ITEMID: 001-58038
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF GITONAS AND OTHERS v. GREECE
IMPORTANCE: 2
CONCLUSION: No violation of P1-3
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 6. On 18 November 1986 Mr Gitonas, then an employee of the Investment Bank (Trapeza Ependisseon), was seconded to the post of Deputy Head (Anaplirotis Genikos Diefthindis) of the Prime Minister’s private office. He occupied that post for a period of approximately thirty months until 24 May 1989, when his secondment ended.
7. In the general election of 8 April 1990 the applicant stood as a candidate for the Socialist Party (PA.SO.K) in the second Athens constituency. As he obtained more than the required minimum number of votes for election, the Athens Court of First Instance (Polymeles protodikio) declared in a decision of 17 April 1990 that he had been elected.
8. On 26 and 27 April and 2 May 1990 three members of the constituency’s electorate lodged an application with the Special Supreme Court (Anotato Idiko Dikastirio) for an order annulling Mr Gitonas’s election. They relied on Article 56 para. 3 of the Constitution (see paragraph 29 below) and maintained, inter alia, that the applicant’s election was a nullity as, before the election, he had held the post of Deputy Head of the Prime Minister’s private office, a ground for disqualification from standing for election under that Article.
9. In the proceedings the applicant argued that as an employee of the Investment Bank, a private-law entity, he could not be considered a civil servant and he pointed out that he had become deputy head of the Prime Minister’s private office by secondment.
10. The Special Supreme Court considered the three applications together and gave its judgment (no. 16/1991) by nine votes to two on 23 January 1991. It annulled Mr Gitonas’s election on the following grounds:
"Under [Article 56 para. 3], as is apparent both from its wording (the disqualification applies in `any’ constituency) and from its purpose (to deter civil servants ... from using their posts to prepare for a political career, and at the same time to ensure that civil servants are politically neutral in the performance of their duties as required by the Constitution and by statute), the disqualification covers the whole geographical area in which those duties were performed ..., so that a civil servant who has general responsibility throughout Greece may not become an elected member of parliament in any constituency. The bar applies in all cases where the post has been occupied for more than three months during the three years preceding the election even if, in the interval between the post being taken up and the election, another general election took place in which the person concerned stood as a candidate ...
The aforementioned constitutional provision means that the bar applies irrespective of the lawfulness of the administrative act whereby the post was filled ...
The provision applies to salaried civil servants appointed to established posts expressly created by law and governed exclusively by public-law rules; included within that category are dismissable civil servants in temporary posts within the meaning of Article 103 para. 5 of the Constitution ...
Law no. 1299/1982 on `the organisation of the Prime Minister’s private office’ established an independent public service to assist and directly serve the Prime Minister in the performance of his duties. To this political private office of the Prime Minister ... were subsequently added - by decision of the Prime Minister taken under section 12 (b) of Law no. 1299/1982 - the special office of the deputy head responsible for supervising and implementing the decisions of the public government bodies and of the Prime Minister, and a category A post of Deputy Director-General. Generally speaking, the ordinary rules do not apply to recruitment to posts in the Prime Minister’s political private office, which are filled, without any competition being held, either by appointment or secondment from the civil service or a public-law or public-sector entity, or by assignment of duties which the person concerned performs concurrently ... with those of his usual occupation, as determined by the Prime Minister, in a decision published in the Official Gazette (section 6). Under section 6 (1), persons seconded to the political private office of the Prime Minister must elect whether to receive their entire remuneration of all kinds from their permanent post or from the post to which they have been seconded ... It is apparent from the aforementioned provisions that the post of Deputy Head of the Prime Minister’s political private office ... is a remunerated post occupied by a dismissable civil servant within the meaning of Article 103 para. 5 of the Constitution, with general and decision-making responsibility for the entire country, and as such is covered by Article 56 para. 3.
... The documents in the case file show that [the applicant] was seconded from the Investment Bank to the post of Deputy Head of the Prime Minister’s political private office by decision no. Y311/1986, of the then Prime Minister, published in the Official Gazette of 18 November 1986, and served in that post continuously until 24 May 1989, when his secondment was ended by a similar decision of the Prime Minister ... By a written declaration of 18 November 1986 [the applicant] elected to receive the remuneration attaching to his permanent post. Consequently, as he occupied a remunerated post in category A, with nationwide responsibility, for more than three months during the three years preceding the general election of 8 April 1990, he was barred from standing as a candidate or being elected as a member of parliament in that election even if, in the interval between his taking up that post and the latest election, another election had been held in which [the applicant] had stood."
In a dissenting opinion two members of the Special Supreme Court took the view that section 12 (b) of Law no. 1299/1982 did not authorise the creation of a post of Deputy Director-General and that the applicant had never acquired the status of salaried civil servant; even supposing that the Investment Bank belonged to the public sector and that the post had been created under the provisions of Law no. 1299/1982, the applicant’s secondment had been temporary, which meant that he had retained his former status as an employee of the bank, which continued to pay his salary.
11. On 10 November 1987 Mr Paleothodoros was appointed Director-General of Greece’s second television channel (Elliniki Tileorassi 2, "ET2") by a resolution of the board of governors of the Greek Broadcasting Company (ERT-AE), a public company. He occupied that post for approximately a year, until 23 November 1988.
12. In the election of 8 April 1990 the applicant stood as a candidate for the electoral coalition "Zante Initiative for Progress, Development and Simple Proportional Representation" (Zakinthini Protovoulia gia proodo - anaptixi - apli analogiki) in the Zante constituency. As he obtained more than the required minimum number of votes for election, the Zante Court of First Instance declared, in a decision of 11 April 1990, that he had been elected.
13. On 25 April 1990 a member of the constituency’s electorate, relying on Article 56 para. 3 of the Constitution (see paragraph 29 below), lodged an application with the Special Supreme Court for an order annulling Mr Paleothodoros’s election on the ground that during the period preceding the election Mr Paleothodoros had occupied the post of Director-General of ET2.
14. The Special Supreme Court, by six votes to five, annulled the election in a judgment (no. 41/1991) of 29 May 1991 in these terms:
"...
The disqualification [from standing for election] also applies where, in the interval between the disqualifying post being taken up and the relevant election, another election took place in which the person concerned stood as a candidate. The possibility that a civil servant will use his post to prepare for his political career does in fact exist in this case too, as the effects of such preparations are not limited to the election immediately following the taking up of the post but may extend to subsequent elections; consequently, it has to be accepted that the civil servant continues to be disqualified under the Constitution, if the election takes place within three years as specified in the Constitution. A public undertaking is an undertaking which under the law ... exists to promote the general interest, in the form of a legal entity over which the State exerts a decisive influence and which operates according to economic criteria, not by speculating ... but by making profits that will enable it to achieve its fundamental objectives ... Section 1 of Law no. 1730/1987 established a private-law entity in the form of a company called ‘Greek Radio-Television’... Section 1 (3) provides that ERT-AE is a public undertaking belonging to the public sector (Law no. 1256/1982); it is controlled and supervised by the State. By section 2 (1) of the aforementioned Law, the objects of ERT-AE are to organise, operate and develop radio and television broadcasting, and contribute to informing, educating and entertaining the Greek people. That provision also lays down that ERT-AE is not a profit-seeking entity ... The [ERT-AE’s] main departments set out and apply, for the areas within their responsibility, the basic principles laid down by the board of governors and are financially independent ... The board of governors appoints a director-general to head each department (section 3). It follows that a director-general - appointed by the board of governors and given the task of applying in the area for which he is responsible the basic principles laid down by the board, to whose supervision he is moreover subject - is the employee of a public undertaking within the meaning of Article 56 para. 3 of the Constitution; because of that position ..., he is liable to the disqualification referred to in that Article.
