ITEMID: 001-59873
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF LAUMONT v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 5-1
JUDGES: Christos Rozakis
TEXT: 8. On 12 November 1994 four armed robbers wearing masks entered the premises of a transport company which employed a number of inmates from Poissy Prison who were in semi-detention or on external work assignments. After locking the entire staff in the lavatories, they forced the company manager, whom they had taken hostage, to open the safe, from which they stole 120,000 French francs (FRF) in cash before making off.
The investigators concentrated their inquiries on some of the prison inmates. One of them, G.D., had witnessed the offences and been threatened by the robbers.
9. On 13 January 1995 the managing director of the company had a cheque stolen. The home of one of the company’s employees, E.M., was searched and a forged identity card bearing the applicant’s photo was discovered, together with a sawn-off shotgun. The employee admitted that he had provided the applicant with information to help him commit the armed robbery in return for the sum of FRF 10,000. He also stated that he had recognised the applicant while the offence was being committed despite the mask he had been wearing and that the applicant was the robber who had been carrying the sawn-off shotgun.
10. On 19 January 1995 the investigating judge at the Versailles tribunal de grande instance decided to have the applicant detained pending trial and issued a warrant of commitment for armed robbery, false imprisonment, and wounding with intent and wilful violence resulting in total unfitness for work for less than eight days.
11. On 18 January 1996 the investigating judge made an order extending detention for four months from 19 January 1996.
12. The applicant’s detention was twice extended for a further four months, on 14 May 1996 from 19 May onwards and on 13 September 1996 from 19 September onwards.
13. On 30 September 1996 the investigating judge substituted for the charge of false imprisonment with voluntary release (an intermediate offence (délit)) the more serious one of false imprisonment (crime) and made a partial discharge order. In accordance with Article 181 of the Code of Criminal Procedure, he ordered that the file be transferred to the public prosecutor’s office at the Versailles Court of Appeal with a view to the Indictment Division indicting the applicant and committing him for trial at the Assize Court. That order was served on the applicant on 3 October 1996.
14. In a judgment of 27 November 1996 the Indictment Division of the Versailles Court of Appeal ordered further investigations to be made and appointed for that purpose the investigating judge at the Versailles tribunal de grande instance who had previously been in charge of the investigation.
15. On 20 January 1997 the applicant requested that a bailiff be called on to record officially that his detention had become unlawful as the last order extending it, dated 13 September 1996 and effective from midnight on 19 September 1996 for a period of four months, had expired at midnight on 19 January 1997.
16. In a formal demand for information (sommation interpellative) addressed to the governor of Fresnes Prison the bailiff asked to be sent the detention order by virtue of which the applicant was still being held in his prison. In reply he was told that the applicant was being detained under the transfer order of 30 September 1996 and the Versailles Court of Appeal’s judgment of 27 November 1996.
17. The applicant stated that he had lodged a complaint with the Créteil public prosecutor alleging arbitrary detention but had received no reply.
18. On 9 April 1997 the applicant made an application to the Indictment Division for his immediate release on the ground that he was being detained arbitrarily as the judge’s initial warrant of commitment had ceased to have any effect on 19 January 1997.
19. In a judgment of 25 April 1997 the Indictment Division dismissed that application for the following reason:
“It is not disputed that the judgment of 27 November 1996 was delivered within the time laid down by the last paragraph of Article 214 of the Code of Criminal Procedure. Consequently, since the Indictment Division did not rule on the facts being investigated, the warrant of commitment issued by the investigating judge continued to have effect.
…”
20. In the same judgment the Indictment Division ordered that the applicant should be kept in custody to avoid all risk of pressure being brought to bear on witnesses or collusion and because he could not provide sufficient sureties that he would appear for trial.
21. The applicant appealed on points of law, relying on grounds of appeal based, firstly, on an infringement of Article 725 of the Code of Criminal Procedure and, secondly, on a breach of Articles 201 and 214 of the Code of Criminal Procedure and Article 5 of the Convention.
22. In a judgment of 19 August 1997 the Court of Cassation dismissed the appeal on the following grounds:
“It appears from the impugned judgment and the documents on the file that on 19 January 1995 a warrant of commitment was issued in respect of [the applicant], who was under investigation for offences including armed robbery. On expiry of its validity a year later, the investigating judge extended the detention three times for four months, the final extension taking effect on 19 September 1996.
On 27 November 1996, following the investigating judge’s transfer order of 30 September 1996, the Indictment Division ordered further investigations.
[The applicant] made an application to the Indictment Division for his release, alleging that the detention order had ceased to be valid on 19 January 1997 and that he had been unlawfully detained since that date; that application was refused in the judgment now appealed against.
In so ruling, the investigating court did not lay itself open to the objections raised. Since the judges ordered further investigations within the time allowed by Article 214, third paragraph, of the Code of Criminal Procedure, the initial warrant of commitment remained effective, in accordance with Article 181, second paragraph, of the Code, after the transfer order was issued and so remains until a decision on indictment is taken …”
23. On 10 September 1997, after completion of the further investigations, the Indictment Division directed that the applicant be committed for trial at the Yvelines Assize Court charged with armed robbery, false imprisonment and other connected lesser offences. The judgment committing the applicant for trial at the Assize Court also contained an order for him to be remanded in custody. An appeal on points of law by the applicant against that judgment was dismissed by the Court of Cassation on 18 December 1997.
24. On 9 and 10 June 1998 the applicant was tried at the Versailles Assize Court, which sentenced him to ten years’ imprisonment. In a judgment delivered on the same day on the civil claims the applicant was ordered to pay the civil party FRF 50,000 in damages.
25. In a judgment of 3 March 1999 the Court of Cassation dismissed appeals on points of law by the applicant against the Assize Court’s judgments.
26. The relevant provisions of the Code of Criminal Procedure, as worded before the passing of the Law of 15 June 2000 reinforcing the presumption of innocence and the rights of victims, provide as follows:
“The investigating judge may issue … a … warrant of commitment ...
The warrant of commitment is the order given by an investigating judge to a prison governor to admit the person and take him into custody …”
“The investigating judge may issue a warrant of commitment only after examining the person concerned and if the penalty is imprisonment for an intermediate offence [peine d’emprisonnement correctionnelle] or for a more serious offence.
In cases involving serious offences [matière criminelle] or intermediate offences [matière correctionnelle], warrants of commitment may only be issued pursuant to the order provided for in Article 145 …”
“Whatever the classification of the offence, any decision to detain pending trial must be embodied in an order setting out the legal and factual reasons for the decision with reference solely to the provisions of Article 144.
The person concerned shall be informed orally of the order and be given a complete copy of it …
However, the investigating judge may not order the immediate detention of the accused if he or his lawyer requests time for the preparation of his defence.
In that case the investigating judge may, in an order that is reasoned with reference to the provisions of the preceding paragraph and against which no appeal shall lie, direct that the person be taken into custody for a fixed period, which may in no case exceed four working days.
Within that period he shall again have the person brought before him … If he does not order detention of the person pending trial, the latter shall automatically be released …”
“In cases involving serious offences [matière criminelle] an accused cannot be held in detention for more than one year. However, subject to the provisions of Article 1453, the investigating judge may, at the end of that period, decide to prolong detention for a period not exceeding six months by means of a decision made in accordance with the provisions of the first and fourth paragraphs of Article 145, his lawyer having been summoned in accordance with the provisions of the second paragraph of Article 114. That decision shall be renewable by means of the same procedure.
The provisions of this Article shall apply until the disposal order is made.”
“An application for release may … be made by any accused for any reason and at any stage in the proceedings.
Where application is made to a court of trial or appeal, it shall be for the latter to grant conditional release; before committal for trial at the Assize Court, and in between Assize Court sessions, that power belongs to the Indictment Division …”
“If the investigating judge considers that the facts amount to an offence classified in law as a serious offence [crime], he shall order that the case file and a list of the exhibits be sent immediately by the public prosecutor to the Principal Public Prosecutor at the Court of Appeal with a view to proceeding as set out in the chapter on the Indictment Division.
Warrants for the arrest or commitment of an accused shall remain in force until the Indictment Division has given its ruling.”
“The Indictment Division may in all cases, at the request of the Principal Public Prosecutor, of one of the parties or even of its own motion, order any additional investigative measure which it considers useful.
It may also in all cases order the release of the accused of its own motion after hearing the prosecutor.”
“If the offences with which the accused are charged are classified in law as a serious offence [crime], the Indictment Division shall commit the accused for trial at the Assize Court.
It may also refer connected offences to that court.
The Indictment Division shall give its ruling within two months of the date of the transfer order, failing which the accused shall automatically be released.”
“Persons ordered to be detained pending trial or sentenced to imprisonment shall be admitted to a prison.
A memorandum of imprisonment shall be drawn up for any person who is taken to a prison or reports to a prison of his own accord.”
“Members of the prison service shall not, on pain of prosecution and punishment for arbitrary detention, admit or detain any person except in pursuance of a judgment imposing a prison sentence, an arrest and detention order made by the Indictment Division [ordonnnance de prise de corps], a warrant of commitment or arrest [mandat de dépôt ou d’arrêt], a warrant for the suspect to be brought before the investigating judge [mandat d’amener] wherever such a warrant is to be followed immediately by a period of interim detention, or an arrest order drawn up in accordance with the law, or without issuing the memorandum of imprisonment required by Article 724.”
