ITEMID: 001-94186
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: RADULESCU AND OTHERS v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicants, Mrs Aurelia Rădulescu, Mrs Viorica Holban and Mrs Zoe-Gloria Dimoiu, are Romanian nationals who were born in 1926, 1934 and 1938 respectively.
2. The second applicant died on 23 June 2005. The other two applicants are her sisters and only heirs. The first applicant also died on 11 April 2006. However, her daughter and only heir, Mrs Teodora Virginia Ureche, expressed her wish to pursue the application. For practical reasons, Mrs Aurelia Rădulescu and Mrs Viorica Holban will continue to be referred to as “applicants” in this judgment, although their heirs are now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999VI).
3. The third applicant lives in Constanţa. After the death of the first two applicants, their heir was represented by the third applicant. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicants inherited from their parents a house with annexes and 1,083 sq. m of appurtenant land situated at 11-13 Smeurei Street, Piteşti. On that land, at no. 13, the first applicant and her husband built a new house in which they continued to live.
In 1986 the applicants sold the old house with annexes and 702 sq. m of appurtenant land inherited from their parents to N.O. The sale contract stipulated that, according to the applicable law, the land passed into State ownership. The applicants did not receive any compensation. N.O. was authorised to use 100 sq. m of it while the buildings existed.
6. On 8 August 1990 the Piteşti Court of First Instance gave an enforceable decision allowing an action by the applicants for recovery of possession of 980 sq. m of land against Piteşti Town Council. The court acknowledged their right of property over the land situated at 11, Smeurei Street, Piteşti, and ordered the town council to respect the applicants’ right of property.
7. On 13 December 1990 the bailiff certified in an official record that the applicants could take possession of the 980 sq. m of land. According to the documents in the file, that land included the 702 sq. m mentioned in the 1986 sale contract and seized by the State.
8. Although there had been judicial recognition of the applicants’ right of property over the 980 sq. m plot of land, the local commission in Piteşti for the application of Law no. 18/1991 (“the local commission”) authorised them to recover possession of only 402 sq. m of land.
On 21 August 1991 the county commission in Argeş for the application of Law no. 18/1991 (“the county commission”) rejected a complaint brought by the applicants concerning the decision of the local commission. It further authorised N.O. to recover possession of 300 sq. m of land.
9. On 13 December 1991 the Piteşti Court of First Instance gave an enforceable decision upholding the applicants’ complaint concerning the decision of the county commission and authorised them to recover possession of the 980 sq. m of land in Piteşti. The court considered that, as certified by the judgment of 8 August 1990, the applicants had a right of property over that land in their capacity as their parents’ heirs.
10. On 8 January 1992 the Piteşti Court of First Instance gave a final decision allowing a complaint by N.O. in respect of the decision of the county commission and acknowledged her right to acquire title to 702 sq. m of land.
11. On 10 December 1992 the Argeş Prefecture informed N.O. that the local commission was unable to enforce the judgment in her favour as there was another judgment of 13 December 1991 that had certified the right of property of the former owners of N.O.’s house over part of the 702 sq. m of land. Notice of this situation had also been given to the Piteşti Court of First Instance.
12. On 26 February 1993 the Argeş County Court dismissed as groundless a request by the applicants for revision of contradictory final decisions by which they sought the annulment of the judgment of 8 January 1992. The court noted that the legal requirements for this action had not been met, as those decisions had not been given in respect of the same parties or with regard to the same object or the same procedural capacity.
13. On 7 January 1993 N.O. brought an administrative action against the local commission seeking to take possession of the 702 sq. m plot of land. She also referred to the judgment of 13 December 1991 and eventually agreed to take possession of only 550 sq. m of land, as this was the portion of land the applicants had allegedly allowed her to use when she bought the house.
14. On 21 May 1993 the Argeş County Court allowed the action and ordered the local commission to enable N.O. to take possession of 550 sq. m of land, as provided by the judgment of 8 January 1992. The court also noted that neither the judgment of 13 December 1991 nor the judgment of 8 January 1992 had been modified. A request by the applicants to intervene in the proceedings was dismissed.
That judgment became final. In 1994 N.O. was authorised to take possession of 550 sq. m of land and obtained a property title.
15. On 27 January 1994 the applicants brought an administrative action against the local and county commissions, seeking to take possession of the 980 sq. m plot of land.
16. On 14 November 1994 the Argeş County Court allowed the action in part and ordered the local commission to enable the applicants to take possession of 430 sq. m of land situated at 13 Ion Antonescu Street (formerly 11 Smeurei Street), representing the difference between the land already given to N.O. and the 980 sq. m plot of land in respect of which the applicants had title. That judgment became final.
17. On 23 February 1995 the applicants brought civil proceedings against N.O. seeking to recover possession of 550 sq. m of land.
18. On 16 November 1995 the Piteşti Court of First Instance, after comparing the property titles, dismissed the applicants’ action on the ground that their title derived from civil proceedings and could be asserted only against the parties, whereas N.O. had title under Law no. 18/1991. The court found, inter alia, that N.O. had owned the 702 sq. m plot since 1986 and that the price stipulated in the sale contract would presumably have included the 702 sq. m plot, not merely 100 sq. m, because a seller had regard to what came out of his patrimony rather than to what entered into the buyer’s. It also considered that N.O. had not been a party to the proceedings ending with the judgment of 8 August 1990 and that therefore that judgment was not enforceable against her.
That judgment became final.
19. On 16 December 1997 the applicants requested the town council to annul the property title issued to N.O. and to award them title to the 980 sq. m of land. The town council considered that there were no legal conditions to justify proceedings for the annulment of N.O.’s title and subsequently dismissed the applicants’ request to authorise them to recover possession of the 980 sq. m plot of land, on the ground that that land was not under the town council’s administration.
20. On 7 August 2001 the applicants made a request under Law no. 10/2001 governing immovable property wrongfully seized by the State, seeking restitution in kind of the 980 sq. m plot of land.
On 3 July 2008 the town council rejected their request on the grounds that, on the one hand, the 550.76 sq. m plot of land had been conveyed to the buyer of the house under Law no. 18/1991 and, on the other hand, the 500.11 sq. m plot of land had not been seized by the State and was in the applicants’ ownership.
The applicants contested that decision before the courts and the proceedings are pending.
21. On 19 September 2005 the third applicant, together with the heir of the first two applicants, made a request under Law no. 247/2005 seeking to recover the 980 sq. m of land.
On 27 June 2006 the county commission dismissed their request on the ground that it had the same object as the request brought under Law no. 10/2001.
22. On 5 February 2007 the Piteşti Court of First Instance dismissed an action brought by the third applicant, together with the heir of the first two applicants, complaining about the decision of 27 June 2006 and seeking to recover the land and to have N.O.’s property title declared null and void. The court allowed pleas of inadmissibility raised by the defendant, considering that the principle of res judicata prevailed as the judgment of 16 November 1995 had recognised N.O.’s right of property over the 702 sq. m plot of land referred to in the 1986 sale contract. It held that the disputed land therefore belonged to N.O. The court also mentioned, inter alia, that following that sale the difference of 381 sq. m had remained in the applicants’ ownership. That judgment became final.
23. So far the applicants have not received any title deed.
On 9 June 2008 the applicants informed the Court that the town council was allowing them to use 500 sq. m of their land and that they were hoping to be provided with a property title accordingly.
On 7 July 1992 and 21 December 1998 the authorities certified that the applicants were paying taxes on the 980 sq. m plot of land.