...
It is apparent from the aforementioned provisions, and in particular those providing that ET1 and ET2 enjoy independence in programme scheduling, that ... the directorgeneral participates in the choice or may influence the content of television programmes, and the programmes ... are broadcast throughout Greece and can be received in all areas of the country. In the course of his duties a director-general may, through his role in determining television programme scheduling, have an advantage over other Greek citizens in preparing for a political career. ... Mr Paleothodoros was appointed as Director-General of ET2 by the ERT-AE’s board of governors and remained in that position from 10 November 1987 to 23 November 1988 ... In the light of the foregoing, [the applicant] was a member of staff of a public entity for a period of more than three months during the three years preceding the election; as his authority was by its nature general, he is disqualified from standing for election under Article 56 para. 3 of the Constitution ..."
In a dissenting opinion five members of the Special Supreme Court expressed the view that the responsibilities of the directors-general of ET1 and ET2 were not such as to create a link between the head of a department and a particular constituency. The mere fact that the television channel’s credits were broadcast in a particular constituency did not amount to performing official duties in that constituency.
15. On 25 February 1987 Mr Sifounakis was appointed DirectorGeneral of the Greek Broadcasting Company (ERT) and on 10 November 1987 Director-General of its first television channel (ET1). The applicant occupied that post until 8 July 1988.
16. In the general election of 8 April 1990 the applicant stood as a candidate for the Socialist Party (PA.SO.K) in the Lesbos constituency. As he obtained more than the required minimum number of votes for election, the Lesbos Court of First Instance declared in a decision of 12 April 1990 that he had been elected.
17. On 25 April 1990 a candidate from the same party in the same constituency lodged an application with the Special Supreme Court for an order annulling Mr Sifounakis’s election and a declaration that he himself, as first substitute member for Lesbos, was the member of parliament. In support of his application he relied on Article 56 para. 3 of the Constitution (see paragraph 29 below), maintaining in particular that the applicant’s election was a nullity as, before the election, the applicant had held the post of Director-General of ERT and ET1 and was consequently barred from standing as a candidate.
18. In a judgment (no. 40/1991) of 29 May 1991 the Special Supreme Court annulled Mr Sifounakis’s election for the same reasons as it gave in Mr Paleothodoros’s case. It found that ERT, a company wholly owned by the State but administratively and financially independent and operating in the public interest according to the rules governing the private economy (Law no. 230/1975), had merged with the ERT-AE by virtue of Law no. 1730/1987.
19. From 23 May 1990 to 13 September 1993 Mr Kavaratzis occupied the post of First Deputy Director of the Social Security Fund (Idryma Koinonikon Asfalisseon - "IKA").
20. In the general election of 10 October 1993 he stood as a candidate for the "Nea Dimokratia" Party in the Evros constituency. As he obtained more than the required minimum number of votes for election, the Alexandroupolis Court of First Instance declared in a decision no. 126/1993 that he had been elected.
21. On 2 November 1993 another candidate for that constituency from the same party lodged an application with the Special Supreme Court for an order annulling Mr Kavaratzis’s election and for a declaration that he, as first substitute candidate for the Evros constituency, had been elected a member of parliament. He relied on Article 56 para. 3 of the Constitution (see paragraph 29 below) and maintained in particular that Mr Kavaratzis’s election was a nullity as, before the election, he had held the post of First Deputy Director of the IKA.
22. On 22 March 1995 the Special Supreme Court annulled (by six votes to five) his election on the following grounds (judgment no. 10/1995):
"...
Under this Court’s case-law:
(1) the governor of a public-law company or public undertaking - who, by virtue of Article 56 para. 1 of the Constitution, cannot be elected as a member of parliament if he has not resigned before becoming a candidate, but who is not disqualified under paragraph 3 of that Article - is the sole organ ... running that entity or undertaking, in other words having the exclusive right to decide ... questions relating to its management (see judgment no. 46/1990 of the Special Supreme Court).
(2) What matters for the purposes of determining whether in law an organ is a `governor’ is not merely that the term `governor’ is used in the law or the articles of association, but also the powers which the organ is given by those provisions (see judgments nos. 46/1990, and 4 and 5/1991 of the Special Supreme Court).
(3) Persons classified by the law as governors of public-law entities but who, by virtue of the provisions governing their occupational status, are nevertheless subordinate to the entity are subject to the disqualification provided for in paragraph 3 of Article 56 of the Constitution (see judgments nos. 4 and 5/1991 of the Special Supreme Court).
The Social Security Fund is managed by its governor and a board of directors. The governor is the highest-ranking administrative organ of the IKA; he [is empowered] to decide any question not expressly reserved by law to the board of directors, to act as the head of all the Fund’s departments and to supervise them and review their actions, to take all appropriate measures, to recruit staff and take disciplinary action, to represent the Fund in court and other proceedings, to chair the board of directors; more generally, he is the highest-ranking administrative organ of the Fund; that organ is not subordinate to any other organ of the entity and manages the IKA jointly with the board of directors (see judgments nos. 4 and 5/1991 of the Special Supreme Court).
The post of First Deputy Director of the IKA was created by Royal Decree no. 11 of 15 May 1957, and that of Second Deputy Director by section 15 of Law no. 1573/1985. Neither organ, which the aforementioned provisions ... classify as deputy director, is a governor of the IKA so as to be subject to disqualification from election under Article 56 of the Constitution ... The fact that the deputy director acts as the governor’s replacement is not sufficient for him to be ascribed governor status, especially as by law, and in particular section 15 (2) of Law no. 1573/1985, it is the governor who appoints one of the deputy directors to act as his replacement and as that delegation [of powers] ... does not alter the nature of that organ even during periods when the replacement is effective ...
In the instant case, during the period in issue, the governor of the IKA, by decisions ..., delegated to the [applicant] - the first deputy director - certain powers concerning questions within the remit of the IKA’s departments, but excluding matters relating to `the development of the Fund’s general strategy’. By a decision of 23 September 1991 the governor of the IKA appointed the [applicant] to act as his replacement for the period from 1 October to 31 March of each year. The first deputy director is appointed for three years and takes part in deliberations of the board of directors in a consultative capacity. It is apparent from the foregoing that, although the first deputy director of the IKA is not subject to the Civil Service Code ..., his relationship with the IKA is that of employee and more particularly of a dismissable salaried member of staff (Article 103 paras. 5 and 6 of the Constitution) of that public-law entity; consequently, he is subject to the disqualification from election provided for in Article 56 para. 3
...
... The first deputy director of the IKA is a member of staff with nationwide responsibilities and for that reason he cannot be elected as a member of parliament in any constituency.
..."
23. In a dissenting opinion five members of the Special Supreme Court took the view that, like the governor, the deputy directors were the highest-ranking organs of the IKA, and not members of its staff, for five reasons: (a) a distinction was drawn in the IKA’s articles of association (Article 2) between the "management", which included the board of directors, the governors and the deputy directors, and the "departments", to which the IKA’s "members of staff" were attached; (b) the deputy directors were excluded from the provisions of the royal decree ... "on the application of the Civil Servants Code to the IKA’s members of staff" by Article 2 of that Code; (c) deputy directors were not subject to disciplinary measures, whereas being so subject was a decisive factor for classification as a civil servant or as a member of staff of a public-law entity; (d) deputy directors were not subordinate to the governor in the exercise of the powers he had delegated them, which they would necessarily have been if they were civil servants; and (e) they had a right to vote when chairing meetings of the IKA’s board of directors as the governor’s replacement.
