ITEMID: 001-113628
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: EGMEZ v. CYPRUS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The applicant, Mr Erkan Egmez, is a British national of TurkishCypriot origin, who was born in 1966 and lives in Nicosia, in the northern part of Cyprus. He is represented before the Court by Mr T. Akillioğlu, a lawyer practising in Ankara. The respondent Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus. The Government of the United Kingdom were given notice of the application and they informed the Court on 6 December 2010 that they would not exercise their right to intervene in the present case.
2. On 26 March 1996 the applicant lodged an application with the European Commission of Human Rights (application no. 30873/96) against the Republic of Cyprus under former Article 25 of the Convention. The applicant alleged that he had been in effect kidnapped and tortured by the authorities of the Republic of Cyprus, that he had never been informed of the reasons for his arrest, that he had not been brought promptly before a judge, that he had been unable to obtain review of his detention, which had been unlawful, and that he did not have an effective remedy before the courts of the Republic.
3. On 18 May 1998 the Commission declared the application admissible and decided to take oral evidence in respect of the applicant’s allegations. Between 22 and 26 March 1999, the delegates of the Commission heard twenty-four witnesses in Cyprus, including the applicant, the police officers involved in the applicant’s arrest and the doctors who had examined the applicant. In its report of 21 October 1999 (former Article 31 of the Convention) the Commission expressed unanimously the opinion that there had been a violation of Articles 3 and 13 of the Convention and no violation of Article 5 §§ 1, 2, 3 and 4 and Article 6 § 1 of the Convention.
4. The application was then considered by the Court which gave judgment on 21 December 2000 (Egmez v. Cyprus, no.30873/96, ECHR 2000XII). In its judgment the Court accepted the findings of fact made by the Commission (see §§ 9-44 and §§ 54-55 of the judgment). It first rejected the respondent Government’s preliminary objection of non-exhaustion of domestic remedies to the applicant’s complaint under Article 3 of the Convention. In this respect the Court noted that although the Ombudsman had opened the way for the institution of criminal proceedings against the officers involved in the applicant’s alleged ill-treatment, the Attorney-General had refrained from taking any action (§ 68 of the judgment). The Court considered that the competent authorities of the Republic of Cyprus would have discharged their obligations under the Convention by instituting criminal proceedings against the officers named in the Ombudsman’s report, irrespective of the outcome of such proceedings (§ 70 of the judgment). This was, in the Court’’s complaint to the Ombudsman should have normally brought about this result (§ 72 of the judgment). The Court then held that the ill-treatment to which the applicant had been subjected had been inhuman in breach of Article 3 of the Convention (§§ 77-79 of the judgment). Further, the Court held that there had been a breach of Article 13 of the Convention as the authorities had not conducted an investigation capable of leading to the punishment of the officers involved in the applicant’s ill-treatment. The Court observed that such an investigation was “the only remedy that was appropriate for the kind of violation complained of” (§ 100 of the judgment); however, the AttorneyGeneral, who was the official in charge of bringing criminal proceedings in the Republic, had not taken any steps in this direction (§ 100 of the judgment).
5. The Court also found that there had been no violation of Article 5 §§ 1, 2, 3 and 4 of the Convention (§§ 80-95 of the judgment) and that no separate issue arose under Article 6 § 1 of the Convention (§ 102 of the judgment).
6. As to the application of Article 41 of the Convention the Court awarded the applicant GBP 10,000 for non-pecuniary damages together with GBP 400 in legal costs and expenses for the proceedings before the Commission (§§ 104-108 of the judgment).
7. On 30 April 2003 a former President of the Supreme Court of Cyprus was appointed as an independent criminal investigator (“the investigator”) by the Attorney-General acting ex officio.
8. The Government, in giving their factual account, relied on a letter sent by the investigator to the Attorney-General dated 12 July 2004 in which the former set out the various developments that had taken place in the investigation and, in particular, the problems he had faced in trying to obtain a statement from the applicant. The Government submitted that in April 2004, the investigator, after having carried out all the background preparatory work, had contacted Mr Kadri, the lawyer who had represented the applicant before the Nicosia District Court and the Ombudsman (see §§ 37 and 39 of the judgment), who informed him that the applicant would see him for the purpose of giving a statement. The investigator also made arrangements for an interpreter so that the statement could be taken in the Turkish language. Mr Kadri was informed of this.
9. On 26 May 2004 a person who stated that he was the applicant’s friend, visited the investigator and suggested that the applicant be paid a sum of money in return for a statement to the effect that he did not have a complaint and that the case be closed. The investigator informed him that as a criminal investigator he did not have or handle money. This person then suggested that both parties think about it. The investigator gave him his office and home phone numbers.
10. The following night, at about 9.30 p.m., the applicant telephoned the investigator at his home and a meeting was arranged for 2 June 2004, at 9 a.m. at the investigator’s office for the purpose of taking the applicant’s statement. On the above date and at about 9 a.m. the applicant called the investigator and informed him that he would not be coming to the meeting. He made a passing reference to Mr Kadri without further explanation. The investigator stated in his letter (see paragraph 8 above) that he expected that the applicant would contact him but that had not happened. Neither the applicant nor his lawyer contacted the investigator after this. In his letter the investigator informed the Attorney-General that it would not be possible to continue a criminal investigation without the complainant’s statement and sought the instructions of the Attorney-General as to how to proceed.
11. The Government submitted that as the applicant had not given a statement, the criminal investigation had not been able to proceed and remained open. The applicant had not contacted the investigator or the Attorney-General since 2 June 2004 in order to arrange a meeting and give his statement. The investigator had not contacted the applicant but was waiting for the applicant to get in touch with him.
12. The applicant maintained that he had not been invited to make a statement, he had never been formally summoned by the investigator, and that he had never been informed of the new criminal investigation by the Government or the Committee of Ministers or sent a document explaining the new procedure to be followed. He had found out about this new investigation from the letter dated 15 June 2006 he had received from the Department of Execution of Judgments of the European Court of Human Rights following the closure of the case (see paragraph 28 below). He stated that he had contacted the investigator who had informed him after a long period of time that he could not register the applicant’s complaint against the police officers because the Government had not appointed an interpreter.
13. In the revised memorandum of 2 December 2004, a revised version of the memorandum presented at the 871st meeting of the Committee of Ministers, the Secretariat considered that the information provided by the Government on the measures adopted until then indicated that sufficient improvements in existing procedures and safeguards had been introduced. The relevant parts of the memorandum read as follows:
“...
Specific issues: recent developments and information received
i. appointment of an independent investigator and progress of the investigation
...
12. The Cypriot authorities stated in their letter of 27/05/2004 that the investigator had contacted the applicant through his lawyer in Cyprus and practical arrangements for meeting and taking a statement from him were in the process of completion. They further indicated, in their letter of 07/07/2004, that it was expected that the criminal investigator would meet the applicant in the near future to interview him and take a statement.