27. The relevant case-law on some of the aforementioned Articles is as follows:
“Since the second paragraph of Article 201 entitles the Indictment Division to order the release of the accused of its own motion regardless of the circumstances in which the matter was referred to it, the accused must be released if he is being held by virtue of a non-existent order. Such is the case when an order extending a period of pre-trial detention, although not appealed against, was issued out of time.”
(Cass. Crim., 4 January 1983, Dalloz 1983, p. 562, note by Royer; JCP 1984. II. 20203, note by Chambon; Bull. crim. no. 3 [;and] Cass. Crim., 10 May 1985: Bull. crim. no. 168)
“By Article 214, third paragraph, the Indictment Division must give its ruling within two months of the date of the transfer order, failing which the accused must automatically be released. The requirements of that provision are satisfied by a judgment in which further investigations are ordered within that time-limit.”
(Cass. Crim., 30 June 1981: Bull. crim. no. 221)
“In that case, it is not necessary to give any decision on pre-trial detention.”
(Cass. Crim., 18 June 1985: Bull. crim. no. 232; Cass. Crim., 17 July 1990: Bull. crim. no. 286)
“By Article 181, the initial detention order automatically remains in force from the point at which the order to transfer the case is made until the Indictment Division gives its decision …”
(Cass. Crim., 4 March 1992: Bull. crim. no. 62)
“Whenever the Indictment Division has ruled within the time laid down by Article 214, third paragraph, even if only for the purpose of ordering further investigations, the initial warrant of commitment remains in force until the accused is indicted as prescribed by Article 181, second paragraph.”
(Cass. Crim., 10 February 1999: Bull. crim. no. 16)
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-5473
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: ILIĆ v. CROATIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Yugoslav citizen, born in 1941 and living in Aschaffenburg (Germany). She is represented before the Court by Ms Irmgard Möbus-Hohl, a lawyer practising in Föhren.
A.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 24 July 1987 the applicant, who had been living and working in the Federal Republic of Germany, bought a house in Sumpetar (Omiš), Croatia. At that time Croatia was one of the republics of the Socialist Federal Republic of Yugoslavia (SFRY) and the applicant, as a citizen of that state, was legally entitled to buy property without restrictions in the whole territory of Yugoslavia. Although she lived in the Federal Republic of Germany, the applicant encountered no obstacles whatsoever to enter Croatia and use her property there.
After the dissolution of Yugoslavia in 1991, the situation changed significantly for the applicant. As a citizen of Yugoslavia she is now a foreign citizen in Croatia and her entry and stay in the territory of Croatia are subject to some restrictions.
On 24 June 1992 the applicant requested and on 29 June 1992 obtained a permission for an extended stay in Croatia until 29 June 1993 from the Split Police Department.
Subsequently the applicant left Croatia and returned to Germany. In her absence the house was burgled and partly demolished.
On 29 January 1996 the applicant lodged a request for permanent residence in Croatia with the General Consulate of Croatia in Frankfurt, Germany. As by that time she had retired, she planned to live permanently in her house in Croatia. On 31 October 1996 the Croatian Ministry of Interior refused her request.
On 10 January 1997 the applicant instituted administrative proceedings with the Administrative Court, contesting the decision of the Ministry of Interior. On 25 September 1998 that court ruled against the applicant.
On 13 January 1999 the applicant lodged a constitutional complaint arguing that her right to property was violated as she was denied by the Croatian authorities access to her property in Croatia.
On 17 November 1999 the Constitutional Court rejected her complaint. It found that, although the applicant was the owner of a house in Croatia and despite the fact that she was in bad health, that she was single and with a residence in the Federal Republic of Germany where she had sufficient means for living, she did not satisfy conditions for a permanent residence in Croatia as set out in the Movement and Stay of Aliens Act (Zakon o kretanju i boravku stranaca).
B. Relevant domestic law
Movement and Stay of Aliens Act (1991)
Article 2
“A foreigner may enter the Republic of Croatia and stay in its territory if he is the holder of a valid passport issued according to the relevant legal provisions of a foreign state or of a valid travel document for foreign citizens issued by the State authority competent for issuing such documents. Such a passport or travel document should contain a visa, save where this Act provides otherwise.”
Article 14
“A visa is given to a foreign citizen for entering, leaving or passing through the territory of the Republic of Croatia.”
“The Government of the Republic of Croatia may decide that citizens of certain countries do not need visas to enter, leave or pass through the territory of the Republic of Croatia.”
“Visas may be issued for one entry or for an unlimited number of entries.”
“Visas shall be issued for a period of one year or until the expiration of a foreign passport, if that date falls within one year from the date of issue of visa.”
...
Article 22
“Stay of a foreign citizen in Croatia shall include: temporary stay, extended stay, stay with a business visa, stay on the basis of authorised permanent residence and stay on the basis of recognised refugee status.”
Article 23
“Under this Act as temporary stay is considered stay by a foreign citizen who is the holder of a transit visa, an entry visa for a tourist or business visit, or a border pass.
A foreign citizen who is the holder of a transit visa may stay in Croatia until the expiration date of such visa, but no longer than seven days after his entry into the Republic of Croatia.
A foreign citizen who is the holder of a visa for a tourist or business visit may stay in Croatia until the expiration date of such visa, but no longer than three months after his entry into the Republic of Croatia.
A border pass should expire after three months.”
...
Article 24
“A foreign citizen who wishes to stay in Croatia for more than three months, and who has entered the Republic of Croatia for the purposes of education, specialisation, scientific research, employment, carrying on a specific occupation, medical treatment or tourism, or who entered a marriage with a Croatian citizen or for another justified reason, is obliged to lodge a request for extended stay before expiration of the initial period of three months.
Permission for extended stay may be granted only for the purpose for which the initial visa was granted.”
Article 26
“Permission for extended stay may be prolonged...
A request for prolongation of the permission for extended stay shall be lodged before the expiration of the previous permission.”
Article 29
“The right of permanent residence may be granted to a foreign citizen who has been married, for at least one year, to a Croatian citizen or to another foreign citizen to whom the right of permanent residence has already been granted. It also may be granted to a foreign citizen who has been constantly employed for three years.
Exceptionally, the right of permanent residence may be granted to other foreign citizens for special personal reasons. It may also be granted if there is a business reason that serves an economic or other important interest of the Republic of Croatia.”
...
Article 30
“A foreign citizen who lodges a request for permanent residence must submit evidence that he has obtained a place to live and that he is gainfully employed or has another source of income.”


ITEMID: 001-57494
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1986
DOCNAME: CASE OF GLASENAPP v. GERMANY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (incompatibility);Preliminary objection rejected (non-exhaustion);No violation of Art. 10
JUDGES: C. Russo
TEXT: 12. Mrs. Julia Glasenapp, who is a German national born in 1947, lives in Cologne. After studying at the Berlin Academy of Fine Art for six years, she there sat her first State examination to become a secondary-school teacher in July 1972 (Erste Staatsprüfung für das Amt des Studienrats).
In September 1972, she applied to the Land of North Rhine-Westphalia to be admitted to do her teaching practice (Vorbereitungsdienst für das Lehramt). The appropriate authority (Schulkollegium) in the office of the Regierungspräsident (Chief Administrative Officer) in Münster appointed her as a trainee teacher (Studienreferendarin) with effect from 1 December 1972. This gave her the status of temporary civil servant (Beamter auf Widerruf) in the Land education service.
On making her application she had signed the following statement:
"I am aware that an appointment to a post in the civil service must be annulled if it is brought about by ‘wilful deceit’ (arglistige Täuschung). I am aware that it is taken for granted (als selbstverständlich vorausgesetzt) that candidates for civil-service posts shall not belong or give assistance to any organisation whose activities are directed against the constitutional order or tend to disrupt or imperil the free democratic constitutional system (freiheitliche demokratische Grundordnung), and I am aware that, if any of the activities mentioned ... is not disclosed, the appointment must be regarded as having been brought about by ‘wilful deceit’."
13. In accordance with her wishes, she was appointed to the Goethe High School (Gymnasium) in Dortmund where she completed her training on 31 July 1974. She had passed her second State examination on 24 May and thus had become qualified to teach art and handicrafts (Kunsterziehung und Werken).
14. On 7 May 1974, Mrs. Glasenapp had applied to the appropriate authority in Münster for appointment as a secondary-school teacher (Studienrätin zur Anstellung), with the status of probationary civil servant (Beamtenverhältnis auf Probe), as soon as her teaching practice was over. When making her application she had signed the following declaration:
"On the basis of the briefing I have been given (Belehrung) I hereby expressly declare that I accept the principles of the free democratic constitutional system within the meaning of the Basic Law and that I am prepared at all times and by my every word and deed to bear witness to (bekennen) and to uphold <this> system.
I expressly state that I do not support any action (Bestrebungen) directed against <this> system ... or any of its fundamental principles, and in particular that I am not a member of an organisation actively opposed to those principles.
I am aware that any breach of these duties of service and loyalty (Dienst- und Treuepflichten) would lead to my dismissal (Entfernung aus dem Dienst)."
