ITEMID: 001-23755
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: HIDA v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Muhammad Hida, born in 1974, is a national of Serbia and Montenegro of Roma origin, who lives in Gram, Denmark. He is represented before the Court by Erik Støttrup Thomsen.
The applicant, his spouse according to gypsy traditions, and their son entered Denmark on 19 February 2001 without any travel/identification papers, and requested asylum. In support thereof the applicant explained that on two occasions in June and December 1999 members of the Kosovo Liberation Army had beaten him, and eventually driven him and his family out of his hometown, Gjilane in Kosovo. From 25 December 1999 until 15 February 2001 they lived in Bujanovac, Serbia. Also, he maintained that in general being of Roma origin, he had been subjected to persecution and harassment by various persons since 1995.
On 6 February 2002 the Aliens Authorities (Udlændingestyrelsen) refused to grant the applicant asylum. On appeal, the decision was upheld on 26 September 2002 by the Refugee Board (Flygtningenævnet). Both instances noted that the statement of events made by the applicant and his spouse respectively had been divergent. However, even accepting the applicant’s statements as facts, they found that the harassment and incidents referred to failed to attain the minimum level of severity in order to fall within the notion of persecution set out in section 7 of the Aliens Act (Udlændingeloven). Also, reiterating that the applicant had never been politically active, and noting the improvement of the security situation in Kosovo, they found that no concrete danger existed that the applicant would be subjected to persecution, if returned. Finally, reiterating that the applicant and his family had lived without any problems in Serbia, he was referred to reside elsewhere in the Federal Republic of Yugoslavia in case he did not wish to return to the Province of Kosovo. The applicant was ordered to leave the country immediately.
On 20 September 2002 the applicant requested that the Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for Flygtninge, Indvandrere og Integration) grant him a residence permit on humanitarian grounds pursuant to section 9 b of the Aliens Act. In support thereof he maintained inter alia that his son suffered from asthma and bronchitis and had undergone surgery in Denmark. His request was refused on 7 April 2003 by the Ministry of Refugee, Immigration and Integration Affairs finding that the applicant did not suffer from a very serious physical or mental illness, which could justify the granting of a residence permit on humanitarian grounds.
On 29 January 2003, referring to the general security situation in Kosovo, the applicant requested that the asylum proceedings be reopened. This was refused on 12 May 2003 by the Refugee Board. The applicant was ordered to leave the country immediately.
By letter of 20 May 2003 the Danish National Commissioner of Police (Rigspolitichefen) informed the applicant that the time limit for leaving Denmark was overdue.
In June 2003 the applicant and his family were moved to an immigration centre in Sandholm. It appears that there the applicant is provided with food, shelter and medical care, whereas he no longer receives a monthly payment to purchase necessities.
The Aliens Act and Kosovars in Denmark.

According to information provided by the Government, in the summer of 1999 Denmark evacuated a total of 2,855 Kosovars, which were selected together with UNHCR. The applicant in the present case was not among those evacuees. He entered Denmark himself in February 2001. A “Kosovo Emergency Act” of April 1999 created the legal basis at domestic level for receiving displaced persons from Kosovo with a need for temporary protection. The Act was repealed in 2000. At the same time a provision was inserted in the Aliens Act introducing the possibility of granting a residence permit to distressed persons from the Kosovo Province assumed to need temporary protection (now section 9 e (1)). A precondition for obtaining a residence permit under this provision is that the person in question must be assumed to need temporary protection in Denmark and formerly held a residence permit pursuant to the “Kosovo Emergency Act” or has been registered as an asylum-seeker before 30 April 1999. The assessment whether applicants are eligible for a residence permit under section 9 e (1) of the Aliens Act is made on the basis of UNHCR recommendations. Thus, in accordance with the UNHCR recommendations it is possible to issue residence permits under section 9 e (1) to persons - who formerly held a residence permit under the Kosovo Emergency Act or who applied for asylum before 30 April 1999 – and who can be referred to one of the categories of “chronically ill persons whose conditions requires specialised medical intervention of a type not yet available in Kosovo”; “Persons with severe and chronic mental illness whose conditions requires specialised medical intervention of a type not yet available in Kosovo”; “Severely handicapped persons (including their caregivers) whose wellbeing depends on a specialised support system not yet available in Kosovo”; “Unaccompanied elderly persons who have no relatives or any other form of societal support in Kosovo”; and “ Separated children without relatives or caregivers in Kosovo, and for whom it is found not to be in the best interest to return to Kosovo”. App1ications for a residence permit under section 9 e (1) of the Aliens Act are determined in the first instance by the Aliens Authorities and in the second instance by the Ministry of Refugee, Immigration and Integration Affairs.
The applicant in the present case is not covered by section 9 1 (e) of the Aliens Act because he never held a residence permit under the “Kosovo Emergency Act” and he entered Denmark after 30 April 1999. However - like asylum-seekers from other countries – he had the possibility of applying for asylum pursuant to section 7 of the Aliens Act; for a residence permit on humanitarian grounds pursuant to section 9 b of the Act; or for a residence permit due to extraordinary circumstances pursuant to section 9 c of the Act.
Asylum is granted to aliens, who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the Aliens Authorities and in the second instance by the Refugee Board, which is an independent quasi-judicial body that is not subject to any instructions from the Danish Government. Thus, the Ministry of Refugee, Immigration and Integration Affairs has no authority to decide applications for asylum. UNHCR Recommendations are included in the background material of the asylum authorities in connection with the determination of concrete asylum cases.
The granting of a residence permit on humanitarian grounds pursuant to section 9 b of the Act is a discretionary decision, which according to practice may be granted to persons who do not satisfy the conditions of the Geneva Convention, but who is suffering from very severe physical or mental illness (unless the possibility of receiving the requisite medical assistance exists in the applicant’s country of origin). Applications for a residence permit on humanitarian grounds cf. section 9 b (1) are determined by the Ministry of Refugee, Immigration and Integration Affairs.
A residence permit may be granted pursuant to section 9 c of the Aliens Act on a discretionary basis, if due to extraordinary circumstances, there are strong grounds for granting such. App1ications for a residence permit under this section of the Act are determined in the first instance by the Aliens Authorities and in the second instance by the Ministry of Refugee, Immigration and Integration Affairs.
According to the Aliens Act an alien whose application for a residence permit for Denmark has been refused must leave the country. Furthermore, under the Act it is possible to provide financial assistance if the person in question returns without undue delay voluntary.
In connection with the forced return of aliens from the Kosovo Province, UNMIK (United Nations Interim Administration Mission in Kosovo) is the relevant partner. In every case there is a close dialogue between the Danish National Commissioner of Police and UNMIK. Firstly the Danish National Commissioner of Police notifies UNMIK about the return to Kosovo of Kosovars whose applications for a residence permit in Denmark have been refused. Such notifications state the time of the individual’s departure from Kosovo and entry into Denmark and inform of decisions made by the Danish authorities and the individual’s personal situation, including his or her home town in Kosovo, the languages mastered by the individual and where his or her family members are staying. It also appears from the notification if the individual has been expelled due to crime. The notifications also state particulars on the individual’s health status. This notification procedure was first established at a meeting held in Kosovo from 24 to 26 July 2000 between officials of the Danish National Commissioner of Police, the Aliens Authorities and UNMIK. The notification procedure was confirmed and expanded at a meeting in Kosovo on 22 January 2003 between a delegation of high officials from the immigration authorities and UNMIK, who agreed that UNMIK will be provided with extended information, especially concerning the mental status of Kosovars who are non-voluntarily sent back to Kosovo in order to support UNMIK in its efforts to solve its task. Such information will be available to UNMIK by offering the Kosovars in question a voluntary medical status report prior to the return to Kosovo. The Danish National Commissioner of Police has presented to UNMIK a number of Kosovars whose applications for a residence permit in Denmark have been refused for which reason they have had to leave Denmark. In some cases UNMIK objected to the return of the persons in question. In such situations the Danish National Commissioner of Police has suspended the return until further notice.
In the present case, the Danish National Commissioner of Police has not yet contacted UNMIK because the forced return of the applicant has not been planned yet. Normally a forced return takes quite some time, not less than two or three months.
Relevant international materials
With regard to the current security situation in Kosovo, the following statements/ findings are of particular relevance:
The Secretary General on the United Nations Interim Administration Mission in Kosovo stated in his report of 14 April 2003 covering the activities of UNMIK and the developments in Kosovo, Serbia, and Montenegro among other things that given the continued violence, harassment and discrimination faced by minorities, achieving sustainable minority returns to Kosovo was difficult, time-consuming and resource-intensive;
In his report of 26 June 2003 he stated inter alia that incidents of violence and crimes against minorities continued to be a cause for concern within Kosovo;
In his report of 15 October 2003 he stated inter alia that despite setbacks resulting from recent violent incidents involving Kosovo Serb victims, the overall rate of returns continued to accelerate during the reporting period. Over 2,200 displaced persons had returned so far that year to areas where they were a minority (including 1,016 Kosovo Serb, 693 Roma/ Ashkaelia /Egyptians, 242 Bosnians, 74 Gorani and 239 Kosovo Albanians). Funding expected from several major donors had been provided in Kosovo and work on a number of returns projects had begun in earnest, including the return of Kosovo Serbs to Podgorce (Gnjilane region) and Zhupa Valley (Prizren region), and Roma/ Ashkaelia/Egyptian returns to Magura (Pristinia region) and Pristina town. The heightened level of security within the Kosovo Serb and other minority communities had not resulted in the cancelling of any returns project, but it had led to numerous postponements of returns activities, at a stage in the season where such delays may mean that returns are not possible until next spring. It was also considered likely to have a dampening effect on individuals’ return.