...
20. As regards cases of criminal offences involving human rights violations alleged to have been committed by members of the police where, following the evaluation of all collected evidential material submitted by the criminal investigator, it is decided that the latter does not warrant the filing of criminal proceedings, the Deputy Attorney General issued a circular on 20/09/2004 addressed to criminal investigators and all members of the Attorney General’s Office. In accordance with the circular, which is binding in form, in such cases, a letter shall be sent to the complainant/victim, or his or her lawyer or other person having made the relevant allegations (whether these were brought to the Attorney General’s knowledge directly or indirectly), informing him or her that the independent criminal investigator appointed by the Attorney General has completed the investigation, and that, following the study and evaluation of all collected evidential material submitted, the Attorney General’s Office is of the view that, for reasons which shall be stated in the letter, this does not warrant the filing of criminal proceedings against any member of the police. A copy of the circular was forwarded to the Secretariat on 05/10/2004.
21. The same circular addresses cases in which, at the stage of evaluation of evidential material collected and submitted by the criminal investigator, or at any other stage of the criminal investigation, it comes to the knowledge of the Attorney General’s Office through the criminal investigator or through any event in the case-file that the complainant/victim withdraws his or her allegations, or does not wish the investigation to continue, or is uncooperative, or that at present the complainant/victim or substantial witnesses are not in the Republic of Cyprus and cannot be traced. In accordance with the circular, in such cases, the investigation file must remain open until the investigation is completed. Although developments in the course of the investigation such as those mentioned above make it temporarily impossible to continue/complete the investigation, they may not do so indefinitely. Consequently, a decision as to whether or not to file criminal proceedings is not required at that stage. Henceforth, the investigation file is to remain open in such cases and instructions are to be given to the criminal investigator to the effect that the Attorney General’s Office considers that, in the circumstances, the investigation for the time being cannot proceed further. The investigation and the matter of whether or not to bring criminal proceedings thus remain open, with the possibility of continuing and completing the investigation and deciding whether or not to file criminal proceedings in the event that the relevant problem is solved.
iv. access of complainants to investigations
25. The Cypriot authorities have stated that the investigation process is confidential. However, the complainant’s participation in the investigation process is important, whether the alleged offence was committed by police officers or members of the public.
26. From the outset of the investigation process, where the alleged offence was committed by a police officer, the complainant is informed by a letter from the Attorney General that an independent criminal investigator has been appointed to investigate his or her allegations; the letter includes the name and particulars of the investigator. A copy of two such letters was forwarded to the Secretariat on 27/05/2004.
27. Complainants participate in investigations by giving their own testimony, upon which the investigation is based. The complainant is always the first to be interviewed; he or she supplies information and his or her statement is taken by the investigator. The investigator can come back to the complainant for any clarifications and supplementary statements or information as the investigation proceeds, thereby giving the complainant the opportunity to challenge the statements of other witnesses. The complainant is not, however, given the statements of other persons interviewed in the course of the investigation; nor are the latter given the complainant’s statement. Criminal investigations proceedings in Cyprus are modelled on those of the United Kingdom.
28. Complainants are also prosecution witnesses in the criminal proceedings. Thus, during a criminal trial, complainants can give their own testimony in front of the Court. Indeed, the prosecution bases its case on the testimony of complainants. The latter also have the opportunity to confront the alleged perpetrators and their witnesses during the hearing, to listen to their testimonies and to their cross-examination by the prosecution. Criminal trial proceedings in Cyprus are modelled on those of the United Kingdom.
Secretariat assessment:
29. Since the Court’s judgment in the present case and the requests received from the applicant, an independent investigator has been appointed and his investigation opened. The applicant has not submitted any further complaints about the manner in which this investigation is being carried out.
...
34. The Secretariat further notes the circular issued by the Deputy Attorney General on 20/09/2004, which is binding on all members of the Attorney General’s Office assessing criminal investigation files involving allegations of human rights violations committed by members of the police force and on criminal investigators appointed to deal with such cases. The Secretariat notes that, following the issuing of this circular, the aforementioned officials are now required to inform victims/complainants when it is decided not to proceed with the prosecution of the alleged perpetrator in such cases, and of the reasons for such a decision. The fact that such investigations are not to be closed in cases where an obstacle temporarily prevents the investigation from being pursued further is also noted.
35. In sum, the Cypriot authorities have taken a number of measures to strengthen the effectiveness of investigations into allegations of human rights violations committed by members of the police. In addition, following the events that gave rise to the present judgment, a possibility has been introduced of opening a fresh, independent investigation into the allegations at the basis of the present violation and such an investigation has indeed been opened, which, in the circumstances of the present case, appears to meet the requirements of execution. In the light of the foregoing, it would now appear that the guarantees surrounding such investigations, combined with the appointment of an independent investigator in the present case, are sufficient to allow the Committee to close its examination of the individual measures taken in the present case.”
14. The Committee of Ministers of the Council of Europe concluded its examination of the cases of Egmez v. Cyprus (cited above) and Denizci and Others v. Cyprus (nos. 25316-25321/94 and 27207/95, ECHR 2001V) by adopting Resolution ResDH(2006)13, the relevant parts of which read as follows:
“The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),
Having regard to the judgments of the European Court of Human Rights in the cases of Egmez against Cyprus, delivered on 21 December 2000, and Denizci and others against Cyprus, delivered on 23 May 2001, transmitted to the Committee of Ministers once they had become final under Articles 44 and 46 of the Convention;
...
Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;
Having invited the government of the respondent state to inform it of the measures taken in consequence of the European Court’s judgments, having regard to Cyprus’ obligation under Article 46, paragraph 1, of the Convention to abide by them;
Having satisfied itself that on 24 January 2001 and on 3 July 2001, within the time-limits set, the government of the respondent state had paid the applicants the sums provided for in these judgments;
Whereas during the examination of the cases by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken, in compliance with Article 46, paragraph 1, of the Convention, in order to grant the applicants, as far as possible, full redress for the violations found (restitutio in integrum) and to prevent new violations of the same kind as those found in the present judgments; this information appears in the appendix to this resolution;
Recalling, as far as individual measures are concerned, the continuing obligation to conduct effective investigations into the actions of security forces, particularly in cases where procedural violations of Articles 2 or 3 have been established (cf Interim Resolution ResDH(2005)20 Action of the Security Forces in Northern Ireland) or, as in the Egmez case, a violation of Article 13;
Noting in this context with interest the ex officio appointment by the Attorney General of an independent criminal investigator in both cases (see appendix) and that the ensuing investigations appear “capable of leading to the identification and punishment of those responsible”; regretting, however, the time required for this appointment in view of the importance of taking individual measures promptly,
Welcoming the general measures adopted by Cyprus following the judgments of the Court which today appear effectively to prevent new, similar violations; noting, in particular, with satisfaction the rapid interim measures taken by the Council of Ministers, the Attorney General and the Minister of Justice and Public Order to prevent as far as possible new violations awaiting the entry into force of the comprehensive reforms which had been initiated,
Declares, after having examined the information supplied by the government of Cyprus, that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases.”
