ITEMID: 001-61638
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2004
DOCNAME: CASE OF MAESTRI v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 11. The applicant was born in 1944 and lives in Viareggio (in the province of Lucca). He is a judge.
12. At the time he lodged the application, he was acting president of the La Spezia District Court. On 23 November 1993, following an inquiry by the General Inspectorate for the Ministry of Justice, the Minister of Justice instituted disciplinary proceedings against the applicant on account of his membership of a Masonic lodge affiliated to the Grande Oriente d'Italia di Palazzo Giustiniani. The Minister accused him of having been a Freemason from 1981 until March 1993 and of having thereby breached Article 18 of Royal Legislative Decree no. 511 of 31 May 1946 (see paragraph 18 below).
13. In a decision of 10 October 1995, the disciplinary section of the National Council of the Judiciary (Consiglio Superiore della Magistratura) found that the applicant had committed the offences of which he was accused and gave him a reprimand (censura). It stated that from 1982 onwards it should have been possible to “have a clear idea of the loss of integrity resulting from membership of the Freemasons ... because of the degeneration brought about when a number of people came together within the P2 lodge with plans to take control of the public authorities and subvert democratic institutions, and because of the collusion of certain Masonic lodges with the Mafia and organised crime”. The disciplinary section added that the directives issued by the National Council of the Judiciary on 22 March 1990 and 14 July 1993 (see paragraphs 21 and 22 below), which emphasised – the second one in particular – the substantial conflict between membership of the Freemasons and membership of the judiciary, were to be seen in the context of such developments. The decision also stated that it was contrary to disciplinary rules for a judge to be a Freemason, for the following reasons: the incompatibility between the Masonic and judicial oaths, the hierarchical relationship between Freemasons, the “rejection” of State justice in favour of Masonic “justice” and, lastly, the indissoluble nature of the bond between Freemasons, even in the case of a member who wished to leave the organisation.
The disciplinary section of the National Council of the Judiciary stated, lastly, that the applicant's alleged ignorance of the institutional debate on Freemasonry merely served to confirm the existence of conduct punishable under Article 18 of the 1946 Legislative Decree. In its opinion, such conduct was characterised by a lack of diligence, caution and wisdom in dealing with a situation that posed a threat to the values protected by that Article.
14. On 5 January 1996 the applicant appealed on points of law to the Court of Cassation. In the three grounds of his appeal he alleged a breach of Article 18 of the Constitution, challenged the arguments used in support of the finding that judicial office was incompatible with membership of the Freemasons, and complained that no reasons had been given for the conclusion that a judge would be discredited by belonging to the Freemasons.
15. On 2 February 1996 the Ministry of Justice lodged a cross-appeal. The Court of Cassation, sitting as a full court, examined the case on 19 September 1996 and, in a judgment of 20 December 1996, dismissed the applicant's appeal.
It held, firstly, that the application of Article 18 of the Constitution was limited by the constitutional principles of the impartiality and independence of the judiciary, principles which should be taken to prevail over the right to freedom of association. The Court of Cassation further held that the disciplinary section of the National Council of the Judiciary had based its decision mainly on the directive of 14 July 1993 in which the Council had emphasised that judicial office was incompatible with membership of the Freemasons.
16. The applicant maintains that his career has been at a standstill since the disciplinary section's decision: he was declared unsuitable for a post as judge of the Court of Cassation; furthermore, the judicial council for his district stated that, because of the reprimand, it was unable to give an opinion on his suitability for a post as president of a district court.
Lastly, the applicant states that he has been transferred to Sicily; however, he has not produced any evidence that that decision was linked to the sanction imposed on him.
17. The relevant provisions of the Constitution are the following:
“Citizens may form associations freely, without authorisation, for purposes not prohibited for individuals by the criminal law.
Secret associations and associations pursuing, even indirectly, a political aim through organisations of a military nature shall be prohibited.”
“No one shall be removed from the jurisdiction of a lawfully established court.
No one shall be punished save in accordance with a law in force at the time when the offence was committed.
No one shall be subjected to security measures except in cases provided for by law.”
“All citizens shall have the duty to be loyal to the Republic and to comply with the Constitution and the laws.
Citizens to whom public offices are entrusted shall perform them with discipline and honour, and take an oath where it is required by law.”
“Public officials shall be at the exclusive service of the nation.
If they are members of Parliament they shall be promoted only by seniority.
The right to become members of political parties may be limited by law in the case of members of the judiciary, professional members of the armed forces on active duty, police officials and officers, and diplomatic and consular representatives abroad.”
“Justice shall be administered in the name of the people. Judges shall be beholden only to the law.”
“Reasons shall be stated for all judicial decisions.
An appeal on points of law to the Court of Cassation for a breach of the law shall always be allowed against judgments and measures concerning personal freedom delivered by the ordinary or special courts. This provision may be waived only in the case of sentences pronounced by military courts in time of war.
Appeals to the Court of Cassation against decisions of the Consiglio di Stato and the Court of Audit shall be allowed only on grounds pertaining to jurisdiction.”
18. Royal Legislative Decree no. 511 of 31 May 1946 (“the 1946 decree”) concerns the safeguards afforded to members of the State legal service (guarentigie della magistratura).
Article 18 of the decree provides that any judge who “fails to fulfil his obligations or behaves, in the performance of his duties or otherwise, in a manner which makes him unworthy of the trust and consideration which he must enjoy or which undermines the prestige of the judiciary” will incur a disciplinary sanction.
19. The Constitutional Court, when asked to give a ruling as to whether Article 18 of the 1946 decree was compatible with Article 25 § 2 of the Constitution, held that, in disciplinary proceedings against judges, the principle of lawfulness applied as a fundamental requirement of the rule of law and was a necessary consequence of the role conferred on the judiciary by the Constitution (judgment no. 100 of 8 June 1981, § 4).
However, with regard to the fact that Article 18 did not specify the types of conduct which might be regarded as unlawful, the Constitutional Court pointed out that it was not possible to give examples of every type of conduct which might undermine the values guaranteed by that provision: the trust and consideration which a judge must enjoy and the prestige of the judiciary. It considered that those values amounted to principles of professional conduct which could not be included in “guidelines laid down in advance, because it [was] not possible to identify and classify every example of reprehensible conduct which might provoke a negative reaction in society” (ibid., § 5). The Constitutional Court subsequently reiterated that the earlier laws governing the same subject matter had included a provision of general scope alongside the provisions penalising specific conduct, that the proposals for reform in this field had always been worded in general terms and that the same was true for other professional categories. It concluded: “The provisions in this area cannot but be of general scope because specific guidelines would have the effect of legitimising types of conduct which were not expressly mentioned, but which nonetheless attracted society's opprobrium.” It added that those considerations justified the broad scope of the rule and the wide margin of appreciation conferred on a body which, acting within the guarantees inherent in any judicial procedure, was – by virtue of its composition – particularly well qualified to assess whether the conduct considered in each case did or did not undermine the protected values (ibid., § 5).
The Constitutional Court considered, lastly, that such an interpretation was consistent with its case-law on the subject of lawfulness (ibid., § 6). It stated that, as it had previously held, “the principle of lawfulness [was] applicable not only by means of a rigorous and exhaustive description of individual cases, but sometimes also through the use of expressions that are sufficient to determine the rule with certainty and to ascertain whether a particular type of conduct has breached the principle”.
It further held: “ 'open-ended' provisions which penalise unlawful types of conduct by reference to concepts based on common experience or objectively understandable ethical and social values are fully compatible with the principle of lawfulness.”
The Constitutional Court added that, with regard to the provisions in issue, such interpretation criteria appeared more valid in a disciplinary context because, in comparison with criminal offences, disciplinary offences aroused less of a reaction in society and had less of an impact on the personal situation of the individual concerned, and also because the possibility of conduct undermining the protected values was greater than in the case of criminal offences.
It further stated that the reference in Article 18 to the trust and consideration which a judge must enjoy and to the prestige of the judiciary was not objectionable as those concepts could be determined according to general opinion.
Accordingly, the Constitutional Court held that the constitutional provisions in issue had not been infringed, since there had been no breach of the principles of lawfulness and of the independence of the judiciary.
20. Law no. 17 of 25 January 1982 contains provisions on the implementation of Article 18 of the Constitution (right of association) in respect of secret associations and on the dissolution of the “P2” lodge. Section 2 provides that membership of a secret association is a criminal offence.
With regard to civil servants, section 4 provides that disciplinary proceedings must also be brought against them before a special committee constituted according to very precise rules. However, where judges of the ordinary, administrative and military courts are concerned, jurisdiction is vested in the relevant disciplinary bodies.
21. On 22 March 1990 the National Council of the Judiciary adopted a directive after holding a debate – further to a message from the Head of State, who acts as its president – on the incompatibility of judicial office with membership of the Freemasons. The proceedings of that meeting (the debate and the text of the directive) were published in the Official Bulletin (Verbali consiliari, pp. 89-129) under the heading “Report on the incompatibility of judicial office with membership of the Freemasons”. An introductory note states that the report was compiled by the Committee on Reform of the Judicial System. A copy of the report was sent to the President of Italy and the speakers of the Senate and the Chamber of Deputies.