ITEMID: 001-114809
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: F.A.K. v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Mr F.A.K., is a Libyan national whose date of birth is stated as 1961. The President of the Section decided of his own motion to grant the applicant anonymity (Rule 47 § 3 of the Rules of Court) and confidentiality of the case file documents (Rule 33 of the Rules of Court). He is resident in the Netherlands. His profession is given on the application form as imam. He was represented before the Court by Mr P.J. Schüller, a lawyer practising in Amsterdam. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Netherlands Ministry for Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant applied for asylum in March 1994. He was questioned about the reasons for his asylum request on 31 March 1994 and gave the following account:
The applicant gave his name as A.A., born in 1957. He had travelled on a forged passport in the name of N.A.A. He had been a soldier from 1979 until 1993. He had been trained for three years at a military academy whose name he refused to divulge, such information being a military secret, passing out with the rank of corporal. In 1986 he had been promoted to second lieutenant. He claimed to have been recruited as a member of Jabha-al-Wattaniyya Libiya Li-l-Ingad (Libyan National Liberation Front) after his promotion to commissioned rank, by a colleague from his military academy days; in this capacity he had distributed pamphlets in barracks. In October 1993, following a failed coup attempt against the Gaddafi regime, he had gone into hiding; during this time his house had been raided and searched by armed men who had taken all official documents with them. He had had no trouble leaving Libya because his brother was a member of the Libyan border police. He had flown to Amsterdam via Tunis and Italy. He had met a Moroccan man in an Amsterdam train station who had given him shelter and lodging until the end of the Ramadan holiday, after which he had gone to Rotterdam and applied for asylum. It had been this Moroccan who had advised the applicant to lodge an asylum request, it being impossible to obtain a regular residence permit. According to the report of the interview, the applicant was able more or less to describe the functioning of a Kalashnikov rifle but did not know its calibre, and he was quite unable to describe any service pistol.
4. On 26 April 1994 the Deputy Minister of Justice (Staatssecretaris van Justitie) gave a decision declaring the applicant’s asylum request inadmissible on formal grounds. The applicant had produced no valid border-crossing document, having travelled on a forged passport; and he had failed to report “without delay” after entering the country, having awaited the end of Ramadan. A residence permit on humanitarian grounds was likewise refused.
5. The applicant lodged an administrative objection (bezwaarschrift) on 29 April 1994. Since the objection did not have suspensive effect, he also submitted a request to the competent tribunal for a provisional measure (voorlopige voorziening) aimed at securing a stay of expulsion.
6. On 8 December 1994 the Deputy Minister lodged a written statement in reply. It was stated that the applicant had not told the truth: a Benelux visa in the name of N.A.A. had been requested at the Netherlands embassy in Tripoli by a man who had submitted a passport photograph remarkably similar to that contained in the passport the applicant had travelled on. Likewise, the applicant had stated that he had sought asylum on the advice of the Moroccan man who had told him that he would not succeed in getting a job and a regular residence permit. Moreover, it was admitted that the applicant’s wife had sought a Benelux visa, and travelled, under her own name. The airline ticket which the applicant had submitted did not correspond to the journey which he had allegedly made from Libya, and the applicant had not been able to offer proof of his military career. It was unlikely that the applicant had been involved in the coup attempt, since it had been betrayed and all the plotters were known to have been arrested.
7. A hearing was held before the Regional Court (arrondissementsrechtbank) of The Hague, sitting in ‘s-Hertogenbosch, on 16 December 1994. The applicant was allowed two weeks to prove that he was A.A., as he claimed, not N.A.A.
8. The Regional Court gave judgment on 13 January 1995 refusing to order the suspension of the applicant’s expulsion. It found that the applicant had not submitted the required proof of his identity. At all events, he had admitted that he had taken the advice of the Moroccan man to seek asylum rather than a regular residence permit.
9. The applicant submitted to the Deputy Minister a letter from the Dutch Council for Refugees (Vluchtelingenwerk) dated 18 May 1995. This letter gives the applicant’s name as F.B., F.A.B. or F.A.K., depending on the transcription from Arabic. It was admitted that the applicant had used an alias. It was stated that he had done so for fear that other speakers of Arabic would betray him to the Libyan secret service. He had neglected to tell his lawyer this, which he now acknowledged had been a mistake.
10. On 15 June 1995 the applicant again applied to the Regional Court for a suspension of his expulsion. He now gave his name as F.A.B.; the interrogating official was to blame for the mistaken mention of the name A.A. in the report of the interview on 31 March 1994. He also submitted various identity documents in the name, variously, of F.A.B. and F.A.K. As translated, these included a card with a passport photograph naming F.A.B. as a deserter with effect from 15 September 1993; an identity card in the name of F.A.K. giving his profession as “manual labourer”; an identity card naming F.A.B. as “a staff officer and a soldier”; an undated official report of the loss of a driving license in the name of F.A.K.; and a marriage certificate recording the marriage of F.A.K. with L.A.H. on 9 May 1990 and the birth of their child on 14 April 1992.
11. On 22 June 1995 the Deputy Minister dismissed the applicant’s objection on the grounds stated in the statement of defence of 8 May 1994. The applicant lodged an appeal with the Regional Court of The Hague.
12. On 21 March 1996 the Regional Court declared the appeal well-founded. It noted the absence, in the decision appealed against, of any reference to the letter of 18 May 1995 (paragraph 9 above), and took the view that the applicant’s account of the circumstances of his flight from Libya was not prima facie lacking in credibility.
13. The Deputy Minister remitted the applicant’s case to the Advisory Board on Matters Concerning Aliens (Adviescommissie voor vreemdelingenzaken), which heard the applicant and his wife on 11 December 1996. The applicant’s wife stated that the applicant had always been an army officer, not a manual labourer. She and her husband had fled to Tunis the day after their home had been raided by the authorities. The papers recently submitted had been forwarded by her father-in-law. The applicant stated that his name had been taken down wrong by the interviewing official, in the absence of an interpreter; the official had told him that it was no longer possible to correct it and that he, the applicant, would be in trouble if an attempt were made to do so. As regards the raid on his home, the applicant had driven past as it was in progress; suspecting that the authorities were waiting to arrest him, he had driven on and gone into hiding. The Advisory Board decided to adjourn its hearing in order for the applicant’s identity to be established.
14. On 19 December 1996 experts of the Royal Military Constabulary (Koninklijke Marechaussee – the police force entrusted with guarding the borders) reported that the passport the applicant had submitted was a forgery, the photograph having been replaced.
15. A letter dated 5 January 1998 states that the applicant was involved in the Werfalah Coup Attempt of October 1992. The letter is signed “Libyan National Party”. It bears an illegible signature without a name.
16. On 18 January 1999 the Advisory Board on Matters Concerning Aliens resumed its hearing in sub-committee. The applicant gave his name as F.A.B. The passport had belonged to the applicant’s cousin A., who looked like the applicant, and who had also applied for the visa. Confronted with the inconsistency of his having allegedly seen the raid on his home while having previously stated that he had been in hiding at the time (paragraph 3 above), the applicant replied that he had driven on in a panic. After the raid he had spent the night in his home from time to time, he did not remember precisely. The applicant’s wife became unwell during the hearing and was unable to give pertinent answers to any questions.
17. On 20 April 1999 the applicant’s wife was granted a residence permit on humanitarian grounds.
18. On 16 May 2000 the applicant was granted asylum in accordance with the so-called “three years policy” (driejarenbeleid), as in effect at the time, pursuant to which a residence title could be granted if a request for a residence permit had not been decided within a period of three years for reasons not imputable to the petitioner and provided that there were no contra-indications.
19. In March 2003 the entire family applied for Netherlands citizenship.
20. On 20 January 2006 the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst; “AIVD”) produced a report specifically on the applicant. It had emerged that he had been appointed imam of a particular mosque, from where he preached jihad (Islamic holy war) and martyrdom and called upon the faithful to resist Western oppression. The autochthonous population of the Netherlands he described as pigs and dogs to be slaughtered. He was stated to show jihadist videos to young Muslims. “Unbelievers (i.e. non-Muslims), the autochthonous population and women” were to be shunned. He refused to speak the Dutch language and opposed integration. He had links to Al Jamaah al-Islamiyah al-Muqatilah, or Libyan Islamic Fighting Group, and jihadists based in the Netherlands including A. (the applicant in the case of A. v. the Netherlands, no. 4900/06, judgment of 20 July 2010).
21. On 3 February 2006 the Minister for Immigration and Integration (Minister voor Immigratie en Integratie – who at this time had taken the place and responsibilities of the Deputy Minister of Justice in matters concerning aliens) announced her intention (voornemen) to impose an exclusion order (ongewenstverklaring) on the applicant. Mention was made of the AIVD report and of inconsistencies found in the applicant’s various statements made in the course of the asylum proceedings.
