ITEMID: 001-90445
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SINICIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1948 and lives in Nova Kapela.
5. The applicant’s lorry was forfeited by the Sisak Police Department (Policijska postaja Sisak) on 23 August 1995 in connection with a suspicion held against the applicant of having committed an aggravated theft. The criminal complaint against the applicant was eventually dropped and on 26 February 1996 the police invited the applicant to take delivery of the vehicle. They also noted that the vehicle was not in good working order. For that reason the applicant refused to take delivery of the vehicle.
6. The applicant, represented by a lawyer, instituted civil proceedings on 13 June 1996 in the Zagreb Municipal Court (Općinski sud u Zagrebu) against the Ministry of Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, hereinafter “the Ministry”), seeking repossession of the vehicle and damages.
7. After holding a public hearing and hearing the evidence, in its judgment of 2 October 1997 the Zagreb Municipal Court (Općinski sud u Zagrebu) ordered the State to return the vehicle to the applicant in good working order within fifteen days after the judgment became final. It found that the applicant’s vehicle was in good working order at the time of its requisition. The Municipal Court also dismissed his claim for damages. The judgment was upheld by the Zagreb County Court (Županijski sud u Zagrebu) on 4 April 2000 and thus became final. Further appeals on points of law lodged by both parties were dismissed by the Supreme Court (Vrhovni sud Republike Hrvatske) on 23 March 2004.
8. The applicant’s subsequent constitutional complaint was dismissed by the Constitutional Court (Ustavni sud Republike Hrvatske) on 19 January 2005.
9. The applicant lodged a request for an enforcement order in the Zagreb Municipal Court on 14 June 2000, seeking the enforcement of the above final judgment of 4 April 2000. On 9 October 2000 the Municipal Court issued an enforcement order requiring the applicant’s vehicle to be returned to him in good working order.
10. On 20 December 2000 the applicant withdrew his initial request and asked instead the Zagreb Municipal Court to order the Ministry to pay a penalty for not complying with the enforcement order. On 29 December 2000 the Ministry admitted that it had not complied with the initial enforcement order. In view of the applicant’s new request, the proceedings concerning the enforcement order of 9 October 2000 were terminated on 12 January 2001 and the proceedings upon the applicant’s request for penalty payments continued.
11. On 8 February 2001 the Municipal Court ordered the Ministry to return the vehicle to the applicant within two days, failing which it was to pay the applicant Croatian kuna (HRK) 1,500 for each day of default from that point on. The Ministry lodged an appeal and on 5 March 2002 the appellate court quashed the firstinstance decision, finding that the Zagreb Municipal Court lacked territorial jurisdiction in the matter. The case was transferred to the Sisak Municipal Court (Općinski sud u Sisku), which on 20 May 2002 ordered the Ministry to return the vehicle to the applicant within two days, failing which it was to pay HRK 1,500 for each day of default. The appellate court, however, quashed that decision and ordered the first-instance court to establish whether the parties were willing to settle the case. On 13 November 2003 the Ministry offered a settlement, which the applicant refused.
12. On 23 December 2003 the Sisak Municipal Court ordered the Ministry to comply with the judgement of 4 April 2000 within eight days failing which it was to pay HRK 1,500 for each day of default. This decision was upheld by the Sisak County Court (Županijski sud u Sisku) on 15 July 2004.
13. The parties met on 19 November 2004 in the presence of a court expert who established that the vehicle had been repaired and its value had increased.
14. The parties met again on 25 January 2005 in the presence of a court expert but the applicant refused to accept the vehicle, objecting that it had not been properly repaired. He sought payment of HRK 10,000 and 600 euros (EUR) in order to repair the vehicle and a further HRK 8,000 for its registration.
15. On 23 May 2006 a commission of the Sisak Municipal Court established in the presence of the parties and a court expert that the vehicle still had some defects, which had been in existence when the vehicle was examined on 19 November 2004. The applicant offered a settlement stipulating that the vehicle be driven to his address and that a sum of HRK 15,000 be paid to him for the costs of further repair and the registration of the vehicle. On 4 July 2006 the Ministry agreed to deliver the vehicle to the applicant’s home address, to remove all the remaining defects and pay the applicant a sum of HRK 15,000 for the costs of registration.
16. The Municipal Court held a hearing on 14 July 2006 with a view to assisting the parties to reach a settlement. However, the applicant declined the settlement because the Ministry refused to pay the court penalties ordered by the Sisak Municipal Court on 23 December 2003.
17. On 14 September 2006 a commission of the Sisak Municipal Court established in the presence of the parties and a court expert that the vehicle still had some defects. These were immediately removed, but the applicant nevertheless refused to take delivery.
18. On 2 October 2006 the Sisak Municipal Court ordered that the vehicle be kept by the Ministry in a closed garage at the applicant’s expense, at a rental of HRK 60 per day. The applicant appealed against this decision, arguing that the vehicle had not been properly repaired. On 29 June 2007 the Sisak County Court dismissed the applicant’s appeal finding that the vehicle was in good working order and fit to pass the technical test necessary for its registration. The thus vehicle remained in the possession of the Ministry as the applicant refused to take possession of it.
19. On 22 November 2004 the applicant also sought payment of the court penalties ordered in the Sisak Municipal Court’s decision of 23 December 2003 (see paragraph 12 above) up to 18 November 2004, in a total amount of HRK 454,500 together with costs of HRK 7,808. An enforcement order to that effect was issued on 3 January 2005 and the above amounts were paid to the applicant.
20. In its decision of 20 July 2006, the Sisak Municipal Court ordered the Ministry to pay the applicant HRK 625,500 on account of court penalties for the period between 23 February and 3 May 2006 as well as HRK 7,966.60 for the costs of the proceedings. In its decision of 3 October 2006, the same court ordered the Ministry to pay the applicant HRK 201,000 on account of court penalties for the period between 3 May and 13 September 2006 together with HRK 3,050 for costs. However, on 26 February 2007 the Sisak County Court quashed these orders and dismissed the applicant’s request for the court penalties to be enforced, on the ground that the Ministry had complied with their obligation to return the vehicle in good working order on 19 November 2004, that being the date when a court expert had found that the vehicle had been repaired.