According to the directive, “judges' membership of associations imposing a particularly strong hierarchical and mutual bond through the establishment, by solemn oaths, of bonds such as those required by Masonic lodges raises delicate problems as regards observance of the values enshrined in the Italian Constitution”.
The National Council of the Judiciary added that it was “undoubtedly [within its] powers to verify compliance with the fundamental principle of Article 101 of the Constitution, according to which 'judges are beholden only to the law' ”. It continued: “this scrutiny entails ... taking care to ensure that, in discharging their duties, all judges respect – and are seen to respect – the principle of being beholden to the law alone.”
The National Council of the Judiciary then referred to the Constitutional Court's judgment no. 100 of 8 June 1981, in which judges' freedom of thought had been weighed against their obligation to be impartial and independent (see paragraph 19 above).
It added: “it has to be stressed that among the types of conduct of a judge to be taken into consideration for the requirements of the exercise of the administrative activity peculiar to the Council, there is also, beyond the limit laid down by Law no. 17 of 1982 [see paragraph 20 above], the acceptance of constraints which (a) are superimposed on the obligation of loyalty to the Constitution and of impartial and independent exercise of judicial activity and (b) undermine the confidence of citizens in the judiciary by causing it to lose its credibility.”
Lastly, the National Council of the Judiciary considered it necessary “to suggest to the Minister of Justice that consideration be given to the advisability of proposing restrictions on judges' freedom of association, to include a reference to all associations which – on account of their organisation and ends – entail for their members particularly strong bonds of hierarchy and solidarity”.
22. On 14 July 1993 the National Council of the Judiciary adopted a further directive.
It stated that the question whether membership of the Freemasons was compatible with judicial office had hitherto given rise solely to considerations concerning judges' career development and access to positions of leadership. Following criticism from certain political figures, including the Italian President, to the effect that such an approach was unconstitutional, it had proved necessary to clarify the matter from a legal point of view.
Referring to judges' duties of loyalty and obedience, and having pointed out that the freedom of association for the purpose of professing Masonic ideas was not being called into question on a general level, the National Council of the Judiciary emphasised, however, that the performance of judicial duties was incompatible with membership of the Freemasons in Italy on account of the association's secret nature and the means of action and aims of the country's Masonic lodges.
VIOLATED_ARTICLES: 11
VIOLATED_PARAGRAPHS: 11-1


ITEMID: 001-69208
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KOKU v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: Feyyaz Gölcüklü
TEXT: 9. The applicant, a Turkish citizen of Kurdish origin, was born in 1963 and lives in the United Kingdom. He is the brother of Hüseyin Koku, who was allegedly detained by the police on 20 October 1994 and whose body was found in a location outside the town of Pötürge, in south east Turkey on 26 April 1995.
10. The facts of the case, particularly concerning events which occurred between 20 October 1994 and 26 April 1995, are disputed by the parties.
11. The facts as presented by the applicant are set out in Section B below (paragraphs 12-41). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 42-58). The documentary evidence submitted by the applicant and the Government is summarised in Sections D (paragraphs 59-87) and E (paragraphs 88-93) respectively.
12. The applicant’s brother, Hüseyin Koku, was born in the town of Elbistan in south-east Turkey, in 1958. In 1978 he married Fatma Koku (née Güzel) and by 1994 they had had six children, aged at that time between 6 and 15 years.
13. Hüseyin Koku and his family were active in local politics in Elbistan. Hüseyin became an active member of the pro-Kurdish Democracy Party (DEP). Following the closure of DEP by the Constitutional Court in 1994 and the arrest of the DEP Members of Parliament, the People’s Democracy Party (HADEP) was set up as a successor to DEP. Hüseyin Koku was one of the founding members of HADEP’s Elbistan district organisation and he became the chairman of HADEP’s Elbistan branch.
14. At the end of March 1994, or the beginning of April 1994, Hüseyin Koku was arrested, taken into custody and placed in detention on remand. He was accused of membership of, and helping and abetting, the Kurdistan Workers’ Party (PKK). During his time in prison he was kept blindfolded, given electric shocks, subjected to falaka and to Palestinian hanging, hosed down with ice cold water, deprived of water and sleep and beaten with truncheons and iron bars. On 10 May 1994 he was released pending trial and was acquitted on 17 May 1994 due to a lack of evidence against him.
15. As a prominent local HADEP politician, Hüseyin Koku was the subject of harassment and intimidation by the police, and, in particular, by the Governor of Elbistan, Mr Şükrü Görücü. Mr Görücü threatened to kill him and alleged that he was a traitor to the State and further alleged that HADEP was a terrorist party. Mr Görücü also told Hüseyin Koku that “he would be removed quickly”. Hüseyin took this threat seriously and discussed it with other HADEP party officials. In an article published in the Özgür Ülke newspaper on 11 November 1994, the president of HADEP’s Kahramanmaraş branch was reported as saying that Hüseyin Koku had told him about the threats made by the local Governor in Elbistan.
16. At this time, Hüseyin Koku was also regularly followed by plain-clothes police officers and received anonymous telephone calls and threats. Another brother of Hüseyin’s and the applicant’s, Ali Koku, who worked closely with Hüseyin for HADEP, left Turkey because of political persecution and is currently living in the United Kingdom.
17. On or about 17 October 1994, a number of Kurds from the Cumhuriyet neighbourhood in Elbistan went to the local HADEP office and informed HADEP officials that plain-clothes security forces were painting red crosses on houses belonging to Kurdish families in the neighbourhood and were taking down house numbers and personal details of everyone in the area. This was of concern to the families because there had been a massacre of Alevi Kurds in Kahramanmaraş in the late 1970s, prior to which houses had been marked in a similar way. Hüseyin Koku made a statement about this to the Özgür Ülke newspaper.
18. On the following day, that is on 18 October 1994, Hüseyin Koku was summoned to the office of the Elbistan Mayor. The Mayor told him that, when they had previously arrested and imprisoned him, they had thought that he would not continue with his political activities in the area. He warned Hüseyin to resign from the party, close down the branch and leave the area. The Mayor also told him that if he listened to his advice, nothing would happen to him, but if he did not, the Mayor could not be responsible for what happened to him. The Mayor also told Hüseyin that he believed that Hüseyin and other HADEP members were assisting the PKK. Hüseyin replied that he was an elected representative and that he was not doing anything illegal. Hüseyin later reported this meeting to the administrative board members of the Elbistan branch of HADEP, including Mustafa Yeter, the local HADEP deputy chairman.
19. On 20 October 1994 Hüseyin was walking along Malatya Street in Elbistan between midday and 1 p.m., accompanied by his wife Fatma, when he was abducted by plain-clothes police officers carrying walkie-talkies, who then drove him away in a white Renault. The incident was witnessed by Fatma Koku, who was three to four metres away from Hüseyin at the time. The three men had introduced themselves as police officers and told Hüseyin that he would be going with them to the police station.
20. Another eye-witness to the abduction was Mr Bulut Yılmaz who was also active within the HADEP party in Elbistan at this time and who knew Hüseyin well. Mr Yılmaz recognised one of the plain-clothes police officers as one who had previously confiscated newspapers from his shop.
21. Later on 20 October 1994 Fatma Koku went to the HADEP office to tell her husband’s colleagues what had happened.
22. On 21 October 1994 Fatma Koku went to the Elbistan Police Headquarters, accompanied by Mustafa Yeter, to obtain information about her husband’s whereabouts. She was told that Hüseyin had not been taken into custody. She was then referred to the gendarmerie and subsequently to the Prosecutor’s office. Further inquiries were made by other members of the family, but no information was given to them. Fatma Koku also contacted the applicant to inform him that her husband – his brother – had been taken into custody on the previous day.
23. Ali Koku accompanied Fatma Koku to five or six police stations in Elbistan shortly after the abduction, but at each station they were told that Hüseyin Koku was not being detained there.
24. On 31 October 1994 a statement made by the Elbistan Governor, Şükru Görücü, was published in the local newspaper, Elbistanın Sesi. In this statement Mr Görücü denied that Hüseyin had been detained.
25. On 1 November 1994 Fatma Koku lodged a criminal complaint with the Elbistan Prosecutor about the disappearance of her husband. She provided a photograph of him and requested that the matter be investigated. Her petition was counter-signed by both the Prosecutor and the Security Director on 1 November 1994.
26. Also on 1 November 1994 Amnesty International published an ‘Urgent Action’ bulletin in respect of the disappearance of Hüseyin Koku.
27. On 3 November 1994 Fatma Koku and a number of HADEP executives petitioned the Elbistan Governor and requested him to carry out an investigation into Hüseyin’s disappearance.
28. One evening on or about 5 November 1994, a telephone call was made to Hüseyin Koku’s house which was answered by his 13-year old daughter, Özlem. During the telephone call, she was made to listen to the voice of her father whilst he was being tortured. Fatma Koku went immediately to the police station to complain about this telephone call, but the police were not interested and even made fun of her. A complaint about the call was lodged with the Prosecutor but, as far as the applicant was aware, no steps were taken by the Prosecutor to investigate the matter. About two and a half months later the Koku family were called to the Cumhuriyet neighbourhood police station in Elbistan where they were asked questions about the telephone call. Fatma Koku asked the police officers why they had not investigated her husband’s case before. One of the police officers replied to Fatma, “I knew Hüseyin well, but if I saw him now, I would not recognise him and neither would you”. She asked what he meant by this, but was sent away.