22. In the meantime, the Labour Inspectorate (Arbeidsinspectie) had identified the applicant as a suspect of running a temporary employment agency that provided work to foreign nationals who did not possess the necessary work permit (tewerkstellingsvergunning) from a telephone shop and internet café. An official police record dated 21 April 2006 mentions forged identity documents but it seems that no further evidence of such dealings was found. However, known fundamentalists had been observed near the applicant’s internet café.
23. The same report contains a record of an interrogation of the applicant on 21 April 2006 on suspicion of being a member of an organisation aiming to commit crimes for terrorist ends and recruiting persons for armed hostilities without royal permission. The applicant reportedly denied these charges: he stated that he had received religious training in Libya and espoused a tolerant form of Islam. Jihad, for him, was spiritual struggle against oneself. Accordingly, rather than inciting to violence, he had warned his congregation not to become involved with radical Islamists whose religious views he condemned. The AIVD information was therefore incorrect; it probably emanated from Islamic militants who had implicated him in order to deflect the unwanted attention of the authorities from themselves. He no longer ran the temporary employment agency, which had been unprofitable.
24. On 3 May 2006 a board of officials of the Ministry for Immigration and Integration held a hearing in the matter of the applicant’s application for Netherlands citizenship. The applicant did not turn up. Later a letter was found in which the applicant waived his right to be heard.
25. On 31 July 2006 the Minister gave a decision withdrawing the applicant’s asylum. She found that the applicant had not put forward any convincing evidence of a nature to contradict the AIVD report. As to whether the applicant’s expulsion to his home country would violate Article 3 of the Convention, the applicant’s failure to turn up for the hearing on 3 May 2006 was mentioned; moreover, the applicant had provided little evidence of the fate which he said awaited him in Libya, the story which he had spun at the time of his arrival in the Netherlands hardly being credible either.
26. The following day, 1 August 2006, the Minister announced her intention to deny the applicant Netherlands citizenship. The reasoning was derived primarily from the AIVD report. In the alternative, it was stated that the applicant had not done enough to integrate into Netherlands society; thus, an interpreter had been needed for a police interview on 14 February 2006 (no record of which has been submitted to the Court), which showed a lack of Dutch language skills. Similarly, he had described the autochthonous population as “pigs” and “dogs” who would be “slaughtered”. It was also held against him that he had not bothered to turn up for the official hearing on 3 May 2006; in so doing he had deprived himself of the opportunity to clarify matters.
27. The same day the Minister issued an exclusion order based on the same grounds. In so far as it related to Article 8 of the Convention, its reasoning included the following:
“In deciding whether or not the person concerned (betrokkene, i.e. the applicant) constitutes a danger to national security it has also been considered whether the exclusion order constitutes a violation of Article 8 of the [Convention]. Article 8 § 1 of the Convention provides that everyone has the right to respect for his private and family life, his home and his correspondence. Pursuant to Article 8 § 2 of the Convention there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
It is considered that in view of what is set out above the exclusion order does not constitute a violation of the right to respect for family life as referred to in Article 8.
Given that the applicant’s exclusion is ordered, he is denied the possibility to visit his family for a short time in the Netherlands (...). That being so, there is – as far as the exclusion order is concerned – an interference with the right referred to above.
The interference is, however, justified in the interest of the protection of national security, an interest mentioned in [Article 8 § 2]. After all, the person concerned constitutes – in view of the individual [AIVD] report of 20 January 2006 referred to above – a danger to national security. In so finding, the following is taken into account.
The applicant states in his statement of points of view (zienswijze) that he has a wife and five children, family members who have been legally resident in the country since 1999. That being so, there is family life between the person concerned, his partner and his children within the framework of Article 8. Neither his wife nor his children have Netherlands nationality.
If the interests at issue are weighed in the balance, it will be found in the instant case that it is reasonable to give greater weight to the general interest, which is served by the order excluding the person concerned, than to the personal interest of the person concerned which is served by the ability to exercise private or family life in this country with his wife and his five children.
In so doing, the so-called ‘guiding principles’ [English in the original] taken from [Boultif v. Switzerland, no. 54273/00, ECHR 2001IX] have been taken into consideration. These ‘guiding principles’ have to be observed in considering whether a decision interfering with the right to family life is necessary in a democratic society.
Observing these principles, the Minister has reached the conclusion that the interference is justified and does not contravene Article 8 of the Convention. In this connection, the following is considered relevant.
As is apparent from the above-mentioned individual official report by the AIVD of 20 January 2006, it has appeared that the person concerned constitutes a danger to national security. Thus, it is stated – briefly summarised – in this report (among other things) that it has become known to the AIVD from trustworthy sources that the person concerned has, in his sermons, called for resistance against the Western oppressors; that Netherlands nationals are described by him as ‘pigs and dogs’; that he has made pronouncements such as ‘we will slaughter the Dutch’; that he has, in a private setting (in huiselijke kring), shown jihadist videos to young Muslims; that he has encouraged jihad in his sermons; that he has praised martyrdom; and that he is in contact with, and maintains links with, (international) terrorist networks and organisations.
What is stated about the person concerned in the said AIVD report is so serious that the interest of national security must outweigh the interest of the person concerned in maintaining private or family life without interference.
Prompted by the said individual report by the AIVD, the Minister has concluded that the personal behaviour of the person concerned constitutes a present, actual and sufficiently serious threat (een actuele, werkelijke en voldoende ernstige bedreiging), owing to which the person concerned should be denied residence in the Netherlands.
There is no appearance of special circumstances of such a nature that the balancing exercise should lead to a different result in the present case. In this connection, the following is considered relevant.
The Minister’s refusal to allow the person concerned residence in the Netherlands does, however, prevent the continuation of family life (familie- of gezinsleven) between the person concerned, his wife and their five children as it currently exists in this country. However, although the person concerned and his wife currently have an indefinite residence permit on an asylum basis (vergunning tot verblijf asiel), they have never held a residence permit delivered on the basis of genuine (daadwerkelijk) refugee status in the sense of the [1951 United Nations Convention relating to the Status of Refugees, ‘the 1951 Convention’] and they have never had the status of refugee within the meaning of [the 1951] Convention. Even so, the advisory opinion of the Advisory Board on Matters Concerning Aliens of 18 January 1999 [containing the advice] not to admit the applicant and his wife to the Netherlands as refugees but to award him [sic] a residence permit in connection with the so-called three years policy has led to the delivery of unrestricted residence permits to the applicant and his wife. The residence permit ... was eventually transformed into an indefinite residence permit. Since the lapse of time had arisen in the asylum procedure, it was merely administered by us as an indefinite ‘asylum’ residence permit.
The applicant and his wife have – in view of the above – never entered into or been in the possession of a residence permit because they were refugees. It is true, however, ... that an indefinite asylum residence permit may constitute an objective impediment. The person concerned and his wife are thereby prevented from obtaining a Netherlands travel document which would allow them to travel to Libya (their country of origin). Nonetheless, the person concerned, his wife and his (minor) children may – in view of the above findings on refugee status – turn to the authorities of Libya (their country of origin) for a travel document. There is no appearance of any impediment in this respect. ...”
28. The applicant submitted his statement of points of view against the intention to deny him Netherlands citizenship on 14 August 2006. On 31 August 2006 he also lodged an appeal against the withdrawal of asylum, at the same time applying for a stay of expulsion. On 18 September 2006 he lodged an objection against the exclusion order.
29. The applicant submitted the grounds underlying his objection against the exclusion order on 18 or 19 October 2006. He appended some sermons which he had given in 2005, giving his exegesis of the concept of jihad.
30. On 18 October 2006 the applicant submitted the grounds for his appeal against the withdrawal of asylum and his application for a stay of expulsion. These were largely identical to those submitted in response to the exclusion order.
31. On 20 October 2006 the Minister dismissed the applicant’s objection against the refusal of Netherlands citizenship. The main reason was that since the applicant’s asylum status had been withdrawn, and since an exclusion order was in force, he was no longer lawfully resident in the Netherlands. For the remainder, she relied essentially on the AIVD report.