24. From 11 September 1991 to 13 September 1993 Mr Giakoumatos occupied the post of Second Deputy Director of the Social Security Fund.
25. In the general election of 10 October 1993 the applicant stood as a candidate for the "Nea Dimokratia" Party in the second Athens constituency. As he obtained more than the required minimum number of votes for election, the Athens Court of First Instance declared in a decision no. 3131/1993 that he had been elected.
26. On 2 November 1993 another candidate for that constituency from the same party lodged an application with the Special Supreme Court for an order annulling Mr Giakoumatos’s election and for a declaration that he, as first substitute candidate for the second Athens constituency, had been elected a member of parliament. He relied on Article 56 para. 3 of the Constitution (see paragraph 29 below) and maintained in particular that the applicant’s election was a nullity as, before the election, he had held the post of Second Deputy Director of the IKA.
27. On 22 March 1995 the Special Supreme Court annulled (by six votes to five) Mr Giakoumatos’s election on the following grounds (judgment no. 9/1995):
"...
Under this Court’s case-law:
(1) the governor of a public-law company or public undertaking - who, by virtue of Article 56 para. 1 of the Constitution, cannot be elected as a member of parliament if he has not resigned before becoming a candidate, but who is not disqualified under paragraph 3 of that Article - is the sole organ ... running that entity or undertaking, in other words having the exclusive right to decide ... questions relating to its management (see judgment no. 46/1990 of the Special Supreme Court).
(2) What matters for the purposes of determining whether in law an organ is a `governor’ is not merely that the term `governor’ is used in the law or the articles of association, but also the powers which the organ is given by those provisions (see judgments nos. 46/1990, and 4 and 5/1991 of the Special Supreme Court).
(3) Persons classified by the law as governors of public-law entities but who, by virtue of the provisions governing their occupational status, are nevertheless subordinate to the entity are subject to the disqualification provided for in paragraph 3 of Article 56 of the Constitution (see judgments nos. 4 and 5/1991 of the Special Supreme Court).
The Social Security Fund is managed by its governor and a board of directors. The governor is the highest-ranking administrative organ of the IKA; he [is empowered] to decide any question not expressly reserved by law to the board of directors, to act as the head of all the Fund’s departments and to supervise them and review their actions, to take all appropriate measures, to recruit staff and take disciplinary action, to represent the Fund in court and other proceedings, to chair the board of directors; more generally, he is the highest-ranking administrative organ of the Fund; that organ is not subordinate to any other organ of the entity and manages the IKA jointly with the board of directors (see judgments nos. 4 and 5/1991 of the Special Supreme Court). The post of First Deputy Director of the IKA was created by Royal Decree no. 11 of 15 May 1957, and that of Second Deputy Director by section 15 of Law no. 1573/1985. Neither organ, which the aforementioned provisions ... classify as deputy director, is a governor of the IKA so as to be subject to disqualification from election under Article 56 of the Constitution ... The fact that the deputy director acts as the governor’s replacement is not sufficient for him to be ascribed governor status, especially as by law, and in particular section 15 (2) of Law no. 1573/1985, it is the governor who appoints one of the deputy directors to act as his replacement and as that delegation [of powers] ... does not alter the nature of that organ even during periods when the replacement is effective ... In the instant case, during the period in issue, the governor of the IKA, by decision ..., delegated to the [applicant] - the second deputy director - certain powers concerning questions within the remit of the IKA’s departments, but excluding matters relating to `the development of the Fund’s general strategy’. By the same decision the governor of the IKA appointed the [applicant] to act as his replacement for the period from 1 April to 30 September of each year. The second deputy director is appointed for three years and takes part in deliberations of the board of directors in a consultative capacity. It is apparent from the foregoing that, although the second deputy director of the IKA is not subject to the Civil Service Code ..., his relationship with the IKA is that of employee and he is a salaried member of staff - for the duration of his term in office - of a public-law entity; consequently, he is subject to the disqualification from election provided for in Article 56 para. 3 ...
..."
28. In a dissenting opinion five members of the Special Supreme Court took the view that, like the governor, the deputy directors were the highestranking organs of the IKA, and not members of its staff, for five reasons: (a) a distinction was drawn in the IKA’s articles of association (Article 2) between the "management", which included the board of directors, the governors and the deputy directors, and the "departments", to which the IKA’s "members of staff" were attached; (b) the deputy directors were excluded from the provisions of the royal decree ... "on the application of the Civil Servants Code to the IKA’s members of staff" by Article 2 of that Code; (c) deputy directors were not subject to disciplinary measures, whereas being so subject was a decisive factor for classification as a civil servant or as a member of staff of a public-law entity; (d) deputy directors were not subordinate to the governor in the exercise of the powers he had delegated them, which they would necessarily have been if they were civil servants; and (e) they had a right to vote when chairing meetings of the IKA’s board of directors as the governor’s replacement.
29. The relevant Articles of the Constitution provide:
"Radio and television shall be subject to direct State control. Their aim shall be the objective, even-handed broadcasting of information and news and of literary and artistic works; quality of programmes must be maintained in all cases, in view of their social role and the country’s cultural development."
"1. Salaried civil and public servants, officers of the armed forces and the security forces, employees of local authorities or other public-law entities, the mayors of municipalities, the governors or chairmen of boards of directors of public-law entities or public or municipal undertakings, notaries and land registrars may not stand as candidates or be elected as members of parliament if they have not resigned before becoming candidates. Resignation shall take effect as soon as it is submitted in writing. A member of the armed forces who resigns may not be reinstated. Civil and public servants may not be reinstated until a year has elapsed after their resignation. ...
3. Salaried civil servants, active members of the armed forces and officers of the security forces, members of staff of public-law entities in general, and the governors and members of staff of public or municipal undertakings or charitable bodies may not stand as candidates or be elected as members of parliament in any constituency where they have performed their duties for more than three months during the three years preceding the elections. The permanent secretaries of ministries during the last six months of the four-year parliamentary term shall be subject to the same restrictions. Candidates for election to the State Parliament and subordinate civil servants from the central departments of State shall not be subject to these restrictions.
..."
"Where the validity of legislative elections is contested because of irregularities in the electoral process or a candidate’s failure to meet the requirements laid down by law, the elections shall be reviewed and any disputes arising from them heard by the Special Supreme Court referred to in Article 100."
"1. Civil servants shall carry out the State’s will and serve the people; they shall abide by the Constitution and be devoted to their country. The qualifications and procedural requirements for their appointment shall be laid down by law.
...
5. The benefit of irremovability may be withdrawn by statute from senior civil servants on secondment, persons directly appointed as ambassadors, members of the private offices of the President of the Republic, the Prime Minister, ministers and ministers of State. ..."