29. Fatma Koku and other family members went to meet with Şükrü Görücü, but he provided them with no information about Hüseyin Koku’s whereabouts and instead he insulted and threatened Fatma.
30. Following Hüseyin Koku’s abduction, Mustafa Yeter and Hasan Güner were made temporary leaders of HADEP’s Elbistan branch. They were later arrested and subjected to torture. Mr Yeter was threatened by the police not to talk about Hüseyin Koku’s case or to ask further questions about him or highlight the case abroad. He was told to resign or he would suffer the same fate as others.
31. On 24 April 1995 the Elbistan Prosecutor called Fatma Koku to his office and questioned her about her husband. He asked her whether Hüseyin could have been killed by the PKK. Fatma replied that her husband had never had any contact with the PKK and that there was no reason to believe that he had been abducted or killed by them. She said that her husband had previously been detained for alleged involvement with the PKK but had been released. She told the Prosecutor that neither she nor her husband’s family had ever had any problems with anyone.
32. On or about 27 April 1995 Fatma Koku was informed by the police that a body had been found near the town of Pötürge, in Malatya province, about 150 kilometres from Elbistan. Fatma and members of the Koku family went to Pötürge to see the decapitated body of Hüseyin Koku, which had been separated into three or four pieces. Most of the body was in a state of decomposition.
33. The Pötürge Prosecutor took statements from the Koku family members present. The security forces told the relatives that an autopsy would be carried out within 15 days and that the body would be released afterwards.
34. On 28 April 1995 Fatma Koku made several formal complaints to the Prosecutor, requesting that the murder of her husband be investigated and the necessary action be taken.
35. On 12 May 1995 Amnesty International published another ‘Urgent Action’ bulletin about Hüseyin Koku.
36. According to the autopsy report drawn up by the Forensic Medicine Directorate on 29 June 1995, there were two bullet wounds in the body, including one in the skull.
37. In July 1995 Fatma Koku was summoned to the police station and was asked about the petitions she had made in respect of her husband. While at the police station, she signed a document which she believed confirmed that she had submitted those petitions.
38. The Koku family have not been informed by the Prosecutor or any other official about any investigation being undertaken into her husband’s disappearance and murder.
39. On 23 August 1995 Hüseyin Koku’s body was released to the family’s lawyer. The body was buried the same day. Members of the security forces surrounded the area during the burial to prevent anyone other than close family from entering.
40. The applicant kept in contact with Mr Mehmet Kaya, another member of HADEP’s Elbistan branch, throughout this period. Mr Kaya told the applicant in 1996 that HADEP would be making a statement about the abduction and murder of his brother during the forthcoming annual general meeting of HADEP. Mr Kaya and two other local HADEP politicians were shot and killed on their way back from that annual general meeting.
41. The applicant took up the matter with various international organisations, including Amnesty International. He sought advice from his MEP, Mr Alf Lomas, who petitioned the European Parliament concerning Hüseyin Koku’s death. At this time, while making telephone calls to Turkey, the applicant would on several occasions be cut off and a Turkish-speaking voice would interrupt and threaten him.
42. The Court notes that the Government did not submit observations on the merits of the case (see paragraph 7 above). The following submissions are therefore taken from the observations submitted to the Commission on 15 May 1996 and from the additional observations submitted on 10 April 1997, i.e. prior to the application being declared admissible.
43. According to the Government, the authorities first became aware of the disappearance of Mr Hüseyin Koku on 3 November 1994, following the receipt of the petition submitted by Mrs Fatma Koku to the Kahramanmaraş Governor (see paragraph 91 below). Upon receipt of this petition, the Deputy Governor of Kahramanmaraş requested information from a number of authorities.
44. On 7 November 1994 the Elbistan Gendarme Headquarters sent a reply to the Deputy Governor. According to this reply, Hüseyin Koku had not been taken into the custody by the gendarmerie.
45. Also on 7 November 1994 the Police Headquarters informed the Deputy Governor that Hüseyin Koku had not been detained by them on or around 20 October 1994.
46. On 9 November 1994 the Kahramanmaraş Governor sent his report to the Ministry of the Interior, according to which a number of newspapers had carried reports of the alleged disappearance of Hüseyin Koku. On 23 October 1994 the Özgür Ülke newspaper had run the headline, “Director of HADEP’s Elbistan Branch Taken into Custody”. On 5 November 1994 the same newspaper had reported, “HADEP’s Elbistan Director Missing” and asked, “Was HADEP Director Killed?”. On 29 October 1994 the Nevroz newspaper had carried the headline, “Custody in Elbistan”. The accuracy of these articles had been assessed by the Kahramanmaraş security units and it had been established that Hüseyin Koku had not been taken into custody. He had, however, been arrested in 1982 and 1994 in connection with his alleged membership of outlawed organisations. On the basis of his past activities, the Kahramanmaraş Governor concluded in his report that it was possible that Hüseyin Koku had left the country through illegal means in order to join the PKK or to carry out activities on behalf of the PKK.
47. On 10 November 1994 a reply was given to the Secretary of State for Human Rights, who had apparently enquired on 2 November 1994 whether Hüseyin Koku had been treated at the Kahramanmaraş State Hospital for injuries sustained as a result of torture. The reply stated that between the dates of “20 November 1994 and 10 November 1994”, Hüseyin Koku had not requested any kind of treatment from this hospital and neither had he been brought there by the police.
48. On 11 November 1994 the chief of the Elbistan Police Headquarters sent a letter to the chief of the Kahramanmaraş Police Headquarters in which he wrote that he had questioned a number of persons who owned shops on Malatya Street where Hüseyin Koku had allegedly been taken away by the police. None of these persons had any information about such an incident. On the basis of this information and also on the basis of statements taken from Fatma Koku and Özlem Koku, the Elbistan police chief concluded that the allegation was one of many similar allegations made with the aim of dishonouring the security forces.
49. On 26 June 1995 the Chief Public Prosecutor of Elbistan sent to the Ministry of Justice’s International Law and Foreign Relations Directorate (hereinafter “the Directorate”) a letter in which reference was made to information sent to the Ministry previously. This letter informed the Directorate of the discovery of Hüseyin Koku’s body, together with three keys, on 26 April 1995; one of these keys had been for the door to the HADEP party office building, one for Hüseyin Koku’s house and the third one for a briefcase belonging to Hüseyin Koku.
50. In view of the contents of the briefcase, it had been established that Hüseyin Koku was conducting an extramarital affair with a certain C.E., who was a married woman. Adultery being an offence at the relevant time, C.E.’s husband had made a complaint to the authorities against Hüseyin Koku which had resulted in a decision not to prosecute, taken by the Elbistan Prosecutor on 20 December 1993. A number of letters found in the briefcase revealed the unfaithful acts of C.E.
51. The Chief Public Prosecutor further referred to a statement taken from Ahmet Güzel, Fatma Koku’s brother, by the Pötürge Prosecutor on 28 April 1995. According to this statement, Mehmet Çolak, the father of C.E., had told Mr Güzel on 22 October 1994 that, “... they fucked him up and got rid of him ...”. This had been understood to be a reference to Hüseyin Koku.
52. The Chief Public Prosecutor, taking into account the above information, concluded in his letter to the Directorate that the death of Hüseyin Koku was closely connected to his extra-marital affair with C.E.
53. According to the autopsy report of 26 June 1995, drawn up by the Forensic Medicine Directorate in Istanbul, there were two bullet wounds on the body and another one in the skull.
54. In a letter of 8 September 1995 the Elbistan Prosecutor informed the Directorate of all the facts and evidence collected until that date.
55. On 1 March 1996 the Elbistan Prosecutor sent another letter to the Directorate. Referring to the application lodged with the Commission, the Prosecutor informed the Directorate that the death of Hüseyin Koku would be explained when the preliminary investigation, which had been started by the Pötürge Prosecutor after the discovery of the body, was completed.
56. On 21 March 1996 the Ministry of Justice sent a letter to the Directorate, informing the latter of the above mentioned correspondence. According to this letter, the allegations directed against State officials were illusory and had been made for propaganda purposes.
57. A letter drawn up on 22 March 1996 by the Ministry of Interior’s General Security Directorate referred to the above mentioned facts and reports and stated that the body of Hüseyin Koku had been buried by his family in Elbistan on 23 August 1995.
58. In their additional observations submitted to the Commission on 10 April 1997, the Government finally submitted that the Pötürge Prosecutor’s investigation into the death of Hüseyin Koku was still pending under file no. 1995/42 and that it would continue until the expiry of the statutory limitation period.