21. On an unspecified date the applicant lodged a constitutional complaint against the Sisak County Court’s decision of 26 February 2007 arguing that further court penalties had to be paid to him. These proceedings are still pending.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-100133
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ACET v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicant, Mr Murat Acet, is a Turkish national who was born in 1980 and lives in Ankara. He was represented before the Court by Ms S. Tutgun, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 October 2003 the applicant's wife, Ms B.D., instituted divorce proceedings before the Ankara Family Court on the grounds, inter alia, of domestic violence.
On 8 March 2005 following the decision of the Ankara Family Court to divorce the couple, fighting broke out between the two families in the corridor of the court house. In the course of the fight, Mr R.D., the father of Ms B.D., injured the applicant and a police officer, Mr O.C.U., with a knife. Other people were also injured during the incident, including Mr R.D., who sustained, inter alia, an oedema and a haematoma on his right eye, which rendered him unfit for work for five days.
The police intervened. Mr R.D. and a number of family members from both parties were arrested and taken into police custody where they gave statements about the incident.
On the same day the police found a bloody pocket knife on the premises. When the knife was passed through the metal detector at one of the doors of the court house, the police noticed that the sensors at this door did not give a detection signal. The knife was sent to a criminal laboratory for analysis.
On 24 March 2005 the experts' report on the knife was sent to the public prosecutor. In his cover letter, the police chief at the court house informed the prosecutor that the pocket knife in question did not fall within the category of forbidden knives within the meaning of section 4 of Law no. 6136.
On 2 May 2005, upon the request of the public prosecutor, a doctor at the Ankara Forensic Medical Institute examined the applicant's medical reports and noted that, in addition to some minor cuts, he had a suffered life-threatening injury and consequently had to have his spleen taken out. The doctor opined that this rendered him unfit for work for twenty-five days.
On 27 July 2005 the applicant lodged an official complaint of negligence with the Ankara public prosecutor against the police officers who had been on duty at the entrance of the court house. In his submission, he noted that he had sustained a life-threatening knife injury on 8 March 2005 and criticised the fact that a person had been able to enter the court house with a knife, despite security checks.
On the same day the applicant gave evidence to the public prosecutor in which he repeated his allegations.
Between 4 and 7 October 2005, five police officers who had been on duty at the entrance of the court house gave written statements to the police. In particular, they submitted that the metal detectors at the entrance were not always sensitive or that they occasionally failed to operate, but that in such cases the police chief informed the relevant authorities and the technical personnel made the necessary repairs.
On 10 October 2005 the prosecutor received information and documents, including statements, from the police chief at the court house.
On 11 October 2005 the prosecutor heard evidence from two of the police officers who had intervened in the fight between the parties. According to the police officer Mr A.Ş., they had been on duty outside the hearing room of the Fourth Division of the Family Court, where a tense hearing had been taking place. At the end of the hearing, they had accompanied the members of one of the parties outside. However, upon their return, they saw that a woman, whom they had just escorted outside, was swearing and that, despite their intervention, when the other party responded verbally, both parties started physically attacking each other. Mr A.Ş. further submitted that, after the events, they had found a bloody knife at the Tenth Division of the Family Court and that, when they had passed it through one of the entrance doors, the metal detector had not given a signal. The other police officer, Mr O.C.U., gave a similar testimony. Both officers said that they had not seen who had the knife or how the applicant had been injured.
On 12 October 2005 the Ankara public prosecutor decided that there was no need to prosecute the police officers who had been on duty at the entrance of the court house, on the ground that no fault could be attributed to them. In his decision, the prosecutor noted that it had been established that the knife used in the crime had not been detected by the metal detector and that, subsequent to the events, the police had requested that the machine's sensitivity be adjusted accordingly.
On 21 December 2005 the applicant objected to the public prosecutor's decision.
On 20 March 2006 the Sincan Assize Court dismissed the applicant's objection. That decision was served on the applicant on 26 May 2006.
Criminal proceedings were instigated against Mr R.D., inter alia, for causing physical injury under Article 456 of the Criminal Code.
On 13 December 2005 the Ankara Assize Court convicted Mr R.D. as charged and he was sentenced to prison. That decision was quashed by the Court of Cassation on 27 September 2006.
On 7 February 2007 the Ankara Assize Court convicted Mr R.D. as charged. He was sentenced to five years' imprisonment in respect of his act against the applicant, and two months and twenty-eight days' imprisonment in respect of his act against the police officer, Mr O.C.U. After having examined the evidence in the case file, including witness testimonies, the court established the facts as follows: both parties had displayed quarrelsome behaviour at past hearings so, at the end of the hearing, the applicant and his family had been taken out of the hearing room first so as to avoid any incident. However, it appeared that they had failed to leave the court house and, as a result, when the other party had been let out of the hearing room 15 to 20 minutes later, both parties had started swearing and fighting with each other. In the course of the incident, the applicant had punched his ex-father-in-law and the latter, in response, had injured him with a knife. The case is still pending before the Court of Cassation.
According to an internal police memo dated 18 May 2009, the applicant had never applied to the police on the ground that his life had been under threat or requested any protection prior to the incident.
On 20 May 2009 the police chief at the court house submitted information to the Altındağ Security Directorate, in response to the applicant's allegations before the Court, as regards the security measures at the court house. According to this information, there is 24-hour police protection in the area outside the court house, 30,000 to 40,000 people enter the court house daily and all of these people pass through metal detectors, before undergoing a body search, while their bags and other belongings are passed through an X-ray machine. Police officers are stationed outside each chamber and, if requested, additional measures are taken. The police chief also stated that it was possible for the metal detector not to detect the pocket knife in question if it was closed and wrapped in a material that was not sensitive to metal. He further submitted that the knife at issue had been passed through a metal detector and that the latter had not given any signal.


ITEMID: 001-114520
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF JOANNA SZULC v. POLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1953 and lives in Warsaw.
6. According to the applicant, in 1974 she received a job offer from the Japanese company Kanematsu-Gosho Ltd which she apparently refused. In 1974-1975 she worked for the Nigerian Embassy in Warsaw and in 1976 for the Indian Embassy.