15. The appendix to Resolution ResDH (2006)13 sets out the information provided by the Government of Cyprus during the examination of the cases of Egmez and Denizci and Others by the Committee of Ministers. The relevant parts of the appendix read as follows:
“I. Individual measures aimed at achieving restitutio in integrum for the applicants
I.a. Introductory note
It is recalled that in the case of Egmez a violation of Article 13 was found by the Court on the ground that there had been no “thorough and effective investigation capable of leading to the identification and punishment” of the police officers responsible for the applicant’s ill-treatment (see, in particular, paragraphs 65, 70, 100 of the judgment). This was despite the fact that the Ombudsman of the Republic of Cyprus, following a complaint by the applicant, had carried out an investigation into the case and on 25 April 1996 issued, and transmitted amongst others to the Attorney General, a report identifying police officers who had been involved in the applicant’s ill-treatment.
I.b. Appointment of an independent criminal investigator
Following the European Court’s judgments, the Cyprus government decided to proceed to the initiation of fresh, independent criminal investigations into both cases. On 30 April 2003, by decision of the Attorney General, Mr D.S, former President of the Supreme Court of Cyprus, was appointed as criminal investigator in both of these cases. These investigations are not as yet concluded.
It is noted that the applicant in the case of Egmez has not, since the opening of investigations, pursued his requests in this respect (initially raised in letters addressed to the Committee in 2001 and in 2002) or submitted any complaints regarding their conduct. The applicants in the case of Denizci and others have not, in any way, pursued this matter with the Committee.
The government considers that the powers of independent investigators and the procedural safeguards surrounding them guarantee that the fresh investigations, which will be concluded without delay, meet the requirements of the Convention (see below).
I.c. Powers and effectiveness of the independent criminal investigator
After the events at issue, the Attorney General received the power to appoint independent investigators in cases of alleged abuses by police forces (see further section II.2.b below). Criminal investigators appointed by the Attorney General are independent lawyers or former judges. They have the same powers and duties as police officers investigating the commission of offences allegedly perpetrated by members of the public. Under section 4 (3) of the Criminal Procedure Law both are “investigating officers” having the powers given to such officers by sections 5-8 of the Law. They are empowered by this Law not only to order attendance and taking of statements by witnesses, but also to require the production of documents. They can also carry out searches under the authority of search warrants issued by a court. Such warrants may be issued by a court upon a sworn written declaration by the investigator that there are reasonable grounds for believing that evidence as to the commission of an offence is to be found in the place concerned.
The duties of police officers required to give information/statements in criminal investigations carried out by investigators appointed by the Attorney General are the same as those of members of the public when the investigation is being carried out by police officers.
Complainants participate in investigations by giving their own testimony, upon which the investigation is based. The complainant is always the first to be interviewed; he or she supplies information and his or her statement is taken by the investigator. Complainants are also prosecution witnesses in the criminal proceedings.
The effectiveness of these investigations is also safeguarded by the general measures adopted by the Cyprus government after the European Court’s judgments (see below, especially section II.2).
II. General measures
II.1 Interim measures awaiting the entry into force of comprehensive legislative reforms
Immediately following the delivery of the present judgments, the Attorney General of Cyprus and the Minister of Justice and Public Affairs took a number of measures to enable Cyprus to meet its obligation under Article 46, paragraph 1, of the Convention to prevent new violations as far as possible pending the legislative and other reforms made necessary by the present judgments. These measures are outlined below, in sections II.2.b and II.3.b-c.
A more general reflection also rapidly started on the more comprehensive measures required effectively to prevent new violations of the present kind. The resulting legislative and other measures are presented below.
II.2 General measures adopted for the prevention of similar violations of Articles 3 and 13
II.2.a. Legislative amendments to enhance arrested and detained persons’ protection from torture or inhuman or degrading treatment by members of the police and prosecution in such cases
i) New legislation for the effective protection of persons in detention from illtreatment
The “Rights of Persons under Arrest and Detention Law 2005”, which entered into force on 30 December 2005, includes a series of provisions in particular aimed at better implementing constitutional protection from torture or inhuman or degrading treatment or punishment. The major provisions of this Law are the following:
(a) All detainees now have a statutory right to be protected from torture or inhuman or degrading treatment or punishment or “any other physical, psychological or mental violence”;
(b) The Law expressly states that the state is under an obligation to ensure the above right;
(c) Detention centres’ principals are under an obligation to care for the detainees’ physical and mental health;
(d) Detention centres’ principals are under an obligation to ensure that minor (under the age of 18 years) detainees are separated from adults;
(e) Women detainees should be separated from men; special protection measures should be taken for pregnant detainees or for those with newborn children;
(f) Detainees have the right to medical checks, care and supervision by private medical doctors of their own choice or by State medical doctors;
(g) A list of detainees’ rights should be held in every cell, at least, in Greek, Turkish and English.
These new statutory rights and obligations play an important role in improving the criminal and civil liability of the state and of principals of detention centres in case of abuse.
ii) New legislation providing for heavier sanctions against offending police officers
The “United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Ratification) Laws” of 1990 and 1993 have, by the amendments which came into force on 13 December 2003, been extended to cover cruel, inhuman or degrading treatment. It was thus an offence at the time of the events in question, for any person, including a member of the police, to subject another person to torture. Commission of the offence by members of the police carried a heavier sentence than its commission by other persons and was punishable with imprisonment for up to five years, instead of for up to three years.
As a result of these above amendments, members of the police committing the offence of inhuman, cruel or degrading treatment or punishment, are now exposed to even heavier sanctions (sentence of four to seven years’ imprisonment maximum) than was earlier the case.
iii) Enlargement of personal scope of police officers’ criminal liability and new evidentiary rules
By virtue of these legislative amendments, in cases where ill-treatment is alleged to have been committed at police stations during detention of the complainant, it is not only the members of the police actually perpetrating the acts of ill-treatment who are subject to criminal liability (for torture, or inhuman or degrading treatment, or for assault, as the case may be), but also the officers in charge, provided that it is ascertained by medical examination carried out at any time before the complainant’s release from the station, or immediately after, that he/she bears external injuries which he/she did not have at the time of admission.