59. The following information appears from the documents submitted by the Government.
60. Pursuant to an interim decision adopted by the Malatya State Security Court (hereinafter “the Malatya Court”) on 10 May 1994, the applicant’s brother, Hüseyin Koku, was released from prison pending the outcome of criminal proceedings brought against him on account of his alleged PKK membership and on suspicion of aiding and abetting that organisation.
61. On 17 May 1994 the Prosecutor at the Malatya Court decided to discontinue the prosecution of the applicant’s brother on account of a lack of sufficient evidence to show his involvement in such offences.
62. At 1 p.m. on 26 April 1995 Emin Ziya Kekeç, a village guard, informed the commander of the Tepehan Gendarme Station of his discovery of a dismembered body in a location near Arguça hamlet of Sinan village, situated within the administrative jurisdiction of the town of Pötürge. The commander of the Tepehan Gendarme Station, together with a number of soldiers under his command, went to the location where the body had been found by Mr Kekeç. They were unable to find any bullets at the scene.
63. Mr Zeki Polat, the Prosecutor of the town of Pötürge, arrived at the scene shortly after the gendarmes and recorded his findings in a report. Mr Polat also instructed a photographer to photograph the body. The soil under and around the body parts was searched for bullets, spent bullet cases and for similar evidence, but none were found.
64. A wallet, found in the deceased’s jacket pocket, contained an electricity bill and a piece of scrap paper. Noting that these papers were very wet and risked being torn, a decision was taken to read them at a later stage when they were dry. A key for a door lock, a small, rusty flick-knife and two rusty telephone tokens were also found in the jacket pocket.
65. Dr Kağan Denge and Dr Naim Özata, who had arrived at the scene together with the Prosecutor, detailed their findings in a report drawn up during the examination of the body. According to this report, the body was badly decomposed and body parts and bones were lying around. The head was missing. Bones had been scattered around the body, possibly by wild animals. The examination carried out on the body parts did not reveal any firearm injuries. The internal organs had all disappeared. The doctors were unable to establish the cause of death and a decision was therefore taken to send the remains of the body to the Forensic Medicine Directorate in Istanbul.
66. On 27 April 1995 the Pötürge Prosecutor sent a fax message to his colleague in the town of Elbistan, asking the latter to help establish the identity of the body by checking the information found in the jacket pocket.
67. On 28 April 1995 Fatma Koku examined the clothes found on the body and concluded that they belonged to her husband Hüseyin Koku. The Pötürge Prosecutor then sent the remains of the body, together with the reports drawn up at the site where it had been found, to the Forensic Medicine Directorate and asked for the cause of death to be established.
68. Also on 28 April 1995, a report was drawn up by two gendarmes. According to this report, the key found on the body belonged to a briefcase owned by Hüseyin Koku which was being kept in the house of his brother-in-law, Ahmet Güzel. The briefcase was opened by the gendarmes who found a number of documents in it. These documents related, inter alia, to the criminal proceedings brought against Hüseyin Koku on account of his alleged adultery with C.E.
69. On 29 April 1995 a number of soldiers and village guards once more visited the site where the body had been found and searched for the missing head. They found the skull in three pieces.
70. Later that same day, the Pötürge Prosecutor and Dr Denge visited the area and examined the bones found by the soldiers earlier that day. Dr Denge observed that the posterior part of the skull had a bullet entry, measuring 1 x 1 centimetre. This bullet had also caused a fracture in the skull. The Prosecutor forwarded the skull pieces to the Forensic Medicine Directorate in Istanbul.
71. Between 28 and 30 April 1995 statements were taken by the authorities from members of Hüseyin Koku’s family, who stated that they had heard that Hüseyin Koku had been having an extra-marital affair with C.E. and that C.E.’s family were angry with Hüseyin.
72. On 1 May 1995 Fatma Koku submitted a petition to the Elbistan Prosecutor and asked for the remains of her husband to be returned to her after they had been examined in Istanbul.
73. On 25 May 1995 the Forensic Medicine Directorate began its examination of the remains of the body. The Ballistics Department was asked to establish whether the clothes worn by the deceased bore any damage caused by a bullet or sharp objects. In case bullet damage was found, the Ballistics Department was requested to establish the distance from which the bullet had been fired.
74. On 26 May 1995 the Pötürge Prosecutor, Zeki Polat, sent a letter to his colleague in the town of Elbistan, stating that, in his opinion, the affair Hüseyin Koku had being conducting with C.E. could be connected with his death in October 1994. Mr Polat asked the Elbistan Prosecutor to take statements from members of C.E.’s family who lived in the town of Elbistan.
75. The Pötürge Prosecutor also sent a letter to the Forensic Medicine Directorate on 26 May 1995 and urged them to expedite the examination of the remains of Hüseyin Koku’s body.
76. On 1 June 1995 Pötürge Prosecutor Mr Polat drew up a report in which he detailed the developments that had taken place in the investigation. According to this report, Hüseyin Koku, chairman of HADEP’s Elbistan branch, had been found dead on 26 April 1995 with a possible bullet entry wound on his skull. Mr Polat had also found out from the Elbistan Prosecutor that the disappearance of Hüseyin Koku in October 1994 had been brought to the attention of that Prosecutor. The husband of C.E. had also disappeared 15-20 days prior to the disappearance of Hüseyin Koku and C.E. had then started living with another man in Gaziantep. Hüseyin Koku had gone to Gaziantep prior to his disappearance and had had a row with that man.
77. On 13 June 1995 the Ballistics Department concluded that the large number of cuts and other damage on the clothes had been caused by rotting.
78. On 29 June 1995 the Forensic Medicine Directorate recorded in their report that Hüseyin Koku had been shot in the head from behind. It was also observed that another bullet had gone through the spine. It was concluded that the two bullets had caused the death but that it was not possible to establish the distance from which the bullets had been fired. The report contains no information as regards the time of death.
79. In a letter of 18 August 1995 the Prosecutor in Elbistan requested the Prosecutor in the city of Gaziantep to question C.E. in order to establish whether she had any information about the death of Hüseyin Koku.
80. On 23 August 1995 the remains of Hüseyin Koku’s body were returned to the Pötürge Prosecutor, who then handed them over to the family’s lawyer for burial.
81. On 5 September 1995 a statement was taken from C.E. by the Prosecutor in Gaziantep. In her statement C.E. denied that she had had a relationship with Hüseyin Koku and added that she did not know anything about his death.
82. On 18 January 1996 a certain Mr Aziz Dalkılıç was questioned by a gendarme officer in relation to “the killing of a person by two people in a location near Sinan village in the autumn of 1994”. Mr Dalkılıç stated that at around 3 p.m. one day in late October 1994, he and his wife had gone to the forest to collect leaves for his animals. Approximately two hours later, when they had finished collecting leaves and had begun their journey back in a tractor, they had seen three men, one of whom was lying on the ground, with his face down, between two rocks, and the other two had “taken positions”. The two men who had “taken positions” were wearing clothing and hats similar to military uniforms and military boots. All three men were wearing light brown vests, similar to the type in which ammunition could be carried. Mr Dalkılıç was able to see the barrel of the gun of one of the men. He did not think that the men had seen him or his wife. He had not heard any gun shots. He and his wife had been scared and taken another path which took them to the asphalt road. On their way home, they had seen a minibus whose driver he knew. He had told the minibus driver that he and his wife had seen three armed men and asked the minibus driver to inform the gendarme station.
83. The following day Mr Dalkılıç had been summoned to the gendarme station where he was questioned about what he and his wife had witnessed the previous day. He had heard at a later date that the soldiers had gone to the area to look for the three men but that they were unable to find them.
84. At 9 a.m. on 2 February 1996 Mr Dalkılıç was collected from his house by gendarmes and taken to the place where he had seen the three persons. Mr Dalkılıç showed the gendarmes the two rocks between which the “dead man”, who was wearing military clothing, had been lying.
85. Also on 2 February 1996 Mr Dalkılıç was questioned by the Pötürge Prosecutor. Mr Dalkılıç repeated the version of events contained in his previous statement made to the gendarmerie and added that the three men, all with long hair, had been wearing commando uniforms and berets. He did not think any of them was dead. The person lying between two rocks was not moving but the other two were. Although he had told the minibus driver that he had seen three armed men, in fact only two of them had been armed. The fact that the men had longer hair than soldiers’ had led him to form the opinion that the two men were terrorists.
86. On 8 March 1996 the Prosecutor at the Malatya Court sent a letter to the Prosecutor in Elbistan and asked him whether an investigation had been carried out into the disappearance of Hüseyin Koku in October 1994. The Prosecutor also referred in his letter to the following correspondence:
87. On 24 September 1996 the Elbistan Prosecutor forwarded to the Directorate the decision taken by his office on 20 December 1993 not to prosecute Hüseyin Koku and C.E. for adultery.
88. The following information appears from the documents submitted by the applicant.
89. On 1 November 1994 Fatma Koku submitted a petition to the Prosecutor’s office in the town of Elbistan. Mrs Koku alleged in that petition that her husband had been taken away by plain-clothes police officers in a Renault car at around midday on 20 October 1994. She further stated that she had already contacted the Elbistan Police Headquarters where she had been told that her husband had not been detained by the police. She finally stated that her fears for her husband’s safety were heightened following the publication of a press release – drawn up by the Governor of Elbistan – in the local paper on 31 October 1994. According to that communiqué, her husband had not been detained by the police. She asked the Prosecutor to look for her husband. Mrs Koku enclosed a photograph of her husband with her petition and wrote her address on the petition.
