ITEMID: 001-59353
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: GRANDCHAMBER
DATE: 2001
DOCNAME: CASE OF STRELETZ, KESSLER AND KRENZ v. GERMANY
IMPORTANCE: 1
CONCLUSION: No violation of Art. 7-1;No violation of Art. 14+7
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 11. The applicants are German nationals, born in 1926, 1920 and 1937 respectively.
12. After their conviction by the German courts, the first two applicants (Mr Fritz Streletz and Mr Heinz Kessler) were imprisoned under a semi-custodial regime (offener Strafvollzug) and then released after serving approximately two-thirds of their sentences. They now live in Strausberg (Germany) and Berlin (Germany) respectively.
The third applicant (Mr Egon Krenz) has been serving a semi-custodial sentence at Plötzensee Prison, Berlin, since January 2000.
13. Between 1949 and 1961 approximately two and a half million Germans fled from the German Democratic Republic (GDR) to the Federal Republic of Germany (FRG). In order to staunch the endless flow of fugitives, the GDR built the Berlin Wall on 13 August 1961 and reinforced all the security measures along the border between the two German States, in particular by installing anti-personnel mines and automatic-fire systems (Selbstschussanlagen). Many people who tried to cross the border to reach the West subsequently lost their lives, either after triggering anti-personnel mines or automatic-fire systems or after being shot by East German border guards. The official death toll, according to the FRG’s prosecuting authorities, was 264. Higher figures have been advanced by other sources, such as the “13 August Working Party” (Arbeitsgemeinschaft 13. August), which speaks of 938 dead. In any event, the exact number of persons killed is very difficult to determine, since incidents at the border were kept secret by the GDR authorities.
14. The Council of State (Staatsrat) of the GDR laid down the principles to be followed in matters of national defence and security and organised defence with the assistance of the GDR’s National Defence Council (Nationaler Verteidigungsrat; Article 73 of the GDR’s Constitution – see paragraph 28 below).
The presidents of both these bodies and the president of the GDR’s parliament (Volkskammer) were members of the GDR’s Socialist Unity Party (Sozialistische Einheitspartei Deutschlands).
The Political Bureau (Politbüro) of the Socialist Unity Party’s Central Committee was the party’s decision-making organ and the most powerful authority in the GDR. It took all of the policy decisions and all of the decisions concerning the appointment of the country’s leaders. The number of its members varied: after the Socialist Unity Party’s XIth and last Congress in April 1986, it had twenty-two members and five candidate members.
The Secretary-General of the Party’s Central Committee presided over the National Defence Council, and all the members of that Council were party officials. It met in general twice a year and took important decisions about the establishment and consolidation of the border-policing regime (Grenzregime) and about orders to open fire (Schiessbefehle).
15. GDR border guards (Grenztruppen der DDR) were members of the National People’s Army (Nationale Volksarmee) and were directly answerable to the Ministry of Defence (Ministerium für nationale Verteidigung). The annual orders of the Minister of Defence were themselves based on decisions of the National Defence Council.
For example, in a decision of 14 September 1962 the National Defence Council made it clear that the orders (Befehle) and service instructions (Dienstvorschriften) laid down by the Minister of Defence should point out to border guards that they were “fully responsible for preservation of the inviolability of the State border in their sector and that ‘border violators’ [Grenzverletzer] should in all cases be arrested as adversaries [Gegner] or, if necessary, annihilated [vernichtet]”. Similarly, a service instruction of 1 February 1967 stated: “Mines are to be laid in targeted positions and in close formation ... with a view to halting the movements of ‘border violators’ and ... bringing about their arrest or annihilation.”
From 1961 onwards, and especially during the period from 1971 to 1989, consolidation and improvement of the border security installations (Grenzsicherungsanlagen) and the use of firearms were regularly discussed at meetings of the National Defence Council. The orders issued by the Minister of Defence as a result likewise insisted on the need to protect the GDR’s State border at all costs and stated that “border violators” had to be arrested or “annihilated”; these orders were then implemented by the commanding officers of the border-guard regiments. All acts by border guards, including mine-laying and the use of firearms against fugitives, were based on this chain of command.