7. On a few occasions the security services attempted to recruit her as a collaborator but the applicant never consented despite threats. In December 1974 the applicant was summoned to the Warsaw Civic Militia Headquarters. She had a conversation with an officer of the counterintelligence service in connection with the job offer from the Japanese company. The officer tried to persuade her to collaborate with the service but the applicant refused and stated that she would rather decline the job offer.
8. Subsequent meetings with officers of the Security Service (Służba Bezpieczeństwa) took place in 1975. The applicant consistently refused to collaborate. One such meeting took place in connection with the applicant’s request to obtain a passport for a holiday trip to Greece. The applicant was instructed to prepare a report from her trip which she submitted upon her return.
9. For a number of years the applicant lived in England. She was involved in the activities supporting the Solidarity (“Solidarność”) Trade Union in Poland.
10. The Law of 18 December 1998 on the Institute of National Remembrance (“the Institute Act”; Ustawa o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu) entered into force on 19 January 1999. The Institute’s tasks included, inter alia, storing and researching documents of the communist security services. The right of access to those documents was guaranteed primarily to “injured parties” as defined in the Institute Act.
11. On 15 February 2001 the applicant applied to the Institute of National Remembrance (“the Institute”) for leave to consult all documents collected on her by the security services.
12. On 2 March 2004 the applicant received a certificate informing her that she could not be considered an “injured party” (pokrzywdzona) within the meaning of section 6 of the Institute Act. In a letter of the same date she was informed that the Institute would continue to search the archives for documents regarding her. The certificate which the applicant received simply indicated that after two rounds of search the Institute had not found any documents created by the former security services about her.
13. On 26 October 2005 the Constitutional Court reviewed the constitutionality of the provisions of the Institute Act regarding access to documents held by the Institute (case no. K 31/04). It found, inter alia, that sections 30 § 1 and 31 §§ 1 and 2 of the Institute Act, in so far as they deprived interested persons – other than injured parties – of the right to be provided with information about documents concerning them, were unconstitutional (see Relevant domestic law below).
14. On 29 July 2006 the applicant again applied for access to all documents collected on her by the security services. She relied on the above Constitutional Court’s judgment of 26 October 2005. According to the applicant, that judgment stipulated that every interested person had the right to have access to documents held by the Institute concerning him or her on the basis of Article 51 § 3 of the Constitution, regardless of whether he or she had been granted the status of the “injured party”.
15. On 15 November 2006 the applicant was allowed to consult documents in her file which concerned her as a subject of interest of the former security services (obiekt zainteresowania SB). However, she did not receive access to all documents about her and she could not receive any copies or make notes.
16. On 25 November 2006 the applicant again applied to the President of the Institute for leave to consult all documents concerning her. She noted that the documents which she was allowed to consult so far confirmed that she had refused to collaborate with the security services. The applicant learnt for the first time from those documents that the security services had invented a plan to subject her to surveillance. She also discovered that she had been given a code name and expressed her indignation in this respect.
17. In reply, on 20 February 2007, the Deputy Head of the Archive Office of the Institute informed the applicant that her request to have access to all documents concerning her could not be granted. In his view, according to the Constitutional Court’s judgment of 26 October 2005 the right of access to documents did not extend to all documents concerning the applicant but was applicable exclusively to those which treated her as a subject of interest of the former security services. Accordingly, she was informed that the consultation of documents by the applicant which had taken place on 15 November 2006 had been carried out in accordance with the procedure adopted by the Institute and that all documents which treated her as a subject had been disclosed.
18. The Institute Act was amended by the Law of 18 October 2006 on disclosing information about the documents of the State security services from the period between 1944 and 1990 and the content of these documents (“the 2006 Lustration Act”), which entered into force on 15 March 2007. Henceforth, the rules on access to documents deposited with the Institute were set out in amended sections 30 and 31 of the Institute Act (see Relevant domestic law below). The status of an “injured party” was repealed. The amended Institute Act further stipulated that the Institute will create an Internet catalogue of persons who had collaborated or assisted the former State security services in their undercover activities.
19. The Institute Act and the 2006 Lustration Act were further amended by the Law of 14 February 2007 which entered into force on 28 February 2007.
20. The applicant, having been aware that her name appeared on the “Wildstein list” (see part C. below), was concerned that her name might be included in the official catalogue. This would have amounted to her official condemnation as an informant of the communist security services only on the basis of the entries made by the officers of those services without the applicant’s having been aware of it.
21. On 11 May 2007 the Constitutional Court (case no. K 2/07) found the 2006 Lustration Act and the Institute Act as amended to a large extent unconstitutional and quashed many of its provisions with effect from 15 May 2007. It struck down, among others, section 30 § 2(2) of the Institute Act which excluded access of interested persons to documents indicating that they had collaborated or assisted the former State security services in their undercover activities (see Relevant domestic law below).
22. In the meantime, on 20 March 2007, the applicant had again requested access to all documents concerning her pursuant to the rules in force as from 15 March 2007.
23. On 19 November 2007 the Director of the Warsaw Branch of the Institute gave a decision in which it refused her access to two documents. He considered that the content of these two documents fulfilled the conditions specified in section 31 § 1(2a) of the Institute Act. This provision stipulated that the refusal to allow access to documents whose content indicated that the petitioner had been considered by the security services as a secret informant or an assistant in covert gathering of information should be given in the form of an administrative decision.
24. The applicant appealed against that decision, submitting that it had been given pursuant to the rules declared unconstitutional by the Constitutional Court.
25. On 19 February 2008 the President of the Institute quashed the decision on procedural grounds and referred the case back. He found that the Director of the Warsaw Branch of the Institute had not ruled on the application of the Helsinki Foundation for Human Rights, a human rights organisation, to join the proceedings as a third party.
26. On 4 June 2008 the Director of the Warsaw Branch of the Institute gave a decision in which it refused the applicant access to three documents. He again relied on section 31 § 1(2a) of the Institute Act. The applicant appealed.
27. On 12 August 2008 the President of the Institute upheld the impugned decision. He confirmed that the documents at issue indicated that the applicant had been considered by the security services as a secret informant or an assistant in the covert gathering of information. Accordingly, the refusal of access was justified under section 31 § 1(2a) of the Institute Act.
