the house of the leader of the organisation on 17 January 2000 and police statements of fellow members. Mr K.A., when asked about his involvement in the killing of the applicant's husband, denied taking part in it. He further maintained that after 1995 his ties with the organisation had lessened.
On the same date Mr K.A. was heard by a public prosecutor and a judge at a State Security Court, where he denied being part of the armed wing of Hizbullah and participating in any killings. Mr K.A. was subsequently remanded in custody.
On 21 November 2000 and 19 September 2001 the public prosecutor at the Diyarbakır State Security Court filed additional bills of indictment against Mr K.A. and other suspects for, inter alia, participating in armed activities on behalf of Hizbullah. In respect of Mr K.A. these were the killing of Mr Ay on 31 May 1992, Mr Ayhan on 19 June 1992, Mr Budak on 1 October 1992 and Mr Cesur on 3 March 1993. He was also accused of participating in the attempted killing of Mr Ekinci and Mr Yuce on 23 October 1992. All these incidents took place in Silvan.
On 6 October 2003 the Silvan Security Headquarters informed the Silvan public prosecutor that Mr K.A. had been arrested in 2001 following an operation conducted against Hizbullah and was currently in detention.
On 17 May 2004 the prosecutor at the Diyarbakır State Security Court filed an additional bill of indictment against Mr K.A. for inter alia, participating in armed activities on behalf of Hizbullah. This time Mr K.A. was accused of killing the applicant's husband and Muhterem Demir.
On 24 May 2004 the criminal proceedings against Mr K.A. regarding the killing of the applicant's husband and of Muhterem Demir commenced before the Diyarbakır Security Court (no. 2004/160). The applicant and Muhterem Demir's wife were written down as plaintiffs (müşteki) and the court ordered that their statements be heard.
In the next hearing held on 10 June 2004 Mr K.A. was heard by the Second Division of the Diyarbakır State Security Court. He denied all the charges against him. In particular, he submitted that he did not kill the applicant's husband and Mr Demir. He also stated that Mr M.A. and Mr I.B. had been tried and acquitted as regards the same incident. The court decided to join the case related to the applicant's husband's killing to another case pending before it (no. 2000/115).
Throughout the criminal proceedings a number of related cases pending before various courts and concerning Mr K.A. and other suspects and their activities on behalf of Hizbullah were joined to case no. 2000/15.
On 16 July 2004 Mrs Demir, wife of Mr Muhterem Demir, was heard by the court, which was acting on rogatory letters, and she maintained that she had not witnessed the events and had no knowledge of the incident.
In the course of the trial, the first-instance court heard witnesses and the accused and collected documents from various authorities. It also appears that the court tried unsuccessfully several times to locate the applicant in order to obtain her testimony via rogatory letters. Throughout this time Mr K.A. denied all accusations, submitted that he had been ill-treated during police custody and claimed his innocence.
On 3 July 2008 the Diyarbakır Assize Court, in a 224-page reasoned judgment, delivered its verdict in the trial in respect of seven of the accused. Having regard to the evidence in the case file, the court found it established that Mr K.A. was member of an illegal armed organisation, namely Hizbullah, and that he had participated in a number of armed activities on its behalf, including the killing of the applicant's husband on 7 June 1993, and sentenced him to life imprisonment. It transpires from the reasoned judgment of the Diyarbakır Assize Court that proceedings before its Sixth Division concerning another suspect, who had originally been arrested in the operation conducted in1995 and was currently being tried in absentia for taking part in the applicant's husband's killing, were pending.
The case against Mr K.A. is pending before the Court of Cassation.
A description of the relevant domestic law at the material time can be found in Sabuktekin v. Turkey, no. 27243/95, §§ 60-68, ECHR 2002II (extracts).


ITEMID: 001-83217
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF OGANOVA v. GEORGIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
TEXT: 5. The applicant was born in 1960 and lives in Tbilisi.
6. On 8 May 2002 the applicant brought a civil action, claiming back the money which she had lent to a private person on 14 September 1998, further to a note envisaging repayment within two months.
7. On 22 May 2002 the respondent replied in writing, claiming that she had repaid the debt and that the applicant's action was time-barred under Articles 129 and 130 of the Civil Code (“the CC”).
8. On 14 June 2002 the Isani-Samgori District Court allowed the applicant's claim at an oral hearing. The court found that the respondent's assertion about payment of the debt was unsubstantiated. It did not reply to the time-bar objection.
9. On 5 August 2002 the respondent appealed, reiterating, inter alia, that the applicant's action was time-barred. The latter replied that, in view of the respondent's continuous promises to discharge the debt, she could not have concluded that her rights had been breached between 1998 and 2001.
10. On 18 September 2002 the Tbilisi Regional Court quashed the judgment of 14 June 2002 and decided the case anew, dismissing the applicant's action as time-barred. The appellate court found that the limitation period had started to run from the date of non-compliance with the note of 14 September 1998, that is two months after the loan, on 14 November 1998. It noted that the case materials did not substantiate the applicant's assertion that the respondent had continuously promised to return the money.
11. On 16 October 2002 the applicant lodged a cassation claim. Referring to varioushe reiterated that the respondent's verbal assurances had prevented her from applying to the court earlier. She consequently claimed that the appellate court had wrongly applied Articles 129 and 130 of the CC.
12. On 19 November 2002 the Supreme Court of Georgia declared the applicant's cassation claim admissible but decided to dispense with an oral hearing on the merits. Both parties were informed of that decision on 22 November 2002. On the same day, the cassation claim was forwarded to the respondent for comments. No reply was forthcoming from the latter.
13. On 6 February 2003 the Supreme Court dismissed the applicant's cassation claim. Endorsing the facts of the case as established by the appellate court, the cassation court found that the disputed Articles 129 and 130 of the CC had been correctly interpreted and applied in the appellate judgment of 18 September 2002 and that, consequently, there was no ground, under Article 393 §§ 1 and 2 of the Code of Civil Procedure, to quash it.
Pursuant to Articles 129 § 1 and 130, the period for bringing contractual claims was limited to three years, and it started to run from the moment the person learnt or should have learnt about the breach of his or her rights.
Pursuant to Article 393 §§ 1 and 2, only the lawfulness of an appellate judgment could be challenged in cassation. The disputed judgment could be found to be unlawful if the appellate court had wrongly applied or interpreted the law.
Article 396 § 1 (f) required the appellant to mention in his or her cassation claim those facts which supported the alleged breaches of procedural law if the cassation claim was calling into question the application of procedural legal provisions.
Article 404 § 1
“The cassation court shall review the [disputed] judgment only in so far as challenged in the cassation claim. The cassation court cannot go beyond the facts referred to under Article 396 § 1 (f) and inquire of its own motion into other procedural breaches.”
“The cassation court shall take into account the party's submissions only in so far as disclosed by the case file or the appellate judgment; only the facts submitted under Article 396 § 1 (f) can be taken into account.
The establishment of the facts [by the appellate court] is binding on the [cassation] court, unless an additional and well-founded cassation argument has been raised.”
“In the event the cassation court finds it appropriate..., it can decide the case without an oral hearing. The parties shall be notified of such a decision.”
Article 411
“The cassation court shall take a [final] decision
Article 412 § 1 and 2
“If it is not possible for the cassation court to decide the case in accordance with Article 411, it shall quash the appellate judgment and remit the case for a retrial.