The Tenth Assessment of the Situation of Ethnic Minorities in Kosovo of March 2003, conducted jointly by OSCE and the UNHCR, stated that minorities continue to face varying degrees of harassment, intimidation and provocation, as well as limited freedom of movement, and that considering the overall situation described in the report, the changes noted during the reporting period were not yet fundamental enough to conclude that conditions would exist for large scale return of ethnic minorities in the near future, underscoring the continuing need for international protection for members of ethnic communities, in particular Kosovo Serbs, Roma, Ashkaelia and Egyptians;
The UNHCR Position Paper on the continued Protection Needs of individuals from Kosovo of January 2003 stated that especially Kosovo Serbs and Roma, but also Ashkaelia and Egyptians should continue to benefit from international protection in countries of asylum. UNHCR stressed that return of these minorities should take place on a strictly voluntary basis and be based on fully informed individual decisions. Any such voluntary return movements should be properly coordinated, and re-integration should be supported through assistance to ensure sustainability. Kosovo Serb, Roma, Ashkaelia and Egyptian individuals or families should not be forced or induced to return to Kosovo.
The First Vice-President of the Advisory Committee on the Framework Convention for the Protection of National Minorities, recommended in his mission report of March 2003 “Roma Returns to Serbia and Montenegro” for the Council of Europe, inter alia that Roma asylum seeker/returnees (from Western Europe), who fled Kosovo, should not be returned to Kosovo unless they wish to return and they are advised by UNMIK and UNCHR that it is safe for them personally to return to their homes, and
In its report of 29 April 2003 - Serbia and Montenegro (Kosovo) “Prisoners in our own homes”: Amnesty International’s concerns for the human rights of minorities in Kosovo - Amnesty International urged inter alia host countries not to end international protection for all minority refugees from Kosovo and ensure that refugees still in need of protection were not subject in any way to pressure or inducement to “voluntarily return”. Amnesty International considered that the forcible return of members of minority groups to Kosovo would be a violation of the principle of non-refoulement and place minority individuals at risk.
It follows from a “Memorandum of Understanding” between the Federal Minister of the Interior of Germany and the Special Representative of the Secretary-General of the United Nations for Kosovo of 31 March 2003 that approximately 33,000 members of ethnic minorities from Kosovo are required to leave Germany. It was agreed that certain members of specific ethnic minority groups were no longer in need of international protection and could therefore be returned to Kosovo, as from April 2003. In the first year Germany would return up to 1000 persons. This figure would include members of the Turkish, Bosnian, Gorani and Torbesh minority communities, as well as Ashkaelia and Egyptian minorities. As to the latter two groups of minorities, they would be returned depending on the results of an individualised screening process performed by UNMIK. Members of the Serb and Roma communities would not be returned in 2003.


ITEMID: 001-69116
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ACAR AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2 (killing and wounding);Violation of Art. 2 (failure to investigate);Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 8;Pecuniary damage - financial awards;Non-pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The facts of the case, as submitted by the parties, may be summarised as follows.
10. At the time of the events at issue, the applicants resided in Çalpınar, a village attached to the district of Midyat in the Mardin province of south-east Turkey.
11. On 20 April 1992, at around 7 a.m., a group of villagers set out from the village of Çalpınar for the district of Midyat, by a minibus and a truck. On the way to Midyat, an armed group of people stopped the villagers one kilometre away from the village of Çalpınar. They forced the villagers to get out of the vehicles and ordered them to line up near the road. They fired at the villagers and fled. According to the applicants, the armed group consisted of village guards.
12. The gendarmes drew a sketch map of the crime scene and drafted an incident report addressed to the Midyat public prosecutor. It was stated in the report that a group of terrorists wearing military uniforms stopped a minibus and a truck near the hamlet of Kuyubaşı attached to the village of Çalpınar. They killed six villagers, namely Hasan Akay, İsmet Acar, Mehmet Ağırman, Abdülkadir Akan, Süleyman Acar and Mehmet Akan. Nine villagers, namely Reşit Acar, Mehmet Emin Acar, Sabri Acar, Ahmet Acar, İbrahim Akan, Yusuf Acar, Erdal Acar, Salih Acar, Süleyman Acar and Semra Akan, were wounded. Furthermore, the gendarmes found 66 empty cartridges of 7.62 mm which had been discharged from Kalashnikov rifles. The report concluded that the incident was an ideologically motivated killing by members of the PKK.
13. On the same day the Midyat Public Prosecutor and a forensic doctor conducted an autopsy at the scene of the incident. They concluded that the persons killed in the incident had died of bullet wounds. The autopsy report recorded the following injuries:
İsmet Acar: One bullet entry on the right ear, one bullet exit on the upper part of the head, one bullet entry on the right armpit, one bullet exit on the right shoulder, one bullet wound on the abdomen, one bullet entry on the upper abdomen, one bullet exit on the waist, one bullet entry on the right upper abdomen, one bullet exit on the right upper hip, one bullet entry on the right thigh and one bullet exit on the front hip.
Hasan Akay: One bullet entry on the forehead, one bullet exit on the right part of the head, one bullet entry between the 10th and 11th ribs, one bullet exit on the right front ribs, one bullet entry on the inner right elbow, one bullet exit on the outer right elbow, one bullet entry on the left upper 12th rib, one bullet exit on the left part of the chest, one bullet wound on the left shoulder, one bullet entry on the inner left leg and one bullet exit on the outer left leg.
Mehmet Ağırman: One bullet entry on the left shoulder blade, one bullet exit on the right shoulder blade, one bullet entry on the inner right elbow, one bullet exit on the outer left elbow and one bullet wound on the right calf.
Süleyman Acar: One bullet wound on the left temple, one bullet entry on the left shoulder, one bullet exit on the left shoulder blade, one bullet entry on the right part of the right wrist, one bullet exit on the left part of the right wrist and one bullet entry on the left calf.
Mehmet Akan: One bullet entry on the left hip, one bullet exit on the upper left hip, one bullet entry on the waist, one bullet exit on the scrotum, one bullet entry between the 9th and 10th ribs, one bullet exit on the upper right hip and one bullet exit between the 9th and 10th ribs.
Abdülkadir Akan: One bullet entry on the forehead, one bullet exit on the left temple, one bullet entry between the 6th and 7th ribs, one bullet exit between the 7th and 8th ribs, one bullet entry on the right hip, one bullet exit on the abdomen, one bullet entry on the right upper hip, one bullet exit on the pubis, one bullet entry on the 12th rib and one bullet exit on the chest.
The estimated time of death was given in the autopsy report as 5 or 6 hours before the autopsy had been carried out. The doctor concluded that it was unnecessary to conduct further autopsies of the bodies.
14. On the same day the witnesses Süleyman Acar, Yusuf Acar and Salih Acar were questioned by the police officer Hüseyin Coşar. Moreover the Midyat Public Prosecutor took the statements of the applicants Mehmet Akay, Hüseyin Akan and five other witnesses.
Mehmet Akay stated as follows:
“This morning at around 7 a.m. we set out for Midyat. There were five or six of us in Hasan Akay’s truck. When we were one kilometre away from the village, a group of fifteen men appeared from both the left and the right side of the road. They came out from a cave near the road. They stopped us. They were wearing military uniforms. We thought that they were soldiers. There was a minibus that was following us. They also stopped the minibus. They told us to get out of the vehicles and hold our arms up. We did as we were told. Then, they took İsmet [Acar], Hasan [Akay], Hacı Mehmet [Akan], Mehmet Emin Acar, Ahmet Acar and Mehmet Ağırman to the other side of the road and started shooting at them with Kalashnikov rifles. The others ran away. I ran away as well. They also shot at us. Some of us died and some of us were wounded. Then, they ran rapidly towards the village of Kutlubey. Those people were village guards from the village of Kutlubey. Their faces were half covered but I identified Cengiz and Ethem. I do not know their surnames. I could recognise their voices because I knew them before. They are from the neighbouring village.”
Süleyman Acar stated as follows:
“... When we were passing by the Mythike cave, ten or twenty people came out of it. They were armed and were speaking in Kurdish. They told us to line up. We did as we were told. They also stopped the minibus that was following us. I knew two people among the group. One of them is called Ethem and the other is called Cengiz. They opened fire at us. I was wounded. They took me to Midyat State Hospital.”
Salih Acar stated as follows:
“... They had already taken the people out from the truck. They told us to get out of the minibus. They took five of us and killed them. When we started to run, they opened fire on us. I was wounded. It was Ethem and Cengiz who made us line up.”
15. On 21 April 1992 Sabri Acar and Mehmet Emin Acar, who had been wounded in the incident, died in Mardin State Hospital. A bullet was removed from the decased Sabri Acar’s body. Moreover, on the same day the applicant Reşit Acar was operated on and a bullet was removed from his body.