16. The applicants occupied senior positions in the GDR’s State apparatus and the Socialist Unity Party leadership:
– the first applicant was a member of the National Defence Council from 1971 onwards, of the Socialist Unity Party’s Central Committee from 1981 and Deputy Defence Minister from 1979 to 1989;
– the second applicant was a member of the Socialist Unity Party’s Central Committee from 1946 onwards, Chief of Staff of the National People’s Army and a member of the National Defence Council from 1967 and Minister of Defence from 1985 to 1989;
– the third applicant was a member of the Central Committee of the Socialist Unity Party from 1973 onwards, of the Council of State from 1981 onwards and of the Political Bureau and the National Defence Council from 1983 onwards, and Secretary-General of the Socialist Unity Party’s Central Committee (taking over from Mr E. Honecker) and President of the Council of State and the National Defence Council from October to December 1989.
17. In autumn 1989 the flight of thousands of citizens of the GDR to the FRG’s embassies in Prague and Warsaw, and to Hungary, which had opened its border with Austria on 11 September 1989, demonstrations by tens of thousands of people in the streets of Dresden, Leipzig, East Berlin and other cities, and the restructuring and openness campaign conducted in the Soviet Union by Mikhail Gorbachev (perestroika and glasnost) precipitated the fall of the Berlin Wall on 9 November 1989, the collapse of the system in the GDR and the process that was to lead to the reunification of Germany on 3 October 1990.
By a note verbale of 8 September 1989 Hungary suspended Articles 6 and 8 of the bilateral agreement with the GDR of 20 June 1969 (in which the two States had agreed to waive entry visas for each other’s nationals and refuse travellers permission to leave for third countries), referring expressly, in doing so, to Articles 6 and 12 of the International Covenant on Civil and Political Rights (see paragraph 40 below) and to Article 62 (fundamental change of circumstances) of the Vienna Convention on the Law of Treaties.
18. During the summer of 1990 the GDR’s newly elected parliament urged the German legislature to ensure that criminal prosecutions would be brought in respect of the injustices committed by the Socialist Unity Party (die strafrechtliche Verfolgung des SED-Unrechts sicherzustellen).
19. In a judgment of 16 September 1993 the Berlin Regional Court (Landgericht) sentenced the first and second applicants to five years and six months’ imprisonment and seven years and six months’ imprisonment respectively for incitement to commit intentional homicide (Anstiftung zum Totschlag), on the ground that they shared responsibility for the deaths of a number of young people aged between 18 and 28 who had attempted to flee the GDR between 1971 and 1989 by crossing the border between the two German States (six and seven cases respectively). The victims had died after triggering anti-personnel mines laid along the border or after being shot by East German border guards.
The cases concerned were the following.
On 8 April 1971 Mr Klaus Seifert, aged 18, stepped on a landmine (Erdmine) while attempting to cross the border and lost his left leg. He nevertheless managed to reach the territory of the FRG, where, after a series of operations, he died of his injuries.
On 16 January 1973 Mr Hans-Friedrich Franck, aged 26, was seriously wounded by the explosion of a fragmentation mine (Splittermine) while trying to cross the border. He nevertheless managed to reach the territory of the FRG, where he died of his injuries soon after.
On 14 July 1974 Mr Wolfgang Vogler, aged 25, was seriously wounded by the explosion of a fragmentation mine while attempting to cross the border. Twenty minutes later GDR border guards dragged him to a lorry outside the border zone. Two hours later he arrived at a hospital, where he died of his injuries.
On 7 April 1980 Mr Wolfgang Bothe, aged 28, was likewise seriously wounded by the explosion of a fragmentation mine while trying to cross the border. After a series of operations, he died of his injuries.
On 22 March 1984 Mr Frank Mater, aged 20, was seriously wounded by the explosion of a fragmentation mine while attempting to cross the border. He died a few moments later.