The Constitutional Court dismissed the applicants' complaint challenging Article 408 § 3 of the CCP, which provided for the possibility to dispense with an oral hearing in cassation proceedings.
The Constitutional Court noted that, unlike an appellate court which established facts, the cassation court could only review the application of legal provisions. It could however examine, on the basis of Articles 396 § 1 (f) and 407 §§ 1 and 2 of the CCP, the facts which have been explicitly raised by the appellant in relation to the alleged violations of procedural law.
Consequently, whilst the scope of the review was mostly limited to the assessment of the application of procedural and substantive law, the Constitutional Court concluded that the right to an oral hearing in cassation proceedings was not absolute.
In its judgment of 28 February 2006 in the case of “Gokhi” v. “Telasi” JSC, the Supreme Court defined the notion of an “additional and well-founded cassation argument” (Article 407 § 2 of the CCP), as follows:
“...'An additional and well-founded cassation argument' is ... a reference to those procedural breaches which, having been committed by the appellate court during the examination of the case, have resulted in an erroneous assessment of the matters of fact and/or the incorrect interpretation and application of substantive legal provisions.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-66611
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: SARAC v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Mark Villiger
TEXT: The applicant, Ms Selal Saraç, is a Turkish national who was born in 1970 and lives in Germany. She is represented before the Court by Mr M. Demir, a lawyer practising in Germany.
The facts of the case, as submitted by the parties, are as follows.
On 18 September 1995 at about 2 a.m. the applicant’s house in Nusaybin was raided by police officers from the Nusaybin police headquarters in order to arrest the applicant on suspicion of PKK membership and harbouring PKK members. The applicant had been taken into custody several times in the past, namely in the autumn of 1991, on 21 March 1993 and on 15 August 1994. During the arrest she was subjected to a body search in the presence of her children, husband and other family members. The applicant, her husband and three of her relatives were put in a police vehicle and taken to a doctor for a medical examination. The doctor stated that they were in good health and they were subsequently taken to the police headquarters in Nusaybin.
At 3 p.m. the same day the applicant was taken to her house by police officers in order to conduct a search. She took the police officers to the cellar of the house and showed them a bomb which had been given to her by a member of the PKK. The bomb was subsequently destroyed by bomb disposal teams. She was then taken back to the Nusaybin police headquarters.
During her period of detention at Nusaybin police headquarters, the applicant was stripped naked and blindfolded. She was hosed down with cold water, hung from her arms, beaten with a police truncheon and electric shocks were administrated to her sexual organs.
Two days after her arrest, the applicant was transferred to Mardin police headquarters. During her detention at Mardin police headquarters, the applicant was allegedly blindfolded, stripped naked, held under cold water, given electric shocks, beaten, and raped by a village guard and a police commissioner. She was also forced to walk in a room filled with ice.
While in Mardin, the applicant was taken to a doctor at the Mardin State Hospital who did not medically examine her but gave her painkillers to relieve her pain. She was then brought back to the Nusaybin police headquarters where she was detained for eleven days during which time she was stripped naked and was interrogated every night at 1 a.m.
On 6 October 1995 a statement was taken from the applicant by police officers while she was still in custody. In her statement, the applicant admitted that she had let the PKK members use her cellar as a shelter, and maintained that the bomb which was found there had been put there by another woman.
On 12 October 1995 the applicant was brought before the public prosecutor. In her statement, she denied her police statement alleging that it had been taken under duress. She maintained that PKK terrorists had never stayed in her cellar and that the cellar had been designed as a shelter during the Gulf War to protect her family from any possible chemical attack by Iraq. As to the bomb found in the cellar, the applicant stated that it had been given to her by a woman whom she did not know and that she had not been aware that it was a bomb. The same day, the applicant was placed in detention on remand.
On 26 October 1995 the prosecutor at the Diyarbakır State Security Court filed an indictment against the applicant together with twelve other accused persons. She was accused of aiding and abetting members of an illegal organisation, an offence defined in Article 169 of the Criminal Code. On 3 April 1996 she was released pending trial.
On 6 April 1996, some three days after her release, the applicant’s house was raided by police officers from the Nusaybin police headquarters and the applicant was taken into custody. She was hung from her arms and hit repeatedly on the head with truncheons as a result of which she lost consciousness. While she was unconscious, her feet were burnt by cigarettes. Following this, she was raped with a truncheon on two occasions. She was threatened by the police officers that if she refused to work as an informer for the police, she would be killed. The applicant refused to work as an informer. She was then taken by car to an isolated place and abandoned.
On 19 April 1996 the applicant went to the Human Rights Foundation where she was medically examined. Following medical examinations carried out between 22 and 24 June 1996 in two different hospitals and a Nuclear Medical Centre in Istanbul, and gynaecological and neurological tests, x-rays, thorax graphics, scintigraphic imaging and examinations by an ear, nose and throat consultant as well as a psychiatrist, the doctors drafted a report dated 15 August 1996. It was concluded that the applicant’s allegations of ill-treatment, such as post-traumatic stress, depression, marks on her feet caused by cigarette burns and a pelvic complaint, were compatible with the medical findings.
On 5 September 1996 the applicant’s two legal representatives filed a complaint with the Istanbul public prosecutor. In their petition they submitted the applicant’s allegations of ill-treatment. They also gave the names of the village guard who had allegedly raped her during her police custody.
On 11 December 1996 the Diyarbakır State Security Court found the applicant guilty of aiding and abetting members of an illegal organisation and sentenced her to three years and nine months’ imprisonment. The applicant’s appeal against the judgment was rejected by the Court of Cassation on 17 November 1997.
The Government submitted that the applicant was taken into custody on two occasions from 23 September to 18 October 1994 and from 18 September to 12 October 1995 respectively, on suspicion that she was aiding and abetting members of the PKK. However the Government denied that the applicant had been arrested on 6 December 1996. In this respect they submitted that the custody records did not mention her name.
Concerning the applicant’s police custody from 18 September until 12 October 1995, the Government maintained that she was held in Nusaybin Police Headquarters from 18 September to 19 September and then she was transferred to Mardin Police Headquarters, where she was held until 1 October 1995. She was subsequently transferred back to Nusaybin Headquarters, where she was held until 12 October 1995. The Government further contended that the applicant was taken for a medical examination on 18 September 1995 and, according to the medical report, there was no sign of injury on her body. It was noted that she had a heart condition. Another medical report was issued on 12 October 1995 by the Nusaybin Health Clinic, which concluded that the applicant had not suffered physical abuse.
The Government further maintained that the applicant had lodged a criminal complaint with the Istanbul public prosecutor on 23 August 1996. On 23 September 1996 the public prosecutor requested that the Nusaybin Police Headquarters submit information about the applicant’s alleged police custody, and that all relevant doctor reports and official documents be conveyed to the public prosecutor’s office. Furthermore, on 10 October 1996 the public prosecutor took a statement from F.A., a village guard, who was accused by the applicant of having raped her. F.A. denied the charges against him. On 17 December 1996, the applicant’s lawyer gave a statement to the public prosecutor, and asserted that she would convey the relevant medical reports and other evidence in the shortest possible time. Despite being notified, the applicant refused to come to the public prosecutor’s office to give a statement. Moreover, the documents promised by the applicant’s representative were never conveyed to the public prosecutor. Accordingly, on 3 March 1997 the public prosecutor delivered a decision of non-jurisdiction on account of insufficient evidence. The applicant did not appeal against this decision.