With regard to the applicant’s argument that the decision was based on the unconstitutional norm, the President of the Institute noted that section 30 § 2 of the Institute Act constituted a substantive legal basis for granting or refusing access to documents, while section 31 § 1 was a procedural provision. However, since the legislator decided to replicate in section 31 § 1 the same conditions justifying refusal as stipulated in section 30 § 2 then the former provision could not be interpreted without taking into account these conditions. The President of the Institute did not accept the applicant’s argument that since section 30 § 2 had been declared unconstitutional and repealed, then it followed that a different provision (section 31 § 1) with the same content was also unconstitutional. He went on to say that only when the Constitutional Court expressly declared unconstitutional a given provision of the law was the authority under the obligation not to apply such provision.
28. The applicant lodged a complaint against the decision with the Warsaw Regional Administrative Court. On 27 May 2009 the Regional Administrative Court dismissed her complaint.
29. On 7 July 2009 the applicant filed a cassation appeal with the Supreme Administrative Court. She argued, inter alia, that the decisions of the Institute refusing her access to documents of the security services entailed a breach of a number of constitutional provisions and of Article 8 of the Convention. They were, furthermore contrary to the Constitutional Court’s judgment of 11 May 2007 (case no. K 2/07).
30. On 21 October 2009 the Supreme Administrative Court stayed the proceedings on the ground that a legal question on the constitutionality of, inter alia, section 31 § 1(2) of the Institute Act had been put to the Constitutional Court by a different panel of the Supreme Administrative Court. This provision was relied on as the basis of the Institute’s negative decisions in the applicant’s case.
31. On 20 October 2010 the Constitutional Court (case no. P 37/09) ruled, among others, that section 31 § 1(2) of the Institute Act was incompatible with the Constitution, in particular the right to protection of private life (Article 47), the right of access to official documents concerning oneself (Article 51 § 3) and the right to request the correction or deletion of untrue or incomplete information (Article 51 § 4).
32. On 14 January 2011 the Supreme Administrative Court resumed the proceedings. On 4 May 2011 it gave judgment quashing the Warsaw Regional Administrative Court’s judgment and the two preceding decisions of the Institute. It relied on the Constitutional Court’s judgment of 20 October 2010, in particular that court’s finding of unconstitutionality of section 31 § 1(2) of the Institute Act which had served as the legal basis of the decisions in the applicant’s case.
33. On 22 August 2011 at the Warsaw Branch of the Institute the applicant was granted access to copies of all documents concerning her which had been created by the communist security services.
34. In October 2004 the Institute of National Remembrance decided to create a list of officers, collaborators, candidates for collaborators of the State security services and of other persons whose files had been collected by it. This list consisted of the first name, the surname and, in some cases, the case file number. The list was made available on computers in the Institute library, to which access was restricted to researchers and journalists.
35. In January 2005 the list, consisting of some 240,000 names, was published on the Internet and unofficially named “the Wildstein list” (“Lista Wildsteina”) after a journalist who had allegedly removed it from the Institute and published it. The publication of the list received wide media coverage, particularly since the names of some important public figures appeared on it.
36. In response to these events, on 4 March 2005 Parliament passed an amendment to the Institute Act and added section 29a, which afforded persons concerned the right to obtain a certificate clarifying whether their name was on the list.
37. In February 2005 the applicant discovered that her name appeared on the “Wildstein list”. On 9 February 2005 she applied to the Institute for clarification of whether her personal details corresponded to the data on the “Wildstein list”.
38. On 27 January 2006 the Institute issued a certificate confirming that her personal details (names, surname, date and place of birth) corresponded to the data included in the Institute’s catalogue of officers, collaborators, candidates for collaborators of the State security services and of other persons. At the same time she was informed that the certificate did not confer on her the status of an “injured party” and did not entitle her to access documents held by the Institute.
39. On 18 October 2007 the applicant requested the Warsaw Regional Court to institute the so-called “auto–lustration” proceedings under section 20(5) of the 2006 Lustration Act. This provision stipulated that lustration proceedings could also be instituted by a person who prior to the entry into force of the Lustration Act had held a public office and who was publicly accused of having been working or collaborating with the State security services between 1944 and 1990. The applicant relied on the Constitutional Court’s judgment of 11 May 2007 (case no. K 2/07), which extended the application of that provision to persons who had not held public office. She submitted her lustration declaration, in which she denied having been an intentional and secret collaborator with the secret services and requested the court to give a ruling that her declaration was true. The applicant maintained that the fact that her name had appeared on the “Wildstein list”, which had been made public on the Internet, constituted public accusation since the list had been regarded by the general public as a list of agents and collaborators.
40. She submitted that the Institute had refused to grant her the status of an injured party and subsequently had denied her access to certain documents concerning her. These circumstances could have indicated that there had been some documents showing that she had collaborated with the security services. Additionally, she found her name on the “Wildstein list” and received a certificate that her personal data matched those on the said list. The applicant argued that such situation was grossly unfair and demanded to institute lustration proceedings with a view to terminating any speculation about her alleged collaboration with the security services. She also hoped that in the framework of these proceedings she would be provided with access to all documents about her stored by the Institute.
41. On 18 December 2007 the Warsaw Regional Court dismissed her application to institute lustration proceedings, considering that she had not been publicly accused of having been a secret collaborator within the meaning of Article 20(5) of the 2006 Lustration Act. Firstly, it was not certain that she was the person whose name had been on the list. Even assuming that her name had been on the list, such fact could not be tantamount to an accusation of having collaborated with the security services. The court noted that the media had reported that the list had been only a sort of a catalogue facilitating the use of the Institute’s archives. It contained the names of persons who had been registered by the security services for various reasons; some had been actual secret collaborators but there were other persons who had been preselected for that role, without necessarily having been aware of that fact.
42. The applicant appealed against the decision.
43. On 29 February 2008 the Warsaw Court of Appeal upheld the impugned decision. The court found that there were no sufficient grounds to consider that the applicant had been publicly accused of having collaborated with the security services. The list of names produced by the applicant indicated that it contained not only the names of agents but also of victims. Furthermore, the court found that the applicant had not established that the inclusion of her name on the list had had any specific adverse consequences for her. It considered relevant that the Institute’s decisions and certificates referred to by the applicant were not public documents. No further appeal lay against that judgment.