The information preceding the declaration on the signed form explained, among other things, the meaning of the expression "free democratic constitutional system" as defined by the Federal Constitutional Court (Bundesverfassungsgericht) in its judgments of 23 October 1952 and 17 August 1956. On this point the document stated:
"The fundamental principles of this system include:
respect for human rights as defined in the Basic Law, in particular the right to life and free development of the personality;
the sovereignty of the people, the separation of powers, the Government’s responsibility to Parliament;
the principle that administrative acts are governed by the rule of law, the independence of the courts, the plurality of political parties;
equal opportunity for all political parties;
the right to found an opposition and to contend with those in power, in accordance with the Constitution."
The form added that it was incompatible with the duties of public servants (Angehörige des öffentlichen Dienstes) to take part in any actions directed against these principles, whether as members of an organisation or otherwise. The next two passages read as follows:
"Candidates for civil-service posts may not be appointed if they support activities inimical to the Constitution (verfassungs- feindlich). Disciplinary proceedings for dismissal will be brought against civil servants guilty of such a breach of duty."
15. The legal basis of the declaration signed by the applicant was the North Rhine-Westphalia Civil Servants Act in its version of 6 May 1970. Section 6(1)(2) provides that in order to be appointed a civil servant a candidate must give the guarantee that at all times he or she will uphold the free democratic constitutional system within the meaning of the Basic Law. By virtue of section 55(2), a civil servant must undertake to bear witness to and to uphold this system by his every word and deed.
The wording of the declaration - which the relevant Land authorities required every candidate for a post in the civil service to make - corresponded to the directives that the Minister of the Interior in Düsseldorf had drawn up on 21 November 1972 for the implementation of the decree on the employment of extremists in the civil service ("Ministerpräsidenten-Beschluss"); these directives were later amended, on 28 April 1976 and 28 January 1980.
The decree on the employment of extremists had been adopted on 28 January 1972 by the Federal Chancellor and the Prime Ministers of the Länder to ensure uniformity of administrative practice in the matter; it reiterates civil servants’ legal duty of loyalty to the free democratic constitutional system and in paragraph 2 provides (Official Gazette - Ministerialblatt - of the Land of North Rhine-Westphalia, 1972, p. 342):
"2. Every case must be examined and decided according to its particular circumstances. Regard must be had in the process to the following principles:
2.1. Candidates
2.1.1. A candidate who engages in activities inimical to the Constitution shall not be appointed to the civil service.
2.1.2. If a candidate belongs to an organisation engaging in activities inimical to the Constitution, this fact shall cast doubt on whether he is prepared at all times to uphold the free democratic constitutional system. As a rule this doubt shall be sufficient reason for not appointing him.
2.2. Civil servants
If a civil servant <fails to comply with his duty of loyalty to the Constitution> the appointing authority shall draw the necessary conclusions on the basis of the particular facts established in his case and consider whether grounds exist for dismissing him from the service (Entfernung aus dem Dienst)."
German civil servants’ special duty of loyalty to the State and its Constitution has been confirmed and clarified by the Federal Constitutional Court, in particular in a judgment on 22 May 1975 (Entscheidungen des Bundesverfassungsgerichts, vol. 39, pp. 334-391).
16. In accordance with the directives of 21 November 1972, the appropriate authority in Münster asked the Land Minister of the Interior on 11 June 1974 for information about possible extremist activities of Mrs. Glasenapp.
On 3 September, the Ministry replied as follows:
"From 1970 to 1972, G lived in Berlin in a commune (Kommune) to which members of Maoist Communist organisations belonged.
At least four members of the Anti-Imperialist League were living in this commune at the time.
The League is a Maoist Communist organisation close to the KPD (German Communist Party). The telephone number of one of the other members of the commune was the ‘contact phone’ for the Zentrale der Westberliner Oberschüler (Centre for West Berlin High School Pupils), a Communist organisation run by the Communist Students’ Association (KSV).
Mrs. Glasenapp did not attract attention by activities of her own."
17. A copy of this letter was handed to Mrs. Glasenapp on 19 September 1974 during an interview to which she had been called by the relevant Land authority to discuss the possibility of her appointment as a secondary-school teacher. She stated that she would reply in writing after consulting her lawyer.
The latter indicated Mrs. Glasenapp’s position in a letter of 20 September. In his opinion, the Ministry of the Interior obviously did not know of any circumstances which made Mrs. Glasenapp’s attitude towards the free democratic system clear. In her application for appointment she had declared that she was prepared at all times to uphold this system. She was very anxious to point out that she had not lived in a commune in Berlin; between 1970 and 1972 she had lived in a house in which she occupied one of thirteen rooms as a sub-tenant. Her lawyer added that it scarcely accorded with the principles of a State based on the rule of law to use information relating to third persons who had lived in the same building to the detriment of his client. He called on the authority concerned to take a decision within a week, failing which he would take the matter to court.
18. On the same day, the applicant invited representatives of the Dortmund daily newspapers to attend a press conference on 24 September 1974; she wanted to publicise the delay in appointing her and the fact that it was due to doubts not connected directly with her activities but with the place where she had lived. According to her lawyer, the press conference was intended to promote Mrs. Glasenapp’s case (Nachdruck verleihen) by putting the matter before a large section of the public and showing how the decree on the employment of extremists in the civil service was being applied.
19. On 23 September 1974, the relevant authority received the written observations of Mrs. Glasenapp’s lawyer. It considered that any doubts about her had been cleared up, and it accordingly decided to appoint her as a secondary-school teacher with the status of probationary civil servant at the Städtisches Aufbaugymnasium (High School) in Dortmund-Brünninghausen. She was immediately notified of this decision.
The very next day, Mrs. Glasenapp took up her duties and was handed her letter of appointment (Ernennungsurkunde).
20. Still on 24 September 1974, the applicant distributed in the school copies of a "personal statement" and of the Minister of the Interior’s letter of 3 September (see paragraph 16 above); during the morning break she discussed with pupils outside the school the decree on the employment of extremists (see paragraph 15 above). Then, accompanied by her lawyer, she held the press conference she had arranged (see paragraph 18 above).
21. The next day, the Westfälische Rundschau, one of the daily newspapers which reported the press conference, published an article which included the following passage:
"The art teacher (Kunsterzieherin), who left no doubt that she was neither a member of the KPD nor a Communist sympathiser, added, ‘This clearly demonstrates the need for individual political vigilance to counter the erosion of fundamental democratic rights’."
The first part of this sentence prompted Mrs. Glasenapp to write to the paper. As it did not publish her letter she communicated the text to the Teachers’ and Research Workers’ Trade Union (Gewerkschaft für Erziehung und Wissenschaft) and to a number of organisations interested in "the rules prohibiting appointments" ("Berufsverbote"). The letter was published on 2 October by the journal of the KPD, the Rote Fahne, at the end of a short article. It read as follows:
"With reference to the article ‘Living under one roof with Communists’ published in the Westfälische Rundschau of 25 September 1974, your sub-editor Hans Leyendecker is using the delay in my appointment as a secondary-school teacher (Studienrätin zur Anstellung) - which was due to unlawful action on the part of the Ministry of the Interior - to indulge in anti-communist propaganda. He interprets my statement ‘I am not a member of the KPD’ as meaning that I dissociate myself from the KPD or from its policies. That is not the case. On the contrary, I pointed out in the discussion that I support the KPD’s policy, e.g. in the north of the city (Nordstadt).
I am a member of a committee to set up an international people’s kindergarten. Responsibility for the situation of the children in the north of the city lies with <the> Hoesch <firm> and the Social Democrat city council. The KPD is in fact the only party concerned about the problem.
In my opinion, teachers who take an interest in these matters are better teachers than the NPD <German National Democratic Party> candidates in the regional elections (at the Wickede school) or the teachers who beat the children (as we have been told is the case by pupils in the Oesterholz school)."
Although it bears the same name, this KPD (which broke up in 1980) was not the same organisation as the former German Communist Party, which was banned by the Federal Constitutional Court on 17 August 1956 (Entscheidungen des Bundesverfassungsgerichts, vol. 5, pp. 85-393; see also the Commission’s decision of 20 July 1957 on the admissibility of application no. 250/57, Yearbook of the Convention, vol. 1, pp. 222-225). Nor should it be confused with the present German Communist Party, the DKP (Deutsche Kommunistische Partei).
22. In October, the Land Ministry of Education (Kultusministerium) and the responsible authority in Münster, on learning of this letter and other publications in the local press relating to Mrs. Glasenapp, considered whether she should be dismissed for "wilful deceit" under section 12(1)(1) of the Land Civil Servants Act. To give her an opportunity to put her case (section 13(2) of the same Act), the responsible authority invited her to an interview, which took place on 4 November.
According to the minutes of the interview, the authority told the applicant that the letter published in the Rote Fahne had caused it to consider whether her appointment as a probationary civil servant had been obtained by "wilful deceit" and whether she should be dismissed.
She replied that she had written the letter after consulting her lawyer (who was present at the meeting), with whom she had not, however, discussed the exact wording. She added:
"I protest against the fact that this letter is being made the subject of an official interview (Dienstgespräch). I believe that the right to publish such a letter is one of my fundamental democratic rights. I have formed this opinion after getting detailed advice from several lawyers. On this matter I should therefore like to confine myself to saying the following:
I maintain the declaration in which I said that I was ready at all times to uphold the free democratic system, and likewise my written declaration of 20 September 1974 reaffirming that. I am in no doubt that I have so far complied with this undertaking in my conduct. By writing the letter to the Westfälische Rundschau I wished to point out that the KPD’s work in the north of Dortmund was well conceived and that I therefore supported it (people’s kindergarten). It was not my intention to pass any judgment on the KPD’s programme and I cannot do so now. I am not a member of the KPD.