On 1 December 1984 two GDR border guards fired shots at Mr Michael-Horst Schmidt, aged 20, as he was trying to climb over the Berlin Wall using a ladder, hitting him in the back. He was not given any first aid. He did not reach the hospital of the GDR’s People’s Police until two hours later, by which time he had bled to death. The guards who had shot him were congratulated, the only regret expressed being that they had used that much ammunition.
During the night of 5 to 6 February 1989 Mr Chris Gueffroy and Mr Christian Gaudian, both aged 20, attempted to climb over the Berlin Wall. Mr Gueffroy was shot by a GDR border guard and died instantly. Mr Gaudian received bullet wounds. The guards who had shot them were congratulated.
The Regional Court noted that all the orders of the Minister of Defence, including those concerning the use of firearms at the border, were based on decisions of the National Defence Council, of which the applicants had been members. Border guards had been ordered to protect the border of the GDR at all costs, even if that meant that “border violators” (Grenzverletzer) thereby lost their lives.
The Regional Court further noted that the practice of the East German authorities deliberately went beyond the wording of statute law (Wortlaut des Gesetzes), written orders and service instructions; the provisions on the use of firearms at the border were disregarded. What was important for the border guards was not written law but what had been inculcated in them during their training, through political instruction and during their everyday service. The order actually given to border guards was: “The unit [der Zug] ... will ensure the security of the GDR’s State border ... its duty is not to permit border crossings [Grenzdurchbrüche], to arrest ‘border violators’ or to ‘annihilate’ them [vernichten] and to protect the State border at all costs [unter allen Bedingungen] ...”
In the event of a successful crossing of the border, the guards on duty could expect to be the subject of an investigation conducted by the military prosecutor (Militärstaatsanwalt).
On the basis of the criminal law applicable in the GDR at the material time, the Regional Court began by declaring the first and second applicants guilty of incitement to murder (Anstiftung zum Mord) (Articles 22 § 2 (1) and 112 § 1 of the GDR’s Criminal Code – “the StGB-DDR”; see paragraph 32 below). It held that the applicants could not justify their actions by pleading section 27(2) of the GDR’s State Borders Act (Grenzgesetz – see paragraph 38 below), which, in practice, had been used to cover the killing of fugitives by means of firearms, automatic-fire systems and anti-personnel mines. It ruled that this State practice “flagrantly and intolerably infringed elementary precepts of justice and human rights protected under international law” (“diese Staatspraxis hat offensichtlich und unerträglich gegen elementare Gebote der Gerechtigkeit und gegen völkerrechtlich geschützte Menschenrechte verstoßen”). The Regional Court then applied the criminal law of the FRG, which was more lenient than that of the GDR, and convicted both applicants of incitement to commit intentional homicide (Articles 26 and 212 § 1 of the FRG’s Criminal Code – “the StGB”).
20. In a judgment of 26 July 1994 the Federal Court of Justice (Bundesgerichtshof) first upheld the findings of the Regional Court regarding the classification of the offences under GDR law and then applied the criminal law of the FRG, partly because it was the law applicable in the place where the result of the offences had come about (Tatort – Erfolgsort), since one of the fugitives had died inside FRG territory, and partly because the criminal law of the FRG was more lenient than that of the GDR. Secondly, the Federal Court of Justice reclassified the offences according to the criminal law of the FRG and amended the charges against the two applicants to intentional homicide as indirect principals (Totschlag in mittelbarer Täterschaft) (Articles 25 and 212 of the StGB – see paragraph 44 below). The length of the sentences to which the applicants were liable remained unchanged. Like the Regional Court, the Federal Court of Justice joined the cases of the first and second applicants.