32. On 24 November 2006 counsel for the State (Landsadvocaat) wrote to the Regional Court informing it that the Minister had decided not to expel the applicant pending the outcome of the appeal against the exclusion order. He added that the applicant was not suspected of oppositional activities against the Libyan leadership.
33. Also on 24 November 2006 a hearing before officials of the Ministry for Immigration and Integration took place in the matter of the applicant’s objection against the exclusion order. The applicant continued to insist that he preached a peaceful message, although perhaps some of his sermons might have been misinterpreted. He also claimed to have been filmed taking part in a demonstration in Brussels protesting against a visit by the Libyan leader Colonel Muammer Gaddafi.
34. On 1 December 2006 the applicant lodged an objection against the refusal to grant his entire family citizenship.
35. On 19 December 2006, following a hearing on 5 December, the Provisional Measures Judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in Utrecht, decided to order the suspension of the exclusion order given that the applicant’s expulsion was not imminent but the applicant nonetheless committed a criminal act by remaining in the country.
36. The very next day the Minister gave a decision dismissing the applicant’s objection against the exclusion order. This decision was largely based on the AIVD report, whose credibility the applicant had not managed to undermine. Absent proof of the applicant’s participation in the demonstration in Brussels, there was no evidence to suggest that the applicant was wanted by the Libyan authorities, and hence no relevant risk for purposes of Article 3 of the Convention; moreover, although it was true that the applicant had been convicted of no crime, he remained a danger to society in the Netherlands and could be required to return to Libya, exercising his right to respect for his family life in that country.
37. On 27 January 2007 the Regional Court of The Hague, sitting in Utrecht, dismissed the applicant’s appeal against the withdrawal of asylum. It found that the appeal had become devoid of purpose, the exclusion order implying that it was not possible for the applicant to be lawfully resident in the Netherlands anyway.
38. The applicant lodged a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), arguing that the Regional Court had failed to go into his complaints under Articles 3 and 8 of the Convention.
39. The Administrative Jurisdiction Division gave its decision on 9 May 2007. It agreed that the Regional Court had failed to rule on the applicant’s Convention complaints. However, these could be addressed in the proceedings concerning the exclusion order; there was therefore no reason to allow the appeal, which was dismissed as ill-founded.
40. The Regional Court of The Hague, sitting in Utrecht, held a hearing in the matter of the exclusion order on 5 July 2007. It delivered its decision on 22 February 2008, dismissing the applicant’s appeal. Having studied the documents on which the AIVD report was based, the Regional Court found the report credible and dismissed the suggestion that the applicant was at risk in the event of his return to Libya; there was thus no issue under Article 3 of the Convention. As to the applicant’s right to respect for his family life, in so far as it was guaranteed by Article 8, national security carried greater weight.
41. The applicant lodged a further appeal with the Administrative Jurisdiction Division, arguing not only that his removal to Libya would constitute violations of Articles 3 and 8 but also that the failure of the Minister to take cognisance of the information on which the AIVD report was based, and the failure to allow him access to that material, violated Article 13 taken together with Articles 3 and 8 respectively.
42. The Administrative Jurisdiction Division gave its decision on 14 April 2009. It dismissed the applicant’ suggestion that the Minister ought to have taken cognisance of the raw data used by the AIVD to prepare its report, finding it sufficient that the Regional Court had done so, and that it had done so itself. It then found it established in previous judicial decisions that the applicant’s account of his military career and flight from Libya lacked credibility and that moreover the applicant’s brother-in-law appeared able to travel to and from that country with no apparent difficulty. Letters and testimonials purportedly emanating from Libyan opposition organisations gave no specific information as to either the applicant’s actions, nor as to whether the applicant had attracted the active interest of the Libyan authorities. As regards Article 8, the Administrative Jurisdiction Division referred to the AIVD report and the information on which it was based; taking these into account, it found no reason to overturn the decision of the Regional Court. It went on to hold that the Minister had ruled, not without good cause, that the interference with the applicant’s rights was justified.
43. The regime of Colonel Muammer Gaddafi was overthrown in August 2011. On 20 October 2011 Colonel Gaddafi himself was captured and killed. The National Transitional Council, the internationally recognised interim authority, declared the country liberated three days later. Parliamentary elections were held in July 2012.
44. The Government have submitted photocopies of travel documents in the name of the applicant’s wife, Ms L.A.H. All three documents state Ms L.A.H.’s name, her place of birth (a town in Libya) and her date of birth and bear her likeness.
45. The first is a Netherlands travel document in passport form issued under the 1951 Convention on 15 July 2009. It is valid for all countries but one, the sole exception being Libya. The photocopy submitted shows three Brussels Airport passport control stamps: an exit stamp dated 15 October 2011, an entry stamp dated 30 October 2011, and another exit stamp dated 24 December 2011.
46. The second is a Netherlands identity card showing that Ms L.A.H. has been granted indefinite asylum.
47. The third is a Libyan passport, issued on 27 October 2011 in Ms L.A.H.’s place of birth. It is valid until 26 October 2015. It bears stamps in Arabic script dated 29 October 2011, 24 December 2011 and 10 January 2012, at least two of which the Court identifies as Libyan border control stamps.
48. The photographs used for the Netherlands travel document and the Libyan passport appear identical.
49. The domestic and international law and practice relevant to the case are set out in A. v. the Netherlands, cited above, §§ 67-110.


ITEMID: 001-58897
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF SEVTAP VEZNEDAROĞLU v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Feyyaz Gölcüklü
TEXT: 8. The facts of the case as submitted by the applicant are summarised below. The Government dispute the applicant’s account.
9. The applicant was at the relevant time a research student in public law at Diyarbakır University and married to a lawyer who had been the provincial president of the Diyarbakır Human Rights Association in 1990. According to the applicant she was constantly followed by the police on account of her husband’s position.
10. On 4 July 1994, at about 3 p.m., the applicant was arrested by 8 policemen at her home on suspicion of membership of the Kurdistan Workers Party (“PKK”), an illegal organisation.
11. The applicant was taken to the forensic doctor to be examined. Following the doctor’s examination she was blindfolded and taken to an unknown destination where she was placed in a cell. After a certain period of time, she was again blindfolded and taken to another room to be interrogated.
12. The applicant was interrogated by approximately 15 policemen and accused of forming links with and of working for the PKK abroad. She was then undressed and hung by her arms. She was given electric shocks to her mouth and sexual organs. After half an hour she was taken down as she had fainted. The interrogators, while threatening her with death and rape, told her not to work on human rights matters. She was then taken to her cell. The next day she was again tortured and threatened with death and rape. The torture continued for four days. During the first two days of her custody the applicant was not given anything to eat. Thereafter she was only given a piece of bread and a few olives.
13. During her detention the applicant was requested to sign some documents. She was told that she would be tortured and raped if she did not agree to sign them. The applicant signed the documents. In the documents, by way of explanation for the marks of torture on her body, it was stated that the applicant had fallen while indicating a place used by the PKK. The policemen applied cream to the applicant’s injuries.
14. On 13 July 1994 the police officers brought her to the forensic doctor who drew up a report which stated: “Upon the examination of Sevtap Veznedaroğlu, violet-coloured bruises were identified on the left upper arm 1 by 1 cm and on the right tibia 3 by 1 cm”.
15. On 15 July 1994 the applicant, accompanied by police officers, was taken to the Diyarbakır State Hospital where she was examined by a forensic doctor. In his report dated 15 July 1994 the doctor noted the presence of the same bruising on the applicant’s arm and leg as indicated in the earlier report of 13 July 1994. The report concluded that the applicant’s health was not at risk and that she was fit to work.
16. On 15 July 1994 the applicant was brought before the public prosecutor at the Diyarbakır State Security Court. Her file contained the medical reports dated 4, 13 and 15 July 1994. The applicant maintained before the public prosecutor that she had signed the confession statement under pressure and as a result of being tortured while in detention. The public prosecutor recorded in the file that the applicant did not acknowledge the statement which she gave to the police.