I firmly believe that my criticisms of the Minister of the Interior had no connection with my official duties (Dienstverhältnis) and I therefore do not consider that I have committed a breach of my obligations as a civil servant ..."
In answer to a question, Mrs. Glasenapp said she had not sent her letter to the Rote Fahne but distributed it to relatives and acquaintances (Bekannte).
23. As it was of the view that the applicant had not made her attitude towards the KPD’s policies sufficiently clear, the Land authority wrote to her on 6 November 1974 as follows:
"So long as you do not certify in writing that you do not support the KPD’s policies we must assume that you do not agree to abide by your declarations of 7 May and 20 September 1974."
The authority pointed out that the KPD, according to its own statements published in the Rote Fahne, was trying to overthrow the political system in the Federal Republic of Germany by force and that to support its policies was contrary to the duties of a civil servant.
The applicant’s lawyer replied on 22 November that, in view of her rights protected by the Basic Law, his client did not consider it necessary to state her views; referring to her written declarations and the interview on 4 November, she requested that a final decision should be taken now, without any investigation of her political opinions; she did not intend to answer such questions.
24. On 4 December 1974, the authority recommended to the Land Ministry of Education that Mrs. Glasenapp should be dismissed for "wilful deceit". The Ministry having signified its agreement on 8 December, the authority dismissed her on 20 January 1975.
In its decision, the authority observed that, contrary to her declarations of 7 May and 20 September 1974, the applicant was not prepared to approve or uphold by her conduct the principles of the free democratic constitutional system. As appeared from her letter in the Rote Fahne, Mrs. Glasenapp supported activities directed against that system and its fundamental principles. She had represented herself as favouring a party which worked against that system and whose policy was aimed at overthrowing it in the Federal Republic of Germany by force. She had not explained sufficiently clearly the contradictions between the two aforementioned declarations and her letter, which she had not retracted. She had refused to state that she did not support the KPD’s policies. It had therefore to be conceded that she did not intend to abide by her former declarations. She had thus deceived the authority and improperly obtained her appointment, which must therefore be revoked by virtue of section 12(1)(1) of the Civil Servants Act.
By virtue of section 14(1) of the Act, the legal effect of the authority’s decision, once it became final, would be that the applicant had at no time enjoyed the status of probationary civil servant (das Beamtenverhältnis von Anfang an nicht bestanden).
25. Mrs. Glasenapp lodged an objection (Widerspruch) on 24 January 1975; she filed her grounds on 28 January. She considered that the decision of 20 January was unlawful because the conditions of section 12(1)(1) of the Land Civil Servants Act were not satisfied. Her letter, published as it was after her declarations of loyalty and after her appointment, might possibly lead one to suppose that she was no longer prepared to uphold the free democratic system, but not that she had deliberately deceived the authority in May and September 1974. She had protested to the contrary at the interview on 4 November 1974. She had not been able to dissociate herself from the KPD’s programme, for the simple reason that she did not know what it was; a responsible person could not be expected to distance herself from the policy of a party whose aims and objectives she did not know. Nor had she declared that she favoured the KPD: her support for the establishment of a kindergarten originally proposed by that party was evidence of her social commitment and not of an attitude of hostility to the Constitution.
26. As her objection had a suspensive effect, she continued to work at the high school. On 30 January 1975, however, the authority ordered the immediate execution of its decision of 20 January (section 80(2) of the Administrative Courts Act (Verwaltungsgerichtsordnung)), as it considered that the applicant’s behaviour at the school made proper teaching impossible.
On 5 February, Mrs. Glasenapp applied for a stay of execution but the Gelsenkirchen Administrative Court (Verwaltungsgericht) refused the application eight days later. She entered an appeal (Beschwerde) which the Land Administrative Court of Appeal (Oberverwaltungsgericht) dismissed on 16 June 1975.
According to the findings in the judgment, schoolchildren had distributed a tract outside the school on 27 January 1975 describing the applicant as a "victim of the anti-constitutional decree on the employment of extremists in the civil service" and calling on young people to sign a petition for her "reinstatement". At the same time and place, the applicant and a girl pupil had mounted a demonstration with a strip of material covering their mouths, while the girl carried a placard which read: "The submissive civil servant sees nothing, hears nothing and says nothing." Two days later, Mrs. Glasenapp had distributed outside the school a pamphlet issued by a "Committee against the rules prohibiting appointments ...". Furthermore, a woman and three children had tried to hold a demonstration inside the school in favour of the KPD and the applicant; on being removed, they had continued their demonstration outside the building and, according to the headmaster, the applicant had joined them there. Finally, the Court of Appeal found that during break on 30 January Mrs. Glasenapp had discussed her case with a large number of pupils, about a hundred of whom, accompanied by the applicant, had demanded that the headmaster should discuss the question of their teacher’s "suspension" with them.
27. The Land authority rejected her objection on 12 August 1975. It noted in particular that the letter in question could not but be regarded as an expression of support for the KPD. Neither the wording of it nor Mrs. Glasenapp’s attitude left any room for believing that she had simply wished to approve an isolated endeavour by the KPD. Ever since her attention had been drawn to the inconsistency between her declarations of 7 May and 20 September 1974 and her open letter, she had refused to certify in writing - as she had been asked to do on 6 November - that she did not support the KPD. When assessing her declaration in favour of this party, it was of little account that the party was running infant classes which might be desirable from the social point of view; the only relevant consideration was that it was pursuing ends which were contrary to the Constitution.
In view of Mrs. Glasenapp’s support of the KPD, her declaration of 20 September (whose importance for her appointment she was not unaware of) was false. She had at that time deliberately deceived the authority.
28. On 15 October 1975, the applicant challenged the decisions of 20 January and 12 August before the Gelsenkirchen Administrative Court. Referring to the grounds of her objection (see paragraph 25 above), she denied having deceived the relevant Land authority and declared that she stood by the statements she had made on 4 November 1974. In answer to the charge that she had failed to repudiate the KPD’s policies, her reply was that she could not do so because she did not know what they were. She had merely praised its work in setting up a kindergarten in north Dortmund. Furthermore, her involvement in this matter dated from August 1974; she could not therefore be accused of wilfully misleading the authority on 7 May 1974.
On 19 September 1974, she had been questioned about her accommodation in Berlin when she had been studying there; she had not felt under any obligation to give an account of her support for the kindergarten. If she had wished to deceive the authority, she would not have published her letter. As it was, she had thought that under the constitutional order she had a right to carry on and support legitimate and laudable activities, even if they were encouraged by a party which the Government in power deemed to be opposed to the Constitution.
Mrs. Glasenapp supplemented her pleadings on 1 December 1975. She stressed that she did not unreservedly (bedenkenlos) support the KPD; she had merely helped, together with members of that party, to set up a people’s kindergarten in Dortmund. She pointed out that she believed she was entitled under the free democratic constitutional system not to make statements without cause. She was willing to answer questions concerning the KPD’s practical objectives, but it was unreasonable to expect her to inform herself of the party’s aims, then consider whether they were compatible with the Constitution and dissociate herself from them.
29. The Administrative Court dismissed her claim on 29 July 1976, considering that she did not afford the guarantee required by section 6(1)(2) of the Land Civil Servants Act that she would at all times uphold the free democratic constitutional system.
It was undisputed and a matter of common knowledge that the former German Communist Party, the KPD banned by the Federal Constitutional Court, together with the present party of the same name - still tolerated in the Federal Republic, apparently for reasons of foreign policy -, and the other communist groups (whether they followed the Moscow line or not) sought to set up the "dictatorship of the proletariat" or the "dictatorship of the working class". Admittedly, some West European Communist parties had recently abandoned the expression "dictatorship" and proclaimed their attachment to democracy, but experience in Eastern Europe showed that this was merely an electoral tactic. Under the Basic Law and the system in the Federal Republic of Germany, freedom of each individual citizen and of the State was the highest value to be protected. But it did not exist where Communists were in control. A Communist form of government was incompatible with the Basic Law. A candidate for a civil-service post was clearly not upholding the free democratic system within the meaning of the Basic Law if he belonged to a Communist group. If he was not a member of such an organisation or if his membership could not be proved but he worked for it or for similar ends, he did not afford a guarantee that he would uphold the system.
In Mrs. Glasenapp’s case, the Land authority concerned had initially reached the conclusion on the basis of her statements on 7 May and 20 September 1974 that she afforded the necessary guarantee. Her refusal to dissociate herself from the aims of Communism, however, proved that she was not willing to subscribe to the principles of the free democratic system and to uphold them. It was not possible at one and the same time to support the aims of Communism and to support the Basic Law: the one precluded the other. The authority was therefore right subsequently to regard the applicant’s declaration as an admission of support for Communism and its aims. The applicant had admittedly said that she did not know what the policies of the KPD were, but in view of her level of education and the campaign by a section of the press against the decree on the employment of political extremists in the civil service (see paragraph 15 above), she could not be believed. Nor could the court accept her claim that she had supported and wished to support the KPD only in order to establish the kindergarten. Her letter in the Rote Fahne on 2 October 1974 gave the clear impression that she was trying to avoid not being thought of as a Communist. In the most characteristic passage - "That is not the case" - she denied that she was dissociating herself from Communism or its policies. There was nothing to suggest that she did not already approve of the aims of Communism at the time she applied for the appointment. By concealing her true opinions she had deliberately deceived the authority, which was therefore bound to dismiss her under section 12(1)(1) of the Land Civil Servants Act.