16. On 13 May 1992 the applicant İbrahim Akan gave the following statement to the Midyat Public Prosecutor:
“... A group of twenty five or thirty armed people stopped our truck. They also stopped the minibus that was following us. I recognised İsmail (his mother is called Güle), Cengiz and Ethem. I do not know their surnames. I know them very well because they are our neighbours. İsmail and Ethem had not covered their faces. Sorry, I made a mistake. It was Cengiz’s face which was uncovered. İsmail and Ethem had covered their mouths but not their eyes. They were wearing conical hats like soldiers. They were also wearing commando uniforms. They were holding Kalashnikov rifles. Cengiz was also holding a gun. They shouted at us in Turkish and ordered us to get out of the vehicles one by one. When we gathered near the vehicles they told us in Kurdish to line up. I told them that they could search us and check our identity cards. Then I asked them to let us go. I told them that we had a long way to travel. When they heard this they opened fire. We ran away. Seven people died. I was wounded in the back. These people ran away towards the village of Kutlubey. I know them very well. I can identify them. Kutlubey is not far away from our village. There is no vendetta between the villages. The only reason for this incident could be that they have village guards but we do not. According to the rumours, the members of the organisation [PKK] had killed a village guard from the village of Kutlubey. The Kutlubey villagers had thought that it was us who had killed him. We celebrated Nevruz but they did not. For that reason we were their enemies.”
17. On 3 June 1992 Salih Acar and Ahmet Acar also gave statements to the Midyat Public Prosecutor. They reiterated that the village guards Ethem and Cengiz from the village of Kutlubey were among the group of people who had attacked them. Salih Acar further stated that although the attackers had covered their faces he had been able to identify Cengiz and Ethem.
18. In a ballistic report by the Diyarbakır Provincial Criminal Police Laboratory, dated 23 June 1992, it was recorded that sixty-six cartridges of 7.62 x 39mm calibre had been submitted for examination. In carrying out the ballistic examination, the laboratory fired the weapons belonging to the village guards from Kutlubey and compared the empty cartridges with those found at the site of the incident. The report found that twelve of the examined cartridges had been fired from Tacettin Sakan’s weapon, twelve from Nevaf Aydın’s weapon, nine from Şehmuz Seyda’s weapon, six from Halit Aktan’s weapon, six from Rahmi Kaçmaz’s weapon, six from Mihdi Özbay’s weapon, five from Ethem Seyhan’s weapon, four from Tevfik Akbay’s weapon, two from Abbas Taş’s weapon and finally one from Mehmet Seyhan’s weapon. The report further stated that three cartridges bore no resemblance to the cartridges examined by the laboratory. Following the examination the weapons were deposited in safe storage at the Nusaybin Gendermarie Command.
19. On 30 June 1992 the judge at the Midyat Assize Court took statements from the ten village guards, whose names were mentioned in the ballistic report, and ordered their detention on remand.
20. On 8 July 1992 the Midyat public prosecutor filed a bill of indictment with the Midyat Assize Court against the twenty-seven village guards of Kutlubey. He accused them of the murder and attempted murder of more than one person.
21. On 20 July 1992 the Midyat Assize Court ordered that the village guards Cengiz Kaçmaz and İsmail Taş be detained on remand. After three days İsmail Taş was released pending trial.
22. On 4 August 1992, at the first hearing, the Midyat Assize Court requested the ballistic examination of the bullet which had been removed from Hasan Akay’s corpse by the Midyat Public Prosecutor, during the autopsy.
23. On 10 August 1992, the Midyat public prosecutor requested the Diyarbakır Provincial Criminal Police Laboratory to determine whether or not the bullet removed from Sabri Acar’s body had been fired from the weapons belonging to the village guards. On 25 August 1992 the laboratory informed the public prosecutor that it was not possible to comply with these requests as they were only in possession of the empty cartridges found at the scene of the incident and not the weapons themselves.
24. On 1 September 1992 the court requested the Nusaybin Gendarmerie Command to hand over the accused village guards’ weapons so that a ballistic examination of the bullets removed from the corpses of deceased Sabri Acar and Hasan Akay could be carried out. Moreover it sent a notice to the Midyat Public Prosecutor to ascertain the address of the victim Erdal Acar, who possibly still had a bullet in his body, and to have him medically examined.
25. At a hearing on 29 September 1992 Salih Acar, Yusuf Acar and the applicant İbrahim Akan appeared before the Midyat Assize Court. Salih Acar and Yusuf Acar identified the village guards Ethem Seyhan and Cengiz Kaçmaz, who were present in the courtroom, as the perpetrators of the incident. İbrahim Akan identified Ethem Seyhan, Cengiz Kaçmaz as well as Tacettin Sakan who were present in the court room and accused them of having opened fire.
26. On 22 December 1992, the village guards Cengiz Kaçmaz, Mehdi Özbay, Şehmus Seyda, Tacettin Sakan, Nevaf Aydın, Mehmet Seyhan, Halil Aktan, Ethem Seyhan, Tevfik Akbay, Rahmi Kaçmaz and Abbas Taş appeared before the Midyat Assize Court. They denied the allegations against them and stated that the empty cartridges found at the scene of the crime had been placed there by their enemies in order to implicate them in the crime. They maintained that on two previous occasions they had to use their weapons in the Ziyaret region. On 21 March 1992 a group of between 1000 and 1500 villagers, including the Çalpınar residents, demonstrated during the Nevroz celebrations by marching towards the village of Kutlubey. When the villagers arrived in the vicinity of Hazzaze, the gendarmes and the village guards from Kutlubey intervened and fired warning shots in order to disperse the crowd. Moreover on 13 April 1992 there had been an armed clash between the village guards and the members of the PKK in the Ziyaret region, near the village of Kutlubey. According to an incident report drafted by the gendarmes on the following day, although the village guards fired 447 bullets the gendarmes were only able to collect 215 empty cartridges due to the rain and the crowd of villagers who gathered at the place of incident.
27. At the same hearing the court heard the non-commissioned officer Ali Kılıç. Mr Kılıç had been on duty at the Gendarmerie Command in Kutlubey on the day of the incident. He stated as follows:
“I have been serving at the Kutlubey Gendarmerie Command for one and a half years. Kutlubey is a big village. I know the accused village guards. They are from Kutlubey and they support the State. We perform our duties together. I remember the day [of the incident]. I was keeping guard at night because we were expecting an attack. ... I was with three other soldiers and three village guards. The names of the village guards were Tevfik Akbay, Rahmi Kaçmaz and Halit Aktan. ... The village guards Hasan Kaçmaz, Nevaf Aydın and Mahmut Başak were together with my colleague, Arif Güner. The village guards Cengiz Kaçmaz, İsmail Kaçmaz and Tacettin Sakan were with Sergeant Kazım Demirbaş. The rest of the village guards were keeping guard near the village. We were on duty until 6 a.m. No incident took place that night. Then, I went to the command. [At the command] they told me that the Midyat commander had announced the occurrence of the incident on the radio. It took place at the border with the province of Midyat. Our command and the village of Kutlubey are in the province of Nusaybin. The district gendarmerie commander ordered the village guards to gather at the command. All the village guards had gathered at the command within 15 minutes. I waited for the commander, but he did not come. In the meantime, I checked all the weapons of the village guards in order to see whether or not they had been used. The village guards had previously been ordered to leave their weapons after their shifts of duty. It was obligatory to clean the weapons with a ramrod. I checked all the weapons of the village guards one by one. Some of the weapons had been kept in good order. Some of them, however, were dusty. I checked these weapons just after the incident took place. I did not observe a mark or a smell of gunpowder.
We had been informed that the villagers would march towards the village of Kutlubey during the Nevruz celebrations. In fact they had lit a fire in the neighbouring villages one night before Nevruz. Kutlubey is the only village in that region that has village guards. The other villages do not have village guards. ... [During the Nevruz celebrations] twelve members of the PKK forced the villagers to march towards Kutlubey. They alleged that they had their martyrs there. I tried to stop the group and told them that what they had been doing was illegal. I asked the village guards to repeat the same things in Kurdish. However, the militants continued to force the villagers to march. Then I shot warning shots. The helicopters arrived later. [The helicopters] should not have fired. [When they opened fire] the people ran away. ... On 14 April 1992 the PKK militants attacked the Kutlubey village. A village guard called Muhittin died. The village guards and our forces opened fire. The terrorists went away. In these kinds of attacks it is impossible to collect all the cartridges. Some of them can be collected but not all. The village guards have Kalashnikov rifles. We have G3s or MG-3s. The bullets [for these rifles] are 7.62 calibres. However, the structure of those bullets is different. You can tell which bullet matches which rifle.”
28. On 19 January 1993 several weapons were submitted to the court. However they were sent back as none of these were the village guards’ weapons which were previously submitted for ballistics examination.
29. On 2 February 1993 the Midyat Assize Court ordered the release of the village guard Abbas Taş pending trial.
30. On 9 February 1993, upon the requests of the Midyat Public Prosecutor, the Governor and the director of the Midyat prison, the Midyat Assize Court decided to transfer the case to Denizli Assize Court in order to maintain public security in the area. It held that it was necessary to transfer the case due to the hostility that the parties had shown to each other, the difficulty that they had in travelling to the court house and the tension created in Midyat on the day of the hearings. It further held that the situation had served to encourage the PKK to increase its terrorist activities in the region.