The Government further submitted that on 18 September 1995 a search was conducted in the applicant’s house, as a result of which a shelter and a bomb were found. On 6 October 1995 the applicant gave a statement to the police, and described in detail her involvement with the PKK. On 12 October 1995 the applicant was taken before the public prosecutor, and subsequently before the Nusaybin Magistrate’s Court in Criminal Matters. She was remanded in custody. With an indictment dated 27 October 1995 the Diyarbakır public prosecutor instigated criminal proceedings against the applicant and accused her of aiding and abetting an illegal organisation under Article 169 of the Criminal Code. On 3 April 1996 the applicant was released pending trial. On 11 December 1996 the first instance-court found the applicant guilty as charged and sentenced her to three years’ and nine months’ imprisonment. On 17 November 1997, the Court of Cassation rejected the applicant’s request for appeal, finding the first-instance court’s establishment of the facts and evaluation of evidence in line with domestic law and general principles of law.
A description of the domestic law may be found in the Nuray Şen v. Turkey decision (no. 41478/98, 30 April 2002).


ITEMID: 001-97254
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF FEDCHENKO v. RUSSIA NO. 2
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary and non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1968 and lives in the village of Suponevo, in the Bryansk Region.
5. The applicant has been the editor of a weekly newspaper, Bryanskiye Budni (Брянские будни), since he founded it in 1999.
6. In 2004-2005 the state of educational system in the Bryansk Region became the subject of media attention.
7. The newspaper Bryanskoye Vremya (Брянское время), in issue no. 30 of September 2004, published an article entitled “Textbook for an Alchemist” (“Учебник для алхимика”). The article discussed the shortage of textbooks in schools and problems related to their publication and supply. In particular, the article mentioned a “mysterious” publisher of textbooks which it linked to the dismissal of the then head of the Bryansk Department of Education, I. Geraschenkov, who was later reappointed to the post. The article also referred to an audit report which had revealed numerous financial irregularities in the supply of textbooks.
8. On 6 July 2005 Rossiyskaya Gazeta (Российская газета), a newspaper of the Russian Government, published an abridged version of an article by S.F. and A.G. entitled “Question for an official. Where does the 'children's money' disappear' to?” (Экзамен для чиновника. Куда исчезают «детские» деньги), which criticised the poor state of the education system in the Bryansk Region. The article read as follows:
“The Bryansk Department of Education headed by I. Geraschenkov and his first deputy N. Prokopenko spends more than 13,000 [roubles] a month per boarding school pupil. Education in a vocational school is more expensive than in a prestigious commercial college. According to the Department's reports, each year 36,000 roubles are allocated to each school for the additional training of teachers. However, the schools do not receive it.
The Bryansk Region broke all records for the number of children playing truant from boarding schools and has been subject to harsh criticism as a result. A shocking number of children are put on a missing list every day. All right, now it is summer and the weather is warm. However, the number of children playing truant from the boarding schools is no smaller in winter, when it is freezing outside and the child has neither a place to sleep nor food. What is the explanation for this? Children are being kept in boarding schools in unbearable conditions. Material resources there are very scarce and there is a high turnover of tutors because of low wages.
One third of a billion roubles is allocated annually to 38 vocational schools in Bryansk. However, the picture is not any better in these schools. Ugly walls, obsolete equipment, low wages for the teachers ... The quality of training also leaves much to be desired. It is notable that 90% of the school leavers do not take up their chosen profession.
Fortunately, school financing is not within the competence of the local education officials. However, significant finances aimed at the development of school education pass through the Department. And very strange things happen there!
For instance, take the 'School Textbook' programme. The Department's senior officials manage to convince the councillors that there are not enough textbooks in the schools and that children from low-income families are in a particularly difficult situation. However, as soon as the councillors take a decision on the allocation of funds, these officials immediately forget the acuity of the problem. Nobody remembers the children from low-income families any more. Thus, between three and five million [roubles] of budgetary funds are spent year in, year out. This year the officials bought textbooks out of the budgetary funds from a single supplier without an open tender. This is a gross violation of the presidential decree on fighting economic crime and corruption.
Another sphere within the Department's competence is the advanced training of educational staff. Bryansk teachers became accustomed a long time ago to working without any methodical support. However, 36,000 roubles from the regional budget is allocated annually to each school for advanced training and retraining. Headmasters in rural areas have not seen this money for a long time and do not even know that it has been allocated.
Why does this happen? There are two reasons. First, the money is not received by the schools as earmarked funds, but by entities subordinate to the Department, such as the Bryansk Institute of Advanced Training of Educational Staff, irrespective of the quality of their work.
And if you enter the rector's reception area, you will see fashionable splendour, an incredible number of secretaries ... The maintenance of the 'Institute of Advanced Training' costs the regional budget more than 16 million per year. Teachers and headmasters cannot even rebel against it, the point being that the rector of the 'Institute of Advanced Training' is the selfsame Mr Geraschenkov, who heads the Department.
Clearly, in an organisation as secretive as the regional Department it is very hard to get at the truth. For instance, we have still to find out where one million roubles for computer and communications equipment in the Department's account left over from 2004 have disappeared to. As far back as the first half of this year schools in the region were due to be provided with modern communication systems, but they still have not received anything.”
9. On 14 July 2005 the Bryanskiye Budni published the full version of the article. It was entitled “Where does the 'children's money' disappear to?” (Куда исчезают «детские деньги») and read as follows:
“The Bryansk Department of Education headed by I. Geraschenkov and his first deputy N. Prokopenko spends more than 13,000 a month per boarding school pupil. Education in a vocational school is more expensive than in a prestigious commercial college. According to the Department's reports, each year 36 thousand roubles are allocated to each school for the additional training of teachers. However, the schools do not receive it.
The saddest thing about this situation is that the heads of the Department do not even think about trying to change things for the better. They wearily give instructions for decisions taken at meetings held five years previously to be rewritten. Indeed, why change anything when they are comfortable with everything.
The Department is remarkable not only because of the inefficient expenditure of taxpayers' money but because of the inertia of its senior officials. Both Geraschenkov and Prokopenko have held the top posts in the regional education office for a very long time.
Establishments for children left without parental care are the first thing the Department finances and is responsible for. The Bryansk Region broke all records for the number of children playing truant from boarding schools and has been subject to harsh criticism as a result. A shocking number of children are put on the missing list every day. All right, now it is summer and the weather is warm. However, the number of children playing truant from the boarding schools is no smaller in winter, when it is freezing outside, and the child has neither a place to sleep nor food. What is the explanation for this? Children are being kept in boarding schools in unbearable conditions.
Material resources there are very scarce and there is a high turnover of tutors because of the low wages. Many benefactors who have seen this picture grant considerable funds to afford some improvement in the conditions for the children. But if only they knew how much budgetary money is spent per child! We repeat: 13,000 per month! This is in addition to the funds provided by the benefactors.
However, there is another sad fact: notwithstanding such heavy expenditure, in most cases the region still ends up with social misfits. Many of the boarding school pupils engage in alcohol abuse, become dependent on state benefits or end up being prosecuted and sent to jail.