30. Mrs. Glasenapp appealed against this judgment on 19 August 1976, filing her grounds of appeal on 13 December 1976 and 13 January 1977.
She argued, inter alia, that there was no proof that she had given false information or concealed the real facts and thus deceived the relevant Land authority. As required by the Federal Constitutional Court in such cases (judgment of 22 May 1975 - see paragraph 15 above), it was for the appropriate authority to establish that there had been a specific breach of the duty at all times to uphold the free democratic system. In this connection, the expression of a given conviction could not be taken into account so long as it amounted merely to a criticism of the present state of society or sought to change existing legislation by constitutional means. Even if the impugned letter was regarded as evidence of a lack of loyalty to the Constitution, regard should have been had to the fact that the applicant had not engaged in anti-constitutional activities and that her personal conduct left nothing to be desired. The seriousness of her professions of loyalty could therefore not be doubted; nor could her refusal to dissociate herself from the policies of Communism (which were in any case far from clear, even assuming that one could speak of the "policies of Communism") be doubted or be taken for an anti-constitutional activity, because she was not a member of the KPD and not familiar with its policies. She considered that she could and should support what she felt to be a laudable enterprise, irrespective of what a political party said about it, and that she could do so lawfully, even if her opinion on a particular matter was the same as a Communist’s. In short, the authority had not established that there had been "wilful deceit".
Moreover, the judgment had contravened various principles in the Codes of Administrative Procedure and Civil Procedure in that it relied exclusively on the terms of the letter without taking into account the further explanation of their meaning given during the proceedings.
Finally, neither the applicant’s conduct in connection with the kindergarten project nor her reaction to the articles in the press could be complained of as anti-constitutional; nor could her refusal to dissociate herself from the policy of the KPD warrant that conclusion if the principles adopted by the Federal Constitutional Court were applied.
31. The Land Administrative Court of Appeal dismissed the appeal on 21 April 1978. It held that the authority was right to consider that the applicant’s appointment had been obtained by "wilful deceit". The declarations of 7 May and 20 September 1974 were not true; they were irreconcilable with the content of the letter. Admittedly, the letter referred to the matter of the kindergarten, but the applicant’s support for the KPD had not stopped there; on the contrary, she had stated that she supported the party’s policies without expressing any reservations.
Such support, however, was incompatible with a profession of loyalty to the free democratic system. That was clear from KPD manifestos and the policy statements of some of its leaders: the KPD rejected the parliamentary system enshrined in the Basic Law; its aim was social revolution and, as an avant-garde working-class organisation, it sought to bring about social revolution by force in order to establish the dictatorship of the proletariat. Its objective, as stated in its programme, was "the march towards the revolutionary fusion of the working class and the people, towards destruction of the capitalist system and exploitation, towards the establishment of the absolute power of the working class, towards socialism and the classless society and towards Communism". As the governing class was not prepared to yield to the advancement of the proletariat, it was necessary "to bring it down by using revolutionary force". The ends and means of the KPD accordingly ran counter to essential principles of the free democratic system: the KPD’s first aim was the destruction of the State. It strove to achieve power not by the means afforded by the Constitution but by revolutionary force; the dictatorship of the proletariat, which was its objective, was contrary to the principles of the Basic Law, such as the sovereignty of the people, plurality of political parties, equal opportunity for all political parties and the right to oppose those in power within the limits imposed by the Constitution.
Given the contrast between Mrs. Glasenapp’s professions of loyalty and her letter published in the Rote Fahne, it had to be supposed that objectively she had been lying in May and September 1974. Her letter, which was written on her own initiative and not under any pressure, indicated her true position, whereas the need to confirm her allegiance to the Constitution in order to secure her appointment could have led her to make a declaration which was "mere lip service" (Lippenbekenntnis). Furthermore, the applicant was aware that her statements were untrue. Having regard to her level of education, it could be presumed that she had directed her mind to the effects of her letter, which was addressed to at least a section of the public. It was incomprehensible that after having stated publicly and in writing her agreement with the KPD on two matters, she should have claimed to her employing authority (Dienstherr) that she did not know what the KPD’s policies were. In this connection, her behaviour at the interview on 4 November 1974 appeared particularly revealing. If, out of over-eagerness or without thinking, she had included statements in her letter which on mature reflection she no longer entirely approved of, she could easily have rectified the letter. The explanation she offered on this point (see paragraphs 22, 28 and 30 above) was too far removed from the actual wording of her letter. The employing authority was therefore entitled to ask her how she claimed to resolve the conflict; civil servants’ duty of political loyalty required them to dissociate themselves unequivocally from groups which attacked, opposed and defamed the State, its lawful institutions and the existing constitutional system.
If Mrs. Glasenapp really was ignorant of the details of the KPD’s policies when she wrote her letter, she could have said so. At the same time she could have admitted that she had gone too far in not wishing to dissociate herself from the party and its policies and in supporting the latter; she could, for example, have said that she was in fact merely engaged in supporting the kindergarten venture. Instead of that, she had given the employing authority a reply not calculated to throw light on the position and she had made no further reply to the substance of the letter which the authority sent her on 6 November 1974. The Court of Appeal drew the conclusion that at least the statements of 20 September 1974, which reiterated those of 7 May, had been knowingly false. The applicant was well aware that her declarations of loyalty to the Constitution were of decisive importance for her appointment as a probationary civil servant. Her appeal must therefore be dismissed.
The Court of Appeal refused the applicant leave to apply to the Federal Administrative Court (Bundesverwaltungsgericht) for review on points of law.
32. On 19 June 1978, Mrs. Glasenapp applied to the same Court of Appeal to have the latter decision set aside: she argued that her case raised a question of principle of vital importance for the uniform interpretation and application of the law (Article 132(2)(2) and (3) of the Code of Administrative Procedure). All the decisions in her case had been based on her refusal to dissociate herself from the policy of the KPD. The question was therefore whether it was allowable to draw adverse inferences from such conduct. There were conflicting authorities on the point. Unlike the Court of Appeal, the Augsburg Administrative Court and the Bremen Labour Court of Appeal (Landesarbeitsgericht) - together with most legal writers - considered that it was not permissible to question candidates about their political opinions or their membership of political parties; they inferred therefrom that the relevant authorities could not rely on replies to such questions or on the refusal to reply.
33. When the Court of Appeal found against her on 22 July 1978, Mrs. Glasenapp applied for legal aid to bring an appeal (Beschwerde) in the Federal Administrative Court. That Court refused her application on 11 December 1979 on the grounds that the proposed appeal had insufficient prospects of success. It did not consider it necessary to decide whether the question raised by the applicant involved a matter of principle, because in the instant case it would have been necessary to determine whether a "wilful deceit" had been practised on the relevant authority. In the circumstances, however, the authority had been entitled to ask Mrs. Glasenapp to clarify her position in relation to the KPD; and the Court of Appeal could regard her negative reaction as evidence that in May 1974 she had knowingly made a false statement whose importance for her appointment could not have escaped her.
34. On 8 January 1980, the applicant lodged a constitutional complaint with the Federal Constitutional Court. She relied on Article 33(2) (right of access to the civil service), Article 12(1) (right to free choice of one’s profession), Article 3(3) (non-discrimination) and Article 2(1) (right to free development of the personality) of the Basic Law.
She argued that there was no evidence of "wilful deceit". The decisions complained of were all expressly based on her refusal to distance herself from the policies of the KPD. She had, however, clearly dissociated herself from them by pointing out that by her letter she neither had wished nor could have wished to express support for the KPD generally but only for the opening of a people’s kindergarten in north Dortmund. Admittedly, she had not agreed to repudiate the KPD’s policies, but that did not justify drawing unfavourable inferences, in particular because the declaration in question had been made six months before her letter. Such a far-reaching obligation to dissociate oneself from a party’s policies could not exist. In any case, she had not joined the KPD and accordingly she could not judge its programme and aims.
In its judgment of 22 May 1975 (see paragraph 15 above), the Constitutional Court had held that membership of a party opposed to the Basic Law was merely one relevant factor when it came to considering an application for a civil-service post; the Court required each case to be considered on its merits. However, it was not admissible to question a candidate about his political opinions or his connections with a party, or to use the answers given to such questions. It also appeared from this judgment and a series of decisions by other courts that even the members of a party whose aims were inimical to the Constitution were not required to disapprove of its objectives in their entirety. This principle should apply a fortiori to non-members.
The measure complained of had not taken these considerations into account; in requiring the applicant to disavow the KPD’s policies completely, the authority in question had made an absurd demand and had not complied with the principles laid down in the matter by the courts.
35. Sitting as a panel of three judges, the Federal Constitutional Court decided on 14 July 1980 not to entertain the constitutional complaint, on the ground that it had insufficient prospects of success.