31. On 1 March 1993, at the first hearing held before the Denizli Assize Court, the court requested to have all the accused transferred to Denizli prison. It sent letters rogatory to the Midyat Assize Court and the Nusaybin Assize Court to take the statements of fifteen accused who had been released pending trial. It also sent a notice to various regional authorities requesting to be informed of the addresses of several witnesses. Furthermore it requested the removal of the bullet found in Süleyman Acar’s body. The court also repeated the Midyat Assize Court’s request to have the village guards’ weapons which were deposited in safe storage at the Nusaybin Gendarmerie Command.
32. On 2 March 1993 the Denizli Assize Court requested the Midyat Assize Court to take Süleyman Acar’s statement. On 12 March 1993 the Midyat Public Prosecutor filed an additional bill of indictment against the twenty-seven guards for the attempted murder of Süleyman Acar.
33. On 29 March 1993 Süleyman Acar appeared before the Midyat Assize Court and stated as follows:
“I was taken to Diyarbakır State Hospital. I was operated on there. I do not know whether they removed a bullet from my body. I was unconscious. I was not told that a bullet had been removed from my body. I was wounded in the calf. There was a bullet exit wound on my knee. It is probable that the bullet had not remained in my leg.”
34. On 5 April 1993 the applicant Hüseyin Akan gave the following statement before the Midyat Assize Court:
“On the day of the incident, the minibus that I was in was stopped by a group of armed people. They made us get out of the vehicles and line up. The person called Ethem gave his gun to Cengiz Kaçmaz. Cengiz Kaçmaz signalled with the gun to the others and they all fired at us. I have identified them because Cengiz’s face was only partially covered and Ethem’s face was completely uncovered. During the incident my brother Abdülkadir and my father Mehmet died.”
35. On 20 April 1993 Sergeants Arif Güner and Kazım Demirbaş appeared before the Denizli Assize Court. Arif Güner stated as follows:
“On the day of the incident I was keeping guard with the village guards from 6 a.m. to 5 p.m. As far as I remember I was with Tacettin Sakan, Nevaf Aydın and Mahmut Başak. ... The place where we were keeping guard is two hours’ walking distance from where the incident took place. The other accused village guards were keeping guard with the other soldiers. ... I went back to the command with the village guards. All the accused village guards were with us. We stayed at the command for an hour and a half in order to have breakfast. As a result it is impossible that the accused were involved in the incident. ... On the Nevruz day the villagers marched to the village of [Kutlubey]. We fired warning shots that day. It was raining, therefore we could not collect the cartridges. It is probable that someone else collected the cartridges. ... We always clean the weapons when we return to the command. On that day the weapons were clean. There was no mark or smell of gunpowder. It is impossible that the village guards killed or wounded the villagers. The three of them were with me and the others were with their commander. Some of them were keeping guard near the village.”
36. Sergeant Kazım Demirbaş reiterated his colleague’s statement and said that the village guards Cengiz Kaçmaz, Bedran Göktekin and İsmail Kaçmaz had accompanied him on the day of the incident.
37. At the hearing held on 26 April 1993 the court requested the removal of the bullets found the bodies of Süleyman Acar, İbrahim Akan and Salih Acar’s bodies, if this operation would not cause a threat to their health.
38. On 20 May 1993 the Denizli Assize Court ordered the release of the village guard Cengiz Kaçmaz pending trial.
39. On 17 June 1993 the court requested to have an interpreter since some of the accused and the interveners did not know Turkish. Furthermore it once again repeated its request concerning the submission of the weapons. It sent a notice to the State of Emergency Region Governor and the Mardin Governor in this regard, emphasising the decisive role of this evidence for the case.
40. On 25 June 1993 Mardin State Hospital informed the court that it was too risky to remove the bullet from İbrahim Akan’s leg since it was too close to the nerves.
41. On 7 July 1993 the Midyat Public Prosecutor made the following statement before the Assize Court in Rize at the request of the Denizli Assize Court:
“At the material time I was the public prosecutor in Midyat. ... The gendarmes and soldiers were at the scene of the incident when I arrived. I saw 7 or 8 dead bodies lying on the right and the left side of the road. It seemed that they had been shot at close range. ... I told the soldiers to collect the empty cartridges. ... While I was carrying out the autopsies, I realised that the soldiers were not collecting the empty cartridges. I personally collected the empty cartridges that were near the dead bodies with the help of my assistant. I drafted a report. More empty cartridges could have been collected. I collected as many as I could. It seemed that the cartridges had been fired recently. There was a smell of gunpowder. It was obvious that they had been fired recently. The base of the cartridges (mermi dip çukurları) had not oxidised. There were no rifles around, only empty cartridges. ... In my opinion the empty cartridges had been fired from the weapons that killed the villagers. ... There were traces of newly extinguished fire and human excrement in a cave near the road. In my opinion this shows that the murderers laid an ambush before the attack.”
42. On 14 July 1993 twenty eight Kalashnikov rifles which belonged to the accused were deposited in safe storage at the Denizli Assize Court. The following day the bullet removed from Reşit Acar’s leg was also deposited in safe storage at the court.
43. In a report dated 20 July 1993, issued by the Diyarbakır State Hospital, the court was informed that there were fragments of bullet in Süleyman Acar’s body but that it was not possible to remove them.
44. On 7 September 1993 the Denizli Assize Court requested the Forensic Medicine Institute in Istanbul to examine whether or not the 66 empty cartridges found at the scene of the crime and the bullets removed from the applicant Reşit Acar and from the body of Sabri Acar had been fired from the weapons of the village guards. The court further requested that Süleyman Acar’s medical situation be reassessed and that the court be informed whether the fragments of bullet could be removed from his body.
45. In a ballistic report dated 28 October 1993, the Forensic Medicine Institute confirmed the findings in the Diyarbakır Provincial Criminal Police Laboratory’s report. Additionally it stated that three cartridges had been fired from a “Nato-type” rifle of 7.62-mm calibre. As regards the two bullets removed from the bodies of Sabri Acar and Reşit Acar, the report stated that the bullets in question had oxidised and, consequently, could no longer be used for comparative tests. It could not therefore be determined whether or not the two bullets had been fired from the weapons belonging to the village guards.
46. In its report dated 8 November 1993 the Forensic Medicine Institute informed the court that it was possible from a medical perspective to remove the fragments of bullet found in Süleyman Acar’s body. At the following hearing the court decided not to carry out an operation on Süleyman Acar as a ballistic examination of these fragments would not yield any positive results. Furthermore it ordered the release of the village guards Mihdi Özbay, Şehmus Seyda, Tacettin Sakan, Nevaf Aydın, Mehmet Seyhan, Halit Aktan, Rahmi Kaçmaz, Ethem Seyhan and Tevfik Akbay pending trial.
47. In their statements given before the court on 20 December 1993 all the accused denied the charges against them and requested to be acquitted.
48. Between 1994 and 1996, during the seventeen hearings that were held before the Denizli Assize Court, the court took the statements of witnesses by sending letters rogatory to the courts where they resided, since most of them had moved to different parts of Turkey and in some cases their addresses were not known to the court.
49. On 2 July 1996 a report describing Erdal Acar’s medical history was submitted to the court. However as the report did not contain any remark concerning the bullet in his body, the court sent a letter rogatory to the Antalya Assize Court re-formulating its request regarding the removal of the bullet.
50. In a petition dated 17 February 1997, the applicant İbrahim Akan informed the Denizli Assize Court that he had already been told three times at Mardin State Hospital that the bullet in his leg could not be removed. Mr Akan also stated that he did not have the financial means to travel to Denizli and have his leg operated on in a hospital there. On 27 February 1997 the court sent a note to the Denizli Public Prosecutor requesting that an operation be carried out on İbrahim Akan in a hospital in Izmir to remove the bullet in his leg, if this operation would not pose a threat to his health.
51. On 12 August 1998, after several attempts to track down İbrahim Akan who had moved without informing the authorities of his new address, he was found and was sent to the Atatürk Eğitim Hospital in Izmir for examination. According to the medical report drafted on 31 August 1998, although there were some medical risks involved, it was possible to remove the bullet.
52. Following the applicants’ allegations concerning pressure and intimidation exerted by the security forces an investigation was initiated by the domestic authorities. On 8 February 1999 Selim Acar gave the following statement to the public prosecutor:
“Osman Acar and İsmet Acar are my brothers. İsmet was killed in the incident that took place in 1992. Osman Acar has been living in İzmir for 30 years. He rarely comes to the village. The last time he came to the village was in 1993 on the occasion of our mother’s funereal. I have not seen him since then. Nobody has threatened me in connection with my brother’s killing. On several occasions I have been taken into custody during the operations against the PKK because of my alleged involvement in the activities of the terrorist organisation. My relatives and I have not been threatened. The head of the Kutlubey village guards, Cengiz Kaçmaz, has not threatened us. We are on perfectly reasonable terms. We stay at his house when we visit the village of Kutlubey.”
53. In a petition dated 21 February 1999, the applicant Osman Acar informed the Denizli Assize Court that village guards, including Cengiz Kaçmaz, had threatened members of his family, in particular his brother Selim Acar and his wife Halime Acar.
54. On 17 November 1998 the court sent an order to the İzmir Assize Court to ask for İbrahim Akan’s permission to remove the bullet from his leg. On 23 February 1999, as the Izmir Assize Court was unable to find İbrahim Akan, the court sent a letter to the Midyat public prosecutor asking the whereabouts of İbrahim Akan. During the following seven hearings the court continued to try to ascertain the address of İbrahim Akan.