44. Article 47 of the Constitution of 1997 provides:
“Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.”
45. Article 51 §§ 3 and 4 of the Constitution states:
“3. Everyone shall have the right of access to official documents and data collections concerning himself. Limitations upon such rights may be established by statute.
4. Everyone shall have the right to demand the correction or deletion of untrue or incomplete information, or information acquired by means contrary to statute.”
46. The Law of 18 December 1998 on the Institute of National Remembrance (“the Institute Act”; Ustawa o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu) entered into force on 19 January 1999. The Institute’s tasks included, inter alia, storing and researching documents of the communist security services. The right of access to those documents was guaranteed primarily to “injured parties” as defined in the Institute Act. Limited access was further provided to officers, employees and collaborators of the security services and separately to researchers and journalists.
47. Section 6 of the Institute Act provided that an “injured party” (pokrzywdzony) was a person on whom the State security services deliberately collected information, including secretly. However, a person who subsequently became an officer, employee or a collaborator of the security services could not be considered an “injured party” (section 6 § 3).
According to section 30 § 2 of the Institute Act everyone had the right to inquire whether he or she was an injured party within the meaning of the Act. Person certified as an “injured party” had the right to obtain information from the Institute about documents concerning him (section 30 § 1). The Institute had the obligation to inform the “injured party” about the manner of access to the documents concerning him and to provide him, on request, copies of those documents (section 31 §§ 1-2). Section 33 § 1 further provided that an “injured party” had the right to submit his or her corrections to and clarifications in respect of existing documents.
48. On 18 February 2005 a group of deputies to the Sejm introduced a bill amending the Institute Act. They noted that the Institute’s catalogue of officers, secret collaborators and candidates for secret collaborators did not include any other details than a name and the surname of those persons. This situation led to a general uncertainty and created suspicions in respect of many persons who had not had in the past any contacts with the State security services. Their bill was intended to remedy the situation.
49. On 4 March 2005 Parliament passed the amendment to the Institute Act. On 20 April 2005 new section 29a (1) of the IPN Act came into force. It provided as follows:
“The President of the Institute of National Remembrance shall within 14 days of an application issue a certificate stating whether or not the personal details of the applicant correspond to the personal details included in the list of officers, collaborators and proposed collaborators of the State security services ... or other persons that was made accessible at the Institute as of 26 November 2004.”
50. In 2004 the Ombudsman challenged the constitutionality of certain provisions of the Institute Act concerning access to documents held by the Institute.
On 26 October 2005 the Constitutional Court gave judgment in case no. K 31/04. It held, inter alia, that section 30 § 1 and section 31 §§ 1 and 2 taken in conjunction with section 6 §§ 2 and 3 of the Institute Act, in so far as they deprived interested persons – other than injured parties – of the right to be provided with information about documents concerning them, were incompatible with Article 47 (protection of private life) and Article 51 §§ 3 and 4 (the right of access to official documents concerning oneself and the right to demand the correction or deletion of untrue or incomplete information) of the Constitution. It further found that section 33 § 1 taken in conjunction with section 6 §§ 2 and 3 of the Institute Act, in so far as it deprived interested persons – other than injured parties – of the right to submit their corrections to and clarifications in respect of documents concerning them, was incompatible with the same constitutional provisions.
51. The Constitutional Court noted that the Institute Act justifiably afforded special status to the “injured party” and bestowed on this category of persons a number of rights. It identified under the Institute Act a distinct category of persons, namely those who applied for the status of the “injured party” and whose applications were refused. The refusal resulted either from the lack of documents concerning a person seeking the status or from the fact that the security services had not collected information on them. The Constitutional Court disagreed with the Ombudsman that the Institute’s refusal to classify a person as the “injured party” had been tantamount to an official declaration that such person had been an officer, employee or collaborator of the State security services. At the same time it pointed to the incoherent criteria used by the Institute in classifying persons as collaborators of the security services. It also noted that the Institute’s archives contained information which had been, in principle, collected without any legal basis and often unlawfully. The Constitutional Court underlined that the constitutional right of access to official documents (Article 51 § 3) was related solely to the documents concerning a given person as a subject of interest of the security services. It did not extend to documents which were created by a given person in his capacity of an officer, employee or collaborator of the security services.
52. The Institute Act was amended by the Law of 18 October 2006 on disclosing information about the documents of the State security services from the period between 1944 and 1990 and the content of these documents (“the 2006 Lustration Act”; ustawa o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa z lat 19441990 oraz treści tych dokumentów). The amendments entered into force on 15 March 2007.
53. The 2006 Lustration Act and the Institute Act were further amended by the Law of 14 February 2007. These amendments entered into force on 28 February 2007.
54. The amended sections 30 and 31 regarding access to documents held by the Institute stated in so far as relevant:
“Section 30. 1. Everyone has the right to request the Institute for access to copies of documents concerning him.
2. The Institute grants access to copies of available documents concerning the applicant, which are referred to in § 1, with the exception of the following:
1) documents created by the applicant or with his participation ... in connection with his employment or service in the State security agencies or in connection with his activities carried out as a secret informant or an assistant in covert gathering of information;
2) documents whose content indicates that the applicant:
a) was considered by the security services as a secret informant or an assistant in covert gathering of information,
b) undertook to provide information to the State security service or to assist such service in whatever form in its covert activities,
c) executed tasks given by the State security service, in particular provided information to the service. ...
Section 31. 1. A refusal to allow request, referred to in section 30, in so far as it concerned access to documents:
1) created by the applicant or with his participation ... in connection with his employment or service in the State security agencies or in connection with his activities carried out as a secret informant or an assistant in covert gathering of information;
2) whose content indicates that the applicant:
a) was considered by the security services as a secret informant or an assistant in covert gathering of information,
b) undertook to provide information to the State security service or to assist such service in whatever form in its covert activities,
c) executed tasks given by the State security service, in particular provided information to the service,
is effected in the form of an administrative decision. ...”
55. In the case no. K 2/07 the Constitutional Court reviewed the constitutionality of the 2006 Lustration Act and the Institute Act as amended which had been challenged by a group of members of parliament. It gave its seminal judgment on the issues of lustration and access to documents held by the Institute on 11 May 2007.