However, it is not the children's fault, but the fault of the system which the abovementioned heads have been building for years.
Vocational schools are also directly dependent on the regional Department of Education and receive taxpayers' money through the Department. Getting acquainted with the way the vocational schools function brings you down. The material resources of most of them are in decline: ugly walls, obsolete equipment and low wages for teachers. School leavers have extremely low levels of knowledge and professional skills. Unfortunately, 90% of the school leavers do not take up their chosen profession, so that budgetary money is effectively wasted.
One third of a billion roubles is seemingly allocated annually to 38 vocational schools. Despite this they are in decline and those they have trained are not in demand in the labour market, even though nowadays highly qualified workers are in sufficient demand and earn quite good money.
Fortunately, school financing is not within the competence of the local education officials. However, significant finances aimed at the development of school education pass through the Department, including the material resources for the schools and methodical support for teacher training. And very strange things happen there!
For instance, take the 'School Textbook' programme. When it is time to allocate funds, the Department's senior officials go to the council and convince the councillors that there are not enough textbooks in the schools and that children from low-income families are in a particularly difficult situation and cannot get the basic books. This is true. However, as soon as the councillors take a decision on the allocation of funds – these officials immediately forget the acuity of the problem. Books are purchased randomly, distributed among the districts even more chaotically and incomprehensibly large sums (around one hundred roubles) are spent on shipping the educational materials. Nobody remembers the children from low-income families any more.
Thus, between three and five million [roubles] of budgetary funds are spent year in, year out. This year the officials bought textbooks out of the budgetary funds from a single supplier without an open tender. This is a gross violation of the presidential decree on fighting economic crime and corruption.
One more sphere within the Department's competence is the advanced training of educational staff. Bryansk teachers became accustomed a long time ago to working without any methodical support. The situation is absurd even: many teachers prefer to avoid methodical institutions as they do not expect anything from them but admonition and disrespect. However, 36,000 roubles from the regional budget are allocated annually to each school for advanced training and retraining. Headmasters in rural areas have not seen this money for a long time and do not even know that it has been allocated.
Why does this happen?
There are two reasons. First, the money is not received by the schools as earmarked funds, but by entities subordinate to the Department, such as the Bryansk Institute of Advanced Training of Educational Staff, irrespective of the quality of their work. If you enter the rector's reception area, you will see fashionable, chic secretaries ... The maintenance of the 'Institute of Advanced Training' costs the regional budget an incredible figure of more than 16 million per year.
Not only are the teachers and headmasters of the schools deprived of money that is due to them, they cannot even rebel against it, the point being that the rector of the 'Institute of Advanced Training' is the selfsame Mr Geraschenkov who heads the Department. He is responsible not only for training, but for performance appraisal as well. If a teacher claims that he was offered a poor quality or uninteresting course, the training specialist who appraises him will unnerve and humiliate him, and perhaps reduce his marks and leave him with a pittance.
These are the conditions in which teachers work: with the feeling that as far as professional development is concerned they can count only on themselves and their colleagues. Or, as a teacher of literature, a teacher of the highest grade, said: 'You work and work, try and try, and then a newly fledged training specialist comes along and humiliates you for no reason.'
The other reason for the stalemate and mismanagement in education is the following. The former Governor released Geraschenkov from the post of director of the regional Department. However, the new Governor reappointed him for some reason, thus violating the law for a third time. Section 18 of the Law on State Service of the Bryansk Region provides that only persons under 60 can be appointed to such posts and that the appointment should be made on the basis of a competition advertised in the media. The executive branch is not a private clique, everything here is subject to State laws. However, the competition did not take place, not even superficially.
And the third: Geraschenkov holds two posts of head of department at the same time. This is a flagrant violation of the Law of the Bryansk Region and of the Law on Education. The appointments of the first deputy head of the Department N. Prokopenko and the other deputy L. Kletskina were gross violations.
Then followed the dismissal of uncooperative members of staff presumptuous enough to hold their own point of view. This was followed by multimillion purchases without tenders and the concealment of the unauthorised expenditure by subordinate entities.
Clearly, in an organisation as secretive as the regional Department it is very hard to get at the truth. For instance, we have still to find out where one million roubles for computer and communications equipment in the Department's account left over from 2004 has disappeared to. Pursuant to the agreement with the Ministry of Education the schools of the Bryansk Region were to be provided with modern communication systems in the first half of this year. We have not found any evidence that the modern communication systems have arrived in the schools, but the million is not in the account either. We would hope that the new authority will put things right in the education system of the region.
[signature]
(an abridged version of this material was published in Rossiyskaya Gazeta. Readers of the Bryanskiye budni have an opportunity to get acquainted with the full version.)”
10. The newspaper Bryanskiy Rabochiy (Брянский рабочий), in its issue of 15 July 2005, published an interview with S.F., a member of the Federal Expert Council of the Ministry of Education and Sciences and a former deputy head of the Bryansk Department of Education, entitled “Teachers' Instructors” (Поучатели учителей). S.F. stated, inter alia, that I. Geraschenkov and his deputy, N. Prokopenko, were responsible for the deficient system of education in the region. In particular, funding for schools had been misappropriated and a tender for publication of textbooks had been conducted with irregularities. Furthermore, despite the significant financial support provided to boarding schools from local budgets and private sponsors, many pupils developed alcohol addiction and upon leaving the boarding schools became dependent on the welfare system or went to jail. S.F. claimed that this state of affairs was due to the system created by I. Geraschenkov and N. Prokopenko. He also blamed them for the lamentable conditions in vocational schools.
11. On 1 August 2005 Mr Geraschenkov brought an action for defamation against the applicant and the authors of the article in the Sovetskiy District Court of Bryansk and sought damages in the amount of 50,000 Russian roubles (RUB) and costs from the applicant, damages in the amount of RUB 25,000 from S.F. and RUB 15,000 from A.G. He claimed, in particular, that the following passages were untrue and damaging to his honour and reputation:
1. “The Department is remarkable not only because of the inefficient expenditure of taxpayers' money but because of the inertia of its senior officials. Both Geraschenkov and Prokopenko have held the top posts in the regional education office for a very long time. Establishments for children left without parental care are the first thing the Department finances and is responsible for. The Bryansk Region broke all records for the number of children playing truant from boarding schools and has been subject to harsh criticism as a result. A shocking number of children are put on the missing list every day. All right, now it is summer and the weather is warm. However, the number of children playing truant from the boarding schools is no smaller in winter, when it is freezing outside, and the child has neither a place to sleep nor food. What is the explanation for this? Children are being kept in boarding schools in unbearable conditions.”
2. “However, there is another sad fact: notwithstanding such heavy expenditure, in most cases the region still ends up with social misfits. Many of the boarding school pupils engage in alcohol abuse, become dependent on state benefits or end up being prosecuted and sent to jail. However, it is not the children's fault, but the fault of the system which the abovementioned heads have been building for years.”
3. “This year the officials bought textbooks out of the budgetary funds from a single supplier without an open tender. This is a gross violation of the presidential decree on fighting economic crime and corruption.”