55. At the hearing of 13 June 2000 the public prosecutor requested the conviction of the accused as charged. The lawyer of some of the accused requested additional time to submit his defence on the merits. In order not to delay the proceedings any longer, the court decided to annul the interim order to remove the bullet from İbrahim Akan’s leg. It decided to send letters rogatory to assize courts in different cities to obtain the final statements of the accused.
56. On 18 July 2000 all the accused, except one, presented their oral submissions on the indictment. They all alleged that the incident was a trap for the village guards which had been set by the PKK.
57. Approximately fifty hearings were held before the Denizli Assize Court. In these hearings the court sent several letters to public prosecutors in different regions to find out the addresses of the witnesses. All the applicants filed petitions with the court at different times requesting to intervene in the criminal proceedings. After the submission of all the birth registry records, the court established their relationship with the deceased and accepted their request to intervene. Furthermore the court examined the statements of various witnesses, accused and interveners which were given before different assize courts, on different dates.
58. On 20 November 2000 the court decided to acquit the village guards. The court drew the following conclusions from the evidence:
“The statements which the witnesses and the complainants made when interrogated by the public prosecutor were different from those they later made before the court. In particular, in his statement before the public prosecutor, Salih Acar stated that the accused had covered their faces when they stopped the convoy, whereas in his statement to the court he did not specify whether or not the attackers had covered their faces. Süleyman Acar did not mention in his statement to the public prosecutor that it had been Cengiz and Ethem who had attacked them, whereas he stated before the court that it had been the village guards Ethem and Cengiz who had attacked them. Reşit Acar also stated before the public prosecutor that he did not know who had attacked them because their faces had been covered. However, in his statement before the court he said that Cengiz’s face had been completely uncovered, but that Ethem’s face had been covered. The witnesses Salih Akay, Hüseyin Akan and Selim Acar gave no description of the identity of the attackers in their previous statements. Furthermore, those witnesses did not state whether or not the faces of the attackers had been covered. However, in their statements before the court, they gave a detailed account of the events and identified Ethem and Cengiz as the village guards who had opened fire on them.
The village of Çalpınar was 10 kilometres away from the village of Kutlubey. It was highly probable that the inhabitants of the two villages did not maintain close relations or contacts. It was therefore unlikely that the complainants could have identified the accused village guards as the attackers.
Even assuming that the accused village guards Cengiz and Ethem were among the group of people who had attacked the complainants, there was no reasonable explanation as to why some of the village guards had covered their faces and some had not.
In their statements the non-commissioned officers Ali Kılıç, Kazım Demirbaş and Arif Güner had said that they had kept guard together with the accused village guards from 6 p.m. on 19 April 1992 to 6 a.m. on 20 April 1992. It appears from the non-commissioned officers’ statements that the village guards returned to the gendarmerie command after they had completed their shift of duty. It further appears that the weapons belonging to the village guards had not been used during the morning when the incident had taken place. The non-commissioned officers confirmed that fact. Accordingly, it could not be concluded that the accused village guards had been involved in the killing of the villagers.
In the ballistic report by the Forensic Medicine dated 28 October 1993, it was stated that 66 cartridges had been found at the scene of the crime, 63 of which had been fired from weapons belonging to the accused village guards. However, that evidence in itself is not sufficient to convict the village guards. First, it is still not known from whose weapon the remaining cartridges were fired. Secondly, it could not be determined by the laboratory whether or not the bullets removed from the bodies of Sabri Acar and Reşit Acar were fired from weapons belonging to the village guards.
In their submissions the accused village guards stated that the empty cartridges found at the scene of the crime had been placed there by their enemies in order to implicate them in the crime. In fact, on 21 March 1992 the village guards and the security forces had opened fire in order to stop a march that was being carried out by members of the terrorist organisation. Furthermore, in a clash between the security forces and members of the illegal organisation on 13 April 1992 the security forces, as well as the village guards, had opened fire on the PKK members. In a report dated 13 April 1992, it was stated that 447 bullets had been fired and 215 empty cartridges had been recovered from the scene of the crime. It therefore appears that 232 empty cartridges were not found. It is highly probable that empty cartridges from the incident of 20 April 1992 were placed at the scene of the crime before or after the villagers were killed by unknown persons.”
59. On 9 February 2001 the applicants lodged an appeal with the Court of Cassation against the decision of the Denizli Assize Court.
60. On 4 December 2001 the public prosecutor at the Court of Cassation submitted his opinion. He noted that the bullet in İbrahim Akan’s leg had not been removed. Moreover he noted that the court’s decision to acquit the village guards was in contradiction with the findings in the ballistic report of 23 June 1992 and the statements of four witnesses who had recognized two of the village guards and of the Midyat Public Prosecutor. The public prosecutor subsequently recommended the quashing of the decision of the first-instance court and the conviction of the ten accused village guards.
61. On 7 February 2002 the Court of Cassation upheld the decision of the first-instance court in respect of seventeen of the accused village guards. Moreover, in the light of the findings in the ballistics reports dated 23 June 1992 and 28 October 1993 and the statements of the Midyat Public Prosecutor, the Court of Cassation quashed the decision of the first-instance court in respect of ten of the accused. In its detailed decision the court further held that to try to remove the bullet in İbrahim Akan’s leg would have been too risky for the patient as was pointed out in the Izmir Atatürk Eğitim Hospital’s medical report.
62. The criminal proceedings were reopened before the Denizli Assize Court against ten of the accused village guards. At the hearing of 25 March 2002 the court decided to send letters rogatory to assize courts in five different cities to obtain the statements of the accused and the interveners.
63. On 25 May 2003 Denizli Assize Court convicted the accused village guards as charged and sentenced them to life imprisonment. The summary of the court’s decision is as follows:
“In view of the autopsy reports, there is no question as to the cause of death of the six villagers. Instead, the question to be resolved is whether those who fired on the villagers were the accused village guards.
It is not possible to rely solely on the witness statements as they are contradictory on several points. However the witness statements given during the preliminary investigation seem to be, in general, objective. Relying on these initial statements it is established that the persons who had fired had their faces covered in order not to be recognised. The court is not convinced by the statements in which certain witnesses claimed to have recognised Ethem and Cengiz. Even assuming that Ethem and Cengiz were among those who had fired, there is no reasonable explanation for the fact that they had not covered their faces when everybody else had done so.
Furthermore, in the court’s opinion, what a commander would normally do when he had been notified of an incident would be to go to the scene of the incident as soon as possible. However in the present case, the fact that the non-commissioned officer Ali Kılıç checked all twenty seven weapons one by one without taking any action is incomprehensible. Moreover the court notes that the Midyat Public Prosecutor maintained that the soldiers were not collecting the empty cartridges to help him and that he had personally to collect the empty cartridges which were near the dead bodies. In view of the above, the court concludes that Ali Kılıç, Kazım Demirbaş and Arif Güner were trying to defend the accused who were working with them to fight against terrorism and it does not therefore find their statements reliable.
The court notes that the bullets removed from the bodies of Sabri Acar and Reşit Acar, can no longer be used for comparative tests to determine from which of the weapons they had been fired as the bullets in question have oxidised. Furthermore it is not possible to remove the bullet from İbrahim Akan’s body due to medical complications.
Considering the Midyat Public Prosecutor’s statements where he said that there was a smell of gunpowder, the court comes to the conclusion that the allegation concerning the placing of empty cartridges at the scene of the incident, in order to implicate the village guards in the crime, is not corroborated in any persuasive manner by eyewitnesses or other evidence.
Moreover the fact that three of the sixty-six cartridges were not fired from the village guards’ weapons cannot be taken as a proof of their innocence. It is possible that one of the village guards had a weapon that had not been seized by the authorities after the incident.
In conclusion, relying on the findings of the ballistic report and the statements of the Midyat Public Prosecutor who had an impartial position in the present case, the court decides that ten of the accused village guards are responsible for the wounding and killing of the villagers whom they considered to be PKK supporters.”
64. This decision was appealed against ex officio pursuant to domestic law. However the village guards also filed an appeal against the decision of the first-instance court.
65. On 29 February 2004 the public prosecutor at the Court of Cassation submitted his opinion to the court, recommending that the decision of the first-instance court be quashed. He noted that despite the fact that the relevant domestic law required that the opinion of the accused on the decision of the Court of Cassation should be sought, the court had failed to do so in the case of two accused village guards.
66. On 9 December 2004 the Court of Cassation quashed the decision of the first instance court in respect of two of the village guards and upheld it as regards eight of them.
67. The relevant domestic legislation and practice is outlined in the Court’s Avşar v. Turkey judgment (no. 25657/94, §§ 261-81, ECHR 2001VII (extracts)).
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-70767
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF OKPISZ v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 14+8;Pecuniary damage - financial award
JUDGES: Josep Casadevall
TEXT: 8. The applicants were born in 1946 and 1947 respectively and live in Dortmund in Germany.
9. In 1985, the applicants, a married couple, immigrated to Germany with their daughter, born in 1979. Their son, born in 1970, joined them in 1986.
10. In 1987 their request to be recognised as immigrants of German origin (Vertriebene) was rejected. The applicants' request to reopen the proceedings was rejected on 5 November 1992 by the Münster Administrative Court of Appeal (Oberverwaltungsgericht). The same day the applicants were issued with residence titles for exceptional purposes (Aufenthaltsbefugnis) which have been regularly renewed.