The Federal Court of Justice then found the two applicants guilty of intentional homicide as indirect principals, on the ground that they had been members of the National Defence Council, the body whose decisions were a necessary precondition (zwingende Voraussetzung) for the issuing of orders concerning the GDR’s border-policing regime (Grenzregime). The applicants knew that these orders would be obeyed and that fugitives had died at the border as a result of acts of violence. Like the Regional Court, the Federal Court of Justice held that the two applicants could not plead in justification section 27(2) of the State Borders Act. It ruled that section 27(2) and its interpretation by the GDR regime flagrantly infringed human rights and in particular the right to freedom of movement and the right to life enshrined in the International Covenant on Civil and Political Rights, a treaty ratified by the GDR on 8 November 1974 (see paragraph 40 below). The fact that the GDR had not transposed those provisions into its domestic law did not alter its obligations under public international law. Lastly, the Regional Court’s decision had not contravened Article 103 § 2 of the Basic Law (Grundgesetz – see paragraph 43 below) since the applicants could not rely on a ground of justification (Rechtfertigungsgrund) which was contrary to higher-ranking legal rules. Even at the material time, a correct interpretation of section 27(2) of the GDR’s State Borders Act would have shown that such grounds of justification could not be pleaded on account of the limits laid down by the Act itself and in the light of the GDR’s Constitution and its international obligations.
21. On 9 September 1994 the two applicants lodged constitutional appeals with the Federal Constitutional Court (Bundesverfassungsgericht). They submitted that their actions had been justified under the law applicable in the GDR at the material time and should not have made them liable to criminal prosecution. The Federal Court of Justice’s divergent ex post facto interpretation had infringed the principle that the criminal law was not to be applied retroactively (Rückwirkungsgebot) and Article 103 § 2 of the Basic Law. In the FRG, they argued, there were provisions similar to section 27 of the GDR’s State Borders Act, and every State limited the right to life where the pursuit of criminals was concerned. In that connection, the two applicants referred to Article 2 § 2 of the Convention. They also relied on Article 7 § 2 of the Convention and the reservation in respect of that provision made by the FRG (see paragraph 45 below).
22. In a judgment of 24 October 1996 the Federal Constitutional Court joined the first applicant’s appeal to those of the second applicant and Mr K.-H.W., a former East German border guard who is also an applicant before the European Court of Human Rights.
After hearing submissions from the Federal Ministry of Justice (Bundesministerium für Justiz) and the Administration of Justice Department of the Land of Berlin (Senatsverwaltung für Justiz), the Federal Constitutional Court dismissed the three appeals as being ill-founded, basing its decision on the following grounds, in particular:
“Article 103 § 2 of the Basic Law has not been infringed.
The appellants submitted that Article 103 § 2 of the Basic Law had been breached mainly on account of the fact that the criminal courts had refused to allow them to plead a ground of justification provided for at the material time in the GDR’s provisions on the border-policing regime [Grenzregime], as interpreted and applied by the GDR authorities. The first, second and third appellants [Mr Hans Albrecht, who did not lodge any application with the Court, Mr Kessler and Mr Streletz] further submitted that they had been victims of the violation of a right guaranteed by Article 103 § 2 of the Basic Law in that they had been convicted, pursuant to the law of the Federal Republic, as indirect principals [mittelbare Täter].
Neither complaint is well-founded.
1. (a) Article 103 § 2 of the Basic Law is an expression of the principle of the rule of law ... This principle forms the basis for the use of civil rights and liberties, by guaranteeing legal certainty, by subjecting State power to statute law and by protecting trust. In addition, the principle of the rule of law includes, as one of the guiding ideas behind the Basic Law, the requirement of objective justice ... In the sphere of the criminal law, these concerns relating to the rule of law are reflected in the principle that no penalty may be imposed where there is no guilt. That principle is at the same time rooted in the human dignity and personal responsibility which are presupposed by the Basic Law and constitutionally protected by Articles 1 § 1 and 2 § 1 thereof, and to which the legislature must have regard when framing the criminal law ... It also underlies Article 103 § 2 of the Basic Law ...