56. With regard to the issue of access to documents, the Constitutional Court struck down as unconstitutional section 30 § 2(2) of the Institute Act. This provision excluded access of interested persons to documents indicating that that they had collaborated or assisted the former State security services in their undercover activities. The Constitutional Court noted that the Constitution guaranteed to everyone the right of access to official documents and data collections concerning oneself (Article 51 § 3) and the right to demand the correction or deletion of untrue or incomplete information, or information acquired by unlawful means (Article 51 § 4). This latter right, which was related to the right to privacy guaranteed in Article 47 of the Constitution, could not be statutorily restricted to a certain category of persons. The Constitutional Court underlined that no State interest could legitimise or justify preservation in official records of information which was untrue, incomplete or acquired in a manner contrary to statute.
57. It further declared unconstitutional section 52a(5) of the Institute Act. The latter provision stipulated that the Lustration Office of the Institute was charged with preparation and publication of catalogues of persons referred to in section 30 § 2(2). The wording used in this provision was identical to the formulation employed in section 30 § 2 of the Institute Act.
The Constitutional Court noted that such catalogues would rely on classification adopted by the totalitarian security services and their assessment of a person. In its view, the publication of such catalogues would have amounted to legitimisation of the activities of the security services and, at the same time, to stigmatisation of persons included in these catalogues. Such a situation would be incompatible with Articles 47 and 51 § 4 of the Constitution.
58. The judgment was promulgated on 15 May 2007 and on that day the unconstitutional provisions were abrogated.
59. On 17 July 2007 the Speaker of the Sejm requested the Constitutional Court for interpretation of the judgment of 11 May 2007. He submitted, inter alia, that the court had not given reasons for its finding of unconstitutionality in respect of section 30 § 2(2) of the Institute Act.
60. The Constitutional Court noted that there was no doubt that section 30 § 2(2) had been declared unconstitutional. It observed that the Speaker’s request was aimed at supplementing the reasons for the judgment; however there was no such possibility under the Constitutional Court Act. Nonetheless, the Constitutional Court drew attention to the fact that the sections 30 § 2(2) and 52a(5) of the Institute Act, which both had been declared unconstitutional, had identical content and thus they had concerned the same legal norm although spelled out in two different provisions. Both provisions concerned the same group of persons, namely those considered by the State security services as a secret informants or assistants in covert gathering of information. The Constitutional Court noted that the reasons for the finding of unconstitutionality in respect of section 52a(5) were equally applicable to section 30 § 2(2) of the Institute Act. It noted that an unconstitutional legal norm could appear in part as well as in one or more legal provisions; however the finding of unconstitutionality of a legal norm and hence its disqualification was relevant for all situations in which such norm may be applied.
61. The Constitutional Court further held as follows:
“It should be underlined that the same category of persons [as mentioned in section 30 § 2(2)] is referred to in section 31 § 1(2) of the Institute Act which was not challenged in the case no. K 2/07 and thus was not reviewed by the Constitutional Court. However, the lack of review in this part [in respect of this provision] cannot justify negative administrative decisions issued on the basis of section 31 of the Institute Act only for the reason that section 31 § 1(2) survived as a result of the lack of challenge to it. Section 31 of the Institute Act is functionally connected with the content of section 30 § 2(2) and may produce legal consequences only in so far as it is harmonised with the content of section 30 § 2(2) following the intervention of the Constitutional Court in respect of the latter, as well as in respect of section 52a(5) of the Institute Act. What is decisive in such situations is the fact that a legal norm (included in section 52a(5) of the Institute Act, and used also in unchallenged section 31 § 1(2)) was declared unconstitutional in the judgment of the Constitutional Court. It is also relevant that section 31 of the Institute Act determines solely a form of the decision refusing request for access to copies of documents concerning [an applicant], while the immediately preceding it section 30 speaks of the individual right of access to documents, which is an implementation at the statutory level of the constitutional principle of access of every person to official documents and data collections specified in Article 51 § 3 of the Constitution. It is obvious that the provision regulating solely a form of a decision in respect of a given right, in this case an administrative decision, may not serve as the basis for determination of the substantive content of the right, its scope and the conditions for its realisation.”
62. In 2009 the Supreme Administrative Court and the Warsaw Regional Administrative Court put to the Constitutional Court legal questions on the constitutionality of various provisions of the Institute Act, including section 31 § 1(2).
63. On 20 October 2010 the Constitutional Court gave judgment. It held that section 31 § 1(2) of the Institute Act, in its version applicable up until 26 May 2010, was incompatible, among others, with Articles 47 and 51 §§ 3 and 4 of the Constitution in conjunction with Article 31 § 3 of the Constitution (the principle of proportionality).
64. The Constitutional Court widely referred to its decision of 28 May 2008 (see above) and confirmed that a finding of unconstitutionality in respect of a given legal norm was authoritative for all situations in which such norm may be applied, regardless of whether the norm was included in one or more legal provisions.
The Constitutional Court also relied on its findings in the judgment of 11 May 2007 (case no. K 2/07). It summarised its approach in that case as follows:
“... for institutional, functional and procedural reasons the Institute Act together with the 2006 Lustration Act constitute one instrument. In this connection, if the documents created and collected by the State security services, meant to indicate the collaboration within the meaning of section 3a § 2 of the 2006 Lustration Act, are constituting the basis for drawing adverse social, moral, political as well as legal consequences in respect of persons subjected to lustration and other persons whose data were registered and included in catalogues [of the Institute], [then] such persons, in a democratic State ruled by law, have to have the right to defend their dignity, reputation and good name. Accordingly, they have to be accorded the right of access to the full range of documents concerning them and used against them. ... This right has to encompass access to documents, deposited with the Institute, in which interested persons were attributed an involvement in the creation of these documents. This is relevant from the point of view of the content of those documents, conclusions formulated and drawn by the officers of the State security services on the basis of the transmitted information and, in particular, from the point of view of the supposed intention of a person passing on the information to “violate the rights and freedoms of a man and a citizen””
65. The Constitutional Court observed that section 31 § 1(2) of the Institute Act was of procedural character, but it further specified the grounds for a decision refusing access to certain documents. These conditions matched the content of section 30 § 2(2) of the Institute Act which had been abrogated as a result of the finding of its unconstitutionality. Nonetheless, the administrative courts submitted to the Constitutional Court that in practice section 31 § 1(2) had been used by the Institute as a substantive basis for decisions refusing access to documents specified in this provision. It further noted that after the said judgment the parliament amended the Institute Act on five occasions; however it did not amend section 31 § 1(2).