11. On 27 December 1993 the Dortmund Labour Office (Arbeitsamt) informed the first applicant, who had received child benefits (Kindergeld) since 1986, that as from 1 January 1994 the child benefits would no longer be paid following a change in legislation. The office noted that according to Section 1 § 3 of the Federal Child Benefits Act (Bundeskindergeldgesetz, see relevant domestic law below), as amended and in force as from 1 January 1994, a foreigner was only entitled to child benefits if in possession of a residence permit (Aufenthaltsberechtigung) or a provisional residence permit (Aufenthaltserlaubnis). The office noted that this condition was not met in the applicants' case.
12. On 25 March 1994 the Federal Labour Office (Bundesanstalt für Arbeit) rejected the first applicant's objection.
13. The first applicant, assisted by counsel, lodged an action with the Dortmund Social Court (Sozialgericht) with the aim to be granted child benefits from January 1994 onwards. He claimed that he and his family had been residing in Germany since 1985 and had been paying tax and social contributions. He should, therefore, continue to be entitled to the child benefits.
14. On 27 March 1995 the Social Court dismissed the first applicant's action. It confirmed that only aliens with an unlimited or a provisional residence permit were entitled to the payment of child benefits. The new legislation had only intended to grant child benefits to aliens living in Germany on a permanent basis, whereas aliens with only a limited residence title for exceptional purposes were not likely to stay. The court further pointed out that this distinction did not violate the German Basic Law as had been stated by the Federal Social Court in several judgments since 1992. As to the special protection of the family provided under Article 6 of the German Basic Law, the court held that this did not prevent the State from subjecting the payment of child benefits to the type of the residence title.
15. On 14 June 1995 the first applicant, assisted by counsel, lodged an appeal with the North Rhine-Westphalia Social Court of Appeal (Landessozialgericht).
16. On 2 May 1997 the Social Court of Appeal informed the first applicant that it had referred five pilot cases to the Federal Constitutional Court (Bundesverfassungsgericht) for review of Section 1 § 3 of the Child Benefits Acts, and asked him whether he would agree to a suspension of his appeal proceedings until a decision had been given by the Constitutional Court. On 20 May 1997 the Social Court of Appeal, having obtained the parties' agreement, ordered the suspension of the proceedings.
17. By decision of 6 July 2004 in the pilot cases (1 BvL 4/97, 1 BvL 5/97, 1 BvL 6/97), the Federal Constitutional Court ruled that section 1 § 3 of the Child Benefits Act as effective from January 1994 until December 1995 was incompatible with the right to equal treatment under Article 3 § 1 of the Basic Law. Accordingly, the legislator was ordered to amend the law by 1 January 2006.
18. The Federal Constitutional Court found, in particular, that the different treatment of parents who were and who were not in possession of a stable residence permit lacked sufficient justification. As the granting of child benefits related to the protection of family life under Article 6 § 1 of the Basic Law, very weighty reasons would have to be put forward to justify unequal treatment. Such reasons were not apparent. In so far as the provision was aimed at limiting the granting of child benefits to those aliens who where likely to stay permanently in Germany, the criteria applied were inappropriate to reach that aim. The fact that a person was in possession of a limited residence title did not form a sufficient basis to predict the duration of his or her stay in Germany. The Constitutional Court did not discern any other reasons justifying the unequal treatment.
19. On 27 December 2004, following the first applicant's request, the Social Court of Appeal resumed the proceedings. On 9 March 2005 the Social Court of Appeal, with the parties' consent, once again suspended proceedings pending the amendment of the applicable legislation.
20. In 2000 the first applicant lodged a motion with the Munster Tax Court (Finanzgericht) with the aim to be granted child benefits from January 1996 onwards according to the provisions of the Income Tax Act (Einkommensteuergesetz, see relevant domestic law below). On 6 May 2004 the Tax Court rejected the motion. The first applicant did not lodge an appeal.
21. Section 1 of the 1994 Federal Child Benefits Act (Bundeskindergeld-gesetz, Federal Gazette - Bundesgesetzblatt 1994-I, S. 168), as in force from 1 January 1994 until 31 December 1995, provided for the payment of child benefits which are financed by the Federation.
Section 1, as far as relevant, provided as follows:
“(1) Under the provisions of the present Act, anybody is entitled to child benefits for his or her children ...,
1. who has a place of residence (Wohnsitz) or regular residence (gewöhnlicher Aufenthalt) within the scope of the present Act,
...
(3) An alien is entitled to a benefit under the present Act, if he has a residence permit or a provisional residence permit. ...”
22. Following a reform of the law on child benefits with effect from 1 January 1996, an equivalent provision on child benefits is to be found in Section 62 § 2 of the Income Tax Act (Einkommenssteuergesetz).
VIOLATED_ARTICLES: 14
8


ITEMID: 001-4718
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: L. v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British citizen, born in 1970, and resident in Manchester. She is represented before the Court by Messrs. Green & Co., solicitors practising in Manchester.
The facts of the case, as they have been submitted by the parties, may be summarised as follows.
A.
The applicant is the mother of two children, E.L. and C.L., who were born respectively on 1 May 1990 and 11 December 1991. On 16 January 1993, E.L. was admitted in a serious condition to Booth Hall Children's Hospital, Manchester, after she had ingested a quantity of methadone. The child survived.
At the time of the incident both the applicant and the children's father were registered heroine addicts. Both had been prescribed methadone as a substitute. The incident was investigated by the police and Manchester City Council, the local authority responsible for the children's welfare. The explanation given by the applicant was that the child had ingested the methadone accidentally. The police were of the view that the applicant had deliberately administered methadone to the child, who was suffering from toothache and who could not be pacified, in order to induce her to sleep, but considered there to be insufficient evidence to prosecute the applicant.
Manchester City Council (hereinafter “the Council”) instituted care proceedings under the Children Act 1989 and obtained an emergency protection order in respect of the children from Manchester City Magistrates Court on 22 January 1993. On 29 January 1993, following the transfer of the proceedings to Manchester County Court, the Council obtained an interim care order which was thereafter renewed until the final order was made on 27 July 1994.
On 6 May 1993, the applicant through her legal advisers sought the leave of the court under rule 4.23 of the Family Proceedings Rules 1991 for disclosure of the court papers, which included E.L.'s hospital case notes, for the purpose of preparing an expert's report dealing with the consumption of methadone by E.L. The District Judge made an order that:
“The parents shall have leave to disclose to a medical expert the Court papers for the purposes of a report regarding the frequency of the consumption of methadone by <E.L.>. The identity of such report is to be disclosed to all parties. The report is to be filed by the 27 May 1993.”
The order accorded with the general practice relating to the disclosure of expert evidence then pertaining in the County Court in child care proceedings, which procedure was subsequently endorsed by the Court of Appeal in Oxfordshire County Council v. M ((1994) Fam. 151). The effect of the order was that the report when filed would be available for inspection and copying by any party to the proceedings and the Guardian ad Litem.
The applicant, though her legal advisers, commissioned a report from a consultant clinical pathologist, Dr F. He was instructed to advise whether, on the basis of the hospital case notes which had been released by the court, the ingestion of methadone by the child had been an isolated incident, or was one of a number of such incidents. In his report dated 10 August 1993, Dr F. concluded that there was no evidence of habituation to methadone, but went beyond the remit of his instructions to express doubts about the account of the incident which the applicant had given to the police.
The report was lodged with the County Court pursuant to the District Judge's order of 6 May 1993. At that stage, notwithstanding that the report was adverse to their client's interests and tended to incriminate her, the applicant's lawyers did not appeal the order or apply to vary its terms.
On 27 July 1994, by consent, the court made a residence order in respect of both children to the father with contact to the applicant, and granted supervision orders to the Council.
The police, on learning of the existence of the report and that it tended to incriminate the applicant, applied to the County Court for an order that the report be disclosed to them. On 1 July 1994, the matter having been transferred for determination by the High Court, Judge Bracewell made an order authorising disclosure of the report to the police. The applicant appealed against the order on grounds (i) that the report was protected by legal professional privilege; (ii) that its disclosure would infringe her privilege against self-incrimination; and (iii) that the judge had erred in the exercise of her discretion in authorising the disclosure of the report. The applicant's appeal was dismissed by the Court of Appeal on 14 March 1995 who refused the applicant leave to appeal to the House of Lords. Leave was subsequently granted by the House of Lords on 22 May 1995. On 21 March 1996, by a majority of three to two, the House of Lords dismissed the applicant's appeal (see the Relevant Domestic Law and Practice for the reasons for the decision).
Following a child protection conference, the children were removed from the Child Protection Register in June 1995, at which time it was reported that they were living happily with their father. The supervision order expired in July 1995 and the Council has had no further involvement.
According to the Government, the Crown Prosecution Service, having considered the expert report and further statements obtained by the police, decided not to prosecute the applicant as there was insufficient evidence against her.
B. Relevant domestic law and practice
The law in relation to legal professional privilege and litigation privilege was analysed in some detail by the House of Lords in giving their judgment in the instant case. In giving the judgment of the majority, Lord Jauncey reasoned, inter alia, as follows:
“<Various judgments have> all emphasised the important part which litigation privilege plays in a fair trial under the adversarial system. This raises the question of whether proceedings under <the Children Act 1989> are essentially adversarial in their nature. If they are, litigation privilege must continue to play its normal part. If they are not, different considerations may apply.