Article 103 § 2 of the Basic Law secures these aims by allowing conviction only for acts which, at the time when they were committed, were defined by statute with sufficient precision as criminal offences. It further prohibits the imposition of a higher penalty than the one prescribed by law at the time when the offence was committed. In the interests of legal certainty and justice, it provides that in the sphere of the criminal law, which permits extremely serious interference with personal rights by the State, only the legislature may determine what offences shall be punishable. Article 103 § 2 of the Basic Law thus reinforces the rule of law by strictly reserving law-making to Parliament ... The citizen’s trust is earned by the fact that Article 103 § 2 gives him the assurance that the State will punish only acts which, at the time when they were committed, had been defined by Parliament as criminal offences, and for which it had prescribed specific penalties. That allows the citizen to regulate his conduct, on his own responsibility, in such a way as to avoid committing a punishable offence. This prohibition of the retroactive application of the criminal law is absolute ... It fulfils its role of guaranteeing the rule of law and fundamental rights by laying down a strict formal rule, and in that respect it is to be distinguished from other guarantees of the rule of law ...
(b) Article 103 § 2 of the Basic Law protects against retroactive modification of the assessment of the wrongfulness of an act to the offender’s detriment ... Accordingly, it also requires that a statutory ground of justification which could be relied on at the time when an act was committed should continue to be applied even where, by the time criminal proceedings begin, it has been abolished. However, where justifications are concerned, in contrast to the definition of offences and penalties, the strict reservation of Parliament’s law-making prerogative does not apply. In the sphere of the criminal law, grounds of justification may also be derived from customary law or case-law. Where grounds of justification not derived from written law, but nevertheless recognised at the material time, subsequently cease to be applied, the question arises whether and to what extent Article 103 § 2 of the Basic Law likewise protects the expectation that they will continue to be applied. No general answer to that question need be given here, because in the instant case a justification – based partly on legal provisions and partly on administrative instructions and practice – has been advanced in circumstances that make it possible to restrict the absolute prohibition of retroactiveness in Article 103 § 2 of the Basic Law.
(aa) Article 103 § 2 of the Basic Law contemplates as the normal case that the offence was committed and falls within the scope of the substantive criminal law of the Federal Republic of Germany, as shaped by the Basic Law, and that it is being judged in that context. In this normal case the criminal law, having been enacted in accordance with the precepts of democracy, the separation of powers and respect for fundamental rights, and therefore meeting in principle the requirements of objective justice [materielle Gerechtigkeit], provides the rule-of-law basis [rechtsstaatliche Anknüpfung] necessary for the absolute, strict protection of trust afforded by Article 103 § 2 of the Basic Law.
(bb) This principle no longer applies unrestrictedly in that, as a consequence of reunification, and as agreed in the Unification Treaty, Article 315 of the Introductory Act to the Criminal Code, taken together with Article 2 of that Code, provides that GDR criminal law is to be applied when criminal proceedings are brought in respect of offences committed in the former GDR. That rule is a consequence of the Federal Republic’s assumption of responsibility for the administration of criminal justice in the territory of the GDR; it is accordingly compatible with Article 103 § 2 of the Basic Law, since citizens of the former GDR are tried according to the criminal law that was applicable to them at the material time, the law of the Federal Republic in force at the time of conviction being applied only if it is more lenient. However, this legal situation, in which the Federal Republic has to exercise its authority in criminal matters on the basis of the law of a State that neither practised democracy and the separation of powers nor respected fundamental rights, may lead to a conflict between the mandatory rule-of-law precepts of the Basic Law and the absolute prohibition of retroactiveness in Article 103 § 2 thereof, which, as has been noted, derives its justification in terms of the rule of law [rechtsstaatliche Rechtfertigung] in the special trust reposed in criminal statutes when these have been enacted by a democratic legislature required to respect fundamental rights. This special basis of trust no longer obtains where the other State statutorily defines certain acts as serious criminal offences while excluding the possibility of punishment by allowing grounds of justification covering some of those acts and even by requiring and encouraging them notwithstanding the provisions of written law, thus gravely breaching the human rights generally recognised by the international community. By such means those vested with State power set up a system so contrary to justice that it can survive only for as long as the State authority which brought it into being actually remains in existence.