30. In a judgment (no. 46/1990) of 12 December 1990 the Special Supreme Court held that the chairman of the board of directors of a public undertaking (the Greek Organisation for Small and Medium-Sized Businesses in the Craft Industry - "EOMMEX") could not be equated with the governor of such an undertaking and was not therefore subject to the disqualification from standing for election provided for in Article 56 para. 3 of the Constitution. In particular, the Special Supreme Court said:
"... In using the word `governor’, the Constitution is referring to the single person, the organ of the undertaking that, under the provisions governing the undertaking and the general law, runs it, that is to say the organ that alone decides, under its powers as laid down by law or in the articles of association, questions concerning the management of the undertaking (such as achieving its objectives, managing staff and making agreements). What matters for the purposes of [Article 56 para. 3] is to know what the powers concerned are, not the description of the elected member as `governor’, as it cannot be ruled out that a person who is not so described in the articles of association of the undertaking ... may perform such duties even though his title is that of chairman of the board of directors.
... It is apparent from the foregoing that the person who acts as chairman of the board of directors of EOMMEX cannot be described as `governor’ in the aforementioned sense.
The chairman (a) draws up the agenda; (b) receives reports on the functioning of the entity from its manager; (c) supervises the manager’s implementation of the board of directors’ resolutions; and (d) represents EOMMEX in court proceedings whilst being empowered to assign that task to other people ... He cannot, by virtue of these functions, which are the only ones the law allocates to him, be described as a `governor’ of the organisation, since none of them, not even the last one, corresponds to the concept of managerial act ... The position would be different had the manager’s functions been assigned to the chairman, since in that eventuality the chairman of the board of directors would actually be `managing’ the organisation.
..."
31. The Special Supreme Court has also held that the Secretary-General of the Greek Tourist Board ("EOT") and the Governor of the Social Security Fund ("IKA") were not caught by the disqualification in Article 56. With regard to the Secretary-General, it held (in judgment no. 15/1978) that he was not subordinate to EOT’s board of directors, to which he was in no way answerable, not even for disciplinary purposes; with regard to the Governor it held (in judgments nos. 4 and 5/1991): "It is apparent from paragraph 3 of Article 56 - in which the grounds for disqualification from standing for election, which must be strictly construed, are exhaustively set forth - read together with paragraph 1 of that Article that the governors of public-law entities, who are covered by the disabilities referred to in paragraph 1 ... are not covered by those in paragraph 3 as they are not included among the exhaustive list of persons subject to disqualification."


ITEMID: 001-88320
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: TAYLOR v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Robert Taylor, is a British national who was born in 1936 and lives in Devon. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 10 November 1997. His claim for widows’ benefits was made on 4 October 2000 and was rejected on 20 October 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-22737
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: ÖZDAS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto;Mark Villiger
TEXT: The applicant, Mr Şahin Özdaş, is a Turkish national, who was born in 1958 and lives in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 June 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 50 (c) of Law 926.
The Government submit the following in the light of the intelligence reports concerning the applicant:
The applicant, a sergeant, was a member of the İsmail Ağa sect and was a follower of the sect’s leader Mahmut Efendi. He collaborated with other members of the sect in the army in order to collect money from non-commissioned officers to whom they promised better conditions during their military service. He was not given the custody of his children in the divorce case brought by his wife on the ground that he was a member of a religious sect. He established contacts with Mahmut Kaçar who demonstrated during the Memorial Day celebrations held in the Atatürk Mausoleum. He was also planning to make a similar demonstration in the Atatürk Mausoleum in collaboration with non-commissioned officer Ramazan Özdemir. He collected money for the sect in collaboration with a non-commissioned officer and a lieutenant. He converted a military store in the barracks located in the 23. Command of Infantry Division into a mescit (small mosque) without permission.
His superiors considered the applicant as an insubordinate and undisciplined soldier. The applicant had an antisocial character and he kept his wife and children under pressure and restricted them from the needs of the contemporary social life.
A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion.
The relevant provisions of the Constitution are as follows:
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review ...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
...”
Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”


ITEMID: 001-57637
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF KEUS v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-2;No violation of Art. 5-4;Not necessary to examine Art. 6-1;Not necessary to examine Art. 6-3
JUDGES: N. Valticos
TEXT: 6. Mr Jacobus Keus, a Dutch national, currently resides in the Netherlands.
7. On 15 December 1981 the District Court (Arrondissementsrechtbank) of The Hague sentenced him, for murder and a number of attempts to commit armed robbery, to four years’ imprisonment, to be followed by two years’ placement at the Government’s disposal (see paragraph 12 below). The judgment became final on 30 December 1981.
8. While he was serving his sentence, the applicant absconded on several occasions; he remained at liberty a total of 109 days. On 1 May 1984 the Minister for Justice ordered his conditional release with effect from 3 May.
This measure was however purely formal because the applicant had been placed in a psychiatric clinic on 18 February 1983. He absconded regularly from this establishment too. In its decision extending the confinement (see paragraph 10 below), the court noted that, according to the director of the clinic, Mr Keus had spent, since his admission, approximately 19 months at the clinic and 13 months outside.
On 22 May 1984 the Ministry of Justice - in accordance with an administrative practice not provided for by law - wrote to the Crown Prosecutors of The Hague and of Utrecht, and to the director of the clinic, informing them that, unless extended, the applicant’s placement would come to an end in 1986, on 14 January and not 3 May. The applicant was, in the Ministry’s view, to be regarded as having been held at the Government’s disposal during the periods which he had spent outside prison following his escapes. Neither Mr Keus nor his counsel had any knowledge of this letter.
On 14 October 1985 Mrs Later informed the District Court of The Hague that she would be the applicant’s lawyer in the proceedings relating to the extension of the confinement. It appeared from her letter that she expected the proceedings to open in April or May 1986.
On 29 November 1985 the applicant escaped from the clinic once more. According to the authorities, he remained in hiding.
9. On 4 December 1985 the Crown Prosecutor requested the District Court of The Hague to extend by two years the applicant’s placement; he informed neither Mr Keus nor his lawyer of this.
By a letter dated 18 December 1985, Mr Keus’s lawyer requested the Minister for Justice to order her client’s release.
10. On 7 January 1986, following a hearing which was attended only by a member of the hospital staff and the Crown Prosecutor, the court granted the request for an extension. According to the Government, the Crown Prosecutor had instructed the police to serve on Mr Keus a summons to appear at this hearing, but they had not succeeded in contacting him.
Mr Keus was notified of the decision - which described him as having no known address - on 19 January, when he telephoned the clinic. After having returned to it, he was held there from 22 February in pursuance of the court’s order.
11. By a letter of 20 August 1986 the Secretary of State for Justice informed the applicant’s lawyer that the order placing her client at the Government’s disposal would not be lifted in the immediate future.
Having observed a significant improvement in his behaviour, the authorities released him provisionally in January 1987. In 1988 the Crown Prosecutor decided not to seek a second extension of the placement at the Government’s disposal.
12. Since 1928 the Netherlands Criminal Code (Wetboek van Strafrecht) has contained special provisions applying to persons suffering from a mental deficiency or mental illness. The provisions were substantially amended by an Act of 19 November 1986, which came into force on 1 September 1988. According to Article 37 (as applicable to the events in the present case), the perpetrator of an offence which cannot be imputed to him because he suffers from a mental deficiency or mental illness is not liable to punishment. If the protection of public order so requires, the court may direct that such a person be placed at the Government’s disposal so that he can receive treatment at the Government’s expense.
Such a measure may also be taken in conjunction with a criminal sanction if the convicted person’s responsibility was merely diminished at the time of the offence (Article 37 (a)).
Under Article 37 (b) § 1, the placement lasts for two years unless the Government terminates it earlier. This period commences as soon as the judgment ordering it has become final (paragraph 2 thereof); it is suspended by any other deprivation of liberty resulting from a judicial decision (paragraph 3, according to the most widely accepted interpretation).