I agree with the President <of the Family Division> that care proceedings are essentially non adversarial. Having reached that conclusion and also that litigation privilege is essentially a creature of adversarial proceedings it follows that the matter is at large for this House to determine what if any role it has to play in care proceedings.
Before <Dr F.> could report it was necessary to obtain the leave of the District Judge under rule 4.23 <of the Family Proceedings Rules 1991> to disclose to him the court papers. His report appears to have been based entirely on the hospital case notes and there is no suggestion that he had any communication with the <applicant>. Accordingly all material to which he had access was material which was already available to the other parties. ...
However in these proceedings which are primarily non-adversarial and investigative as opposed to adversarial the notion of a fair trial between opposing parties assumes far less importance. In the latter case the judge must decide the case in favour of one or other party upon such evidence as they choose to adduce however much he might wish for further evidence on any point. In the former case the judge is concerned to make a decision which is in the best interest of the child in question and may make orders which are sought by no party to the proceedings (sections 10(1)(b), 31(5), 34(5) <of the Children Act 1989>). Furthermore the court has wide powers under rule 4.11.(9)(10) <of the Family Proceedings Rules 1991> to require the guardian ad litem to obtain expert reports and other assistance. Thus the court is seeking to reach a decision which will be in the best interests of someone who is not a direct party and is granted investigative powers to achieve that end. In these circumstances I consider that the care proceedings under Part IV <of the Children Act 1989> are so far removed from the normal actions that litigation privilege has no place in relation to reports obtained by a party thereto which could not have been prepared without the leave of the court to disclose documents already filed or to examine the child. In reaching this conclusion I attach considerable importance to the following dictum of <the President of the Family Division> in the Oxfordshire case … :
‘If a party, having obtained the leave of the court, were to be able to conceal, or withhold from the court, matters which were of importance and were relevant to the future of the child, there would be a risk that the welfare of the child would not be promoted as the Children Act 1989 requires.’
I would add that if litigation privilege were to apply to Dr F.'s report it could have the effect of subordinating the welfare of the child to the interests of the appellant in preserving its confidentiality. This would appear to frustrate the primary object of the Act.
... The better view is that litigation privilege never arose in the first place rather than that the court has power to override it. It is excluded by necessary implication from the terms and overall purpose of the Act. This does not of course affect privilege arising between solicitor and client. ...
Where a court is asked to make an order for disclosure compliance with which is likely to involve the danger of self-incrimination by the defendant an order producing such a result should not be made ... This, however, was not such a case. When the appellant applied for the order of 6 May 1993 the District Judge had no reason to suppose that the report which was sought might incriminate the person who was seeking it. In that situation he cannot be criticised for requiring disclosure of the report to all parties. It was only when the report became available that its possible incriminating effect became known and it was at that stage when the <applicant> was first in a position to advance her claim to privilege by seeking a variation of that part of the order which required the report to be filed. In the event she filed the report without taking any steps to assert a claim of privilege. Thus the <applicant> voluntarily initiated the process, did not appeal the order when it was made and obtempered it without seeking a variation notwithstanding the unfavourable nature of the report had by then become apparent.”
In giving the judgment of the minority, Lord Nicholls gave amongst his reasons the following :
“... The expression adversarial carries with it a connotation of confrontation and conflict. Ideally, these characteristics have no place in family proceedings. In family proceedings all parties should be working together to assist the court in finding the answer which will best promote the welfare of the child. In practice matters are not so simple. A father who is alleged to have sexually abused his stepdaughter is concerned to protect his own reputation as well as his family life. He can hardly be blamed if he regards the proceedings as no less confrontational and adversarial than any other civil proceedings. This feature throws little light, if any, on the present question.
At bottom, the answer to the present question turns on what are the requirements of procedural fairness in the conduct of family proceedings. In this context the contrast between inquisitorial and adversarial needs handling with care, for at least two reasons. First, the contrast suggests that proceedings are either wholly adversarial or wholly inquisitorial. They partake wholly of one character or wholly of the other. This is not always so. Proceedings may possess some adversarial features and some inquisitorial features. Family proceedings are an example.
Second, and more importantly, the contrast can all too easily divert attention from the crucial question. Fairness is a universal requirement in the conduct of all forms of proceedings, inquisitorial as much as adversarial, although the requirements of fairness vary widely from one type of proceedings to another. The requirements of fairness depend upon matters such as the nature of proceedings, the subject matter being considered, the rules governing the conduct of the proceedings, the parties involved, the composition of the tribunal, and the consequences of the decision. The distinction between the adversarial and inquisitorial nature of proceedings is no more important than one of these elements, although sometimes a very important element. The crucial question is not whether, and to what extent, the proceedings are inquisitorial rather than adversarial. The question to be addressed is what is required if the proceedings are to be conducted fairly.
Family proceedings are court proceedings. The court has to make decisions affecting, often profoundly, the whole future of a child and his or her family. Whenever necessary, the court makes findings of fact. It goes without saying that the parties to such proceedings are entitled to have a fair hearing. Whatever fairness does or does not require in other contexts, in this context a fair hearing includes at least the right to present one's case and to call evidence.
Under English law an established ingredient of this right is legal professional privilege. Parties preparing for a court hearing may obtain legal advice in confidence. A party cannot be required to disclose communications between himself and his lawyer, or communications between the lawyer and third parties which come into existence for the purposes of obtaining legal advice in connection with proceedings. A proof of evidence from a witness is not disclosable. Nor is a report obtained from a potential witness of expert opinion. A party may be required to produce a witness statement or expert's report in advance as a pre-condition to the admission of that evidence at the hearing, but he is not required to disclose proofs of witnesses whose evidence he does not intend to adduce at the hearing. The public interest in a party being able to obtain informed legal advice in confidence prevails over the public interest in all relevant material being available to courts when deciding cases.
I can see no reason why parties to family proceedings should not be as much entitled to a fair hearing having these features and safeguards as parties to other court proceedings. Indeed, it must be doubtful whether a parent who is denied the opportunity to obtain legal advice in confidence is accorded the fair hearing to which he is entitled under article 6(1), read in conjunction with article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
...<A>n expert can be compelled to give evidence on an issue in the proceedings, even if he has already made a privileged report to a party who decides to put that report in evidence. I must now address an argument that, this being so, imposing a condition is no more than sound and sensible case management. When the court imposes the condition it is doing no more than achieve, by a convenient and expeditious route, a result the court could in any event achieve: production of the expert's evidence on an issue in the proceedings.
If this were the only effect of a disclosure condition, I would agree with the submission. In practice, however, a disclosure condition would be bound to have an inhibiting effect on communications between the solicitor and the expert. An expert's report usually has to be read in conjunction with the letter of instructions. The solicitor would always be looking over his shoulder, conscious he is writing an “open” and not privileged letter. The expert would need to confine himself strictly to the issue on which his advice is compellable, and not range more widely, because his report also would be open and not privileged. These would be significant inroads into the freedom and frankness of confidential communication which the privilege exists to secure. For this reason a disclosure condition goes beyond the convenient ordering of evidence.
This mischief is not cured by giving a party leave to return to the court and apply for the disclosure condition to be lifted after the report has been prepared. There could be no certainty that the condition would be lifted. So at the earlier stage, when the report is being obtained, the inhibitions on freedom of communication would still be present.
Your Lordships were told <by counsel for the applicant> that the present practice is a cause of considerable anxiety to parents. I would expect this to be so. There are bound to be problems when confidentiality is removed from communications a party needs to make in preparing properly for a hearing. I do not think the present practice can be regarded as satisfactory.”


ITEMID: 001-75565
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MAGHERINI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 6. The applicants were born in 1957 and 1955 respectively and live in Florence.
7. E.M., the applicants’ father, was the owner of a flat in Florence, which he had let to G.B.
8. In a registered letter of 10 October 1988, the applicants’ father informed the tenant that he intended to terminate the lease on expiry of the term on 23 May 1989 and asked him to vacate the premises by that date.
9. The tenant told the owner that he would not leave the premises.
10. In the meanwhile, on 22 February 1989, the applicants’ father died and the applicants inherited the flat.
11. In a writ served on the tenant on 12 December 1990, they reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.
12. By a decision of 12 February 1991, which was made enforceable on the same day, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 January 1992.
13. On 30 January 1992, the applicants served notice on the tenant requiring him to vacate the premises.
14. On 11 March 1992, they informed the tenant that the order for possession would be enforced by a bailiff on 24 April 1992.
15. On 4 April 1992, the applicants made a statutory declaration that they urgently required the premises as accommodation for themselves.
16. Between 24 April 1992 and 28 September 2000, the bailiff made fifteen attempts to recover possession. Each attempt proved unsuccessful, as the applicants were never granted the assistance of the police in enforcing the order for possession.
17. On 12 October 2000, the applicants recovered possession of the flat.
18. On 19 January 2001 the first applicant sued the tenant before the Florence District Court seeking damages for the loss she had sustained as a result of the tenant’s refusal to quit the flat and because of the flat’s bad condition on restitution. On 11 February 2003 the second applicant sold his share in the flat to the first applicant.