66. The Constitutional Court found that a limitation on access to documents of persons, which were referred to in the unconstitutional section 30 § 2(2), which was imposed in a procedural rather than substantive form in section 31 § 1(2), amounted to unjustified interference with the informational autonomy of an individual and restricted the constitutional right to request the correction or deletion of untrue or incomplete information (Article 51 § 4). The Constitutional Court held that that limitations specified in section 31 § 1(2) of the Institute Act on access of interested persons to official documents concerning them were constitutionally disproportionate, and thus in breach of Articles 47 and 51 §§ 3 and 4 of the Constitution in conjunction with Article 31 § 3 of the Constitution. It further held that the impugned provision was incompatible with Article 2 of the Constitution (the rule of law principle) on account of the excessive degree of its imprecision and vagueness.
67. On 18 March 2010 the parliament passed amendments to the Institute Act which entered into force on 27 May 2010. According to the new wording of section 30 of the Institute Act everyone had the right of access to documents concerning him which were deposited with the Institute. The limitations on access which were examined by the Constitutional Court in its judgment of 20 October 2010 were repealed.
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-98075
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ILTALEHTI AND KARHUVAARA v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10;No violation of Art. 6-1
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant company is based in Helsinki. The second applicant was born in 1954 and lives in Helsinki. The applicant company publishes a nationwide newspaper called Iltalehti and the second applicant is the editor-in-chief of that newspaper.
6. On 4 December 1996 A., the National Conciliator (valtakunnansovittelija, riksförlikningsmannen) at the time, and B., his female friend, entered late at night A.'s home where his wife was present. The situation escalated, the police were called and the incident, which subsequently involved also A.'s grown-up children, led to A.'s arrest. Following this incident, criminal charges were brought against both A. and B. on 18 December 1996. On 16 January 1997 the Helsinki District Court (käräjäoikeus, tingsrätten) sentenced A. to a four-month conditional prison sentence for resisting arrest and for criminal damage (vahingonteko, skadegörelse), and B. to a fine for assault. On 17 January 1997 the Council of State (valtioneuvosto, statsrådet) dismissed A. from his post as National Conciliator. On 25 June 1998 the Appeal Court (hovioikeus, hovrätten) upheld the judgment with respect to B. As regards A., the case was discontinued as he had died on 14 May 1998. On 15 December 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused B. leave to appeal.
7. On 17 January 1997, one day after the Helsinki District Court judgment, the Iltalehti newspaper published an article about A. and B. with a title “A. defends fiercely his post”. The article focused mainly on A.'s conviction but in the caption to B.'s picture, her name, conviction and the fact that she was A.'s female friend were mentioned. Prior to this article, the identity of B. had been revealed at least in a Finnish magazine on 7 January 1997 (see Tuomela and others v. Finland, no. 25711/04, 6 April 2010).
8. In the spring of 1997 A. and B. requested that criminal investigations be conducted against journalists who had written about the incident on 4 December 1996 and the circumstances surrounding it. On an unspecified date they made such a request with respect to the second applicant, claiming that the article published in Iltalehti had invaded B.'s privacy. Investigations started in respect of the second applicant on 20 April 1997.
9. On 14 March 2000 the public prosecutor brought charges under chapter 27, section 3(a) of the Penal Code against the second applicant in Vantaa District Court. B. concurred with the charges brought by the public prosecutor and pursued a compensation claim against both applicants, which was joined to the criminal charges. The applicant company was summoned on 10 April 2000.
10. On 8 November 2002 the court, after having held an oral hearing on 4 November 2002, first decided to declare all parts of the case file secret for ten years except for the applicable legal provisions, the conclusions and the summary of the case. Additionally, the identity of B. was not to be revealed in the public parts of the case file. As to the merits of the case, the court sentenced the second applicant to pay twenty day-fines, amounting to 2,040 euros (EUR), for invasion of B.'s private life. Moreover, the applicants were jointly ordered to pay B. EUR 10,000 plus interest for non-pecuniary damage as well as her costs and expenses.
11. The District Court found that the facts mentioned in the articles were of a kind to which the protection of private life typically applied. The Supreme Court had already found in 2002 that the national television broadcast on 23 January 1997, in which B.'s name had been mentioned twice in the context of an interview with A., had invaded her private life. B. did not hold such a position in society that the exception in Chapter 27, section 3(a), paragraph 2, of the Penal Code was applicable. The fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to A.'s dismissal from his post as National Conciliator did not justify revealing her identity. Nor was B.'s conviction of a kind that would have justified revealing her identity. The applicants, therefore, had had no right to reveal B.'s name or to publish her picture. As to the intent, the District Court found that invasion of private life was punishable only if intent could be shown. As the second applicant had not prevented the invasion of B.'s private life, this omission fulfilled the intent criteria.
12. By letter dated 9 December 2002 the applicants appealed to the Helsinki Appeal Court, claiming, inter alia, that the provision of the Penal Code in question did not define with sufficient clarity which acts fell within its scope, and that a disclosure of a convicted person's name could not be considered as falling within the scope of private life. Moreover, the lack of evidence was used to the detriment of the second applicant.
13. On 12 October 2004 the Appeal Court, without holding an oral hearing, partly upheld the District Court judgment. The court balanced the right to freedom of expression against the protection of private life in the light of the Court's case-law. It found that, according to the preparatory works and the national and the Court's case-law, the facts mentioned in the articles were of a kind to which the protection of private life typically applied. The Supreme Court had already found in 2002 that B. was not a public figure, and the fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to the dismissal of A. from his post as National Conciliator did not justify revealing her identity. However, since the convictions of A. and B. were closely linked in this case, B.'s name and conviction could lawfully have been mentioned. Nevertheless, the publishing of a big picture of B. was not necessary and therefore invaded her privacy. As to the intent, the omissions of the second applicant could not be regarded as proving his intent to invade B.'s privacy and, consequently, the charges against him were dismissed. He was also exonerated from paying B. non-pecuniary damages as well as her costs and expenses. The non-pecuniary damages payable by the applicant company were lowered to EUR 5,000. In total the applicant company paid EUR 14,374.47 as compensation.