This criminal liability of officers is not dependent on whether the actual perpetrators are identified by the investigation. The finding of such injuries gives rise to a presumption that the complainant was ill-treated by a member of the police at the police station of his detention, and that the police officers in charge of the station and of the investigation bear responsibility for the ill-treatment unless they give a reasonable explanation as to the injuries having been caused otherwise than by ill-treatment of the complainant by a member of the police (for example self-inflicted, or inflicted by another detainee or visitor at the station).
In the absence of a reasonable explanation, the officers concerned are considered to have committed the criminal offence carrying a term of imprisonment for up to two years, and if the ill-treatment qualifies as torture, or as inhuman, cruel or degrading treatment or punishment, for up to four and three years respectively.
The introduction of this new legislation aims at eliminating the possibility of impunity in cases in which, although there may be sufficient evidence of injuries having been sustained by the complainant at a police station, there is not sufficient, or any evidence as to the identity of the policeman concerned, so that criminal proceedings can be instituted. It thereby considerably limits the Attorney General’s discretion pertaining to the initiation of criminal proceedings against offending police officers.
II.2.b. Creation of a more effective legal framework for independent investigations
i) Strengthening the Attorney General’s power to appoint independent criminal investigators
On 3 October 1996, the Cypriot Council of Ministers delegated to the Attorney General the power to appoint independent criminal investigators in cases where a written complaint has been addressed to him.
As an interim measure, following the judgments of the Court, the Council of Ministers, by decision of 22 March 2001, strengthened the powers of the Attorney General, so that he could also appoint independent criminal investigators ex officio, i.e. even without any written complaint by the victim. The aim of this measure was notably to allow for rapid and effective investigations into the violations established in the present cases (see above section I, Individual Measures).
ii) Enhancement of the effectiveness of investigations carried out by independent investigators
In addition to the above measures, the Deputy Attorney General issued a circular on 20 September 2004 entitled “Criminal investigations by independent criminal investigators appointed by the Attorney General of the Republic concerning allegations of commission of criminal offences by members of the police which concern human rights violations”. It was addressed to criminal investigators and all members of the Attorney General’s Office.
In accordance with the circular, which is binding in form, in cases of decisions not to file criminal proceedings against any member of the police, after an evaluation of evidential material, a letter should be sent to the complainant/victim or their lawyer or other person having made the relevant allegations (whether these were brought to the Attorney General’s knowledge directly or indirectly), informing them that the independent criminal investigator appointed by the Attorney General has completed the investigation, and that, following the study and evaluation of all collected evidential material submitted, the Attorney General’s Office is of the view that, for reasons which shall be stated in the letter, this does not warrant the filing of criminal proceedings against any member of the police.
The same circular also provides that if at the stage of evaluation of evidential material collected and submitted by the criminal investigator, or at any other stage of the criminal investigation, it comes to the knowledge of the Attorney General’s Office through the criminal investigator or in any event from the investigation file that the complainant/victim withdraws his or her allegations, or does not wish the investigation to continue, or is uncooperative, or that at present the complainant/victim or substantial witnesses are not in the Republic of Cyprus and cannot be traced, the investigation file must remain open until the investigation is completed. Although developments in the course of the investigation such as those mentioned above make it temporarily impossible to continue/complete the investigation, they may not do so indefinitely. Consequently, a decision as to whether or not to file criminal proceedings is not required at that stage. Henceforth, the investigation file is to remain open in such cases and instructions are to be given to the criminal investigator to the effect that the Attorney General’s Office considers that, in the circumstances, the investigation for the time being cannot proceed further. The investigation and the matter of whether or not to bring criminal proceedings thus remain open, with the possibility of continuing and completing the investigation and deciding whether or not to file criminal proceedings in the event that the relevant problem is solved.
II.2.c. Improved legal aid - Enactment of “Legal Aid Law 2002”
According to the “Legal Aid Law 2002”, in force as from 9 August 2002, legal aid in civil as well as criminal proceedings is now granted to victims of human rights violations. It is noted that relatives of persons who allegedly died as a result of a serious police abuse may also benefit from legal aid.
II.2.d. New legislation providing for an actionable compensation claim by detainees
In case of violation of any of the rights enshrined in the “Rights of Persons under Arrest and Detention Law 2005” mentioned above, detainees have a reinforced constitutional right to lodge an action for damages against the state and member of the police, the detention centre or the prison where they are or have been detained. This is without prejudice to any other right to compensation provided for by law.
...
III. Conclusion
The Government of Cyprus considers, in view of all individual and general measures adopted, that Cyprus has satisfied its obligation, under Article 46, paragraph 1, of the Convention to abide by the European Court’s judgments in the present cases.”
16. In a letter dated 19 April 2001 the applicant informed the Director of Human Rights of the Council of Europe that the respondent Government had paid him the amount of GBP 10,400. He maintained, however, that the perpetrators of his ill-treatment had been treated with impunity and that there was no effective domestic remedy. He asked the Committee of Ministers to take into account that the respondent Government were seeking to conceal the fact that the police officers responsible for the applicant’s illtreatment had not been prosecuted.
17. The applicant maintained that he had received no reply to his letter.
18. By a letter dated 12 March 2002 to the Director of Human Rights of the Council of Europe the applicant repeated his request and expressed his concern about the silence of the respondent Government on the issue of the prosecution of police officers responsible for “the torture and ill-treatment” inflicted on him. He stated that the identification of the suspects had been sufficient to enable the Attorney-General of the Republic to use his discretionary power and open an investigation. He claimed, however, that the Attorney-General did not want to use his powers to initiate an investigation against the “torturers”. The Government were under obligation to respect the Court’s judgment and prosecute the relevant police officers, who were still in service. The applicant expressed his wish to be added as a civil party if such an investigation took place.
19. The applicant maintained that there had been no response to his letter.
20. In a letter dated 13 September 2002 addressed to the Director of Human Rights of the Council of Europe, the applicant noted that on the website of the Committee of Ministers the following was stated, inter alia, in respect of individual measures adopted in connection with the execution of application no. 30873/96:
“The applicant’s lawyer sent a letter to the Secretariat on 19 April 2001 raising several questions about the need to adopt individual measures in this case. In May 2001 the Secretariat forwarded a copy of the letter to the Cypriot authorities. The latter confirmed that they were presently examining the measures that might need to be taken in respect of this case and indicated that the Secretariat would be kept informed in writing of any development in this field.”
21. The applicant noted that he wished to have information on the measures adopted by the Government in this respect as well as the reasons for their silence. He requested, inter alia, that the Committee of Ministers adopt a recommendation reminding the Government of their obligation to comply with the findings of the Court under Article 13 of the Convention.
22. The applicant maintained that he had never received a reply either from the Council of Europe or from the respondent Government.
23. In an e-mail dated 6 February 2003 to the Department of the Execution of Judgments of the Court the applicant requested information concerning the developments in his case. He further noted that the police officers involved in his ill-treatment were known to the authorities but despite this the Attorney-General, exercising his discretionary powers, had not prosecuted them.