In so far as the competent courts had considered that the applicant’s behaviour amounted to "wilful deceit", their assessments and conclusions were not arbitrary. The rule that a civil servant’s appointment must be annulled in such a case was not contrary to the principle of equal access to the civil service (Article 33(2) of the Basic Law). Nor had there been a breach of the other rights claimed by the applicant. Admittedly it was forbidden under Article 3(3) of the Basic Law to prejudice a person on account of his political opinions. That, however, did not mean that deliberately deceptive conduct which misled an appointing authority was protected by the Constitution. Nor did the right secured in Article 12(1) of the Basic Law extend to maintaining rights acquired in such a manner.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-5189
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SKRASKOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a Polish national, born in 1946 and living in Żarów.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant's wife, born in 1947, had high blood pressure and suffered from a heart condition. On 19 February 1996 her physician referred her to a hospital. Apparently on the same date, doctors S. and S. in Żarów hospital examined her, gave her drugs against high blood pressure and refused admission. Allegedly, one of the physicians suggested that she should become his private patient.
On 1 March 1996 she felt unwell and three times called an ambulance from the State-run emergency service. In the afternoon, during the first visit, she was given a prescription for certain drugs to reduce her high blood pressure. At midnight, during a second visit of the ambulance, a physician gave her an injection of the drug “Dexaven”. The applicant alleges that as a result of this injection her general condition worsened abruptly. The Government refute this allegation. The applicant insisted that she should be taken to a hospital, in particular in view of the referral of 19 February, but this was refused. She was taken to the hospital in the morning of 2 March 1996, where at 7.30 a.m., fifteen minutes after her admission, she died of myocardial infarction.
The applicant requested that criminal proceedings be instituted concerning his wife's death. On 16 July 1996 the Świdnica District Prosecutor requested the Poznań Medical Academy to prepare an expert report concerning the causes of her death. The report was submitted on 18 December 1996.
On 31 December 1996 the Świdnica District Prosecutor discontinued the proceedings, finding that no criminal offence had been committed. The Prosecutor had regard to the expert report, prepared by three experts: two cardiologists and forensic medicine specialist.
The applicant appealed against this decision. He stated that the decision was ill-founded and that, in view of her serious condition, his wife should have been taken to hospital much earlier. He complained that the investigations had lasted unreasonably long. Lastly, he submitted that it was impossible that his wife could have become mortally ill in a very short period without there being medical negligence in the handling of her case.
On 24 February 1997 the Wałbrzych Regional Prosecutor upheld the decision under appeal. He considered that the contested decision was lawful and that the lower prosecutor had duly taken into consideration the experts' conclusions. In view of the fact that the applicant had alleged that experts from Wrocław would have lacked impartiality, the District Prosecutor had requested that, in order to dispel any doubts as to the experts impartiality, the expert report be prepared by physicians from Poznań. It was true that the report had been submitted to the Prosecutor only on 18 December 1996, but, having regard to the heavy case-load of forensic medicine experts throughout Poland, this delay could not be considered abnormal. The report had been prepared by three experts - two cardiologists and one specialist in forensic medicine. The prosecutor stressed that there were no indications that there had been any personal relationship between the experts and the physicians who had given the medical treatment to the applicant's wife.
The Prosecutor further had regard to the conclusions of the experts. They had established in their report that during the second visit of the emergency services, doctor K.S. had administered to the applicant’s wife an injection of "Dexaven", but they had not found a causal link between this fact and a subsequent rapid deterioration of her general condition. They had emphasised that the applicant's wife had received adequate medical care. She had died of myocardial infarction, which must have occurred after the second visit of the ambulance. It had been only during the third visit that she had symptoms of a dyspnoea (difficulty in breathing), typical in cases of cardiac insufficiency, and the physician had taken the correct decision to take her to a hospital on that account. Given the sudden nature of myocardial infarction, it could have developed so quickly as to cause her death within a short time, without there being any medical negligence to contribute to it. The experts concluded that it could not be assessed with absolute certainty whether the applicant's wife could have survived had she been taken to the hospital at the second visit of the ambulance.
Regard being had to the fact that the experts had found no indications of negligence in the handling of the applicant's wife case, which involved a rapid myocardial infarction, the prosecutor decided that the lower prosecutor's office had been correct in finding that the persons who had given the treatment to her had no case to answer.
B. Relevant domestic law and practice
The Chambers of Physicians’ Act of 17 May 1989 established Chambers of Physicians as a professional organisation of physicians. Membership of the Chambers is mandatory. Disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before the organs of the Chambers, i.e. agents for disciplinary matters and disciplinary courts. Agents and members of the courts for each region are elected by members of a local chamber. The Chief Agent for Disciplinary Matters and the Principal Court are elected by the National Congress of Physicians, composed of delegates of local chambers.
Pursuant to Article 42 of the Act, the following penalties may be imposed in disciplinary proceedings: a warning, a reprimand, suspension of the right to practise medicine for a period from six months to three years and striking off the register of physicians.
The procedure to be followed in disciplinary proceedings is governed by the Order on Procedure in Disciplinary Proceedings issued by the Minister of Health on 26 September 1989.
Under this Order, the agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed. While investigating such a complaint, the agent may question a physician charged with professional misconduct, may appoint experts and question witnesses, and take such other evidence as he or she sees fit. A physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant.
If information existing at the time when investigations are instituted, or gathered in the course of an investigation, is sufficient to charge a physician with professional misconduct, an agent shall draw up a motion to the court for a disciplinary penalty to be imposed, containing a detailed description of an alleged offence and written grounds.
Pursuant to Article 26 of the Order, the agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a penalty to be imposed.
A complainant may lodge an appeal against this decision with the Chief Agent for Disciplinary Matters. A further refusal of the Chief Agent may be appealed against to the Principal Court.
Under Article 29 of the Order, if the court, having received a motion for a penalty to be imposed, decides that the case is ready for examination at a hearing, it orders that a hearing be held. A physician is summoned to a hearing, whereas his defence counsel and the agent are informed of its date.
Under Article 18 of the Order, in disciplinary proceedings the complainant is entitled to: submit a request for evidence to be taken, lodge with the disciplinary court an appeal against the agent's decision to discontinue the proceedings, and lodge an appeal against a decision of a first-instance court on the merits, but only on the question of responsibility. The complainant is entitled to have access to the case-file, but the agent can limit this access to documents, which are not covered by medical secrecy.
Pursuant to Article 5 of the Order, the proceedings before the court are public for members of the Chambers of Physicians.
Under Article 417 of the Polish Civil Code, the State is liable for damage caused by its agents in the exercise of their functions. There is established case-law of the Polish courts to the effect that this liability of the State includes also liability for damage caused by medical treatment in a public system of medical care, run either by the State or by the municipalities.


ITEMID: 001-5920
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: MLADENIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Nikola Mladenić, is a Croatian citizen, born in 1934, and living in Kukljanovo. The respondent Government are represented by their agent Ms Lidija Lukina-Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
According to the applicant, he lodged a constitutional complaint on 15 June 1995 against the Supreme Court’s (Vrhovni sud Republike Hrvatske) judgment of 7 September 1994, upholding the first instance judgment by which the applicant had been convicted of war crimes against the civilian population. At that time he was serving his sentence in the Lepoglava prison. The applicant complained about the fairness of the proceedings alleging that the lower courts erroneously assessed the facts of the case and that the rules of procedure were violated.
According to the Government, the applicant’s constitutional complaint was lodged on 18 July 1995.
The Constitutional Court (Ustavni sud Republike Hrvatske) did not acknowledge receipt of the applicant’s complaint.
On 24 September 1995 and 27 January 1997 the applicant asked the Constitutional Court to speed up the proceedings. His letters were sent from the Lepoglava prison and the address of the Lepoglava prison was indicated on the letters.
By decree of the President of Croatia of 28 May 1997, the applicant was amnestied from serving the rest of his sentence and released from prison.
As, meanwhile, due to his conviction for war crimes, the applicant and his family had lost a specially protected tenancy on a flat in Rijeka they previously occupied, they moved to the village of Kukljanovo, Croatia.
According to the applicant, he notified the Lepoglava prison authorities of his new address in Kukljanovo, as well as of his telephone number there.
According to the Government the applicant failed to notify either the Constitutional Court or the Lepoglava prison authorities about his new address in Kukljanovo. In support of this fact the Government submit a copy of the applicant’s prisoner’s card where the only indicated address is the one in Rijeka and no further changes were entered.
It is undisputed between the parties that the applicant did not notify the Constitutional Court of his new address.
The Government submit further that on 3 March 1998 the Constitutional Court requested the applicant to submit a copy of the contested judgment. The letter was sent to the Lepoglava prison. However, the Lepoglava prison authorities returned the letter stating that the applicant had been released from prison and was living at the address in Rijeka.
According to the Government the Constitutional Court’s above request was sent to the applicant at the Rijeka address on 16 March 1998. It was, however, returned to the court stating that the applicant was no longer living there. On 30 March 1998 another unsuccessful attempt was made to deliver the Constitutional Court’s letter to the applicant at the same address.
On 2 April 1998 the court placed the letter to the applicant on its public notice-board, where it stayed posted until 15 April 1998.
On 28 September 1998 the Constitutional Court terminated the proceedings concerning the applicant’s constitutional complaint. It stated that the applicant had failed to submit a copy of the contested judgment and that the letters subsequently sent to the applicant were returned to the Court stating that the applicant did not live at the address indicated. The court deemed that the applicant had withdrawn his complaint.