4. “Not only are teachers and headmasters of the schools deprived of money that is due to them, they cannot even rebel against it, the point being that the rector of the 'Institute of Advanced Training' is the selfsame Mr Geraschenkov who heads the Department. He is responsible not only for training, but for performance appraisal as well. If a teacher claims that he was offered a poor-quality or uninteresting course, the training specialist who appraises him will unnerve and humiliate him, and perhaps reduce his marks and leave him with a pittance.”
5. “Then followed the dismissal of uncooperative members of staff presumptuous enough to hold their own point of view. This was followed by multimillion purchases without tenders and the concealment of the unauthorised expenditure by subordinate entities.”
12. At the hearing Mr Geraschenkov's representative amended the claim. He excluded the first passage on the ground that it directly concerned the Department of Education, and the third passage since it had previously been published in the Rossiyskaya Gazeta and was reproduced verbatim.
13. The applicant claimed that the passages in question were merely excerpts from articles that had been published in other media.
14. On 22 May 2006 the Sovetskiy District Court found for the claimant. It held:
“It follows from the [second assertion] that the authors of the article drew an affirmative conclusion as to the connection between the fact that the region attracts social misfits – those who abuse alcohol, are dependent [on state benefits] or end up being prosecuted – and the system of work of the senior officials named in the article: N.V. Prokopenko and I.A. Geraschenkov.
...
Without providing incontrovertible evidence, the author contends [in the fourth assertion] that there is a correlation between what might be regarded as “improper” working methods used by training specialists when making an appraisal and the head of the Department responsible for the teachers' appraisal.
...
[As regards the fifth assertion], without having, either now or when the article was published, any evidence, such as a court decision, the Department's decree in respect of the claimant or documentary evidence concerning the inquiries into the expenditure, the author has defamed the claimant's business reputation and has not substantiated his allegations.
The defendants have not provided any evidence that the claimant dismissed uncooperative members of staff presumptuous enough to hold their own point of view, that he had made multimillion purchases without tenders and had concealed the unauthorised expenditure by subordinate entities. This is not supposition or speculation on the author's part, but an assertion, since the statements in question are not interrogative but affirmative.
...
The author conveys to the reader the idea that there were negative aspects to I.A. Geraschenkov's work as a person and a senior official (the Director of the Department of General and Professional Education of the Bryansk Region) without providing evidence of this to the court ...
The court cannot take into account [S.F.'s] arguments that he only gave one interview to Rossiyskaya Gazeta. The article is signed by [him and A.G.]; there is no reference to the interview with Rossiyskaya Gazeta. The defendant does not deny that he was the author.
The court finds unfounded [S.F.'s] arguments that the article provides critical coverage of the problem of education in the territory of the Bryansk Region, that the aim of his interview was to try to change the educational system in the Bryansk Region for the better, and that the article was not about V.A. Malashenko, or N.V. Prokopenko and I.A. Geraschenkov, but about the problems of the children, teachers, headmasters and population in our region.
The article provides specific figures, and the surnames of senior officials. From the wording of the contested statements it is clear that the author was specifically referring to the activity of the Department's head, I.A. Geraschenkov.
In order to substantiate his arguments [S.F.] provided copies of decrees issued by the Bryansk Regional Authority and documentary evidence of the inquiries that had been made.
By decree no. 404-p of 14 July 2005 the Bryansk Regional Authority established a commission to investigate the facts presented in the article 'Question for an official. Where does the 'children's money' disappear to?' By decree no. 448-p of 28 July 2005 the Bryansk Regional Authority established a commission to investigate the facts presented in the article entitled 'Teachers' instructors'.
The commissions' conclusions show that the articles presented information that was not true and that no evidence of unlawful expenditure or of textbooks being purchased without a tender was found.
The court cannot take into account the arguments of [S.F.] that the editors of Bryanskiye Budni should not be liable because the passages in question reproduce verbatim excerpts from other media sources, such as Rossiyskaya Gazeta and the newspaper Good afternoon, Bryanschina [Добрый день, Брянщина].
Pursuant to section 57 § 6 of the Law on Media no. 2124-1 of 27 December 1991 as amended, the editorial board, editor in chief and journalist are not liable for the dissemination of information that is not true, or damages the honour and dignity of citizens or organisations, infringes the rights and lawful interests of citizens, or constitutes abuse of freedom of the media and (or) journalist's rights, if they reproduce verbatim information and materials or excerpts from them disseminated by another media source that is identifiable and can be made liable for the breach of the legislation of the Russian Federation on the media.
The court found that the article indeed reproduced verbatim an excerpt from an article that was published in Rossiyskaya Gazeta on 6 July 2005 (third assertion in dispute).
However, the claimant's representative stated as much when he amended his client's claims. In accordance with [his] request, this assertion was not examined by the court.
The defendant did not produce any evidence to show that he had reproduced an excerpt from materials published in Good afternoon, Bryanschina. The article was published in Good afternoon, Bryanschina on 13 July 2005. On the same date the material for the article that was published in Bryanskiye Budni on 14 July 2005 was ready for publication. Furthermore, the article contained no acknowledgment that it was reproducing material from the newspaper Good afternoon, Bryanschina. There is only a reference to the fact that 'an abridged version of this material was published in Rossiyskaya Gazeta'.
...
The court considers that the passages in dispute do not constitute an opinion or speculations by the article's authors, but a statement of fact.
...
Having analysed the text of the article, it concludes that the information contested by the claimant was published by the newspaper's editorial board on the basis of insufficiently verified data.”
15. The court held the applicant liable to pay RUB 5,000 (approximately 150 euros (EUR)) in respect of non-pecuniary damage sustained by the claimant. The applicant was also ordered to pay costs of RUB 10,100 and court fees of RUB 1,900, and to publish the operative part of the judgment under the heading “refutation” in Bryanskiye Budni. The court also held S.F. and A.G. liable to pay RUB 2,000 each in respect of non-pecuniary damage. The applicant and S.F. appealed.
16. On 29 June 2006 the Bryansk Regional Court reversed the part of the judgment relating to the award of costs and court fees, quashing the order to pay court fees in the amount of RUB 1,900, but upheld the remainder. It held:
“[The appeal court] finds the [first-instance] court's conclusion that the information in dispute published in the article 'Where does the 'children's money' disappear to?' damaged the honour, dignity and business reputation of the claimant well-founded, since the passages in question affirmatively conclude that there was a connection between the fact that the region attracts social misfits – those who abuse alcohol, are dependant on welfare benefits or end up being prosecuted and sent to jail – and the system of work of the senior officials named in the article, including I.A. Geraschenkov. The defendants did not provide any evidence to support either the author's contention that there is a correlation between what might be regarded as 'improper working methods' used by training specialists when making an appraisal and the head of the Department responsible for the teachers' appraisal, or the fact of unauthorised expenditure by the claimant and the dismissal of uncooperative members of staff 'presumptuous enough to hold their own point of view'.
The [first-instance] court rightly concluded that [S.F.'s] arguments that the article was an independent reproduction by the regional newspaper Bryanskiye Budni of material from Rossiyskaya Gazeta which he had provided during an interview were unfounded. The names of the authors [A.G. and S.F.] appear under the article 'Where does the 'children's money' disappear to?', which was published in the newspaper Bryanskiye Budni on 14 July 2005, edition no. 296 (28). It is also indicated that 'an abridged version of this material was published in Rossiyskaya Gazeta' (an assertion supported by a copy of the article published in Rossiyskaya Gazeta on 6 July 2005 that was provided to the court), and that 'readers of the Bryanskiye budni have an opportunity to get acquainted with the full version'.”
17. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.
18. Article 152 provides that an individual may apply to a court with a request for the rectification of information (“сведения”) that is damaging to his honour, dignity or professional reputation unless the disseminator of that information proves that it “corresponds to reality” (Paragraph 1). The defamatory information must be refuted in the same media source that disseminated it (Paragraph 2). The aggrieved person also has a right to publish a response in the same media source (Paragraph 3). He may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of the information (Paragraph 5).
19. Under Section 45 of the Law on Mass Media no. 2124-I of 27 December 1991 a media source may refuse to publish a response to defamatory information if the aggrieved person did not apply for the publication of the response within a year of the publication of the defamatory information. Under Section 46 a refusal to publish a response may be appealed against to a court within a year of the publication of the defamatory information.
20. The Resolution provides that untrue information (“сведения”) constitutes statements concerning facts or events which did not take place in reality at the time to which the information relates. It includes allegations of a breach of laws or moral principles (commission of a dishonest act, improper behaviour in the workplace or in everyday life, etc.). Dissemination of such information is understood as the publication of the information or its broadcasting, diffusion thereof on the Internet, inclusion in professional references, public speeches, applications to State officials and communication in other forms, including oral, to at least one other person (Section 7).
21. The domestic courts are instructed to take into account the Declaration on Freedom of Political Debate in the Media adopted by the Committee of Ministers of the Council of Europe on 12 February 2004, in particular in the part relating to public scrutiny of political figures and public officials. The burden of proof is on the defendant to show that the disseminated information was true and accurate. If a subjective opinion is expressed in an insulting form damaging the honour, dignity or business reputation of the plaintiff, the defendant may be held liable to pay damages for the harm caused by the insult (Section 9).
22. The Declaration states, inter alia, that pluralist democracy and freedom of political debate require that the public is informed about matters of public concern, which includes the right of the media to disseminate negative information and critical opinions concerning political figures and public officials, as well as the right of the public to receive them (Section I). Public officials must accept that they will be subject to public scrutiny and criticism, particularly through the media, over the way in which they have carried out or carry out their functions, insofar as this is necessary for ensuring transparency and the responsible exercise of their functions (Section IV).
VIOLATED_ARTICLES: 10


ITEMID: 001-82955
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: RODZINSKIY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Anatoliy Mikhaylovich Rodzinskiy, is a Ukrainian national who was born in 1941 and lives in the village Vysoky, the Kharkiv region. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska, succeeded by Mr Y. Zaytsev.
On 14 September 2000 the Kyivsky District Court of Kharkiv (Київський районний суд м. Харкова) awarded the applicant 8,000 hryvnyas from the State budget for damage caused by criminal investigation against him terminated on exonerative grounds in April 2000. This decision became final on 25 September 2000 and was transferred for enforcement to the State Treasury, which informed the applicant that the debt would be paid as soon as the Government allocated appropriate funding. In June 2002 the applicant received the payment due to him.
In the meantime, in September 2001 the applicant had lodged a civil complaint against the Cabinet of Ministers seeking damages for its alleged failure to ensure the timely enforcement of the judgment given in his favour.
Having heard both parties, on 1 August 2002 the Pechersky District Court of Kyiv (Печерський районний суд м. Києва) rejected the applicant’s claims. It found no basis in the applicable law for the compensation claimed. The applicant appealed, alleging that the firstinstance court had misinterpreted his arguments and the applicable law.
On 28 October 2002 the Kyiv City Court of Appeal (Апеляційний суд м. Києва) upheld the judgment of 1 August 2002, having held a hearing in the applicant’s absence.
The applicant appealed in cassation. In his appeal, he noted that he had not been duly informed of the hearing of 28 October 2002, as the court had sent him the summons by regular mail, which arrived only on 4 November 2002.
On 26 May 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation. In its decision, the Supreme Court did not refer to the applicant’s argument about the deficient notification of the hearing. However, it stated generally that the case did not disclose any misapplication of procedural or substantive law, which could have led to an erroneous decision of the case.


ITEMID: 001-60395
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF BIRUTIS AND OTHERS v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-3-d;Violation of Art. 6-1
JUDGES: Georg Ress
TEXT: 11. The applicants, while completing their sentences in the Pravieniškės Prison, were suspected of participating in a riot that took place in the prison on 15 January 1997. 21 detainees, including the applicants, were accused of causing or taking part in the riot.
12. The third applicant was released from prison after completing his original sentence on 14 February 1997. He was arrested on 25 June 1997 in the context of the proceedings for riot. The first and the second applicants were still completing their original sentences throughout these proceedings.
13. During the pre-trial investigation two witnesses were examined on behalf of the third applicant. During the trial one witness was called by the Kaunas Regional Court on the third applicant’s behalf. The first and second applicants called no witnesses.
14. On 3 November 1997 the Kaunas Regional Court convicted all the defendants in the case, including the applicants. The court found that the first and the second applicants had organised the riot and that they had also committed affray. They were sentenced to ten years’ imprisonment. The third applicant was found guilty of having actively taken part in the riot and sentenced to six years’ imprisonment.
15. In establishing the first applicant’s guilt, the court referred to the statements of 17 anonymous witnesses who were mostly other detainees. These statements had been recorded by the prosecution during the pre-trial investigation. The secret witnesses testified that the first applicant had organised the riot. The court further referred to the statements at the pre-trial investigation of three co-accused, J, S and T, confirming the first applicant’s guilt. The Regional Court noted that J, S and T had subsequently changed their testimony, alleging inter alia that prosecutors had forced them to inculpate the first applicant. However, the court considered that the initial statements of J, S and T had been valid, and that they had only changed their evidence upon intimidation by the other defendants. The court also took account of the statements given during the trial by a complainant, a detainee belonging to “a lower caste among prisoners”. The latter had testified that the first applicant had assaulted him on 15 January 1997. The court further noted the evidence given at the trial by five members of the prison staff, alleging that the first applicant had organised the riot. The Regional Court found that on the day of the riot the first applicant had been under the influence of alcohol. In concluding that the first applicant was guilty of riot and affray, the court also mentioned indirect evidence: on-site inspection records, material evidence and expert examinations.
16. In finding the second applicant guilty, the Regional Court referred to the statements by 19 anonymous witnesses recorded by the prosecution during the pre-trial investigation. The anonymous statements testified that the second applicant had also been an organiser of the riot. As was the case with the first applicant, the court rejected the later statements of J, S and T, finding that their original testimonies given during the pre-trial investigation had constituted sufficient grounds for establishing the second applicant’s guilt. The court also took account of the statements delivered at the trial by two complainants who were detainees belonging to “a lower caste among prisoners”. The latter had alleged that on 15 January 1997 the second applicant had beaten other detainees, attacked members of the prison staff and barricaded the prison. Evidence along the same lines was given by six members of the prison staff summoned during the trial. The Regional Court found that during the riot the second applicant had been under the influence of alcohol. The court also noted that the second applicant’s guilt in committing riot and affray was indirectly proved by on-site inspection records, material evidence and expert examinations.