24. In an e-mail sent in reply on the same date, the applicant was informed by the Secretariat of the Committee of Ministers that the Committee considered that there were still some outstanding questions in respect of individual and general measures that Cyprus needed to adopt in order to comply with the judgment, and that further information and clarifications had been requested from the Cypriot Government in this connection.
25. In a letter dated 26 September 2003 addressed to the Committee of Ministers the applicant repeated his complaint in general that the Cypriot Government had failed to comply with paragraphs 99 and 100 of the Court’s judgment.
26. The applicant maintained that he had received no response to his complaint.
27. By a letter dated 17 May 2006 the applicant was notified of the adoption of Resolution ResDH (2006)13. In his application form the applicant stated that he received this letter on the same date.
28. In a letter dated 12 June 2006 addressed to the Principal Administrative Officer of the Secretariat of the Committee of Ministers the applicant expressed his disappointment with the lack of effectiveness of the supervision of the execution of the Court’s judgment in his case. In his view it was regrettable that the Committee of Ministers had declared that the Government had complied with their obligations to execute the Court’s judgment when nothing had been done. The applicant stated, inter alia, that he had never been summoned by the investigator to give a statement in the course of the new investigation. This showed that nothing had been done by the Government in the six-year period that had followed the Court’s judgment. The Government had not taken into account the findings made by the Ombudsman which named the perpetrators of his ill-treatment. Further, the applicant repeated his view that, in order to comply with the Court’s judgment, the Attorney-General had to use his power to prosecute the relevant police officers. The applicant noted that he had made at least six separate complaints since 2003 to the Council of Europe about the Government’s inertia. Finally he stressed that the Government should revise their out-dated criminal procedure which provided that in the absence of a statement from a victim it was not possible to commence criminal proceedings.
29. By a letter dated 15 June 2006 the Department of Execution of Judgments of the European Court of Human Rights replied that having examined the issues raised by the applicant in his letter, it drew the applicant’s attention to the fact that, following the opening of the new criminal investigation in April 2003, he had not repeated his requests made in this respect in 2001 and 2002.
30. By a letter dated 14 October 2006 to the abovementioned Department, the applicant stated amongst other things that he had contacted the independent investigator who, after a long delay, had informed him that it had been impossible to register his complaint against the relevant police officers as the Government had not appointed an interpreter.


ITEMID: 001-69507
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KAPES v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Roman Kapes, is a Polish national who was born in 1948 and lives in Rybnik, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 19 April 1995 the applicant lodged a claim for the division of matrimonial property with the Rybnik District Court (Sąd Rejonowy).
The proceedings were terminated on 6 May 2004. On 12 February 2002, the date on which the application was lodged with the Court, they were pending before the Rybnik District Court.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-5518
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: DAMLA AND OTHERS v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Antonio Pastor Ridruejo
TEXT: The first applicant, Besse Damla, born in 1953, is the mother of the second to seventh applicants, Dilek Damla, born in 1977, Nadire Damla, born in 1981, Veysi Damla, born in 1983, Nurullah Damla, born in 1987, Emrullah Damla, born in 1988, and Veysel Damla, born in 1991. They are Turkish nationals of Kurdish origin and live currently in Norden (Germany). In the proceedings before the Court they are represented by Mr Reinhard Marx, a lawyer practising in Frankfurt am Main.
In 1996 the applicants entered the Federal Republic of Germany together with the first applicant’s husband, respectively the other applicants’ father. On 7 October 1996 they applied for asylum. On 8 October 1996 when heard before the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) they declared that there were Yezidis. The first applicant stated that she had been kidnapped in 1977 by Moslems, but that after two or three days she escaped. According to Yezidi customs a kidnapped girl could not return to her family. She therefore went to Batman where she met her future husband who, although being officially a Muslim, belonged to the Yezidi community. In 1992 her husband’s brother, the head of the village of Feqira, was murdered. Thereafter they were harassed by members of the State security service and their Muslim neighbours. In 1995 the first applicant’s husband was arrested for three days by members of the security forces and asked him for the reasons of his conversion to the Yezidi religion. A further stay in Turkey had been impossible for them.
On 15 October 1996 the Federal Office for Refugees dismissed the applicants’ request as being manifestly ill-founded and invited them to leave the German territory within one week. The Federal Office did not consider that the evidence they adduced in support of fear of persecution to be reliable and doubted the credibility of their asylum claim. According to the Federal Office, the first applicant had ceased being a Yezidi at the moment of her marriage with a Moslem. She was not recognised as a Yezidi neither by the members of her family nor by the people surrounding her. The applicants could therefore not be considered as Yezidis. Finally the applicants had not alleged to be victims of political persecution as Kurds.
On 28 October 1996 the applicants filed an action against the refusal of asylum and their envisaged expulsion and applied for an interim injunction (einstweilige Anordnung) requesting to stay their expulsion pending the administrative court proceedings. They repeated their previous submissions and referred to pending asylum proceedings of close members of their family some of which had been successful. They further stressed that on several occasions they had been interrogated and threatened by the Turkish police. Also their neighbours had treated them as Yezidis and the children had been insulted in school. Since Moslem fundamentalists had a strong influence in Batman, their situation there became unbearable.
On 11 November 1996 the Hannover Administrative Court (Verwaltungsgericht) dismissed their request for an interim injunction. Confirming the findings of the Federal Office, the Administrative Court added that being a Yezidi was a matter of birth, not of faith. A marriage with a person belonging to a different religion was considered as a sin and sanctioned by the exclusion from the Yezidi community. The applicants were not Yezidis. There was no indication that their life was determined by this religion that their neighbours considered them as Yezidis. Unlike Yezidis practising their religion, the applicants were not subjected to persecution in Turkey.
On 16 February 1998 the applicants renewed their request to be granted political asylum (Asylfolgeantrag). They alleged that their submissions in the previous asylum proceedings had not been correctly understood due to linguistic problems. The first applicant’s husband submitted that he too was born by Yezidi parents. When he was two years old, his mother had been kidnapped by Moslems. He then lived together with his mother and his Moslem stepfather. However, he and his mother had always maintained close contacts with the Yezidis in their surroundings and he had been brought up according to the Yezidi traditions.
On 25 February 1998 the parish of the Norden Evangelic-Lutheran church granted the applicants church asylum. The first applicant’s husband was expelled to Turkey on 17 March 1998.
On 26 February 1998 the Hannover Administrative Court dismissed the applicants’ renewed asylum request. The court observed that the applicants had failed to show that they had been prevented, through no fault of their own, from filing their new submissions in the previous proceedings.