13. The court which makes the initial order may extend the confinement, on each occasion for one or two years (Article 37 (b) § 2), on an application by the crown prosecutor, himself acting on the opinion of the director of the clinic. To this end, the crown prosecutor has to submit an application to the court in question not more than two months and not less than one month before the placement period is due to expire (Article 37 (f) § 1). According to case-law, failure to comply with this requirement renders the application inadmissible.
The prosecutor must attach to his application a copy of the clinic’s report on the physical and mental health of the person concerned together with a reasoned declaration - preferably by the doctor treating the patient - on the appropriateness of extending the confinement (Article 37 (f) § 2).
14. Article 37 (g) governs the procedure to be followed for the examination of the application: if possible the court is to hear the person in question and, if it considers additional information to be necessary, interview witnesses and experts. The crown prosecutor and the lawyer of the person confined may attend any hearing, of which a record is drawn up.
By a circular of 16 April 1980, the Minister for Justice issued instructions to the courts to hear the person concerned before extending his placement.
15. By virtue of Article 37 (h) § 1, the court is to give its decision within two months following the lodging of the application. However, Article 37 (b) § 4 states that the person concerned remains at the Government’s disposal until the court has ruled on the extension. In a judgment of 14 June 1974 (Nederlandse Jurisprudentie (NJ) 1974, no 436), the Supreme Court (Civil Division) took the view that the last-mentioned rule applied even if the court exceeded the two-month time-limit, which was merely of an exhortatory nature. While recognising how inconvenient this interpretation might be for the person concerned, the court noted that this did not mean that the latter was entirely without a remedy against such a breach:
"if, once the time-limit laid down in Article 37 (h) has expired, the decision provided for in that provision is arbitrarily delayed, the Government may find itself required, if necessary as a result of legal action by the person confined, to terminate the placement extended pursuant to Article 37 (b) § 4."
By a judgment of 29 September 1989 (NJ 1990, no. 2) the Supreme Court (Civil Division) gave the following clarification regarding the 1974 decision: in itself, the failure to comply with the time-limit laid down in Article 37 (h) does not give rise to an obligation to terminate the placement; the existence of such an obligation depends in particular on the extent to which, and the reasons for which, the time-limit is exceeded as well as the personal and social interests at stake.
According to a judgment of the Supreme Court (Civil Division) of 9 January 1970 (NJ 1970, no. 240), it falls to the court to decide to what extent it must state its reasons in the order extending the confinement, which is neither delivered in public nor appealable (Article 37 (h) § 2), but is served on the person concerned (Article 37 (h) § 3).
16. A person placed at the Government’s disposal may at any time request the Minister for Justice to revoke the measure. By virtue of Article 37 (e), the Minister may terminate the confinement at any moment, unconditionally or conditionally, if personal or material circumstances justify such a decision.
In the above-mentioned extract from its judgment of 14 June 1974 (see paragraph 15 above), the Supreme Court was clearly alluding to interlocutory proceedings (kort geding) before the President of the District Court. Thus it confirmed the fundamental role of these proceedings in the Netherlands legal system and practice. The importance of such a remedy in the specific field which is the subject of the present case is moreover illustrated by the three judgments of the Court of Cassation referred to in paragraph 15 above. They were all delivered in interlocutory proceedings, two of which resulted in the President of the District Court ordering the immediate release of the person concerned. In addition, in the proceedings concluded by the judgment of 9 January 1970, the State had argued that the President lacked jurisdiction; its objection was dismissed in accordance with a consistent line of cases decided in interlocutory proceedings and it did not appeal. The Koendjbiharie case also shows the extent to which the "kort geding" constitutes an obvious remedy in the field in question (see the Koendjbiharie judgment given this day, Series A no. 185-B, pp. 35-37, §§ 11 and 14).
Furthermore the adversarial principle is, according to the Supreme Court’s decisions, one of the basic principles of Netherlands procedural law. At the time of the events in issue in the present case, the Supreme Court had already drawn striking inferences therefrom. In a judgment of 27 November 1981 (NJ 1983, no. 56), it ruled admissible an appeal against an order extending the confinement of a "mentally ill person", on the ground that it had been made without hearing the person concerned. It did so, having regard to the importance of the principle in question, in spite of the statutory rule restricting the right of appeal to persons heard at first instance. Similarly, by a judgment of 29 March 1985 (NJ 1986, no. 242), it declared admissible, notwithstanding the express provisions of the law, the appeal against a decision ordering the provisional hearing of witnesses, on the ground that the appellant had not been heard first.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-2
5-4


ITEMID: 001-110266
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GABRIELYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra
TEXT: 4. The applicant was born in 1938 and lives in Yerevan.
5. In February and March 2003 a presidential election was held in Armenia, during which the applicant was involved as an authorised election assistant (վստահված անձ) for the candidate representing the People’s Party of Armenia (PPA), who was the main opposition candidate in the election. Following his defeat by the incumbent President, the PPA candidate challenged the election results in the Constitutional Court, which on 16 April 2003 recommended that a referendum of confidence in the re-elected President be held in Armenia within a year.
6. As the April 2004 one-year deadline approached, the opposition stepped up its campaign to challenge the legitimacy of the re-elected President. At the end of March 2004 two main opposition groups – the Justice Alliance, consisting of nine parties, including the PPA and the National Unity Party – announced their intention to start a series of demonstrations demanding the resignation of the re-elected President.
7. The applicant alleges that from February 2003 until his arrest in April 2004 he was repeatedly harassed because of his political activity. In particular, the police frequently called him to the police station without any reasons and demanded that he stop his political activities and support for the opposition.
8. On 30 March 2004 criminal proceedings no. 62201704 were instituted under Article 301 and 318 § 2 of the Criminal Code (CC) against representatives of the Justice Alliance on account of making calls for a violent overthrow of the government and change of the Armenian constitutional order and of publicly insulting government representatives.
9. On 8 April 2004 the applicant was handing out leaflets to people at a marketplace in Yerevan, inciting them to attend a demonstration to be held in the capital on 9 April 2004. The leaflets had the following content:
“Fellow countrymen
It is not possible any more to continue this way.
On 9 April at 4 p.m. in Freedom Square we will start our struggle which aims to establish a lawful government in Armenia. The future of our homeland depends on the participation of each of us.
National Unity Party Justice Alliance”
10. The applicant was stopped by two police officers, G.D. and G.A., who demanded that he accompany them to a police station. It appears that this happened at around 1 p.m.
11. According to the applicant, they arrived at the police station at around 1.30 p.m. At the police station he was placed in a waiting room with a glass wall next to the corridor, where he spent about ten hours. During this period he noticed several people behind the glass wall pointing at him as if to identify him. He had no access to a lawyer during this period.
12. It appears that at some point the applicant was transferred to a prosecutor’s office where from 8.55 to 9.05 p.m. and from 9.30 to 10.05 p.m. two confrontations were held between him and two witnesses, M.M. and N.S., respectively, who worked at the marketplace. The relevant records stated at the outset that there had been substantial contradictions between the statements of these witnesses and the applicant, who at this stage was also involved as a witness.
13. Witness M.M. stated during the confrontation that earlier that day, at around 2 p.m., he had noticed the applicant handing out leaflets and saying something to people at the marketplace. Then the applicant had approached him and given him a leaflet, saying that “the day after it would be the end of the government and the government would be changed and that they would put an end to the government and sort them out”.