90. Mrs Koku’s petition was accepted by the Prosecutor the same day. On the petition the Prosecutor wrote his instructions according to which “[Hüseyin Koku] should be searched for in the places where he may be”. It also appears that this petition and the instructions were forwarded to the Elbistan Police Headquarters the same day.
91. On 3 November 1994 Mrs Koku submitted a similar petition, together with a photograph of her husband, to the office of the Governor of Kahramanmaraş.
92. Mr Bulut Yılmaz sent three letters to the applicant’s lawyers in which he described his eye-witness account of the abduction of Hüseyin Koku on 20 October 1994 (see paragraph 20 above). Mr Yılmaz left Turkey in 1995 and settled in Switzerland where he was subsequently granted political asylum. According to these letters, Mr Yılmaz had seen two plain-clothes police officers talking to Hüseyin Koku on Malatya Street in Elbistan on 20 October 1994. Hüseyin had then got into the white Renault car and left with the police officers.
93. The applicant submitted to the Court a chronology of incidents, listing attacks against representatives of pro-Kurdish political parties, in particular the People’s Labour Party (HEP), DEP and HADEP, between 1990 and 2001. This chronology lists a large number of attacks against members of these pro-Kurdish political parties who either died or were left injured as a result. It also lists armed attacks and bombings, etc. against the premises of these parties. According to the list, over sixty politicians belonging to the above mentioned political parties have been murdered between the entry into the Parliament of HEP in 1990 and the abduction of Hüseyin Koku in October 1994.
94. The relevant domestic law and practice are set out in the judgment of Tepe v. Turkey (no. 27244/95, §§115-122, 9 May 2003).
VIOLATED_ARTICLES: 13
2
38
VIOLATED_PARAGRAPHS: 2-1
NON_VIOLATED_ARTICLES: 2
3
5
NON_VIOLATED_PARAGRAPHS: 2-1
5-1


ITEMID: 001-101819
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MATVEYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Anatoly Kovler;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1958 and lives in Syktyvkar, Komi Republic.
5. The applicant and his family were living in a wooden house owned by the municipality on the riverside in Sedkyrkeshch settlement of Syktyvkar. From 1995 the applicant had repeatedly informed the local authorities that the river was overflowing and the house was at risk of destruction.
6. In the spring of 1998 the town administration made the applicant a few offers of a temporary dwelling. However, the applicant found it unsatisfactory and refused to move. On 18 May 1998 the applicant’s house was flooded, and the applicant’s family moved to his parents’ flat.
7. On 13 July 1998 the applicant lodged a claim against the Syktyvkar town administration, seeking to be provided with a flat of a total surface area of not less than 36 sq. m. or to receive housing subsidy. He also sought compensation for pecuniary and non-pecuniary damage.
8. The first hearing was scheduled for 10 August 1998, but it did not take place due to the parties’ default in appearance. The hearing of 26 April 1999 did not take place for the same reason.
9. On 20 May 1999 the town administration requested that examination of the case be postponed until their representative returned from vacation. The applicant and his representative appeared at the hearing of 7 June 1999, which was adjourned to 21 September and then to 26 October 1999 on account of involvement of the Sedkyrkeshch settlement administration as a co-respondent and to give the applicant time to specify his claims.
10. On 26 October 1999 the Syktyvkar Town Court (“the Town Court”) partly found for the applicant and obliged the town administration to provide him with a flat. His other claims were dismissed.
11. On 7 December 1999 in a separate judgment the Town Court awarded the applicant legal expenses in the amount of 2,008 Russian roubles (RUB).
12. On 27 January 2000 the Supreme Court of the Komi Republic (“the appeal court”) overturned the judgment of 26 October 1999 on appeal and remitted the case for fresh consideration.
13. The parties did not appear at the hearing of 28 March 2000, which was adjourned to 25 September 2000. On the latter date the hearing took place and was adjourned, with the applicant having been invited to specify his claims.
14. On 26 January 2001 the trial court required that the town administration supply certain documents.
15. The hearing of 30 October 2001 did not take place as the respondent’s representative failed to appear. On 26 February and 10 October 2002 the hearings were adjourned to give the applicant time to adjust his claims for non-pecuniary damage and to resolve an unspecified motion. On 29 November 2002 the hearing was adjourned following a default in appearance of one of the lay judges sitting in the case.
16. On 22 January and 8 May 2003 the applicant challenged judge L. on account of procrastination in consideration of the case. On 16 September 2003 the case was assigned to judge N.
17. On an unspecified date the applicant renounced his claim for provision of housing, now seeking to be placed on the waiting list of persons entitled to State-funded housing subsidy, for the amount of the subsidy to be determined and to receive compensation for pecuniary and non-pecuniary damage. He also sought reimbursement of legal expenses.
18. On 2 October 2003 the court gave a new judgment in which it ordered the authorities to place the applicant on the waiting list and to determine the amount of subsidy due to him. It also granted the applicant’s pecuniary claim for RUB 12,000. The rest of his claims for pecuniary and non-pecuniary damage were dismissed. On the same date the court terminated the proceedings concerning reimbursement of legal expenses ruling that the issue had already been decided on 7 December 1999.
19. On 20 November 2003 the appeal court upheld the judgment on appeal.
20. On 25 February 2004 the Presidium of the Supreme Court of the Komi Republic quashed the judgment of 7 December 1999 which had awarded the applicant legal expenses by way of supervisory review. On 18 March 2004 the applicant learned about this decision and brought new claims for reimbursement of legal expenses.
21. On 19 March 2004 the sum of RUB 12,000 was transferred to the applicant’s bank account and the enforcement proceedings in this part were terminated.
22. The hearings of 9 and 23 April 2004, scheduled for examination of the legal expenses claim, did not take place as the applicant failed to appear.
23. On 14 May 2004 the Town Court disallowed his claim. However, this judgment was overturned on appeal, and a new hearing was required. On 16 July 2004 the Town Court granted his claim and awarded him RUB 4,433. The award was enforced on 2 September 2004.
24. On 3 February 2005 the bailiff terminated the enforcement proceedings concerning the applicant’s housing claims. It transpires from the text of the decision that on 24 November 2004 the town administration informed the bailiff service that it had determined the amount of the housing subsidy for the applicant, and on 30 December 2004 it stated that the applicant had been placed first on the shortlist of persons entitled to State housing subsidy following destruction of their homes by natural disaster. However, in a copy of the town administration’s letter to the bailiff service of 24 November 2004 obtained by the applicant the author advised that the applicant had been placed on the list of persons in need of improved housing conditions at number 4,134.
25. The applicant appealed against the decision to terminate the enforcement proceedings. His complaint was first granted by the Town Court which noted that the bailiff had not been in possession of any evidence, other than the respondent’s letters, that the in-kind awards had indeed been enforced. However, this judgment had been set aside on appeal on 28 March 2005.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83001
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: MELNYK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Eduard Petrovych Melnyk, is a Ukrainian national who was born in 1933 and lives in Lviv. He was represented before the Court by Mr R. Taratula, a lawyer practising in the Lviv Region. The Ukrainian Government (“the Government”) were represented by their Agents, Mr Y. Zaytsev and Mrs I. Shevchuk.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 15 May 1993 the applicant and the Termoprylad Company concluded a service contract, under which the applicant undertook to assist the company in the promotion of its products and the company was to pay the applicant 1% of the price of the contracts with third parties arranged by the applicant.
In May 1997 the applicant instituted proceedings in the Frankivskyy District Court of Lviv against the company, seeking the recovery of debts under the contract of 15 May 1993 and compensation. He referred to specific contracts which the defendant company had concluded allegedly due to his assistance. In the course of the proceedings the applicant amended his claim on three occasions.
The applicant and the lawyer, who represented him in the proceedings, lodged ten motions with the court, requesting the latter to oblige the defendant company to provide copies of the contracts, which it had concluded with third parties allegedly due to the assistance of the applicant. According to him, although the court had allowed his motions and had made the requests, the defendant company had failed to submit copies of all such contracts and had refused to acknowledge that some of the contracts had existed.
Out of thirty-five hearings scheduled by the court between May 1997 and May 2001 eleven were adjourned due to the absence of the applicant or of both parties and ten were adjourned because of the applicant’s motions for calling of evidence. Ten hearings were adjourned on the court’s own motion or because of the absence of the representatives of the defendant company.
On 23 May 2001 the court found against the applicant. The court based its judgment on the oral and written statements of three witnesses on behalf of the defendant company, who had been questioned by the court and the parties in the course of the proceedings, as well as the documents submitted by that company.