On 21 October 1998 the applicant asked the Constitutional Court once more to speed up the proceedings concerning his constitutional complaint, indicating his address in Kukljanovo.
On 27 October 1998 the Constitutional Court sent a letter to the applicant informing him that the proceedings had been terminated.
On 6 November 1998 the applicant lodged a request to have his case restored, although in respect of the proceedings before the Constitutional Court such possibility does not exist under Croatian law. On 27 January 1999 he asked the Constitutional Court to reply to his request. He has received no answer.
The relevant provisions of the Rules of the Constitutional Court (Poslovnik Ustavnog Suda Republike Hrvatske - Official Gazette 29/94) provide as follows:
Section 25 provides that when a party’s written submissions to the court do not contain the information the court needs it must instruct the party concerned to submit such information within a certain time. If the party fails to comply with the court’s instructions, the court will deem that party to have withdrawn its submissions.
Section 36 provides that when it is not possible to serve letters or decisions of the court on a party, they shall be placed on the court’s public notice-board.
Section 51 § 2 provides that when lodging a constitutional complaint a party must submit a copy of the contested decision.
The relevant parts of the 1991 Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu) provides as follows:
“By the decision granting a claim, the impugned decision that violated a constitutional right is quashed and the case is remitted to the competent body for retrial.”


ITEMID: 001-69196
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF AKDENIZ v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2 (presumed death);Violation of Art. 2 (failure to investigate);Violations of Art. 3;Violation of Art. 5;Not necessary to examine Art. 6;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Feyyaz Gölcüklü;Nicolas Bratza
TEXT: 9. The applicant, a Turkish citizen of Kurdish origin, was born in 1955 and lives in Diyarbakır.
10. The facts of the case, particularly concerning events which took place on 20 February 1994, are disputed by the parties.
11. The facts as presented by the applicant are set out in Section B below (paragraphs 12-18). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 19-21). Documentary evidence submitted by the parties is summarised in Section D (paragraphs 22-67).
12. At the time of the events giving rise to the present application the applicant and her family were living in the Sesveren hamlet of Karaorman village, located within the administrative jurisdiction of the town of Kulp, near Diyarbakır, south-east Turkey.
13. On 20 February 1994 approximately 200 soldiers from the Kulp District Gendarme Headquarters came to the applicant’s hamlet and forced the villagers out of their houses. The villagers were herded together into the village square and the soldiers began to burn the villagers’ houses.
14. One of the soldiers then read out a list of names of six male villagers: Halit Akdeniz (35 years old), İrfan Akdeniz (18 years old), Mehmet Şirin Allahverdi (35 years old), Ziya Çiçek (22 years old), Faik Akdeniz (35 years old), and finally the applicant’s son Mehdi Akdeniz (22 years old) (hereinafter “the six persons”). The six persons seemed to have been identified by a masked man who was with the gendarme officers. The soldiers then beat up the six persons; the applicant’s son was the subject of the worst treatment. The six persons were then taken away, out of sight of the villagers.
15. The soldiers stayed in the village for approximately two hours and then walked with the group of six persons to another hamlet, approximately 1.5 kilometres away, where they got into waiting vehicles and drove away.
16. Eye-witnesses, who were held in detention together with the applicant’s son, subsequently informed the applicant that Mehdi Akdeniz had been held at Kulp District Gendarme Headquarters for five days. He had been tortured whilst being detained and according to the eye-witnesses, he had received the worst treatment of the six persons.
17. Eye-witnesses confirmed that in Silvan, where he was held for one week before being taken to Diyarbakır, he was also in a very poor condition.
18. The applicant has heard nothing further about the whereabouts or fate of her son since that time. She has brought several applications, both orally and in writing, to the Chief Public Prosecutor at the Diyarbakır State Security Court (hereinafter “the Diyarbakır Court”) and tried, unsuccessfully, to obtain information about her son.
19. No operation was carried out in the Kulp-Sesveren area on 20 February 1994 and, according to the custody records, neither the applicant’s son nor any of the other five persons mentioned were taken into custody or detained.
20. Between 1992 and 1993 the Sesveren hamlet was attacked by members of the PKK and the inhabitants of the hamlet fled from their homes because of intimidation by the PKK.
21. On 11 May 1994 the applicant was informed by the Diyarbakır Court that, according to the custody records, Mehmet Şen (sic.) had not been taken into custody.
22. The following information appears from the documents submitted by the parties.
23. According to a record of arrest, drawn up on 28 February 1994 and signed by three gendarme officers and four gendarme soldiers from the Kulp gendarmerie, five of the six persons, namely, Halit Akdeniz, M. Şirin Allahverdi, Ziya Çiçek, Faik Akdeniz and İrfan Akdeniz were arrested in an operation carried out by the gendarmerie. The reason for the operation was the fact that the gendarmerie had been informed, by reliable sources, that these persons had been aiding and abetting the PKK. The report further states that the five men had various injuries on their bodies obtained as a result of their attempts at escape and also of the use of force.
24. On unspecified dates these five persons were questioned by a gendarme commander. All but Faik Akdeniz denied ever having been members of the PKK. Faik Akdeniz stated that he had been a member briefly. All five men stated that Karaorman village had often been visited by PKK members who forced the villagers to give them food.
25. On 8 March 1994 the five men were questioned by a judge at the Diyarbakır Court. The judge then ordered the release of four of them. Faik Akdeniz’s detention on remand was ordered by the judge.
26. The applicant, in a petition she submitted to the Chief Public Prosecutor at the Diyarbakır Court on 11 May 1994, informed the Prosecutor that her son had been detained by members of the security forces on 20 February 1994 in her hamlet of Sesveren. She further stated that she had not heard from him since that date and that she was concerned for his life. She asked to be informed about her son’s fate.
27. According to a handwritten note, written by the Chief Public Prosecutor at the Diyarbakır Court on the applicant’s above mentioned petition of 11 May 1994, the applicant’s son was not recorded in custody records.
28. On 29 December 1994 the Ministry of Justice’s International Law and Foreign Relations Directorate (hereinafter “the Directorate”) sent a letter to the Chief Public Prosecutor at the Diyarbakır Court and informed him about the application introduced with the Commission by the applicant. The Prosecutor was requested to question the applicant in relation to her complaints and to open an investigation into her allegations.
29. In his letter of 30 December 1994 the Chief Public Prosecutor at the Diyarbakır Court requested the Prosecutor in the town of Kulp to take the steps requested in the letter of the Directorate.
30. The commander of the Kulp District Gendarme Headquarters was requested on 6 January 1995 by the Kulp Prosecutor to summon the applicant, as well as the five persons who had allegedly been detained together with the applicant’s son (see paragraph 14 above), to the prosecutor’s office. The Prosecutor also asked for a certain Cevdet Yılmaz and one Reşat Pamuk, both of whom were apparently living in the applicant’s village, to be summoned.
31. According to a report, which was drawn up on 17 March 1995 by three gendarme soldiers from the Sivrice gendarme station – located near the applicant’s village of Karaorman – and which was submitted to the Kulp Prosecutor, the persons referred to in the Kulp Prosecutor’s letter of 6 January 1995 had left the village for an unknown destination because of terrorist incidents. This report was subsequently sent to the Prosecutor’s office at the Diyarbakır Court.
32. On 26 July 1995 the Kulp Prosecutor sent a letter, this time to the commander of the Kulp Gendarme Brigade, and asked for the applicant and the other seven persons mentioned above to be summoned to his office.
33. According to a report, drawn up on 27 August 1995 by two gendarme soldiers and sent to the Kulp Prosecutor, the persons referred to in the Kulp Prosecutor’s letter of 26 July 1995 had left the village for an unknown destination three years previously because of terrorist incidents.
34. Similar correspondence between the Prosecutors and the gendarmerie setting out the former’s unsuccessful attempts to find the applicant and the other seven persons continued until June 1996, when Halit Akdeniz, one of the six persons who was allegedly detained at the same time as the applicant’s son, was located.
35. In a statement taken by the Kulp Prosecutor on 13 June 1996, Halit Akdeniz stated that a large number of soldiers had come to the village in February 1994 and gathered the villagers outside the village. They then set fire to the houses in the village. He, his son İrfan, the applicant’s son Mehdi, and the other three persons had been singled out by the soldiers and ill-treated in the village. They had then been taken to the Sivrice gendarme station where they had stayed that evening. The following morning they had been taken to the Kulp Commando Brigade where they had been detained for four days during which they were blindfolded, beaten up and questioned. At the end of the four days they had been brought to the Kulp Central gendarme Station where the applicant’s son Mehdi had been separated from the rest of them and he had not been seen again. They had continued to be detained for another 15 days and at the end of their detention all but Faik Akdeniz had been released.
36. Also on 13 June 1996 the Kulp Prosecutor questioned İrfan Akdeniz who confirmed the version of events as set out by his father above. He also added that Mehdi Akdeniz had been beaten up more severely than the rest of them.
37. On 20 June 1996 the Kulp Prosecutor took a statement from Mehmet Şirin Allahverdi, another one of the six persons allegedly detained together with the applicant’s son. Mr Allahverdi, who gave a remarkably similar statement to that of Halit and İrfan Akdeniz, added that the applicant’s son Mehdi Akdeniz had been identified by the itirafçı who had came to the village with the soldiers in February 1994.