17. On the same day the applicant appeared before a substitute judge attached to the Diyarbakır State Security Court. The applicant repeated to the judge that she did not acknowledge the statement taken from her by the police “since she had been tortured and held under duress for many days ... and that the police had held her wrist and forced her to sign the police statement”. The applicant’s statement was recorded in the minutes of the hearing before the judge. The judge directed that the applicant be released from custody. The public prosecutor for his part ordered that the applicant stand trial before the Diyarbakır State Security Court on a charge of being a member of the PKK.
18. On 18 July 1994 the applicant was given a certificate by the Medical Faculty Hospital of Dicle University indicating that she was unable to work for 20 days. According to the medical report the applicant was suffering from bronchopneumonia.
19. On 30 October 1995 the applicant was acquitted by the Diyarbakır State Security Court on the ground of lack of evidence. The applicant was not in court on that day. In its ruling the court noted as follows the declarations made by the applicant during a court hearing held on 13 October 1994 and which was recorded in the minutes.
“Although the accused admitted to the offence with which she was charged in her statements to the police, at a later stage during the proceedings before the judicial organs she claimed that she had made them under duress and even torture and had signed them without having read them.”
20. The Turkish Criminal Code makes it a criminal offence to subject an individual to torture or ill-treatment (Articles 243 and 245 respectively, the latter provision applying to allegations made against civil servants).
21. Complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate criminal offences reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
22. If the alleged author of a criminal offence is a State official or civil servant, permission to prosecute must be obtained from the local administrative council (the Executive Committee of the Provincial Assembly). The decision of a local council may be appealed to the Council of State; a refusal to prosecute is subject to an automatic appeal of this kind.
VIOLATED_ARTICLES: 3


ITEMID: 001-4497
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 1998
DOCNAME: LOGANATHAN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant, born in 1955, is a citizen of Sri Lanka. He is currently staying in Wuppertal. He is a kitchen helper by profession.

The applicant entered Germany on 5 September 1994. On 13 September 1994 he filed a request for asylum. In the course of his questioning by the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge), he submitted that in 1991 his house had been destroyed by the armed forces. He also stated that in 1993 (later corrected as 1994) he had been arrested by the armed forces and detained several months on the - false - suspicion of having supported the Liberation Tigers of Tamil Eelam (LTTE). He had allegedly been tortured in the course of his detention. His release had been arranged by a friend who had subsequently brought him to an office of the Red Cross. He feared that upon his return he would again be arrested by the armed forces or, if he returned to his home town, he risked to be forced to support the LTTE.
On 27 September 1994 the Federal Office for Refugees dismissed the applicant’s request for asylum and ordered him to leave Germany voluntarily, warning him that he would otherwise be expelled.
On 22 April 1998 the Düsseldorf Administrative Court (Verwaltungsgericht) dismissed the applicant's action challenging the decision of 27 September 1994.
In its detailed judgment, the court found that the applicant had failed to show that he had left Sri Lanka on account of political persecution or that he risked to be exposed to such persecution in case of his return. The court considered in particular that the applicant's submissions regarding his personal situation in Sri Lanka was not credible, as there were major contradictions in his statements. In this respect, the court noted the contradictions in his indications as to exact dates, varying even in months and years, which could not be explained by alleged disturbances of memory. Furthermore, his explanations concerning his release and his leaving the country were incredible. Finally, his statements about his activities in support of the LTTE were contradictory.
The court had regard to case-law and reports of the German Foreign Office (Auswärtiges Amt) relating to the general situation in Sri Lanka. It noted that on the Jaffna peninsula the total number of interferences with liberty and security of Tamils, by security forces, did not justify the conclusion that any Tamil faced a real risk of being subjected to such action. In the court’s view, similar considerations applied to the region of Colombo and the southern and western parts of Sri Lanka. The court noted that in Colombo the security forces regularly carried out ‘cordon and search operations’ and, on a random basis, arrested Tamils in order to find LTTE activists and supporters. Cases of lengthy detention, ill-treatment in the course of the detention or disappearance had occurred. However, the number of such cases, considering the number of Tamils living in this area, did not justify the conclusion that every Tamil faced a real risk of persecution. The applicant’s submissions as to his personal situation did not disclose any special circumstances. There were no reasons to assume that the applicant would face a real risk for life, limb or liberty in the whole territory. In this respect, the court took into account that the security forces, by means of administrative measures, attempted to avoid that Tamils originating from the northern parts of Sri Lanka would take a lawfully residence in Colombo. They thereby intended to make these persons move back to their home towns. Taking into account the increasingly stable control of the Sri Lankan armed forces in large areas of the Jaffna peninsula and the reconstruction measures, there was no risk of death or serious injuries even if the applicant, upon his return to Sri Lanka, were to take residence in the north.
On 5 August 1998 the North-Rhine Westphalia Administrative Court of Appeal (Oberverwaltungsgericht) refused to allow his appeal. The Court of Appeal dismissed the applicant's complaint that his submissions about his alleged activities for the LTTE had not duly been taken into account. In this respect, the Court of Appeal noted that the Administrative Court had regarded these statements as incredible.
The applicant did not lodge a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundesverfassungsgericht), pursuant to Article93 §1 (4)(a) of the Basic Law (Grundgesetz) in conjunction with sections 90 et seq. of the Constitutional Court Act (Bundesverfassungsgerichtsgesetz).


ITEMID: 001-61703
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF ÖZALP AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2 with regard to death;Violation of Art. 2 with regard to effectiveness of investigation;No violation of Art. 3;Not necessary to examine Art. 6;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis;Feyyaz Gölcüklü
TEXT: 9. The applicants (see paragraph 1), who were born in 1955, 1975, 1977, 1979, 1981, 1985, and 1988 respectively, are the wife and children of the deceased, Cavit Özalp, who was killed in 1995 while he was under custody.
10. Until 1994, the Özalp family resided in the Serçeler village in Bismil District in province of Diyarbakır. When the security forces started to pressurise the Özalp family members to become village guards, the family moved to Diyarbakır in the spring of 1994.
11. On 21 August 1995 one of the applicants, Mr Hacı Özalp, went back to Bismil to visit the fields that belonged to his family. When he arrived in Bismil, he was stopped by soldiers and questioned about his father, Cavit Özalp. He was subsequently taken to the gendarme command, where he was further questioned about his father. During the interrogation, Hacı told them where they could find Cavit Özalp.
12. On 24 August 1995 Cavit Özalp was taken into custody in Diyarbakır. On the same day, Hacı saw his father in custody however he was not allowed to speak to him.
13. On 26 August 1995 Hacı was released from custody. On the same day, while he was still in Bismil, he was informed by an acquaintance that an incident had taken place in the Kamberli village and that it concerned his father. Consequently, when Hacı went to the Kamberli village to find out more about this incident, he met a villager, called Vehyettin, who told him that his father was dead.
14. On the same day two police officers visited Cavit's house in Diyarbakır and told Hacı's uncle that Cavit had died.
15. On 5 February 1996 the applicants' representatives filed a petition with the public prosecutor attached to the Diyarbakır State Security Court. Referring to the investigation that had been commenced into the death of Cavit Özalp and the decision of non-prosecution that had been delivered by the Diyarbakır State Security Court public prosecutor, the applicants' representatives requested a copy of the arrest and autopsy reports as well as the public prosecutor's decision of non-prosecution.
16. The public prosecutor refused to give these documents and noted at the bottom of the petition the following:
“It has been decided [by this office] that no prosecution should be brought about the death of Cevat Özalp [Note: Cavit's name is spelled out as Cevat in the public prosecutor's note.] pursuant to Article 96 of the Turkish Criminal Code. The investigations in order to apprehend the co-activists of Cevat Özalp are still ongoing. A copy of the investigation file could not have been given [to the representatives] in accordance with the relevant provisions of the Constitution, as it would constitute disclosure of the content and the subject matter of the investigation file.”
17. On 24 August 1995 Cavit Özalp was taken into custody by the gendarmes from the Bismil Gendarme District Command on suspicion of membership of the PKK, proscribed as a terrorist organisation. He was suspected of aiding and abetting the PKK terrorists.