19. During the preparation of the case for trial expert evidence was filed and witnesses were heard.
20. In a judgment of 28 May 2003, the text of which was deposited with the registry on 4 June 2003, the Florence District Court allowed the applicant 2,241.47 euros (EUR) for the works to be carried out in the flat and EUR 25,045.89 for the damage sustained on account of the flat’s unavailability, plus interest and the reimbursement of the costs and expenses.
21. On 7 June 2003 the applicant discovered that the former tenant (G.B.) had sold all his real property to members of his family in 2002. On 11 September 2003, the applicant served notice on G.B. to pay the amount owed. On 14 November 2003 the bailiff made a seizure of G.B.’s goods, but only up to an amount of EUR 1,500 because there was nothing more to be seized.
22. On 21 November 2003 G.B. notified the applicant that he had lodged an appeal with the Florence Court of Appeal. On 25 March 2004 the Court of Appeal rejected G.B.’s claim and ordered him to pay the costs and expenses of the proceedings.
23. On 8 October 2004 the company in charge of the auction by order of the Court (“Istituto Vendite Giudiziarie s.r.l.”) informed the judge that it could not have access to the goods seized because the door of G.B.’s flat was closed or he refused to give the goods and asked the judge to grant the assistance of the police on 16 November 2004. The judge granted the assistance on 11 October 2004.
24. On 30 June 2005 the applicant informed the Court that because of G.B.’s insolvency he had managed to recover only the sums G.B. owed him for the costs and expenses.
25. The relevant domestic law and practice is described in the Court’s judgments in the cases of Mascolo v. Italy, (no. 68792/01, §§ 14-44, 16.12.2004) and Lo Tufo v. Italy (no. 64663/01, §§ 16-48, ECHR 2005...).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103239
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF STEBNITSKIY AND KOMFORT v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient
JUDGES: Angelika Nußberger;Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
TEXT: 4. The first applicant was born in 1960 and lives in Donetsk. The applicant company also has its seat in Donetsk.
5. On 13 December 1999 and 29 June 2000 the Donetsk Regional Commercial Court awarded the applicant company, 27,159.11 and 30,786.83 Ukrainian hryvnas (UAH) respectively against the Y. private open joint-stock company. Between November 2000 and January 2001 the Yenakiyevo Bailiffs' Service instituted enforcement proceedings.
6. In December 2001 the applicant company instituted proceedings in the Donetsk Regional Commercial Court against the Yenakiyevo Bailiffs' Service, challenging its inactivity in the enforcement of the above judgments. On 18 June 2003 the court found for the applicant company and ordered the Bailiffs' Service to enforce the judgments. On 17 September 2003 the Donetsk Commercial Court of Appeal upheld that judgment.
7. The judgments of 13 December 1999 and 29 June 2000 in the applicant company's favour were enforced by November 2003.
8. On an unspecified date the applicant company instituted proceedings in the Donetsk Regional Commercial Court against the Yenakiyevo Bailiffs' Service, claiming UAH 11,657.42 in compensation for pecuniary damage (inflation losses) caused by the lengthy delay in enforcing the judgments of 13 December 1999 and 29 June 2000 in its favour.
9. On 3 March 2004 the court found against the applicant company. On 18 May 2004 the Donetsk Commercial Court of Appeal upheld that judgment.
10. On 17 June 2004 the Higher Commercial Court of Ukraine refused to examine an appeal by the applicant company as it had failed to pay a court fee. The applicant company appealed against that decision, arguing that in accordance with section 86 of the Enforcement Proceedings Act, the creditor was dispensed from paying court fees in cases against a legal person, entrusted with enforcing a judgment, for compensation for damage sustained as a result of the non-enforcement of a judgment.
11. On 3 November 2004 the Supreme Court of Ukraine dismissed a cassation appeal lodged by the applicant company as unsubstantiated.
12. During the period from 2000 to 2002 the applicant company instituted numerous proceedings against the Voroshylovskyy District Tax Administration challenging tax payments, fines etc.
13. In June 2003 the Voroshylovskyy District Tax Administration instituted insolvency proceedings in the Donetsk Regional Commercial Court against the applicant company. The Tax Administration stated that the applicant company had failed to pay UAH 57,840.91 in tax in 2000 and had already had a tax lien imposed on it. Moreover, the last transaction on the applicant company's account had taken place more than a year ago and the applicant company's location was unknown. Apparently, the applicant company was not informed about these proceedings.
14. On 4 September 2003, in the applicant company representative's absence, the court declared the applicant company insolvent for failure to pay UAH 57,840.91 in taxes to the State budget. The Voroshylovskyy District Tax Administration was appointed its liquidator.
15. According to the applicant company, it was informed about this decision only by letter of 10 March 2004. Subsequently, the applicant company requested the court to fix a new time-limit for lodging an appeal against the decision of 4 September 2003. On 22 April 2004 the Donetsk Commercial Court of Appeal refused this request because, in accordance with Article 93 of the Code of Commercial Procedure, the relevant time-limit of three months from the date on which the appealed judgment or decision had been adopted had expired. On 22 June 2004 the High Commercial Court of Ukraine dismissed an appeal by the applicant company against the above decisions for non-compliance with the procedural formalities prescribed by law. On 3 November 2004 the Supreme Court of Ukraine dismissed a cassation appeal lodged by the applicant company.
16. On 19 April 2004 the applicant company requested a review of the decision of 4 September 2003 in the light of newly established evidence.
17. On 27 April 2004 the Donetsk Regional Commercial Court started its consideration of the applicant company's request.
18. On 24 May 2004 the proceedings in the case were stayed pending consideration of the applicant company's complaint lodged in 2004 against the tax administration regarding unlawfulness of the latter's decision of 30 April 2000 by which the applicant company had been ordered to make some tax payments and to pay fines.
19. On 30 June 2004 the applicant company's complaint against the decision of 30 April 2000 was left without consideration as the applicant company had been declared insolvent. The final decision in this case was taken by the Supreme Court of Ukraine on 13 January 2005.
20. On 21 October 2005 the Donetsk Regional Commercial Court resumed the proceedings.
21. On 13 December 2005 the Donetsk Regional Commercial Court quashed the decision of 4 September 2003 because the applicant company had not been properly informed about the insolvency proceedings against it. The court also terminated the insolvency proceedings and obliged the Voroshylovsky District Tax Administration to publish a refutation of the statement that the applicant company had been declared insolvent.
22. In its observations of 25 December 2007 the applicant company submitted that no such refutation had yet been published.
23. On 6 April 2000 the tax police instituted criminal proceedings against the first applicant for tax evasion. The case was later transferred to a prosecutor's office for investigation.
24. On 5 July 2000 the Donetsk City Prosecutor's Office instituted new proceedings against the first applicant for forgery in public office and joined them to the initial ones. On the same day the first applicant was charged with those crimes.
25. In September 2000 the case was transferred to the court and on 6 October 2000 the Voroshylovskyy District Court of Donetsk started its consideration. Between October 2000 and May 2003 seven court hearings took place and twenty-seven hearings were postponed for various reasons (on nine occasions the first applicant and/or his lawyer failed to appear and on one occasion the first applicant was ill). Other reasons for postponement of hearings included prosecutor's and witnesses' failure to appear, court's decision that additional evidence should be brought into the court hearing, judge's being busy with another case or judge's vacation etc.
26. On 20 March 2003 the court changed the charge against the first applicant to neglect of official duty.
27. On 7 May 2003 the court remitted the case for additional investigation.
28. On 4 July 2003 the Donetsk Regional Court of Appeal quashed this decision and remitted the case to the District Court for consideration on the merits.
29. Between July 2003 and March 2004 one hearing took place and six hearings were postponed for various reasons (on three occasions the first applicant failed to appear).
30. On 13 January 2004 the Supreme Court of Ukraine dismissed a cassation appeal lodged by the first applicant against the decisions of 7 May and 4 July 2003.
31. On 17 March 2004 the Voroshylovskyy District Court of Donetsk again remitted the case for additional investigation.
32. On 14 May 2004 the Donetsk Regional Court of Appeal upheld that decision.
33. On 9 September 2004 the Kuybyshevskiy District Prosecutor's Office suspended criminal proceedings “[instituted] for neglect of official duty” because “it was impossible to establish who had committed that crime”.
34. On 5 May 2005 the Supreme Court of Ukraine dismissed a cassation appeal lodged by the first applicant against the decision of 17 March 2004 on the ground that such decision could not be appealed in cassation.
35. In accordance with section 86 (1) of the Enforcement Proceedings Act, the creditor is entitled to institute court proceedings against a legal person, entrusted with collecting payments from the debtor, for inadequate or non-enforcement of a judgment due to the fault of that legal person. In such cases the creditor is dispensed from paying court fees.
36. Section 86 (2) provides that compensation for damage caused by the State Bailiff's Service in enforcement proceedings is to be paid in accordance with the procedure prescribed by law.
37. According to paragraph 26 of this letter, a legal person, as referred to in section 86 (1) of the Enforcement Proceedings Act, is a tax authority, a bank, and so forth, but not the Bailiffs' Service.
38. In accordance with section 3 of this Act, after the debtor is declared insolvent by the court, its business activity shall be stopped. The court nominates a liquidator, who takes over the management of the debtor's assets. Having taken the necessary steps to identify and recover the debtor's debts and search for the assets, the liquidator shall assess these assets and carry out their sale. Having sold the assets and paid the creditors, the liquidator shall submit a report and the liquidation balance to the court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1