14. Witness N.S. stated that the applicant had approached him at around 1 p.m. and given him a leaflet, saying that he should “come to the demonstration where they would crush and overcome”, after which the applicant left.
15. The applicant denied having handed out any leaflets or made any such statements.
16. At 10.30 p.m. an arrest record was drawn up which noted that eye-witnesses had stated that the applicant had handed out leaflets and made calls for a violent overthrow of the government. The applicant again denied these allegations.
17. On the same date the Kentron and Nork-Marash District Court of Yerevan granted the investigator’s motion to have the applicant’s flat searched. This decision stated that there were sufficient grounds to believe that written calls, leaflets, plans and projects to overthrow the government and change the constitutional order violently and to insult representatives of the government publicly, as well as firearms, ammunition and other objects and documents relevant to the case, could be found in the applicant’s flat.
18. On 9 April 2004 the investigator invited a legal aid lawyer, H.I., to represent the applicant’s interests. According to the relevant record, the applicant agreed that his interests be represented by lawyer H.I.
19. On the same date from 10.30 to 11.10 a.m. the applicant’s flat was searched in the presence of two attesting witnesses but no items were found.
20. From 1.05 to 2.25 p.m. the applicant was questioned as a suspect in the presence of lawyer H.I. The applicant again denied all the allegations.
21. On 10 April 2004 the applicant was formally charged within the scope of criminal proceedings no. 62201704 under Article 301 of the CC. This decision stated:
“...[the applicant], having received from [the district office] of the National Unity Party leaflets concerning the demonstration to be held on 9 April 2004 at 4 p.m. on Freedom Square with the aim of “establishing a lawful government in Armenia”, distributed these leaflets to citizens and made calls to overthrow the government and change the constitutional order violently.
On 8 April 2004 at around 1 p.m. [the applicant] was caught by police officers while he was handing out the leaflets and a total of 24 leaflets were confiscated from him.
Thus, [the applicant] has made calls to overthrow the government and change the constitutional order violently, namely he has committed an offence envisaged under Article 301 of the [CC].”
22. The applicant and his lawyer signed this decision which, inter alia, stated that the nature of the charge had been explained to the applicant. The applicant once again gave his consent to be represented by lawyer H.I. He was then questioned as an accused in the presence of his lawyer. The applicant submitted that the nature of the charge was clear to him but denied having distributed leaflets or made any calls at the marketplace.
23. On the same date the Kentron and Nork-Marash District Court of Yerevan granted the investigator’s motion, dated 6 April 2004, to have the applicant detained.
24. On 21 April 2004 a confrontation was held between the applicant and another witness, V.Z., who apparently also worked at the marketplace. He identified the applicant as the person who had approached him on 8 April 2004, handed him a leaflet and told him to attend a demonstration on the following day during which a struggle to change the government would begin and that the authorities were unlawful and had to be changed. The applicant again denied having distributed leaflets or made any calls and submitted that witness V.Z. had been forced by the police to make false submissions. This confrontation was held in the presence of lawyer H.I.
25. On 6 May 2004 another confrontation was held between the applicant and arresting police officer G.D. who submitted that on 8 April 2004 at around 12 noon, having noticed that the applicant was distributing leaflets at the marketplace, they had approached him and asked to have a look at the leaflets. Having read what the leaflets said, they asked the applicant to come with them to the police station for clarification. The applicant denied these allegations. This confrontation was held in the presence of lawyer H.I.
26. On 7 May 2004 another confrontation was held between the applicant and the second arresting police officer, G.A., who made submissions similar to those made by police officer G.D. The applicant submitted in reply that police officer G.A.’s statement was true and that he had not told the entire truth in his previous submissions. The applicant admitted that he had distributed the leaflets at the marketplace but denied having said anything or made any calls for a violent overthrow of the government. He submitted that he regretted his actions and requested to be released from detention. This confrontation was held in the presence of lawyer H.I.
27. On the same day the applicant was again questioned as an accused in the presence of lawyer H.I., during which he made similar submissions and pleaded partly guilty.
28. Later that day lawyer H.I. filed a motion with the General Prosecutor’s Office, seeking to have the applicant released from detention. He submitted that the applicant was known to be of good character, had a permanent place of residence, was a pensioner and would not abscond or obstruct the proceedings if freed. Furthermore, he had no criminal record, had pleaded guilty and regretted his actions.
29. It appears that on unspecified dates two other witnesses, O.V. and S.K., were also questioned in connection with the applicant’s case. Witness O.V. stated that a tall person had been distributing leaflets at the marketplace on 8 April 2004. When handing him a leaflet, he said that a struggle aimed at establishing a lawful government in Armenia would begin at the demonstration of 9 April 2004. He further incited everybody to participate in the struggle, topple the government and make a coup. Witness S.K. stated that a tall elderly person had handed him a leaflet at the marketplace on 8 April 2004 and incited him to join the struggle, eliminate the current government, topple them by force and establish a new order.
30. The applicant alleged, which the Government did not dispute, that throughout the entire investigation his lawyer had never met or spoken with him in private, while in detention, to provide legal advice. Furthermore, the lawyer even failed to satisfy his request to be provided with a copy of the Code of Criminal Procedure.
31. On an unspecified date the applicant’s case was brought before the Avan and Nor Nork District Court of Yerevan which started its examination on 31 May 2004. The applicant submitted before the District Court that he wished to be represented by lawyer H.I.
32. The examining judge noted at the outset that the witnesses had been duly notified but had failed to appear and inquired about the opinion of the parties. The prosecutor submitted that they had to be compelled to appear. The lawyer made a similar submission on the ground that it was impossible to examine the case without the witnesses. The judge agreed and adjourned the hearing until 2 June 2004.
33. At the hearing of 2 June 2004 four witnesses appeared, witnesses N.S. and M.M. and police officers G.D. and G.A..
34. Witness N.S. admitted that he was seeing the applicant for the second time, the first time being on 8 April 2004 at the prosecutor’s office. He further submitted that about a month before he was at work at the marketplace when somebody had approached and given him a leaflet, adding that “tomorrow at 1 p.m. there would be a demonstration on Freedom Square”. The person handing out the leaflets was tall and had grey hair. He gave the leaflet and said “come at this hour, we will crush, shatter and conquer”. Witness N.S. submitted that he had understood from these statements that the demonstrators wanted to change the government. In reply to the applicant’s lawyer’s questions, witness N.S. submitted that he was not familiar with that person and he could not say for sure if it was the applicant who had given the leaflet and made the statements. He was sure though that he had seen the applicant at the prosecutor’s office. Witness N.S. explained that he had stated at the prosecutor’s office that he had not seen who was distributing the leaflets, to which they replied that it had been the applicant. In reply to the judge’s question as to why he had stated unequivocally during the investigation that it was the applicant who had distributed the leaflets and made the above statements, witness N.S. submitted that he had said so because he had been told at the prosecutor’s office that it was the applicant who was distributing leaflets in the area of the marketplace. He further submitted that he could not remember who it was, but people around him said that it was the applicant, so he said the same.
35. Witness M.M. submitted that at some point in May he was at the marketplace when the applicant, who was distributing leaflets, approached him and invited him to a demonstration in order to “turn over” the government. The applicant then left. Witness M.M. further confirmed his pre-trial statement and asked to rely on it. He also confirmed that the person distributing the leaflets, like the applicant, had grey hair and a white shirt and was tall.