On 1 October 1999 the Hannover Administrative Court dismissed the action filed by the applicants on 28 October 1996 against the refusal of asylum and their envisaged expulsion. The Court considered the applicants’ submissions as unsubstantiated and contradictory. The first applicant’s submission, according to which she had been kidnapped by Moslems when she was young, was irrelevant for the purposes of being granted asylum, since this event occurred too long a time ago. Moreover, even if it were true that her uncle had been murdered, there was no evidence that the applicants were persecuted for their religious beliefs. It was true that Yezidis manifesting their religion were persecuted in Turkey. However, if in a case such as the present where the religion had not been practised or where after the marriage with a person belonging to a different religion the membership in the Yezidi community had come to an end, there was no likelihood of persecution. Accordingly, there was no need to take further evidence in this respect. Furthermore, persons of Kurdish origin had the possibility to live in the Western parts of Turkey, in particular in larger cities, where they did not risk direct or indirect persecution or an existence under the poverty level.
On 16 December 1999 the Court of Appeal of Lower Saxony (Niedersächsisches Oberverwaltungsgericht) refused the applicants’ application for leave to appeal. The court considered that the Administrative Court had correctly assessed the evidence and had rejected the applicants’ requests to take further evidence in a convincing manner. The Administrative Court had not arbitrarily concluded that the applicant’s submissions were unsubstantiated. The Court furthermore found that the Kurds from the Eastern regions had generally a possibility to live in the West of Turkey. As to the question whether Yezidis who practised their religion in an Moslem environment, had to fear persecution by Moslems, the Court pointed out that this question had been answered affirmatively in the past but was irrelevant in the present case because the applicants were not Yezidis.
On 17 March 2000 the applicants requested to reopen the asylum proceedings. When interviewed on 6 April 2000 before the Federal Office for Refugees, they submitted that the first applicant’s husband was a Yezidi. He had been excluded from his family when his mother married a Moslem. However, he and the first applicant lived according to the Yezidi faith. After the murder of the first applicant’s uncle in 1992 their neighbours realised that they were Yezidis. They were then harassed by the resident population and had to move house about ten times. Following the introduction of compulsory religious instruction in school, it became clear that the children were not Moslems and they were insulted and beaten. The applicants maintained that in case of their expulsion to Turkey their would face a real risk of being murdered.
On 12 May 2000 1998 the Federal Office for Refugees refused to conduct new asylum proceedings. It took the view that the applicants’ submissions did not constitute new facts. Furthermore, the Federal Office did not consider the evidence they adduced in support of their fear of persecution to be reliable and doubted the credibility of their asylum claim.
The applicants filed an action with the Oldenburg Administrative Court and applied for an interim injunction (einstweilige Anordnung) requesting to stay their expulsion pending the administrative court proceedings.
On 29 May 2000 the Oldenburg Administrative Court dismissed this request on the ground that the applicants submissions were contradictory and not credible. Their claims had to be considered as completely fabricated. There was no evidence showing that they were of Yezidi origin and that they were persecuted when they had left their country nor was there a sufficient likelihood that they would be persecuted if they were to return to their country. However, there were no grounds justifying to quash the final judgments given by the Hannover Administrative Court. According to the Oldenburg Administrative Court, the applicants merely alleged an erroneous appreciation of the law and facts by the previous court instances. Their earlier and new submissions concerning their membership in the Yezidi community being unsubstantiated, there was no need to take further evidence in this respect.
The applicants filed a constitutional complaint against the refusal of the requested interim injunction.
On 10 July 2000 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the applicants’ constitutional complaint for adjudication.


ITEMID: 001-108967
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF SHANOVY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: Anatoly Kovler;Erik Møse;Mirjana Lazarova Trajkovska
TEXT: 5. The applicants are mother and son who were born in 1954 and 1985 respectively and live in Selyatino in the Moscow Region.
6. On 14 March 1997 the applicants’ husband and father Mr Shanov died. Before his death Mr Shanov was a recipient of the Chernobyl social benefits.
7. On 29 May 1999 the first applicant brought proceedings before the Naro-Fominsk Town Court of the Moscow Region (“the Town Court”) against the Pension Department of the Naro-Fominsk District (Управление пенсионного фонда РФ по Наро-Фоминскому району) seeking reassessment of the amount of benefits that she and the second applicant were entitled to after Mr Shanov’s death.
8. Her claims were rejected by a judgment of the Town Court of 21 March 2000, as upheld by the Moscow Regional Court (“the Regional Court”) on 18 April 2000.
9. On an unspecified date at the first applicant’s request the president of the Regional Court lodged an extraordinary appeal for supervisory review against the above court decisions.
10. On 17 January 2001 the Presidium of the Regional Court granted the appeal, quashed the judgment of 21 March 2000 and the decision of 18 April 2000 by way of supervisory review and remitted the matter to the first instance for fresh consideration.
11. On 31 May 2001 the Town Court granted the first applicant’s claims for reassessment and recovery of the benefits. However, on 8 August 2001 the judgment was set aside on appeal by the Regional Court which required a new hearing.
12. On 21 October 2002 the Town Court granted the first applicant’s claims against the Pension Department and Department of Social Protection of the Naro-Fominsk District (Комитет социальной защиты населения администрации Наро-Фоминского района) for recovery of the benefits, awarding her lump-sum compensation amounting to 298,801 Russian roubles (RUB) and monthly payments in the amount of RUB 15,381.
13. On 2 December 2002 the above judgment was upheld by the Regional Court on the respondents’ appeal. The appeal court did not recite the reasoning of the grounds of appeal but mentioned that the arguments of the appellant had been considered by the trial court.
14. In respect of the lump-sum compensation award, the first applicant received the first instalment on 4 August 2004 and the second instalment on 13 November 2004. She has not received the remaining RUB 100,014 (approximately 2,380 euros (EUR)) to date.
15. On 21 April 2003 the respondent lodged an application for supervisory review on account of allegedly erroneous application of the material law in the judgment of 21 October 2002 and the appeal decision upholding it.
16. The applicants were notified that a hearing of the application for supervisory review by the Presidium of the Regional Court was scheduled for 8 September 2004.
17. On 8 September 2004 the applicants’ representative appeared in court but was informed that the hearing had been rescheduled to a later date of which he would be notified in due course.
18. On an unspecified date the applicants received the decision of the Presidium of the Regional Court of 8 December 2004 to quash by way of supervisory review the impugned judgments for incorrect application of the material law and a failure to subtract a previously received payment from the total amount due. The Presidium remitted the matter for fresh consideration to the first instance. The applicants had not been notified of the hearing of 8 December 2004 and did not appear in it.
19. On 6 February 2005 the first applicant brought proceedings for compensation of pecuniary and non-pecuniary damage resulting from the delayed enforcement of the judgment of 21 October 2002. Her original claims and damages action were joined in one case against the Treasury of Russia and the Moscow Region Department of the Ministry of Social Protection (Министерство социальной защиты населения Московской области), where the claimant party was eventually represented by the second applicant who had come of age.