In particular, the court held that in 1994-1995 the applicant had been paid 2,392,968 karbovantsiv (the former transitional currency of Ukraine before September 1996), for which the defendant company had provided copies of the payment slips. The court further held that in 1993-1995 the company had also paid the applicant 533,259 karbovantsiv, which had been evidenced by the written statements of the chief accountant of that company and had been confirmed by the oral statements of Mr K., an employee of the same company. The court disregarded the applicant’s submissions to the contrary, as they had not been supported by documentary evidence. As to the remainder of the applicant’s claims, the court held that the applicant had failed to submit evidence that the company was obliged to pay him the money.
On 21 August 2001 the Lviv Court of Appeal held that the applicant had failed to comply with the formalities envisaged for the introduction of appeals and remitted his appeal to the first instance court.
On 17 September 2001 the applicant lodged with the Frankivskyy District Court of Lviv the corrected version of his appeal. He argued, inter alia, that the first instance court, in rejecting a part of his claims, should not have relied on the submissions of the representatives of the defendant company, which had not been supported by the relevant financial documents.
On 24 December 2001 the Lviv Regional Court of Appeal considered the applicant’s appeal and rejected it as unsubstantiated. In particular, the court of appeal held that the first instance court had duly assessed the evidence in the case and had come to the right conclusions. It noted that the applicant’s claims had not been supported by documentary evidence.
In the course of the proceedings before the first instance court and the court of appeal the applicant sought an independent expert examination in order to clarify the extent to which the payments had been made. He did not receive a reply to his requests.
On 22 May 2002 a panel of three judges of the Supreme Court rejected his request for leave to appeal in cassation. It found that there were no grounds for referral of the case to its Civil Chamber.
According to Article 29 of the Code,
Article 172 envisaged that a court had to adjourn a hearing if one of the parties failed to appear before it and there was no confirmation that he or she had been duly informed about that hearing. A court might adjourn a hearing if a party, who had been duly informed about the date and time of the hearing, failed to appear for the reasons which the court found justifiable.
Pursuant to Articles 301 and 305, the court of appeal verified whether the decision of the first instance court was lawful and duly reasoned. The court of appeal had the power to examine new evidence, and the evidence which allegedly had not been examined in compliance with the Code. It was entitled
to reject an appeal;
to quash the judgment of the first instance court and to remit the case for a fresh consideration, if a procedural violation prevented the court of appeal to examine new evidence or the evidence which the first instance court had not examined;
to quash the judgment of the first instance court and to discontinue the proceedings;
to change the judgment or to adopt a new judgment.
According to Article 307, the judgment of the first instance court should be quashed and the case should be remitted for a fresh consideration
if the case had been considered by a person, who had not been entitled to sit as a judge in the case;
if the judgment had been adopted or singed by a judge who had not heard the case;
if the case had been heard in absence of a person who had not been duly informed about the time and place of a hearing; or
if the judgment concerned the rights and obligations of persons who had not participated in the case.
Pursuant to paragraphs 10 and 12 of the Regulation, cash payments should be made and documented by companies’ pay units or cashiers. In accordance with paragraph 15, cashiers should demand a payee to present his/her identity document and to leave his/her signature in the relevant column of a pay document.
Paragraphs 23 and 24 envisaged that all cash transactions should be registered in a single cash book kept by each company.


ITEMID: 001-70183
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF LUPANDIN v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Zoryana Bortnovska
TEXT: 4. The applicant was born in 1948 and is currently serving a prison sentence at Penitentiary No. 8 in Zhytomyr (see in the latter respect Lupandin v. Ukraine (dec.), no. 70898/01, 7 October 2003).
5. In September 1995 the applicant had a serious accident at work in the Petrovskaya Mining Company (a State-owned enterprise, hereafter the “PMC”).
6. A year later, in September 1996, the PMC decided to pay the applicant a lump sum in compensation for the injury. However, no payment was made and in early 1997 the applicant sued the PMC for compensation for the industrial injury. On 20 March 1997 the Petrovsky District Court of Donetsk found for the applicant and awarded him UAH 16,445.74. No appeal was lodged against the judgment and it became final ten days later, on 30 March 1997.
7. On 10 April 1997 the Petrovsky District Bailiffs’ Service (hereafter “the Bailiffs’ Service”) instituted proceedings to enforce the judgment of 20 March 1997.
8. On 20 March 2002 the Donetsk Regional Court of Arbitration instituted bankruptcy proceedings against the PMC and issued an injunction barring the debt recovery.
9. On 18 April 2002 the Bailiffs’ Service stayed the execution proceedings against the Company pending the resolution of the bankruptcy case.
10. In letters of 12 June and 15 and 25 October 2002 the Bailiffs’ Service informed the applicant that the enforcement proceedings were impeded by ongoing bankruptcy litigation and the entry into force of the 2001 Law on the Introduction of a Moratorium on the Forced Sale of Property which barred the attachment and sale of the Company’s capital assets.
11. On 7 April 2003 the Donetsk Regional Commercial Court discontinued the bankruptcy proceedings against the PMC and, accordingly, the Bailiffs Service resumed the execution proceedings in the applicant’s case. However, it appears that the gradual enforcement of the judgment of 20 March 1997 continued even during the period when the proceedings were formally suspended, as by October 2003 (when the case was communicated to the Government for observations) the applicant had been paid a total of UAH 5,712.88 in several instalments, including UAH 100 on 30 October 2002 and UAH 200 on 6 February 2003.
12. On 7 November and 1 December 2003 the applicant was repaid the remainder of the amount awarded by the judgment of 20 March 1997.
13. On 15 December 2003 the Bailiffs’ Service terminated the enforcement proceedings as the judgment in the applicant’s favour had been enforced in full.
14. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-119480
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: MARIANI-BELLUCCI v. SWITZERLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 1. The applicant, Ms Ida Mariani-Bellucci, is an Italian national, who was born in 1949 and lives in Biel. She was represented before the Court by Ms E. Megévand, a lawyer practising in Bern.
3. On 7 February 2008 the competent authority rejected the applicant’s request to be granted a disability pension (Invalidenrente).
4. On 12 March 2008 the applicant lodged a complaint in which she requested that the decision of 7 February 2008 be quashed and that she be granted a disability pension. On 28 May 2009 the Administrative Court of the Canton of Bern rejected her complaint.
5. On 25 June 2009 the applicant’s counsel informed the applicant that she would not lodge an appeal with the Federal Supreme Court. She referred to a conversation with the applicant’s daughter in this respect.
6. On 27 June 2009 the applicant, who had been unable to find new counsel before the expiry of the time-limit for a complaint to the Federal Supreme Court on 28 May 2009, personally lodged her complaint with the Federal Supreme Court. In her complaint she requested the Federal Supreme Court to quash the judgment given by the Administrative Court on 28 May 2009. She submitted that the relevant amount in dispute had been attained as the case concerned social benefits (Sozialversicherungsleistungen) to be granted retroactively as from the year 2002. She further submitted that the Administrative Court had failed correctly to assess the available evidence.
7. On 21 July 2009 the Federal Supreme Court refused to accept the applicant’s complaint for adjudication as being inadmissible. The Federal Supreme Court observed that under Article 42 § 1 of the Federal Act on the Federal Supreme Court (see paragraph 9, below) the legal petition had to contain the request for relief. Relying on its own case-law, the Federal Supreme Court further recalled that it was, as a rule, not sufficient to request the impugned decision to be quashed, but that the petition had to contain a request on the merits (materieller Antrag). This request for relief could also be contained in the reasoning of the petition.
8. The Federal Supreme Court considered that the applicant’s request to quash the Administrative Court’s judgment was insufficient, as it did not contain a statement as to how the court should decide on the merits. The Federal Supreme Court further considered that the reasoning submitted by the applicant did not contain a sufficient request on the merits. The applicant had completely failed to submit which sort of benefits she claimed (e.g. medical or professional rehabilitation measures, disability pension, respectively the starting point and the amount of pension rights claimed). There was no room for setting an appropriate time-limit, as this was only permitted under the circumstances enumerated in Article 42 §§ 5 and 6 of the Federal Law on the Federal Supreme Court, which did not apply to the instant case of clearly insufficient reasoning of the petition.
9. Article 42 of the Federal Law on the Federal Supreme Court (Bundesgesetz über das Bundesgericht), in so far as relevant, reads as follows:
“(1) Legal petitions have to be submitted in one of the official languages and have to contain the request for relief, the reasons therefore, together with a list of evidence and the signature.
(2) The reasons have to contain succinct submissions as to why the impugned act is against the law...
...
(5) In case of lack of the party’s or its representative’s signature, of the power of attorney or of the required enclosures or in case representation is not permitted, [the Supreme Court] sets an appropriate time-limit for amendment together with the warning that the petition will otherwise not be taken into account.
(6) Illegible, inappropriate, incomprehensible [and] excessively extensive petitions and [petitions] which are not submitted in an official language may be rejected for amendment in the same way.
...”


ITEMID: 001-4611
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: PASTORE v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national, born in 1945 and currently residing in Rome.
He is represented before the Court by Mr Maurizio De Stefano, a lawyer practising in Rome.

The applicant is a member of the Mutual Fund I. (“Cassa di previdenza e assistenza dei dipendenti della Intercontinentale assicurazioni S.p.A.”). On 23 March 1998 this fund was incorporated in the Mutual Fund W. (“Fondo pensione dei dipendenti del Gruppo Winterthur”).