36. Police officer G.D. submitted that he was on duty at the marketplace with police officer G.A. where they noticed a person who was handing out leaflets. They approached him and brought to the police station, where he was identified as the applicant. They could not hear what he was saying to the vendors. In reply to the applicant’s lawyer’s questions, police officer G.D. said that he personally did not hear any calls from the applicant. Nor did any of the vendors tell him that the applicant had made calls.
37. Police officer G.A. made similar submissions.
38. The examining judge then announced that he had received an official letter from the police stating that witness S.K. had not been found at his place of residence, that witness O.V. was absent from his place of residence and lived elsewhere, and that the court’s decision ordering the appearance of these witnesses, in its part concerning witness V.Z., had not been executed for reasons not communicated to the court. The prosecutor requested that the pre-trial statements of these witnesses be read out. The applicant and his lawyer consented, after which the statements were read out.
39. The applicant was then examined, during which he admitted that he had distributed leaflets but denied having made any calls for a violent overthrow of the government.
40. Thereafter the trial entered its final stage of pleadings. The prosecutor made a speech, followed by the applicant’s lawyer and the applicant himself. The lawyer, in particular, made the following speech: “I find that the defendant must be acquitted”.
41. On the same date the District Court found the applicant guilty as charged and imposed a one year suspended sentence, ordering at the same time the applicant’s release from detention under a written undertaking not to leave his place of residence. The District Court found, in particular, that:
“On 8 April 2004 [the applicant] received leaflets from the Avan and Nor Nork district office of National Unity Party concerning a rally to be held on 9 April 2004 at 4 p.m. on Freedom Square, distributed them to persons working and involved in trade in the area of the seventh market situated in [Nork] and made public calls inciting to a violent overthrow of the government and the constitutional order. In particular, when handing out leaflets to [N.S., M.M., V.Z., O.V. and S.K.], he incited them to participate in the rally telling them ‘You must come by all means, we will crush, overcome, put an end to the government and sort them out, we will make a coup, we will violently overthrow the current government and establish a new order’”
42. In support of its findings the District Court relied on the statements of witnesses N.S., M.M., V.Z., O.V. and S.K. As regards, in particular, the statements made by witness N.S. in court, the District Court dismissed them as unreliable and admitted his statements made during the confrontation of 8 April 2004. The District Court justified this decision by the fact that the statements made by witness N.S. during the confrontation had been unequivocal. Thus, according to the entirety of the witness statements relied on by the District Court, the applicant had made the following calls while handing out the leaflets and inciting people to attend the demonstration: “we will crush and overcome” (witness N.S.), “the government will be changed and we will put an end to the government and sort them out” (witness M.M.), “a struggle will start at the demonstration aimed at changing the government and establishing a lawful one”, “the current government will be overthrown and a new one will be established”, “the current government is unlawful and has to be changed” (witness V.Z.), “the government has to be overthrown and a coup has to be made” (witness O.V.) and “the current government has to be eliminated and violently overthrown and a new order has to be established” (witness S.K.).
43. On 14 June 2004 the applicant lodged an appeal, which he apparently drafted himself. In his appeal the applicant submitted that during the investigation he had pleaded guilty only to distributing leaflets, which in any event was not an offence, but he had never made any calls for a violent overthrow of the government. He was not a member of any political party, had never participated in demonstrations or had links with the parties organising them. The applicant further complained about the fact that the statements made by witnesses N.S. and M.M. in court, which were favourable for him, had been considered unreliable, while other witnesses, being ashamed of their false statements, had failed to appear in court. He argued that the statements of those witnesses who had not been examined in court should not have served as a basis for his conviction. The applicant lastly stated that the arresting police officers had not heard him make any calls. Thus, he had been convicted on the basis of statements of two or three witnesses who had seen him for the first time at the prosecutor’s office.
44. On 29 June 2004 the proceedings commenced before the Criminal and Military Court of Appeal. The applicant submitted before the Court of Appeal that he wished to be represented by lawyer H.I. and pleaded not guilty. Lawyer H.I. also claimed that the applicant was not guilty and asked the court to acquit him.
45. At the hearing of 30 June 2004, following the applicant’s examination, the presiding judge announced that it was necessary to summon and examine witnesses O.V., V.Z. and S.K. He further stated that he had telephoned all three witnesses on the previous day. O.V.’s wife replied that about a month before he had gone to Russia for work and his whereabouts were unknown. V.Z.’s wife replied that he had gone to another region for work and that she had no further information about him. S.K.’s relatives replied that he had left Armenia for work. The Court of Appeal decided, taking into account that the attendance of the above witnesses was indispensable, that they be compelled to appear. This task was assigned to the local police department. The hearing was adjourned until 6 July 2004.
46. At the hearing of 6 July 2004 the presiding judge announced that, according to the police, the witnesses were absent from their places of residence. The police had promised to provide further information in writing. In reply to the presiding judge’s question, the parties did not object to proceeding with the hearing and requested that measures be taken to ensure the attendance of the witnesses at the next hearing.
47. At the hearing of 7 July 2004 the presiding judge informed the parties that an official letter had been received from the police informing that witnesses O.V., V.Z. and S.K. were absent from their places of residence. While reading out that letter, the presiding judge noticed that the police had visited the wrong address as far as witness V.Z. was concerned. The prosecutor then requested that their statements be read out. Lawyer H.I. submitted that the witnesses in question had made defamatory statements against the applicant during the investigation which lacked credibility and it was therefore necessary to bring them to court with the help of the police. The applicant joined his lawyer’s request and asked that the witnesses in question appear in court and also present their identity documents. The Court of Appeal decided that, since a wrong address had been indicated in the decision ordering V.Z.’s appearance in court, it was necessary to inform the police of the correct address. As regards witnesses O.V. and S.K., the former was in Russia, while the latter was out of town. This was also confirmed by the telephone calls made by the presiding judge. The Court of Appeal found that, in such circumstances, there were no reasons to doubt the veracity of the police information and announced that it would read out and examine the pre-trial statements of those witnesses. The statements would then be analysed in the deliberation room and an assessment would be made as to their credibility, since the evidence examined in court was sufficient to allow such an assessment. The Court of Appeal then proceeded to read out the statements in question. The applicant submitted that their statements did not concern him since there had been many tall, grey-haired men at the marketplace. The investigating authority had never arranged his identification by those witnesses and their statements were therefore false.
48. At the hearing of 12 July 2004 the presiding judge announced that an official letter had been received from the police, according to which witness V.Z. indeed resided at the correct address but nobody answered the door during their visit. The presiding judge announced that, not being satisfied by the information contained in the police letter, he personally called V.Z.’s home and became convinced that nobody was there because nobody answered the telephone. The prosecutor requested that the statement of witness V.Z. be read out in court, while both the applicant and his lawyer submitted that the statement of witness V.Z. lacked credibility and requested that it be disregarded. The court then proceeded to read out the statement.