14. By letter dated 13 December 2004 the applicant company applied for leave to appeal to the Supreme Court, reiterating the grounds already presented before the Appeal Court. Moreover, it claimed that, in declaring that the case file was to remain secret, the Appeal Court had not given any reasons which would constitute sufficient grounds for the measure, that the length of the proceedings had exceeded a reasonable time, and that the restrictions on freedom of expression were neither necessary nor justified in this case.
15. On 15 August 2005 the Supreme Court refused the applicant company leave to appeal.
16. The relevant domestic legislation and practice are outlined in the Court's judgment in Flinkkilä and others v. Finland (no. 25576/04, §§ 19-44, 6 April 2010).
17. The relevant international materials are outlined in the Court's judgment in Flinkkilä and others v. Finland (cited above, §§ 45-47).
VIOLATED_ARTICLES: 10
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83639
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KANAT v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Ali Kanat, is a Turkish national who was born in 1967 and lives in Istanbul. He was represented before the Court by Ms H. Çekiç, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 11 May 1994 the applicant was arrested by police officers from the Anti-Terrorist Branch of the Istanbul Security Directorate.
On 18 May 1994 he was brought before the Istanbul State Security Court public prosecutor, where he denied the charges against him.
On the same day, the applicant was examined by a doctor at the Istanbul Forensic Medicine Institute. In his report, the doctor stated that the applicant suffered from inguinal hernia and that there were no signs of ill-treatment on his body.
On 19 May 1994 the applicant was brought before the investigating judge at the Istanbul State Security Court, where he repudiated the content of his police statement, alleging that it was taken under duress. On the same day, the judge ordered the applicant’s detention on remand. The applicant was sent to Bayrampaşa Prison.
On 1 June 1994 the public prosecutor of the Istanbul State Security Court filed an indictment against the applicant, accusing him of being a member of an illegal organisation, namely the PKK (the Kurdistan Workers’ Party). He requested that the applicant be sentenced pursuant to Article 168 § 2 of the Criminal Code.
On 21 July 1994 the applicant was examined by a doctor at the Eyüp Froensic Institute. According to the report, the applicant described pain on the inguinal region, on his shoulders, and weakness in his arms. He further complained that he had pain in his anus. The report stated that in order to be able to deliver a final report, further examinations were required. Having received further medical reports, on 29 July 1994 the Eyüp Forensic Institute issued its final report and concluded that the applicant suffered from an inguinal direct hernia. It was stated that this hernia might have been the outcome of an infirmity of the abdominal region, or it could be the result of an external trauma. It was also noted that if the hernia had been caused by an external trauma then this finding would prevent the applicant from working for fifteen days. The report finally stated that the other complaints would prevent the applicant from work for five days.
On 1 December 1994, during its first hearing, the Istanbul State Security Court heard from the applicant. In his statement, the applicant denied the charges against him and gave the details about the ill-treatment he had been allegedly subjected to during his police custody. He stated that after he had been arrested by the police officers, he was put in a car; his head was covered with his coat, and he was beaten inside the car. After another two and a half hours’ drive, he was forced to lie on the ground face down. Someone stepped on his head and they shot two or three bullets near the left and right side of his head. He was then taken to the Istanbul Security Directorate building, where he was stripped naked and suspended from his arms. Electrics shocks were administered to his toes and genitals. He was also beaten on the soles of his feet. The applicant also submitted a copy of the medical report issued by the Eyüp Forensic Institute. At the end of the hearing, the court concluded that the applicant’s representative could file a complaint with the authorities about the applicant’s allegations of ill-treatment.
On 8 December 1995 the applicant was allegedly beaten by the soldiers during his transfer from the Bayrampaşa Prison to the Ümraniye Prison.
On 29 May 1997 the Istanbul State Security Court, which was composed of three judges including a military judge, found the applicant guilty as charged and sentenced him to twelve years and six months’ imprisonment.
On 14 December 1998 the Court of Cassation quashed the applicant’s conviction on the ground that the Istanbul State Security Court had delivered its judgment without taking the applicant’s final statement.
Between 14 December 1998 and 18 June 1999 the Istanbul State Security Court, to which the case file was remitted, held two hearings namely on 16 March 1999 and 27 May 1999, during which the judges dealt solely with procedural matters.
On 18 June 1999 the constitution was amended and the military judge sitting on the bench of the Istanbul State Security Court was replaced by a civilian judge.
In the meantime, in December 2000 a large number of prisoners started a hunger strike to protest against the F-Type prisons. On 19 December 2000 the security forces conducted an operation in several prisons to stop the protests. The applicant was allegedly beaten by the soldiers during this operation in the Ümraniye Prison.
On 17 April 2001, after hearing the applicant in person to take his final defence submissions, the Istanbul State Security Court, composed of three civilian judges, adhered to its first judgment. Basing itself on the leaflets and the receipt vouchers of the organisation captured from the applicant’s residence, the witnesses’ statements, the cartridge clips and guns seized during the investigation, the court once again sentenced the applicant to twelve years’ and six months’ imprisonment.
The applicant appealed against the judgment. In his petition, he maintained that the judgment of the first-instance court was based on his police statements which had been taken under duress.
On 8 October 2001 the Court of Cassation upheld the judgment of the State Security Court.
On 29 January 2004 the applicant’s lawyer provided the Registry with a medical report of 6 January 2004, which was drafted by a commission of medical experts of the Human Rights Foundation. The report noted that the applicant had applied to the Foundation on 7 November 2003 and complained about his continuing suffering as a result of ill-treatment on account of his previous detentions.
The report concluded that the finding of 3 cm damaged tissue to the applicant’s head was in line with the applicant’s testimony about the operation dated 19 December 2000 and that the diagnoses of a right inguinal hernia were compatible with the story of physical pressure put on the abdominal region. According to the report, the applicant suffered from physical and psychological problems.