On 23 May 1998 the applicant introduced a claim before the Rome District Court. Assuming that the decision taken on 23 March 1998 was invalid, he requested the investigating judge to declare the stay of its execution.
In an order of 17 July 1998 the Rome investigating judge accepted the applicant’s claim.
On 31 July 1998 the Mutual Fund I. challenged this order before the Rome District Court. It alleged, inter alia, that as Rule 21 of the Fund’s internal Rules contained an arbitration clause, the matter fell outside the ordinary courts’ jurisdiction.
The applicant contested the Fund’s action, alleging that the latter’s conclusion was contrary to Articles 2, 3 and 24 of the Italian Constitution - guaranteeing the individuals’ fundamental rights, the principle of equality between citizens and the right to defend oneself in trial - and to Article 6 § 1 of the Convention.
In a decision of 25 August 1998 the District Court revoked the order of 17 July 1998. It recalled that a distinction should be drawn between “ordinary” and “extraordinary” arbitration clause (“clausola di arbitrato rituale o irrituale”). The first one was a substitute for the State’s jurisdiction, aimed at obtaining a decision replacing a judgment, while the latter was a private agreement by which the parties conferred to an arbitrator the power to settle a litigation between them. An interim measure, such as the stay of execution, could be adopted only when an “ordinary” arbitration clause was at issue. Having found that the clause contained in Rule 21 of the Fund’s internal Rules was an “extraordinary” one, the District Court declared that the action introduced by the applicant fell outside its jurisdiction ratione materiae. As the internal Rules had been freely accepted by the parties, the court considered that there was no appearance of a violation of the provisions invoked by the applicant.
This decision was final and not subject to any appeal. However, the Mutual Fund I. decided to convene a members’ assembly in order to take a new decision on the incorporation. According to the applicant, this was tantamount to an implicit acceptance of his complaints concerning the lawfulness of the decision of 23 March 1998.


ITEMID: 001-90590
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GIORGI NIKOLAISHVILI v. GEORGIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1981 and lives in Tbilisi.
6. On 20 June 2003 criminal proceedings for murder were initiated (“the murder case”). On 3 July 2003 charges of murder and the unlawful acquisition, storage and transportation of firearms were brought against the applicant’s brother and another person. The accused persons, having fled, were formally declared wanted on 4 July 2003.
7. On an unspecified date in July 2003, photographs of four persons – the applicant, his brother, the other person accused of murder and the latter’s brother – were posted on the boards of “wanted persons” in the police stations of the Vake-Saburtalo District in Tbilisi, the Ambrolauri district (western Georgia) and on the Armenian-Georgian border. Identified by their names, they were said to be wanted by the police in connection with a murder.
8. In reply to queries from the applicant’s lawyers, the VakeSaburtalo District Court in Tbilisi stated on 4 November 2003 that, between May and November 2003, no criminal procedural measures of a coercive nature against the applicant had been registered in the relevant log. Further, by a notification of 28 November 2003, the Vake-Saburtalo police station confirmed to the lawyers that solely the applicant’s brother, who was charged with the murder and firearms offences, had been declared wanted and that no similar measure had been taken with respect to the applicant.
9. On 15 December 2003 the applicant’s lawyers requested the Ministry of the Interior (“the MI”) to remove the applicant’s photograph from the police stations and to punish those who had unlawfully posted it. In a reply of 30 December 2003, the MI reiterated that only the applicant’s brother had been wanted for the murder and firearms offences. As to the applicant, in view of his constant refusals to appear before the Vake-Saburtalo district prosecutor’s office, the latter agency had taken “the relevant operational measures aimed at having him interviewed, in the capacity of a witness”. No reply was given to the request for the photograph’s removal.
10. On 28 January 2004 the applicant’s lawyers requested the VakeSaburtalo District Court to initiate criminal proceedings for libel on the basis of the unlawful posting of the applicant’s photograph in the police stations (“the libel complaint”). Under Article 27 of the Code of Criminal Procedure (“the CCP”) as in force at the material time, the offence of libel was a matter for private prosecution and, pursuant to Article 627 § 1 of the CCP, only a competent court was empowered to initiate criminal proceedings on the basis of a complaint by the victim.
11. As disclosed by the case file, the Vake-Saburtalo District Court decided to summon the applicant to a hearing, reasoning that it was necessary to hear oral submissions from him. The summons could not be served on the applicant at his home address, as his parents stated that his whereabouts had been unknown for the past eight months.
12. In a decision of 4 February 2004, the Vake-Saburtalo District Court dismissed the libel complaint. The court pointed out that a private prosecution could be requested either personally by the victim or by his representative in law (Article 627 § 1 of the CCP). That being so, the court, whilst accepting the power of the applicant’s lawyers to represent him, pointed out that the libel complaint had been signed not by the applicant or his representative in law but by the director of the human rights advocacy centre of which the lawyers were members. The lawyers replied that their client had been feeling insecure as to his liberty, hence his non-appearance before the court. They reiterated the content of the complaint orally, requesting the identification and punishment of those officials who had unlawfully posted the applicant’s photograph and implicated him in the murder. The District Court concluded that the disclosed no elements of libel. However, it decided to forward the request and the case file to the competent prosecutor’s office so that the latter agency could examine whether any offence had been committed by public officials in the performance of their duties.
13. An appeal lay against the decision of 4 February 2004, but had to be lodged within the following fourteen days. However, as disclosed by the case file, the applicant’s lawyers did not appeal.
14. On 9 February 2004 an article disclosing the story of the posted photograph was published in a national newspaper. Shortly afterwards, the applicant’s photograph was removed from the police stations.
15. In a letter of 7 April 2004, the Vake-Saburtalo district prosecutor’s office informed the applicant’s lawyers that the court decision of 4 February 2004 had never ordered it to initiate criminal proceedings either for libel or for any offence committed by persons holding public office, but had simply forwarded the case file with the instruction “to react”. Accordingly, the prosecutor’s office had decided, on 27 February 2004, to forward the case to the MI for an internal investigation. The letter of 7 April 2004 did not enclose a copy of the decision of 27 February 2004 and did not advise the applicant of the appeal procedure, if appropriate. As disclosed by the case file, the MI never informed the applicant of any decision taken in respect of the subsequent developments in his case (see paragraph 105 below).
16. In late April 2004 the applicant lodged with the General Prosecutor’s Office (“the GPO”) another application to initiate criminal proceedings in respect of the unlawful posting of his photographs (“the second criminal complaint”). The GPO transmitted this request to the Tbilisi city prosecutor’s office with the instruction to take “a decision in accordance with the law”. The latter agency forwarded this instruction to the VakeSaburtalo district prosecutor’s office. According to the applicant, on 24 May 2004 he requested a report from the prosecution authority on the progress of the proceedings in respect of his second criminal complaint but no reply was forthcoming. According to the Government, however, the VakeSaburtalo district prosecutor’s office examined that complaint and took a decision on an unspecified date. Neither the content nor the date of that decision was specified by the Government in their observations.
17. According to the applicant, in the course of the investigation into the murder case, the authorities constantly threatened his parents that they would “catch” him, unless his fugitive brother surrendered to the authorities.
18. On 30 March 2004 the applicant responded to the authorities’ repeated calls to testify as a witness in the murder case by voluntarily appearing before the VakeSaburtalo district prosecutor’s office. Upon arrival and without being examined in the capacity of a witness, he was arrested on suspicion of unlawfully acquiring, storing and/or transporting firearms and ammunition, which offence formed part of the murder case. The suspicion was formally based on several pieces of evidence – statements by three witnesses, the results of a search and the forensic examination of the seized firearms – all of which had been obtained in June and July 2003, in the course of the investigation into the murder case.
19. Later the same day, the Vake-Saburtalo district prosecutor’s office disjoined the firearms aspect from the murder case and registered it as a separate set of proceedings (“the firearms case”). Subsequently, the applicant was confronted, in the presence of his lawyer, with one of the witnesses whose statements had been obtained in June and July 2003 (see the preceding paragraph). During that confrontation, the witness altered his previous testimony in favour of the applicant, by concluding that only the applicant’s brother had been involved in the firearms offence. The investigator concluded that the applicant and his lawyer had subjected the witness to undue “moral pressure” during the confrontation.
20. On 31 March 2004 the investigator reexamined the abovementioned witness, this time in the absence of the applicant and his lawyer. The witness retracted the altered testimony he had given the previous day and confirmed the truthfulness of the statements he had made in June and July 2003.
21. On 1 April 2004 the charge of storing and transporting firearms and ammunition was preferred against the applicant. This charge was based on the above-mentioned evidence obtained in the course of the investigation into the murder case (see paragraph 18 above). The applicant pleaded “not guilty”. On the same day the prosecutor requested that the applicant be remanded in custody for three months.