18. On an unspecified date Cavit Özalp gave a statement to the gendarmes. He stated that the PKK terrorists were occasionally staying in his house and that he was providing them with food and military equipment such as weapons, clothes and medicine. He further stated that he had dug a shelter with the terrorists on the slopes of a hill near the Pamuk River in the Sarıhüseyin hamlet attached to the Serçeler village to hide some equipment.
19. On 24 August 1995 Cavit Özalp was taken to the Bismil Health Center for medical examination. According to the medical report, there were no signs of ill-treatment on his body.
20. On 26 August 1995 at 4 a.m. the gendarmes conducted a search to find out the location of the shelter that had been mentioned by Cavit Özalp in his statement. Cavit guided the soldiers to the shelter near the Şedat road in the Kamberli village. While protecting themselves in a secure distance, the soldiers asked him to open the cover of the shelter. As he opened the cover, the soldiers witnessed a big explosion, which tore Cavit's body into pieces. The explosives had been placed in the entrance to the shelter by other members of the PKK and the soldiers found weapons, medical equipment and clothes in the shelter. The incident was further reported to the Bismil public prosecutor.
21. On the same day an on-site examination was conducted by the Bismil public prosecutor together with a doctor. According to an onsite body examination, it was established that both legs were severed as a result of the explosion. No other signs of injury were observed on the dismembered body. The doctor decided that it was unnecessary to conduct a full autopsy on the body. Cavit's corpse was then given to Mr Hasip Yılmaz, a member of the Kamberli village assembly. An incident report was further drafted by the gendarmes and was signed by three non-commissioned officers and the village mayor Mr Kütbettin Altunç.
22. On 24 November 1995 the public prosecutor at the Diyarbakır State Security Court decided that no prosecution should be brought against Cavit Özalp on account of his membership of the PKK on the ground that he had died on 26 August 1995.
23. On 14 November 1995 the Bismil public prosecutor accused the non-commissioned officer, Mr İlhan Yücel, of failing to take the necessary precautions when Cavit Özalp had been asked to open the cover of the shelter and of causing Cavit Özalp's death through negligence. However, as the public prosecutor did not have the jurisdiction to bring proceedings against the non-commissioned officer, he declared lack of jurisdiction and transferred the case file to the Bismil District Administrative Council.
24. Subsequently, the District Administrative Council appointed a major as a rapporteur to conduct further investigations into the killing of Cavit Özalp. On 15 January 1996 the major took statements from the non-commissioned officers, Mr İlhan Yücel, Mr Yılmaz Öztiryaki and Mr Ömer Karabaş, who had been on site during the incident of 26 August 1995. The officers stated that Cavit Özalp had been taken into custody on suspicion of membership of the PKK and had confessed that he had been aiding and abetting the terrorists, providing them with food, clothes, weapons and medical equipment. The soldiers further stated that Cavit had mentioned a shelter which was used by the terrorists and when he was taken to the site to show the place of the shelter, the gendarmes had positioned themselves far from the shelter to prevent any loss of life. The soldiers explained that Cavit was asked to open the shelter, however he had died as a result of the explosion. The officers finally stated that medical equipment and clothes had been found in the shelter.
25. Basing himself on the statements of the three accused non-commissioned soldiers, the incident and the body examination reports, on 23 January 1996 the rapporteur submitted his report to the District Administrative Council. He concluded that the security forces had taken all the necessary precautions before Cavit Özalp was asked to open the cover of the shelter. The report further stated:
“Having regard to the fact that Cavit Özalp had confessed that he had dug a shelter [with the other terrorists] it was presumed that he could have known the place of the shelter and that he could have safely opened its cover himself. After the necessary safety measures had been taken, he had been asked to open the cover. However, he had died in an explosion. The explosives had been previously placed there by the terrorists. Neither the security forces nor Cavit Özalp had noticed the explosives.”
26. The report concluded that the security forces had performed their duty with diligence and it was recommended that no prosecution be brought against the members of the security forces.
27. On 28 February 1996 the Bismil District Administrative Council issued a decision stating that no prosecution should be brought against the members of the security forces. The council concluded that Cavit Özalp had died as a result of the explosion and that the accused members of the security forces had performed their duty with diligence.
28. On 2 April 1996 the Diyarbakır Regional Administrative Court, to which the case had been automatically referred to by law, upheld the decision of the Bismil District Administrative Council.
(a) Arrest report, dated 24 August 1995, drafted by Bismil District Gendarmerie Command;
(b) Custody records, dated 24 August 1995 which indicate that Cavit Özalp was taken into custody on 24 August 1995 at about 11 a.m.;
(c) Undated statement of Cavit Özalp;
(d) Medical report dated, 24 August 1995;
(e) Report of incident, dated 26 August 1995;
(f) Sketch map of scene of incident, dated 26 August 1995;
(g) Autopsy report dated, 26 August 1995;
(h) Non-jurisdiction decision of the Bismil public prosecutor's office, dated 14 November 1995;
(i) Statements of the three non-commissioned officers, Mr İlhan Yücel, Mr Yılmaz Öztiryaki and Mr Ömer Karabaş, dated 15 January 1996;
(j) Non-prosecution decision of the Diyarbakır State Security Court Public Prosecutor, dated 24 November 1995, delivered against Cavit Özalp;
(k) Non-prosecution decision of Bismil District Administrative Council, dated 28 February 1996;
(l) Decision of the Diyarbakır Regional Administrative Court, dated 2 April 1996, upholding the decision of Bismil District Administrative Council;
(m) Petition of the applicants' representatives to the Diyarbakır State Security Court public prosecutor's office dated 5 February 1996 and the subsequent rejection of the public prosecutor;
(n) Undated statement of Hacı and Makbule Özalp concerning the application.
29. In respect of relevant domestic legislation, the Court refers to its case-law in Demiray v. Turkey (no. 27308/95, §§ 26-30, ECHR 2000XII).
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-85847
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MARSIKOVA AND MARSIK v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicants, Ms Olga Maršíková and Mr František Maršík, are Czech nationals who were born in 1950 and 1948 respectively and live in Nové Město nad Metují. They were represented before the Court by Mr M. Nypl, a lawyer practising in Hradec Králové. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 November 1992 the first applicant bought a car from company R., with a one-year guarantee. In 1993 she claimed that there were defects in the car and withdrew from the purchase, but company R. was not willing to resolve the matter by a friendly settlement.
On 9 November 1993 the first applicant brought an action against company R. before the Brno-venkov District Court (okresní soud).
On 10 July 1998 the second applicant joined the proceedings, the car having actually been purchased by both spouses.
On 31 July 2002 the District Court decided in the applicants’ favour.
Meanwhile, bankruptcy proceedings had been initiated against company R. The District Court’s judgment could not become final and the civil proceedings remain pending before the first instance court.
On 24 July 2006 the applicants applied for compensation pursuant to Act no. 82/1998 as amended. It appears that the compensation proceedings are still pending.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-78522
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF TIKHONCHUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies, victim);Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1977 and lives in Nova Kakhovka, the Kherson region. He is a former employee of the State-controlled OJSC “Pivdenelektromash” (“the Company,” ВАТ “Південелектромаш”).
5. The background facts for the case are described in the case of Anatskiy v. Ukraine (no. 10558/03, §§ 5-8, 13 December 2005).
6. On 7 February 2001 the Nova Kakhovka Court (Новокаховський міський суд Херсонської області) ordered the Company to pay the applicant UAH 3,009 in salary arrears. This judgment became final.
7. According to the Government, the applicant never submitted the enforcement writ in respect of this judgment for enforcement.
8. The applicant presented a copy of the letter of the Nova Kakhovka Bailiffs' Service (“the Bailiffs,” Відділ Державної виконавчої служби Новокаховського міського управління юстиції) of 6 May 2005 advising him that the enforcement proceedings in respect of the judgment of 7 February 2001 had been instituted on 26 February 2002.
9. Additionally, the applicant presented a copy of the Bailiffs' decision of 1 July 2002, by which they returned him the enforcement writ in respect of the above judgment unenforced. In particular, the Bailiffs referred to the impossibility of the enforcement in view of the debtor's lack of funds, the pending bankruptcy proceedings against it and the holding of its assets in a tax lien.