38. On 2 August 1996 Cevdet Yılmaz (see paragraph 30 above) was found in a prison in Elazığ. He refused to go to the Prosecutor’s office to make a statement on the ground that he was protesting against the Turkish courts.
39. The Kulp Prosecutor took a statement from the applicant on 15 August 1996. In her statement the applicant confirmed her account of events as set out above (see paragraphs 13 to 18 above). She finally asked the Prosecutor for information about her son’s fate.
40. On 19 August 1996 the statements taken by the Kulp Prosecutor from Halit Akdeniz, İrfan Akdeniz and Mehmet Şirin Allahverdi were forwarded to the Prosecutor’s office at the Diyarbakır Court. The Kulp Prosecutor further stated that his efforts to find Faik Akdeniz and Ziya Çiçek would continue.
41. Faik Akdeniz was questioned on 16 September 1996 by the Kulp Prosecutor. Mr Akdeniz also gave a remarkably similar statement to those made by Halit Akdeniz, İrfan Akdeniz, Mehmet Şirin Allahverdi and the applicant.
42. On 5 December 1996 the Kulp Prosecutor sent a letter to the Kulp District Gendarme Headquarters and asked whether an operation had been conducted in Karaorman village in February 1994.
43. On 27 December 1996 the deputy commander of the Kulp District Gendarme Headquarters replied to the Kulp Prosecutor in writing, stating that according to the records at the Headquarters, no operation had been conducted in Karaorman village or in Sesveren hamlet in February 1994.
44. Another statement was taken from the applicant on 12 May 1997 by the Kulp Prosecutor. The applicant confirmed, once more, her allegations and added that she had made an application to the Commission.
45. On 26 May 1997 the Kulp Prosecutor informed the Prosecutor at the Diyarbakır Court that he had taken another statement from the applicant and that she still had not heard from her son. He further informed him that his efforts to find Cevdet Yılmaz, Ziya Çiçek and Reşat Pamuk, who had allegedly seen Mehdi Akdeniz in the custody of gendarmes, would continue.
46. The applicant was questioned on 21 July 1997, this time by the Prosecutor in the town of Silvan. She confirmed her allegations.
47. On 15 December 1997 the applicant was questioned once more by the Kulp Prosecutor. She repeated her allegations and added that she had nothing to add to her previous statements.
48. On that same day the Kulp Prosecutor also took a statement from Ziya Çiçek, the fifth person who had allegedly been detained together with the applicant’s son. Mr Çiçek confirmed the version of events given by the other four persons who claimed to have been detained with the applicant’s son.
49. The Kulp Prosecutor informed the Prosecutor at the Diyarbakır Court on 16 December 1997 that he had taken yet another statement from the applicant and that he had found out from her that her son was still missing.
50. On 14 January 1998 the Kulp Prosecutor asked the Kulp and Silvan District Gendarme Headquarters, the Diyarbakır Provincial Gendarme Headquarters and also the Diyarbakır Police Headquarters to send to his office copies of custody records showing the names of persons who had been taken into custody between 20 February 1994 and 10 January 1995 at their respective Headquarters.
51. On 24 January 1998 the commander of the Kulp District Gendarme Headquarters forwarded to the Kulp Prosecutor’s office the names of those persons detained between 20 February 1994 and 10 January 1995. According to this letter, Halit Akdeniz, Ziya Çiçek, Mehmet Allahverdi, İrfan Akdeniz and Faik Akdeniz had been taken into custody on 28 February 1994 on suspicion of collaborating with the PKK. No information was provided in the column showing dates of release.
52. On 27 January 1998 the Directorate asked the Prosecutor at the Diyarbakır Court for information about the investigation into the disappearance of the applicant’s son.
53. The Prosecutor at the Diyarbakır Court was informed on 2 February 1998 by the Kulp Prosecutor that the statements taken from Halit Akdeniz, İrfan Akdeniz, Mehmet Şirin Allahverdi, Faik Akdeniz and Ziya Çiçek corroborated the allegations of the applicant. His efforts to obtain information from the gendarme as to whether the applicant’s son had indeed been detained by them were still continuing. The applicant’s son was still missing.
54. On 16 February 1998 the Kulp Prosecutor took a statement from Reşat Pamuk. Mr Pamuk stated that he used to live in the village of Yayık, near the town of Kulp. He and a number of his friends had been taken into detention by soldiers in the town of Silvan during the month of Ramadan in 1994. During his time in detention he had not seen Mehdi Akdeniz, the applicant’s son; in any event, he did not know who Mehdi Akdeniz was.
55. In a reply of 24 February 1998 to the Kulp Prosecutor’s letter of 14 January 1998, the chief of the Diyarbakır Police Headquarters stated that Mehdi Akdeniz had not been detained by the police.
56. Also on 24 February 1998 the Directorate asked the Prosecutor’s office at the Diyarbakır Court to verify the accuracy of the contents of the statements given by the persons who claimed to have been detained together with the applicant’s son. This letter was forwarded to the Kulp Prosecutor the same day.
57. On 25 February 1998 the Kulp Prosecutor drew the attention of the commander of the Kulp District Gendarme Headquarters to the fact that the release dates of the five persons detained on 28 February 1998 did not appear in the form he had received (see paragraph 51 above). The Prosecutor asked the commander to inform his office as to what action had been taken in relation to these persons. It appears that the gendarme commander subsequently complied with this request. According to the custody records of the Kulp Central Gendarme Station, Halit Akdeniz, Ziya Çiçek, Mehmet Allahverdi, İrfan Akdeniz and Faik Akdeniz had been detained there from 8 p.m. on 28 February 1994 until 9 a.m. on 5 March 1994 when they had been transferred to the Diyarbakır Court.
58. According to a set of custody records, showing the names of those detained at the Diyarbakır Provincial Gendarme Headquarters between 24 February 1994 and 21 March 1994, the five men had been detained there on 5 March 1994 until their release was ordered by the Diyarbakır Court on 8 March 1994.
59. On 16 March 1998 the Prosecutor at the Diyarbakır Court forwarded to the Directorate a number of documents concerning the criminal proceedings which had been brought against İrfan Akdeniz, Mehmet Allahverdi and Faik Akdeniz following their detention in February 1994 (see paragraph 23 above). According to these documents, the three persons had been tried and acquitted of the offence of aiding and abetting a terrorist organisation.
60. On 25 March 1998 the Kulp Prosecutor once again asked the Kulp District Gendarme Headquarters for the names of those detained in Karaorman village since 20 February 1994.
61. On 11 April 1998 the commander of the Sivrice Gendarme Station stated in a report that no operation had been conducted in Karaorman village on 20 February 1994 by soldiers from his station.
62. Mehmet Nuri Sansar, the headman (muhtar) of the Karaorman village at the time of the alleged events, was questioned by the Kulp Prosecutor on 15 April 1998. Mr Sansar stated that on 20 February 1994 he had been in the Karaorman village mosque praying, when two soldiers had come in and asked those present to leave the mosque. Mr Sansar and the villagers in the mosque had complied with this order and left the mosque. Mr Sansar had then seen that the village had been surrounded by soldiers and that the villagers had been gathered outside the village. The commander of the soldiers had called Mr Sansar over and told him that food supplies had been brought to the Karaorman village by vehicles and that, from the village, they had been taken by mules to the PKK in the mountains. The commander asked Mr Sansar for the identity of the villagers who had carried the foodstuff to the PKK. When Mr Sansar replied that he did not know, the soldiers had taken him away and beaten him. Among the soldiers there had also been an itirafçı, whose face was covered. The itirafçı had not spoken a word but pointed to the six persons. All six persons had been taken away and all but Mehdi Akdeniz had been released some time later.
63. Cevdet Yılmaz (see paragraphs 30 and 38 above) was questioned by a Prosecutor on 29 April 1998. Mr Yılmaz stated that he used to live in Yayık village, near Sesveren hamlet where Mehdi Akdeniz used to live. He further stated that in February 1994 he had been arrested and taken to a detention centre in Silvan where he had seen Mehdi Akdeniz. However, unlike all other detainees, Mehdi had not subsequently been brought before the judge at the Diyarbakır Court.
64. On 22 May 1998 the Kulp Prosecutor asked his opposite number in the town of Silvan to enquire with the Gendarme Headquarters in the latter’s town to verify whether, as alleged by a number of eye-witnesses, Mehdi Akdeniz had ever been detained there.
65. On 22 May 1998 the Kulp Prosecutor also asked the Diyarbakır Provincial Gendarme Headquarters whether an operation had been carried out in Karaorman village where, according to the allegations, Mehdi Akdeniz was arrested by soldiers.
66. On 13 June 1998 the commander of the Silvan District Gendarme Headquarters informed the Silvan Prosecutor that, according to the custody records, Mehdi Akdeniz had not been detained at the Headquarters in February 1994.
67. On 29 June 1998 the deputy commander of the Diyarbakır Provincial Gendarme Headquarters replied to the Kulp Prosecutor’s letter of 22 May 1998 and stated that no operation had been carried out in the region of Karaorman village in February 1994.
68. A description of the relevant law may be found in İpek v. Turkey, no. 25760/94, §§ 92-106, ECHR 2004-... (extracts).
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