49. At the same hearing the applicant filed a motion with the Court of Appeal dispensing with the services of lawyer H.I. He submitted that the lawyer had not taken any steps to defend his interests and to prove his innocence. The lawyer had never come to visit him in detention despite the requests he had made to the administration of the detention facility. Furthermore the lawyer, without his knowledge, had filed a motion on 7 May 2004 seeking his release, in which the lawyer stated that he had pleaded guilty despite the fact that he had never pleaded fully guilty, thereby acting to his detriment and assisting the prosecution in substantiating the charge against him. The applicant claimed that he had found out about this motion only during the appeal proceedings. He further claimed in his motion that he had pleaded guilty to distributing leaflets because he was not aware that such act did not constitute an offence. He realised this only following his release from detention because no copy of the Criminal Code had been provided to him by either the investigator or his lawyer while in detention, despite his numerous requests. The applicant lastly claimed that the case against him had been fabricated. He submitted that, while sitting behind a glass wall at the police station, he was shown to some people who later became witnesses and made false statements against him. Some of them he was not able to examine and only two of them appeared in court. One of those two retracted his pre-trial statement, while the second one, because of giving a false statement, was even ashamed to look him in the eyes and was only able to mumble a confirmation of his pretrial statement.
50. The applicant stated at the same time that it was his personal choice to dispense with the services of his lawyer. The Court of Appeal decided to grant the applicant’s motion and to allow him to defend himself in person. The lawyer was then asked to leave the courtroom.
51. On the same date the Criminal and Military Court of Appeal adopted its judgment upholding the applicant’s conviction. In doing so, the Court of Appeal referred to the statements of witnesses N.S., M.M., O.V. and S.K. and of police officers G.D. and G.A. As regards the statement of witness V.Z., the Court of Appeal found that it should not have formed a basis for the applicant’s conviction because that witness had failed to appear in court despite a court order. The Court of Appeal further rejected the applicant’s claim that he had only distributed leaflets but not made any calls for a violent overthrow of the government. In doing so, the Court of Appeal stated that five witnesses had testified that the applicant had made such calls. Furthermore, the police officers had arrested him while he was handing out the leaflets. In the light of the overall sufficiency of evidence, the fact that witnesses O.V. and S.K. had failed to appear in court could not put into doubt the applicant’s involvement in the act and his guilt. The criminal element in his actions lay in the making of calls inciting violent seizure of power and change of the constitutional order. Those calls were public and aimed at a big group of people. Since he made such calls at a marketplace during the daytime, they were audible to the public. The fact that they were perceived as calls inciting to a violent overthrow of the government was confirmed by the witness statements.
52. The Court of Appeal further dismissed the applicant’s complaint about lawyer H.I., stating that the applicant’s right to defence had been ensured by the investigating authority, he had chosen his position regarding the charge against him without any outside pressure and he had not previously made any complaints about the lawyer. Furthermore, the fact that the nature of the charge was clear to the applicant was evident from the records of investigative measures. He had certified this with his signature in the presence of his lawyer.
53. On 14 July 2004 the applicant lodged an appeal on points of law in which he raised arguments concerning the witnesses against him and the alleged failure of lawyer H.I. to provide effective legal assistance, similar to those raised in his complaint of 12 July 2004. He also added that the witness statements against him had been fabricated under police pressure. The witnesses in question were people trying to make a living by working at the market, so if they had refused to follow police orders they would have been immediately expelled from the market.
54. On 6 August 2004 the Court of Cassation dismissed the applicant’s appeal. In doing so, the Court of Cassation found that both witnesses M.M. and N.S. had made statements implicating the applicant. As regards the legal representation, the applicant had agreed that lawyer H.I. defend his interests and the lawyer had properly done so.
55. By a letter of 11 November 2004 the head of staff of the Armenian Bar Association informed the applicant, in reply to his complaint, that lawyer H.I. had lawfully carried out the applicant’s defence and had not done anything illegal. The motion of 7 May 2004 had been filed upon the applicant’s and his relatives’ request.
56. The relevant provisions of the CC provide:
“Public calls inciting to a violent seizure of State power and violent change of the constitutional order of Armenia shall be punishable by a fine of between 300 and 500 times the minimum wage or by detention of between two and three months or by imprisonment for a period not exceeding three years.”
57. The relevant provisions of the Code of Criminal Procedure provide:
“1. A suspect is the person ... who has been arrested on suspicion of having committed an offence...”
“1. The suspect has the right to defence. The investigating authority shall allow the suspect to implement his right to defence by all lawful means.
2. The suspect, in accordance with a procedure prescribed by this Code, has the right ... to have a defence counsel or to dispense with a defence counsel and defend himself in person from the moment when he is presented with the investigating authority’s decision on arrest, the record of arrest or the decision on choosing a preventive measure...”
“3. A witness is obliged ... to appear upon the summons of the authority dealing with the case in order to give testimonies or to participate in investigative and other procedural measures...
4. The failure of a witness to comply with his obligations shall lead to sanctions prescribed by law.”
“1. [A] witness ... may be compelled to appear by a reasoned decision of ... the court if he fails to appear upon summons without valid reasons. [A] witness ... is obliged to inform the summoning authority if there are valid reasons preventing his appearance within the time-limit fixed in the summons.”
“1. The investigator is entitled to carry out a confrontation of two persons who have been questioned previously and whose statements contain substantial contradictions. The investigator is obliged to carry out a confrontation if there are substantial contradictions between the statements of the accused and some other person.
...
5. In cases envisaged by this Code, a defence counsel, an interpreter and the lawful representative of the person being questioned can participate in the confrontation and shall also sign the record.”
“1. If any of the witnesses ...
“1. Reading out at the trial of witness statements made during the inquiry, the investigation or a previous court hearing ... is permissible if the witness is absent from the court hearing for reasons which rule out the possibility of his appearance in court, if there is substantial contradiction between those statements and the statements made by that witness in court, and in other cases prescribed by this Code.”
“1. Only final acts are subject to review on the ground of newly discovered or new circumstances.
2. On the ground of newly discovered or new circumstances a judicial act of the court of first instance shall be review by the appeal court, while the judicial acts of the appeal court and the Court of Cassation shall be reviewed by the Court of Cassation.”
“1. Judicial acts may be reviewed on the ground of new circumstances [if] ... a violation of a right guaranteed by an international convention to which Armenia is a party has been found by a final judgment or decision of an international court...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-78524
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF POPOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 4;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1946 and resides in the town of Zhovti Vody, Dnipropetrovsk region, Ukraine.
5. On an unspecified date the applicant instituted proceedings in the Zhovtovodskyy Town Court of Dnipropetrovsk Region against his employer, a State-owned company, the Zhovti Vody Construction Department (Жовтоводське управління будівництва), in order to receive salary arrears and other payments.
6. On 21 December 2000 the court found for the applicant and awarded him 5,329.30 Ukrainian hryvnias (“UAH”) (Рішення Жовтоводського міського суду).
7. On 19 January 2001 the Zhovti Vody Town Bailiffs' Service (Відділ Державної виконавчої служби Жовтоводського міського управління юстиції) initiated the enforcement proceedings.
8. On an unspecified date the applicant instituted new proceedings in the same court against the same enterprise for further payments and compensation.
9. On 20 February 2002 the court found for the applicant and awarded him UAH 2,093.49.
10. The applicant received UAH 650, but, according to him, the rest of the awards remain unpaid.
11. By letter of 4 April 2003, the Bailiffs' Service informed the applicant that the enforcement proceedings had been stayed because of the bankruptcy proceedings initiated against the debtor by a decision of 27 December 2001 of the Commercial Court of the Dnipropetrovsk Region. The Bailiffs' Service also stated that, according to the Law on the Introduction of a Moratorium on the Forced Sale of Property, on 26 December 2001 a ban on the forced sale of assets belonging to undertakings in which the State holds at least 25% of the share capital had been introduced.
12. By the decree of 5 October 2004 the Ministry of Fuel and Energy of Ukraine liquidated the debtor company.
13. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1