10. The judgment of 7 February 2001 remains unenforced to the present day.
11. On 29 December 2002 the Nova Kakhovka Court ordered the Company to pay the applicant UAH 3,359 in salary arrears. This judgment became final and on 13 February 2003 the Bailiffs instituted enforcement proceedings in its respect.
12. The judgment of 29 December 2002 remains unenforced to the present day.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101922
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: JAKUSIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Ms Antonija Jakušić, is a Croatian national who was born in 1950 and lives in Zlatar Bistrica. She was represented before the Court by Mr N. Perišić, an advocate practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was born in 1950 and lives in Zlatar Bistrica.
In 1979 the applicant’s mother, together with other heirs, inherited twenty plots of land from her husband. She thereby became a co-owner of various proportions of that property.
On 29 August 1989 the applicant and her sister signed a contract of lifelong care (ugovor o doživotnom uzdržavanju) with their mother before the Zlatar Municipal Court (Općinski sud u Zlataru), stipulating that the daughters were to provide for their mother until her death while the mother transferred the ownership of all her immovable property, that is, her share of the above twenty plots of land, to the daughters after her death.
On 23 March 1992 the parties amended the above contract so that the applicant and her sister, at the moment of signing of the amendment to the contract, became the co-owners of their mother’s share of the above twenty plots of land.
On the basis of the above amendment of 23 March 1992, on 24 April 1992 the applicant was recorded in the land register as the co-owner of those twenty plots of land in various proportions.
Meanwhile, on 27 February 1990 the applicant’s aunt B.J. brought a civil action in the Zlatar Municipal Court against the applicant’s mother, with a view to being declared the owner of part of the above property. After the death of the applicant’s mother in May 1992, in October 1992 the applicant and her sister became parties to the proceedings.
On 26 June 2000 the Zlatar Municipal Court adopted a judgment. However, that judgment was quashed on 24 March 2004 by the Zlatar County Court (Županijski sud u Zlataru) and the case was remitted to the first-instance court for fresh proceedings.
On 29 March 2004 the applicant and her sister lodged a constitutional complaint under section 63 of the Constitutional Court Act, complaining about the length of the civil proceedings. On 4 November 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) found a violation of their constitutional right to a hearing within a reasonable time, awarded them each 7,250 Croatian kuna (HRK) in compensation and ordered the Zlatar Municipal Court to adopt a decision in their case in the shortest time possible but no later than ten months from the publication of its decision in the Official Gazette. The Constitutional Court’s decision was published on 22 November 2004.
On 19 July 2005 the Zlatar Municipal Court dismissed the plaintiff’s action. That judgment was upheld by the Zlatar County Court on 21 December 2005 and thereby became final, with the consequence that all concerned remained, as before, co-owners of the twenty plots of land.
On 13 July 2006 the applicant instituted non-contentious proceedings before the Zlatar Municipal Court against the other co-owners B.J., Ž.J. and I.J., seeking partition of the co-ownership of six of the above twenty plots of land.
At the hearing held on 18 September 2006 the applicant appeared before the court but the defendants failed to appear.
An on-site visit was carried out on 9 November 2006 in the presence of the judge assigned to hear the case, the parties and an expert. The expert submitted his opinion and a drawing of the site the same day.
The next on-site visit, scheduled for 27 March 2007, was adjourned because the defendants did not attend.
During the following on-site visit, on 26 April 2007, the defendants prevented the experts present from taking the necessary measurements
The subsequent on-site visit, scheduled for 22 May 2007, was adjourned and the parties agreed to arrange for the measurements to be taken again. The next on-site visit, scheduled for 2 April 2008, was adjourned because the defendants did not attend.
At a hearing held on 9 May 2008 the parties reached a settlement whereby they remained co-owners of one plot of land, the defendants B.J., Ž.J. and I.J. became co-owners of one third of three plots of land and the applicant became the sole owner of two plots of land.
On 28 May 2008 the applicant approached the Land Registry Division of the Zlatar Municipal Court seeking to enforce the above in-court settlement of 9 May 2008 by recording the partition of co-ownership in the land register.
On 30 May 2008 the Land Registry Division of the Zlatar Municipal Court dismissed the applicant’s request. It found that the changes stipulated in the in-court settlement of 9 May 2008 could not be recorded in the land register because the share of the property in question belonging to Ž.J. was subject to enforcement proceedings instituted in 2006 and 2007 by his creditors before the same court, after which it was not allowed, under the Enforcement Act, to record any changes in ownership or other rights in rem in respect of that property in the land register.
On 18 June 2008 the applicant appealed against that decision to the Zlatar County Court.
On 25 November 2009 the Zlatar County Court in part upheld and in part quashed the first-instance decision. It held that while the Enforcement Act indeed did not allow the changes stipulated in the in-court settlement of 9 May 2008 to be recorded in respect of Ž.J.’s share of the property, they could be recorded in respect of B.J. and I.J.’s share of the property.
Due to the outcome of the civil proceedings for annulment (see below), it appears that no further steps were taken with a view to recording the changes stipulated in the in-court settlement of 9 May 2008 in the land register.
On 4 July 2008 the applicant brought a civil action in the Zlatar Municipal Court against B.J., Ž.J. and I.J. seeking to annul the above in-court settlement of 9 May 2008 because at the time it had been entered into Ž.J. had concealed the fact that enforcement proceedings had been pending in respect of his share of the property.
On 24 March 2009 the court delivered a judgment whereby it annulled the in-court settlement, with the effect that all concerned remained, as before, co-owners of the six plots of land in question.
On 26 March 2009 the applicant instituted a second set of non-contentious proceedings against B.J., Ž.J. and I.J. for partition of co-ownership before the Zlatar Municipal Court. This time she sought partition of the co-ownership of four plots of land.
On 4 November 2009 the court issued a decision ordering the partition of the co-ownership by sale of the four plots of land in question at a public auction and distribution of the proceeds of the sale to the co-owners in proportion to their shares. It held that partition in kind (geometrijska dioba) was not feasible and therefore ordered partition by auction (civilna dioba).
The applicant and B.J. appealed as they both objected to partition by auction and sought partition in kind.
It would appear that the case is currently pending before the Zlatar County Court.
The relevant part of the Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/1996, 73/2000, 114/2001, 79/2006, 141/2006, 146/2006, 38/2009 and 153/2009), which entered into force on 1 January 1997, reads as follows:
“(1) A co-owner has the right to partition of co-ownership if that is practicable and permissible. That right is not subject to statute of limitations.
(2) A co-owner may require partition at any time, except when that would be detrimental to the interests of other co-owners ...”
“Partition may not be detrimental to the rights of third persons ...”


ITEMID: 001-119041
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF TYUKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: Elisabeth Steiner;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 4. The applicant was born in 1955 and lives in Moscow.
5. On 30 April 1998 the applicant bought a building at auction.
6. On 1 July 1998 the former owner of the building, a private company T., lodged an action against the applicant and a private company E., seeking annulment of the results of the auction.
7. On 14 July 1998 and 10 December 1998 the Tsentralniy District Court of Tver (trial court, District Court) upon the motions of the company T. and the applicant issued injunctions prohibiting use and disposal of the building.
8. On 2 November 1998 the trial court ordered the state property management and tax authorities to join the proceedings as third parties.
9. Between 16 November 1998 and 13 January 2000 at least four scheduled hearings were adjourned at the requests of the parties and subsequently the proceedings were suspended for eleven months to resolve the issue whether the acting president of the company E. lawfully acquired his status.
10. On 24 March 2000 the District Court dismissed the lawsuit of the company T. and lifted the injunctions. The plaintiff missed the time-limit for lodging an appeal and further attempts to restore it were unsuccessful.
11. On 5 February 2001 the Supreme Court of the Russian Federation upon the request of the Deputy Prosecutor General of the Russian Federation annulled the judgment of 24 March 2000 and ordered reconsideration of the case.