22. As disclosed by the case file, the prosecutor’s main argument during the remand hearing was that the applicant’s release could jeopardise the pending investigation of the murder case, particularly when one of the accused in that case, his brother, was missing. The applicant replied that it was unlawful to justify his pre-trial detention in the interests of the murder case, as he had been detained solely on suspicion of having committed the firearms offence. He challenged the reasonableness of the latter suspicion as well. In favour of his release, the applicant submitted that he had not committed a single act capable of impeding the investigation for the last ten months and that he had voluntarily appeared before the prosecutor’s office for an interview. He also referred to the fact that his father was seriously ill and required his care.
23. On 2 April 2004 the Vake-Saburtalo District Court ordered the applicant’s remand in custody for three months, with effect from 30 March 2004. The detention order was a standard form, the reasoning of which had mostly been pre-printed. The judge added by hand the reference to the relevant evidence, the names of the parties’ representatives to the proceedings and the classification of the impugned offence:
“Having examined [in accordance with the requirements of procedural law] the well-foundedness of the detention request, and having heard the parties’ pleadings, I have come to the conclusion that the evidence collected – [reference to the evidence obtained in June and July 2003 – see paragraph 18 above] – gives rise to a reasonable suspicion that Giorgi Nikolaishvili has committed the impugned offence. The evidence has been obtained in conformity with the rules of criminal procedure.
Procedural law was also observed in the course of Giorgi Nikolaishvili’s arrest and in the bringing of charges against him.
I consider that the detention request by [reference to the prosecutor’s name] is substantiated and that there exist legal grounds for granting it. Thus, in so far as the accused, G. Nikolaishvili, is charged with a less serious crime, the danger that, if released, he might hamper the establishment of the truth or abscond from the investigation and trial is substantiated...”
The judge then dismissed, in a handwritten note, the applicant’s allegations of procedural violations as irrelevant to the classification of the impugned offence.
24. In a final decision of 8 April 2004 the Tbilisi Regional Court upheld the detention order of 2 April 2004, reasoning as follows:
“... [The applicant] has been charged with an offence classified as less serious, which carries a maximum term of five years’ imprisonment. The impugned offence of the unlawful acquisition, storage and/or transportation of firearms might be related to the murder case, the investigation of which is still pending. In such conditions, the discontinuation of detention on remand or its substitution with a non-custodial measure of restraint might possibly hamper the establishment of the truth in that case; if released, the accused might influence witnesses, continue his criminal activities or abscond. Such conclusions can be derived from the insincerity of the accused.
The case discloses both formal (procedural) and factual grounds for the imposition of pre-trial detention...”
25. On several occasions in April and May 2004, the applicant requested to be confronted again with the above-mentioned witness for the prosecution (paragraphs 19 and 20 above). His requests were dismissed as unsubstantiated, the authorities reasoning that the previous confrontation had been conducted in conformity with the procedural rules, whilst another one would most likely lead to the same result – the exertion of moral pressure on the witness in question.
26. On 30 June 2004 the three month pre-trial detention period expired, without a court ordering its extension. On 7 July 2004, having terminated the investigation, the prosecutor sent the criminal case for trial, forwarding the bill of indictment.
27. On 24 January 2005 the judge of the Vake-Saburtalo District Court, dispensing with an oral hearing, decided, in camera, to commit the applicant for trial under Article 417 § 1 of the CCP. This decision, like the detention order of 2 April 2004, was set out in a standard form with preprinted reasoning. The judge added, in the blank spaces provided, a brief statement of facts, the name of the accused and the definition of the impugned offence.
28. As to the reasoning, the decision of 24 January 2005 confirmed the applicant’s pre-trial detention in a pre-printed phrase. The judge added by hand the definition of the measure of restraint:
“The measure of pre-trial restraint – detention – has been correctly chosen.”
29. The case file does not refer to any further developments in the criminal proceedings.
30. Article 23 of the CCP provided at the material time as follows:
“A criminal prosecution may be carried out in the form of a public, subsidiary, private/public or private prosecution.”
31. Pursuant to Article 27, libel, amongst various other crimes, was a matter for private prosecution and criminal proceedings could be initiated by a judge only on the basis of a complaint by the victim (see also Article 627 § 1 of the CCP and Article 148 of the Criminal Code, cited below).
32. In Article 44 § 22 the term “representative in law” was defined as “next of kin, curator or guardian”.
33. Articles 93 to 94, defining the status, rights and responsibilities of a witness, did not envisage that a witness could be declared a “wanted” person by the prosecution. Article 95 § 1 (g) stated that a witness could not be obliged to testify against a close relative.
34. Pursuant to Article 94 § 2, Article 174 § 1 and Article 175, the precondition for obliging a person to appear before the prosecution to testify in a criminal case was the issue of a relevant court order. Such an order was to be forwarded to the police for enforcement, in accordance with Article 176 § 1. However, if enforcement was impossible owing to, inter alia, the inability to locate the witness, the role of the police officer responsible for enforcement was limited to recording that fact on the order and returning it to the court as “unenforced”.
35. Article 151 provided as follows:
“1. A measure of restraint shall be applied to ensure that the accused cannot avoid the investigation and trial, that his further criminal activity is prevented, that he cannot interfere with the establishment of the truth in a given criminal case, or that the court’s verdict is implemented.
2. The application of a measure of restraint shall be justified if the evidence collected in the case file sufficiently substantiates the assumption that it is necessary to secure the aims mentioned in the first paragraph of this Article.
3. The ground for the imposition of pre-trial detention may be a reasonable suspicion that the accused might abscond or interfere with the establishment of the truth in a given criminal case, or if a serious or grave crime has been committed.”
36. Article 159 § 3 on detention read:
“Detention on remand shall be imposed only with regard to a person who is charged with an offence which carries more than two years’ imprisonment ...”
37. An appeal lay under Article 234 against such measures:
“Any decision or action of an inquiry officer/inquiry agency, investigator/investigative agency, prosecutor/prosecutor’s office or judge/court may be appealed by the parties to the criminal proceedings or by any other third parties.”
38. Under Article 236 § 1, that appeal against any action or decision by the inquiry officer, investigator or prosecutor could be lodged throughout the entire period of the preliminary inquiry or investigation (that is, before the criminal case had been sent to the competent court for trial).
39. Article 410 § 2 regarding the bill of indictment required it to be accompanied by all relevant documentation about the detention. When endorsing the bill of indictment, the prosecutor had to consider, amongst other issues, whether any restraint measure which had been imposed was correct (Article 412). The case materials had to be referred to the competent court, along with the bill of indictment, within 48 hours following the prosecutor’s endorsement (Article 416 § 3).
40. Under Article 417 §§ 1, 2 and 3, if the court considered that the case had a sufficient basis, the accused was to be committed for trial after holding an admissibility hearing in certain circumstances. At such a hearing, the court was to consider whether a measure of pre-trial restraint should be imposed on the accused.
41. Following an amendment on 16 December 2005, Article 417 § 2 made it mandatory to hold an admissibility hearing when deciding to commit the accused for trial in relation to all types of criminal case. Article 419 laid down the following time-limits on committals:
“The judge (court) shall decide whether to commit the accused for trial within fourteen days or, in complicated cases, within a month of the date of delivery of a final judgment on the last criminal case registered with the same judge (court).”
42. Article 627 § 1 enabled a judge to initiate criminal proceedings following a complaint lodged either by the victim or that person’s representative in law. Moreover, under Articles 393 and 606(1), only a person against whom charges had been brought or who had been convicted could be declared “wanted” in connection with a crime by means of a formal decision by the investigative, prosecution or judicial authorities. No provision of the Code provided for such a measure in respect of a witness.
43. Article 148 of the Criminal Code provided at the material time for the punishable offence of libel. It was removed from the Criminal Code on 24 June 2004.
44. The Operational Investigative Measures Act provided at the material time, in so far as relevant:
“A person who considers that, as a result of an operational investigative measure, his or her rights and freedoms have unlawfully been restricted may appeal against such a measure to a hierarchically superior agency, prosecutor or court.”
“The basis for an operational investigative measure may be ...
(c) a formal decision declaring that a person who absconds from the investigation and trial or evades the sentence is wanted.”
45. In the course of the Plenary Sitting of the First Session of the Consultative Assembly of the Council of Europe (“the CACE”), held on 19 August 1949, the representatives discussed the rights and freedoms which might be guaranteed by the Convention:
“...We have all been compelled to bear unbelievable encroachments on our rights [such as] the loss of security of person; arbitrary arrest...
All have an equal right to life, liberty and personal safety...
It is a pitiable commentary on our boasted progress that in our generation it should be necessary to declare that everyone has the right of life, liberty and security of his person ... These things were taken for granted ... in the days before the sophists told us that man could make himself happy by making the State into a god, to be fed with blood, toil, tears and sweat ... We are now concerned to safeguard and preserve our very selves, and all that we are and have, against the insatiable appetite of the totalitarians...”
46. During the CACE Plenary Sitting of 7 September 1949, a report of the Committee on Legal and Administrative Questions was presented. The relevant excerpts from that report read as follows:
“The Committee has drawn up the list of rights and freedoms which are to be covered by the collective guarantee...
Here are the rights and freedoms included in this list: security of person ... freedom from arbitrary arrest, detention, exile and other measures...”
VIOLATED_ARTICLES: 5
8
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
VIOLATED_BULLETPOINTS: 5-1-c