17. As to the grounds for the third applicant’s guilt, the Regional Court referred solely to the statements by six anonymous witnesses recorded by the prosecution during the pre-trial investigation.
18. The Regional Court concluded that the first and the second applicants had been the apparent organisers of the riot of 15 January 1997, that they had been drunk, and that they had “induced detainees of lower castes to get involved in the offence”. The court also ruled that “the level of participation in the crime by [the third applicant] had been lower”.
19. The applicants appealed, stating that they had not committed the offences alleged, that the statements of anonymous witnesses had been invalid, that the secret evidence had not been scrutinised either by the defendants or the court, and that the Kaunas Regional Court had ignored certain evidence given during the pre-trial investigation by other detainees. In their opinion, almost 300 inmates had taken part in the events of 15 January 1997. The applicants stated they had been victimised by the prison administration who had encouraged anonymous testimonies by other detainees, promising them favourable treatment. Furthermore, the “secret witnesses” had themselves allegedly taken part in the riot and had collaborated with the authorities in order to avoid prosecution. The prosecution also appealed against the first instance judgment, requesting more severe sentences.
20. On 29 April 1998 the Court of Appeal dismissed the appeals, finding that the Regional Court had properly established the applicants’ guilt and imposed the correct sentences. It held that domestic criminal procedure permitted the first instance court to take account of evidence given by secret witnesses at the stage of pre-trial investigation, without summoning those witnesses to the trial.
21. The applicants lodged a cassation appeal with the Supreme Court, complaining inter alia that the lower courts had not clarified the alleged controversy over the anonymous testimonies.
22. On 20 October 1998 the Supreme Court rejected the appeals, finding that the lower courts had properly decided the case. It noted that the first and the second applicants had been convicted not only on the basis of the anonymous testimonies, but also by reference to the statements of the complainants and the prison staff. The Supreme Court found that the third applicant had basically been convicted by reference to the statements of anonymous witnesses. However, in the view of the cassation court, those statements had been consistent and supplementary to other evidence confirming his guilt. No procedural irregularities were found in connection with the courts’ refusal to examine the anonymous witnesses.
23. Pursuant to Article 156-1 § 1 of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas), in cases pertaining to serious offences a prosecutor or investigator is entitled to keep the identity of a witness secret with a view to ensuring that person’s safety. Under paragraph 2 of this Article, at the stage of pre-trial investigation no one is entitled to have access to the personal details of the anonymous witness except the prosecutor or the investigator. Paragraph 3 provides that any data on the anonymous witness are a State secret. Only prosecutors, investigators and judges are entitled to have access to the personal details of that person.
Article 118-1 § 1 of the Code provides that the identity of an anonymous witness is classified under a code name. The data on the witness are kept in a special investigative record, which is separate from the case-file.
Pursuant to Article 317-1 § 1 of the Code, where the identity of a witness is secret, a court may dispense with hearing that person by reading out the anonymous statement at a trial hearing. Paragraphs 2 and 3 provide a possibility for the court, of its own motion, to question the anonymous witness in the absence of the parties. Paragraph 4 of the Article states that the court may also question the witness in the parties’ presence at a non-public hearing. In such a case, the court must create acoustic and visual obstacles to prevent the parties from establishing the identity of the secret witness.
Article 265 of the Code provides that a defendant at the trial has equal rights to adduce and contest evidence, and that the trial is conducted by way of an adversarial procedure. Article 267 § 5 specifies that the defendant has the right to take part in the examination of all evidence, and to question witnesses, experts and other persons in order to state his case at the trial, let alone in cases provided for in Article 317-1 of the Code.
24. Article 31 of the Constitution (Konstitucija) guarantees the right to a fair trial and lists specific defence rights.
On 19 September 2000 the Constitutional Court held that Articles 267 § 5 and 317-1 of the Code of Criminal Procedure, to the extent that they did not guarantee the right of the defendant to question anonymous witnesses while preserving the secrecy of their identity, unjustifiably limited the defendant’s defence rights in breach of Article 31 of the Constitution.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-75894
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ELAHI v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8;Remainder inadmissible;Damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 4.
5. The applicant was born in 1967 and, at the time of lodging his application with the Court, was serving a sentence of imprisonment in HM Prison Ranby, Nottinghamshire.
6. In October 1995, in response to an increase in the availability of heroin in Bradford, the police commenced “Operation Trafalgar”, to identify and target those responsible. On the basis of intelligence reports the police reached the conclusion that the applicant was the head of a group of Asian drug traffickers operating in the area. Video recordings made of his house and his itemised telephone bill indicated that he was in regular contact with suspected drug dealers from elsewhere in the United Kingdom.
7. On 17 July 1996, in accordance with Home Office Guidelines (“the Guidelines”: see paragraphs 16-18 of the Khan judgment, cited in paragraph 12 below) the Chief Constable authorised the use of a covert listening device in the applicant’s house. On 19 July 1996 the applicant was arrested for suspected car theft and a warrant was obtained to search his house for documents relating to motor vehicles. When executing the warrant the police covertly installed listening and recording equipment inside his house. Recordings were made between 19 July and 21 November 1996. The Chief Constable’s authorisation had been obtained for the entire period, except 16 August and 6 September, when the authorisation had lapsed and not been renewed, due to an oversight.
8. It was the prosecution’s case at the subsequent trial that the recordings obtained in this way revealed detailed discussions between the applicant and his co-accused demonstrating their involvement in conspiracies to import and distribute Class A drugs, in particular heroin.
9. The applicant was arrested, together with a number of alleged associates, and charged with conspiracy to import and supply Class A drugs. He and his co-accused applied to have the prosecution struck out for abuse of process and/or the recordings excluded from evidence. On 14 January 1999 the trial judge ruled against the defendants, observing as follows:
“I respectfully note the conclusion of the European Commission of Human rights in the case of Michael Govell v. the United Kingdom, adopted 14 January 1998, to the effect that the use of covert listening devices in accordance with the Guidelines is not done in accordance with the law and is thus in breach of Article 8, because in the United Kingdom there is as yet no legally binding publicly accessible body of law regulating such activity. I bear in mind that the Convention is not yet part of our law, but that where possible domestic law should be interpreted in accordance with Convention principles.
I take into account that in intruding on the privacy of Elahi’s home the police will have committed civil trespass and possibly criminal damage. I take into account that there may have been conduct outside the Home Office Guidelines, in that the authority for the continued use of the listening device may not have been in place between 16 August and 6 September. On the other hand, I bear in mind my finding that the police followed the Guidelines to the letter in all other respects and did not intend deliberately to circumvent the requirement to obtain the Chief Constable’s authority. I take into account that the police acted in good faith throughout in pursuit of the public good in the detection and prosecution of very serious crime. Balancing these factors, I’m satisfied that there is no evidence of abuse of power by the police which could found the basis for a stay of the proceedings as being an abuse of process. ...
I turn next to consider the court’s exclusionary power under s. 78 of the Police and Criminal Evidence Act 1984. ... Being in tape recorded form there’s unlikely to be dispute about [the evidence’s] authenticity. It is highly relevant and potentially probative of the defendants’ involvement in the conspiracies alleged. It did not result from incitement, entrapment or inducements, or other conduct of that sort. The fact that the defendants may not have said what they did if they’d known the police were listening in does not mean that reception of evidence of what they said is unfair. The potential branches of the civil or criminal law and Article 8 and the possible lack of the Chief Constable’s authority between certain dates do not affect the quality of the evidence ...”