12. The District Court received the case file and fixed a preliminary hearing for 10 May 2001. At the following hearing on 4 June 2001 the trial court upon the motion of the company T. issued an injunction prohibiting use and disposal of the building. It was challenged by the applicant without success.
13. On 16 November 2001 the District Court held a conference with the parties and fixed another preliminary hearing.
14. Between 26 December 2001 and 12 September 2002 at least eight hearings were adjourned for various reasons including three times because of the applicant travel abroad, failure to appear for the hearing, order for the applicant to produce documentary evidence. The other reasons included illness of a judge, orders to produce evidence, failure to notify certain parties of the hearing or their failure to appear.
15. On 12 September 2002 the District Court dismissed the case as falling out of jurisdiction; however this decision was annulled by the Tver Regional Court on 14 November 2002.
16. Between 21 January 2003 and 30 May 2003 at least five hearings were adjourned for various reasons including twice for the failure of the parties to appear and once at the request of the applicant.
17. Between 13 July 2003 and 8 December 2003 at least four hearings were adjourned for various reasons including once for the failure of the defendants to appear, twice for the applicant’s travel and medical treatment abroad, and once because the applicant had to produce documentary evidence.
18. On 8 December 2003 the District Court denied the applicant’s motion to lift the injunction prohibiting use and disposal of the building. On 12 February 2004 his appeal against the decision was dismissed by the Tver Regional Court.
19. On 5 March 2004 the hearing was adjourned due to the applicant’s vacation abroad; and on 15 April 2004 due to failure of the plaintiff and the defendants (except for the applicant) to appear.
20. Between 19 May 2004 and 21 June 2005 at least fourteen hearings were adjourned for various reasons, including twice due to the applicant’s travel abroad, once due to his illness, and once due to his request to obtain documentary evidence from the commercial courts. Other hearings were adjourned due to failure of the parties to appear, requests to adjourn the proceedings, change of certain defendants, and amendments to the lawsuit.
21. On 30 June 2005 the District Court discontinued consideration of the lawsuit due to repeated failure of the plaintiff to appear without a valid reason. The plaintiff requested the District Court to resume the proceedings, but the request was denied on 26 September 2005. On 25 November 2005 the plaintiff’s appeal was dismissed by the Tver Regional Court.
22. On 8 December 2005 the District Court lifted the injunction prohibiting the use and disposal of the building.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-75740
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SIKA v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1937 and lives in Trnava.
5. On 30 June 1993 the applicant brought a civil action against his neighbour, Mr P., in the Trenčín District Court (Okresný súd). He maintained that in 1991 P., with his truck, had damaged the applicant’s fence. He sought damages and an order that P. repair the fence and refrain from using the road adjacent to it.
6. As his submissions were unclear, the applicant was summoned four times for an informative interview; invited to state his claims in accordance with the applicable procedural requirements; and requested to pay the court fee. In response, the applicant twice restated his action and paid the court fee on 25 August, 25 October and 16 November 1993, respectively.
7. The hearing held on 16 December 1993 was adjourned with a view to obtaining an expert report concerning the damage. The report was filed on 18 April 1994.
8. Another hearing was called for 13 May 1994 but it had to be adjourned as the applicant did not appear.
9. On 30 May 1994 the applicant and P. reached a friendly settlement of the case before the District Court in which P. agreed to repair the fence.
10. On 30 May 1994, by a separate decision, the District Court ruled on the fee to be paid to the expert for his report. On 15 December 1994 the Bratislava Regional Court (Krajský súd) upheld this decision on the applicant’s appeal.
11. On 12 January 1995 the applicant lodged a petition with the District Court for the judicial enforcement of the settlement, arguing that the way in which P. had repaired the fence did not comply with the settlement.
12. On 10 August 2000 the District Court dismissed the petition, finding that P. had repaired the fence properly.
13. On 30 November 2001, on the applicant’s appeal, the Trenčín Regional Court quashed the decision of 10 August 2000 and remitted the matter to the District Court for re-examination. It found that the District Court had failed to establish the relevant facts adequately and that the evidence before it was not sufficient to justify the conclusion it had drawn.
14. On 9 December 2003 the District Court appointed a construction expert to inspect the site and assess whether or not there had been compliance with the settlement. The expert filed his report on 27 January 2004.
15. On 29 January 2004, by three separate decisions, the District Court again dismissed the applicant’s petition for judicial enforcement of the settlement; ruled that the applicant did not qualify for an exemption from the obligation to pay the court fee; and determined the amount of the fee to be paid by the State to the expert for his report. As to the merits, on the basis of the expert report the District Court concluded that P. had fulfilled his undertakings and that there was no cause for enforcement.
16. On 19 February 2004 the applicant challenged the above mentioned decisions of 29 January 2004 by three separate appeals. As to the merits, he argued that the netting used by P. was not the same as the original, and that P. had failed to paint it.
17. On 30 June 2004 the Regional Court upheld all three decisions of 29 January 2004 fully endorsing the factual findings and conclusions of the District Court.
18. The applicant challenged the length of the proceedings in the above matter by a complaint under Article 127 of the Constitution to the Constitutional Court (Ústavný súd). In the text of the complaint, the applicant impugned the whole length of the proceedings. However, in the object of the complaint, as expressed in a standardised and prescribed form, the applicant formally challenged the enforcement phase of the proceedings only and claimed 200,000 Slovakian korunas (SKK) in compensation for his nonpecuniary damage.
19. On 14 January 2004 the Constitutional Court declared the complaint admissible and granted the applicant free legal aid.
20. On 29 April 2004 the Constitutional Court found that, in the enforcement proceedings, the District Court had violated the applicant’s right under Article 48 § 2 of the Constitution to a hearing “without unjustified delay”, and his right under Article 6 § 1 of the Convention to a hearing “within a reasonable time”. It further awarded the applicant SKK 15,000 by way of just satisfaction in respect of his nonpecuniary damage and ordered the reimbursement of his legal costs.
The Constitutional Court found no justification for the total length of the proceedings in the complexity of the case or the conduct of the parties. Moreover, it found that the District Court had been inactive without any justification from 12 January 1996 to 25 June 1997, from 20 August 1997 to 24 September 1999, and from 18 March 2002 to 9 December 2003, a total of 5 years and 2 months.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81107
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GOROU v. GREECE (N° 2)
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1 (fairness);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 6. The applicant is a public servant in the Ministry of National Education. On 2 June 1998 she filed a criminal complaint for perjury and defamation against S.M., with an application to join the proceedings as a civil party, but without seeking reparation. S.M., a public servant in the same ministry, is the applicant’s immediate superior. She alleged in particular that, in connection with an administrative investigation opened against her, S.M. had stated that she did not observe working hours and did not get on well with her colleagues.
7. On 26 September 2001, when the case was heard before the Athens Criminal Court, the applicant reiterated her civil-party application and adduced her arguments. On the same day, the Athens Criminal Court acquitted S.M. of the charges laid against him, finding that the applicant’s allegations were unsubstantiated. In particular, after examining all the evidence, the court considered that the offending remarks had been truthful and that it had not been the intention of the accused to defame or insult the applicant (judgment no. 74941/2001).
8. On 5 August 2002 this judgment was finalised and entered in the register of the Criminal Court.
9. On 24 September 2002 the applicant requested State Counsel at the Court of Cassation to lodge an appeal on points of law against judgment no. 74941/2001 of the Athens Criminal Court. She alleged, in particular, that the judgment did not contain sufficient reasoning.
10. On 27 September 2002 the applicant’s request was dismissed by State Counsel at the Court of Cassation, who endorsed the application itself with the handwritten comment: “there is no legal or well-founded ground of appeal to the Court of Cassation”.
11. The Code of Criminal Procedure contains the following relevant provisions:
“Judgments, orders of the chamber of judges, and orders of the investigating judge or of the public prosecutor shall give specific and precise reasons ...
...
Even where it is not required by a specific provision, all judgments and orders shall include reasoning, whether they are final or interlocutory and whether or not they depend on the discretion of the judge hearing the case.”
“State Counsel at the Court of Cassation shall be entitled to appeal on points of law against any decision within the time-limit provided for in Article 479 § 2 ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1