20. On 12 September 2005 the Town Court delivered a new judgment which partially granted the applicant’s claims for recovery of the benefits but dismissed the damages action.
21. On 2 November 2005 the Regional Court upheld on appeal the part of the judgment dismissing the claim for damages and remitted the rest of the judgment for fresh consideration due to erroneous application of the material law.
22. On 28 March 2006 the Town Court again granted the second applicant’s claims in part awarding him RUB 10,474 in monthly payments and a lump-sum amount of RUB 98,564. According to the Government, this judgment was enforced on 29 November 2007, but the applicants submitted that they had received the payment on 5 December 2007.
23. By a final decision of 12 December 2008 the Town Court indexlinked the lump-sum amount awarded by the judgment of 28 March 2006. This amount was paid to the applicants on 28 October 2009.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-75877
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: SARNATSKAYA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Ms Anna Andreyevna Sarnatskaya, is a Russian national, who was born in 1937 and lives in the town of Cherkessk of the Karachayevo-Cherkessiya Republic. The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1995 the applicant moved from Chechnya to the Stavropol Region due to military hostilities. She left behind her two-room flat and other property.
On 30 April 1997 the Government of the Russian Federation enacted a regulation which allowed payment of compensation to persons who had sustained damage during military hostilities in Chechnya.
In 1998 the applicant asked for and obtained compensation in accordance with the Government’s regulation of 30 April 1997.
Considering that the compensation obtained had been insufficient, she sued the Government and the Ministry of Finance of the Russian Federation for a bigger compensation.
On 2 June 2000 the Presnenskiy District Court of Moscow, in the presence of the parties, dismissed the action. The court considered that the sum paid to the applicant had been calculated in accordance with the domestic law.
On 26 June 2000 the Presnenskiy District Court of Moscow sent a copy of the judgment to the applicant.
The applicant appealed to the Moscow City Court and asked to be summoned to the appeal hearing.
On 30 August 2000 the Presnenskiy District Court of Moscow sent a letter to the applicant advising her of the date, time and place of the appeal hearing. The appeal hearing was fixed for 20 November 2000. The district court also requested the applicant to submit two copies of her statement of appeal.
On 10 October 2000 the applicant sent her statement of appeal to the Moscow City Court.
On 1 November 2000 the applicant sent a letter to the President of the Presnenskiy District Court of Moscow which read as follows:
“Your court informed me that my case against the Government of the Russian Federation and my statement of appeal would be heard in the Moscow City Court on 20 November 2000. Therefore, I ask you to send me the judgment of the appeal [court] to the following address...”
On 16 November 2000 the Presnenskiy District Court of Moscow sent summons to the applicant for the appeal hearing of 20 November 2000. The applicant claims that she only received the summons on 21 November 2000.
On 20 November 2000 the Moscow City Court held the hearing in the absence of the parties and upheld the judgment of 2 June 2000.
On 25 December 2000 the Presnenskiy District Court of Moscow sent a copy of the judgment of 20 November 2000 to the applicant.
Article 289 of the Civil Procedure Code of 1964 (in force at the material time) required that a judge or the president of the district court having received an appeal against a judgment should inform the parties of date and place of the appeal hearing and send the case file to the appeal court.
Article 106 provided that summons should be served on the parties and/or their representatives in such a way that they had enough time to appear at the hearing and prepare their case. Where necessary, the parties could be summoned by a phone call or a telegram.
Pursuant to Article 299, if a party to the case failed to appear and there was no evidence that the party had been duly summoned, the appeal hearing had to be adjourned. If a party to the case failed to appear in spite of the fact that the party had been duly summoned, the court could decide the case in the party’s absence.


ITEMID: 001-76758
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF NIEROJEWSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1937 and lives in Sopot, Poland.
5. On 15 March 1994 the applicant filed a petition for divorce with the Gdańsk Regional Court. She also sought an interim maintenance award.
6. The applicant’s husband failed to appear at a reconciliation meeting on 14 April 1994. The subsequent reconciliation meeting held on 16 May 1994 failed. On that date the applicant’s husband requested the Gdańsk Regional Court that the case be transmitted to the Elbląg Regional Court due to his change of domicile. That request was dismissed on 26 May 1994. The appeal lodged by the applicant’s husband was rejected.
7. On 21 September 1994 and on 28 February 1995 the applicant sought an increase of her interim maintenance award. She also requested the court to determine the way in which the spouses would occupy the matrimonial home.
8. On 13 June 1995 the Regional Court ordered the defendant to pay PLN 500 per month to the applicant by way of interim maintenance. It also determined the issue of the spouses’ occupation of the matrimonial home. Both parties appealed against that decision. On 31 October 1995 the Gdańsk Court of Appeal upheld the contested decision.
9. On 5 October 1995 the applicant requested the Elbląg Regional Court to draw up an inventory of the assets located in the matrimonial home. On 13 October 1995 the Elbląg Regional Court transmitted that request to the Gdańsk Regional Court. On 19 April 1996 the Gdańsk Court of Appeal quashed that decision. On 1 July 1996 the Elbląg Regional Court again transmitted the case to the Gdańsk Regional Court, finding that the latter court was competent in the matter of drawing up an inventory.
10. On 30 August 1996 the applicant increased her maintenance claims. She also informed the court that the defendant had continuously failed to comply with the interim maintenance order of 13 June 1995 and had prevented the applicant from occupying the matrimonial home as determined by the court in the same decision.
11. On an unspecified date in August or September 1996 the applicant’s husband filed an application for an interim maintenance order against the applicant.
12. On 16 December 1996 the Elbląg District Court convicted the applicant’s husband of having prevented the applicant from entering their matrimonial home and fined him PLN 200. On 23 April 1997 the Elbląg Regional Court upheld the first-instance judgment.
13. On 17 October and 6 December 1996 the applicant’s husband requested the court to hear evidence from new witnesses, including some who lived in Germany. On 27 March 1997 the President of the Regional Court requested that two witnesses who lived in Germany be heard by the court in Mannheim pursuant to the relevant agreement on legal cooperation between Germany and Poland.
14. On 8 September 1997 the defendant requested that the judge who was hearing the case should withdraw from it. On 11 September 1997 the Gdańsk Regional Court dismissed his request. That decision was upheld on appeal on 30 March 1998.
15. In the meantime a new judge was assigned to hear the case.
16. On 3 December 1997 the Regional Court dismissed the defendant’s application for an interim maintenance award. That decision was upheld on appeal on 30 March 1998.