10. Following this ruling, the applicant absconded. He was convicted in his absence on 27 August 1999, and sentenced to twelve years’ imprisonment.
11. It appears that the applicant was arrested some years later, at which point he appealed against conviction, arguing that the covertly obtained recordings should not have been used at trial and that he had made the damaging recorded statements only because he had been entrapped into so doing by participating informants. His renewed application was rejected by the full Court of Appeal on 25 May 2004, on the grounds that the trial judge’s ruling of 14 January 1999 was irreproachable and that there was no evidence of entrapment or any other abusive action on the part of the police.
VIOLATED_ARTICLES: 8


ITEMID: 001-67000
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: KAISTI v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Heikki Kaisti, is a Finnish national, who was born in 1943 and lives in Piispanristi. He is represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
The applicant was placed on temporary unpaid leave, on 20 August 1991, because of his employer's financial difficulties. The same day the applicant registered as an unemployed person, seeking new employment at the local unemployment office. He received a certificate from the unemployment office (työvoimatoimisto, arbetskraftsbyrå) of Kaarina, dated 28 August 1991, according to which he could receive unemployment benefit as from 20 August 1991 onwards.
On 10 November 1992 the Unemployment Board of Kaarina (työvoimatoimikunta, arbetskraftskommision) confirmed that he could receive the benefit as from 1 October 1992.
On 18 October 1994 the Unemployment Fund for Engineers, Architects and Economists (IAET), which was paying the applicant's unemployment benefit, requested a new certificate from the applicant's local unemployment office. According to the new certificate of 10 February 1995, the Unemployment Board of Kaarina found that the applicant had been de facto self-employed from 20 August 1991 in several enterprises owned partly by him or his family and that he was not entitled to receive unemployment benefit for that period.
On 3 March 1995 the IAET requested the Insurance Court (vakuutusoikeus, försäkringsdomstolen) to quash and annul the IAET's own earlier decisions (issued in 1991-1994), according to which the applicant was entitled to receive, inter alia, unemployment benefit, and to refer the case back to the IAET to be reconsidered. The Insurance Court accepted the IAET's request on 29 February 1996. The judgment was served upon the applicant by mail on 25 March 1996.
Subsequently, on 7, 9 and 28 August 1996, the IAET refused the applicant his entitlement to the benefits and decided to request the applicant to reimburse all the benefits paid, amounting to approximately EUR 50,000. The applicant lodged several appeals with the Board for Unemployment Benefits (työttömyysturvalautakunta, arbetslöshetsnämnden; hereinafter “the BFUB”). On 14 February 1997 the BFUB rejected all of the applicant's appeals against the IAET's decisions. On 15 April 1997 the applicant appealed against the BFUB's decisions to the Insurance Court. It refused his appeals on 4 June 1998. The judgment was served upon the applicant by mail on 11 June 1998.
The applicant was employed from 13 September 1994 to 13 March 1995. On 31 January 1995 the Unemployment Board again found that the applicant had been self-employed as from 20 August 1991. On 6 February 1996 the IAET refused the applicant's unemployment benefit application as from 14 March 1995 since the Unemployment Board of Kaarina had on that date issued a new certificate, according to which the applicant had not reported as a job-seeker at the unemployment office. On 6 May 1996 the applicant appealed against the IAET's decisions to the BFUB, and requested to be paid unemployment benefit for the period of 14 March 1995 until 21 June 1996. On 14 February 1997 the BFUB examined the applicant's appeal and quashed the IAET's decision of 6 February 1996 and returned the case for re-examination, finding that the applicant's application had been dismissed without first obtaining a fresh certificate from the unemployment office.
As it appears from the documents, on 15 April 1997 the local Unemployment Board found that the applicant was still self-employed. On 24 April 1997 the IAET dismissed the applicant's unemployment benefit application as from 14 March 1995 onwards because he was still found to be de facto self-employed. On 14 July 1997 the applicant appealed to the BFUB. On 23 July 1997 the applicant submitted his further observations. The BFUB refused the applicant's appeal on 29 May 1998. The applicant appealed against the BFUB's decision to the Insurance Court. It invited the IAET's observations and the applicant's observations. The applicant submitted his further observations to the Insurance Court on 3 December 1998 and 21 December 1998. The IAET submitted additional observations and the applicant was given an opportunity to submit further observations. On 28 May 1999 the Insurance Court dismissed the appeal. According to the applicant, he was forced to reapply for his unemployment benefit for the period from 14 March to 21 June 1994 and that he received the benefit on 9 March 2001.
On 24 March 2000 the applicant requested the Insurance Court to quash and annul all the earlier Insurance Court decisions and to re-open the case on the basis of the new evidence he had this time enclosed with his request. On 23 October 2000 the Insurance Court found in favour of the applicant and annulled its previous decisions. It considered, in the light of the new evidence, that the applicant was entitled to receive unemployment benefit as from 20 August 1991 onwards. It noted that the new evidence was, at least partly, such that the applicant had not had access to it at the time of the previous proceedings. The applicant's case was referred back to the IAET. He was finally granted the benefit on 6 February 2001.
According to section 40 of the Act on Unemployment Benefits (työttömyysturvalaki, lag om utkomstskydd för arbetslösa, 602/1984), as in force at the relevant time, whosoever was unsatisfied with a decision of an unemployment fund could appeal the decision to the Board for Unemployment Benefits, and the decision of the Board to the Insurance Court. The decision of the Insurance Court could not be appealed.
Section 31 of the Act, as in force at the relevant time, concerned the reimbursement of benefits paid. If a benefit referred to in the Act had been paid wrongly or in too large an amount, the excessive amount was to be recovered. Recovery could be waived completely or in part if this was considered reasonable. A final decision on reimbursement could be enforced in the same way as any final decisions.
Section 43 (330/1997), as in force at the relevant time, concerned the annulment of decisions. According to that section, when a final decision concerning a benefit referred to in the Act was based on incorrect or insufficient information or was manifestly unlawful, the Insurance Court could annul the decision after having heard the other interested parties if so recommended by the relevant unemployment fund or requested by the person concerned, and order the matter to be reprocessed. After having given the said recommendation, the unemployment fund could temporarily suspend payment of the benefit or pay it in accordance with the recommendation, until the matter had been resolved.
According to section 1 of the Unemployment Funds Act (työttömyyskassalaki, lag om arbetslöshetskassor; 1984/603), the purpose of an unemployment fund is, inter alia, to provide its members unemployment benefits pursuant to the Act on Unemployment Benefits. Section 2 provides that the Ministry for Social Affairs and Health grants licences to establish an unemployment fund.
An unemployment fund receives state funding (section 24 of the Act) and its rules must be registered to the Insurance Supervisory Authority (vakuutusvalvontavirasto, försäkringsinspektionen), which is subordinated to the Ministry for Social Affairs and Health (Chapter 10 of the Act). The Insurance Supervisory Authority supervises the unemployment funds and has the right to obtain information from them as well as to order the unemployment funds to take actions which the Insurance Supervisory Authority regards as necessary for the fulfilment of the provisions of the Act on Unemployment Benefits (sections 58, 58a and 59 of the Act).