17. On 18 November 1998 the court heard evidence from the applicant and her husband.
18. The Regional Court held 20 hearings on the following dates: 26 October 1994; 6 January, 1 March, 26 April and 31 May 1995; 14 February, 6 March, 4 April, 26 June, 11 September, 17 October and 6 December 1996; 12 February, 22 July, 27 August, 8 September 1997 and 3 December 1997; and 18 September, 16 October and 18 November 1998.
19. On 30 November 1998 the Gdańsk Regional Court granted a divorce, finding that the defendant had been responsible for the breakdown of their marriage. It also ordered the defendant to pay maintenance to the applicant in the amount of PLN 600 per month and determined the issue of the occupation of the matrimonial home.
20. The defendant filed an appeal against that judgment. He also applied for exemption from payment of the court fees for the appeal proceedings. On 4 March 1999 the Regional Court dismissed the defendant’s request. That decision was upheld on appeal on 23 June 1999.
21. Subsequently, the defendant again requested to be exempted from payment of the court fees. On 8 September 1999 the Regional Court dismissed his request. The Court of Appeal upheld that decision on 17 February 2000.
22. On 10 April 2000 the Regional Court rejected the defendant’s appeal against the judgment of 30 November 1998 for failure to pay the relevant court fee.
23. On 4 May 2000 the applicant requested the Regional Court to make an enforcement order in her favour in respect of the judgment of 30 November 1998. On 29 May 2000 the Regional Court issued the enforcement order.
24. The legal provisions applicable at the material time as well as matters of practice are set out in paragraphs 26-35 of the judgment delivered by the Court on 30 May 2006 in the case of Barszcz v. Poland, no. 71152/01.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5148
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: KRONE-VERLAG GmbH and DRUCKEREI UND ZEITUNGSHAUS J. WIMMER GESELLSCHAFT mbH v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants are two companies incorporated in Austria. The first applicant company is the proprietor and publisher of the Austrian daily newspaper “Neue Kronen-Zeitung”, the second applicant company is the proprietor and publisher of the Austrian newspaper “Oberösterreichische Nachrichten”.
They are represented before the Court by Mr T. Höhne, a lawyer practising in Vienna.
A.
The facts of the case, as submitted by the corporate applicants, may be summarised as follows.
The application is directed against the 1992 amendment to the Austrian Media Act (Mediengesetz) concerning section 7b on the “protection of the presumption of innocence”, which provides for a compensation claim against the proprietor of a news medium in certain cases of reporting contrary to the presumption of innocence (see relevant domestic law, below).
In September 1994 the corporate applicants and other proprietors of news media instituted proceedings in the Constitutional Court (Verfassungsgerichtshof) claiming that the impugned provision violated their right to freedom of expression, freedom of the press and their right to property, and also amounted to discrimination.
On 28 September 1995 the Constitutional Court dismissed their requests that section 7b of the Media Act as a whole, or particular passages of section 7b(2) of that Act, be declared incompatible with their constitutional rights and thus null and void.
As regards the corporate applicants’ right to apply to the Constitutional Court, the Court recalled that, in order to be able to lodge a complaint under Article 140 § 1 of the Constitution, a complainant had to show that the legal provision constituted an immediate and not only a potential violation of the complainant’s interests, and that there was no other reasonable remedy. Doubts as regards the compliance of legal provisions with the Constitution usually had to be raised in proceedings before the ordinary courts. However, no-one could be expected to commit an offence in order to have the opportunity to raise such doubts in the course of ensuing criminal proceedings. In the present case, the Constitutional Court considered that section 7b of the Media Act immediately restricted the corporate applicants’ freedom of expression and that there was no other reasonable remedy, as they could not be expected to contravene this provision and thereby cause proceedings under the Media Act.
In its further reasoning, the Constitutional Court, referring to principles established by the case-law of the Court (Sunday Times (I) v. the United Kingdom judgment of 26 April 1979; Barthold v. Germany judgment of 25 March 1985) and to its own case-law, recalled that freedom of expression held a prominent place in a democratic society and that the press performed special tasks as purveyors of information and opinions of a political nature or of other general interest.
The Constitutional Court found that section 7b of the Media Act interfered with freedom of expression. It then turned to the question of whether this interference was justified under paragraph 2 of Article 10 of the Convention as being necessary for the protection of the rights of others and maintaining the impartiality of the judiciary.
Having regard to the corporate applicants’ argument that the strict prohibition under section 7b of the Media Act was disproportionate in cases of predominant public interest, the Constitutional Court recalled that the protection of the rights guaranteed under the Convention sometimes required the State to take positive measures.
In the Constitutional Court’s view, the Austrian legislator, in enacting the impugned provision, had complied with its constitutional duty to prevent that reporting in the news media, or possibly even a press campaign, stigmatised a person as guilty of a criminal offence and thereby rendered the presumption of innocence ineffective, thus prejudicing the fairness of the ensuing trial. In doing so, the legislator had acted within its margin of appreciation under paragraph 2 of Article 10 of the Convention. There was no justifiable public interest in denouncing persons as convicted criminal offenders, i.e. in having a “trial by newspaper” (Medienjustiz), before they had been found guilty according to the law. Section 7b of the Media Act was only concerned with press reports of such a nature and did not prevent true reporting about criminal cases.

The Constitutional Court also found that, given the importance of the principle of the presumption of innocence, the exceptions enumerated in section 7b(2) of the Media Act and the choice of civil compensation instead of criminal sanctions, there was no indication of disproportionality. Furthermore, the abstract maximum amounts of fines for causing actual bodily harm or defamation by far exceeded the maximum amount of compensation fixed in section 7b of the Media Act.
For similar reasons, the Constitutional Court rejected the corporate applicants’ argument that there was a violation of their right to property, in particular in cases of a subsequent conviction of the person concerned.
The decision was served on 17 November 1995.
B. Relevant domestic law
Section 7b of the Media Act (Mediengesetz) is entitled “Protection of the presumption of innocence” (Schutz der Unschuldsvermutung) and reads as follows:
“1. A person suspected of having committed an offence but not yet convicted by final judgment, who is portrayed in a medium as being guilty or as the perpetrator of the offence and not only suspected of having committed the offence, is entitled to claim compensation from the proprietor of the news medium (editor) for the insult suffered. The amount of compensation shall not exceed 200,000 ATS; …
2. There shall be no right to compensation if
(1) a true report about a hearing at a public session of the National Assembly, the Federal Council, the Federal Assembly, the Diet of a Land or a committee of these general representative bodies is concerned,
(2) a true report about a conviction at first instance is concerned which indicates that the conviction is not final,
(3) the person concerned has made a confession in public or before a medium and has not revoked it,
(4) a direct broadcast (live broadcast) is concerned and the employee of the broadcast has applied the care required of journalists,
(5) a true quotation of the statement of a third person is concerned and if there was a predominant public interest in the publication of the quoted statement.”