In this wholly exceptional situation, the requirement of objective justice, which also embraces the need to respect the human rights recognised by the international community, makes it impossible for a court to accept such justifications. Absolute protection of the trust placed in the guarantee given by Article 103 § 2 of the Basic Law must yield precedence, otherwise the administration of criminal justice in the Federal Republic would be at variance with its rule-of-law premisses [rechtsstaatliche Prämissen]. A citizen now subject to the criminal jurisdiction of the Federal Republic is barred from relying on such grounds of justification; in all other respects the principle of trust continues to apply, every citizen enjoying the guarantee that if he is convicted it will be on the basis of the law applicable to him at the time when the offence was committed.
(cc) The Federal Republic has experienced similar conflicts when dealing with the crimes of National-Socialism.
1. In that connection, the Supreme Court of Justice for the British Zone, and later the Federal Court of Justice, ruled on the question whether an act might become punishable retroactively if a provision of written law was disregarded on account of a gross breach of higher-ranking legal principles. They took the view that there could be provisions and instructions that had to be denied the status of law, notwithstanding their claim to constitute law, because they infringed legal principles which applied irrespective of whether they were recognised by the State; whoever had behaved in accordance with such provisions remained punishable ... The Federal Court of Justice pointed out that in such cases the conduct of the offenders was not being judged by criteria which had acquired general validity only later. Nor were the offenders being called upon to answer the charges against them on the basis of criteria not yet valid or no longer valid at the material time. It could not be supposed that the offenders were not already familiar at the material time with the relevant principles, which were indispensable to human coexistence and belonged to the inviolable core of the law ...
2. The Federal Constitutional Court has so far had to deal with the problem of ‘statutory injustice’ [gesetzliches Unrecht] only in spheres other than that of the criminal law. It has taken the view that in cases where positive law is intolerably inconsistent with justice the principle of legal certainty may have to yield precedence to that of objective justice. In that connection it has referred to the writings of Gustav Radbruch [Gustav Radbruch (1878-1949): German professor of law who considerably influenced the philosophy of law. Following the crimes of the Nazis, he formulated the principle, also known as “Radbruch’s formula” (Radbruch’sche Formel), that positive law must be considered contrary to justice where the contradiction between statute law and justice is so intolerable that the former must give way to the latter] ... and, in particular, to what has become known as Radbruch’s formula ... On that point it has repeatedly stressed that positive law should be disapplied only in absolutely exceptional cases and that a merely unjust piece of legislation, which is unacceptable on any enlightened view, may nevertheless, because it also remains inherently conducive to order, still acquire legal validity and thus create legal certainty... However, the period of National-Socialist rule had shown that the legislature was capable of imposing gross ‘wrong’ by statute ..., so that, where a statutory provision was intolerably inconsistent with justice, that provision should be disapplied from the outset ...
2. The decisions challenged meet the constitutional criterion set forth under 1.
(a) The Federal Court of Justice has since further developed its case-law when trying cases of so-called ‘government criminality’ [Regierungskriminalität] during the Socialist Unity Party regime in the GDR ... That case-law also forms the basis for the decisions challenged here. It states that a court must disregard a justification if it purports to exonerate the intentional killing of persons who sought nothing more than to cross the intra-German border unarmed and without endangering interests generally recognised as enjoying legal protection, because such a justification, which puts the prohibition on crossing the border above the right to life, must remain ineffective on account of a manifest and intolerable infringement of elementary precepts of justice and of human rights protected under international law. The infringement in question is so serious as to offend against the legal beliefs concerning the worth and dignity of human beings that are common to all peoples. In such a case positive law has to give way to justice.
The Federal Court of Justice described the relationship between the criteria which together make up Radbruch’s formula and the human rights protected under international law as being that the criteria of Radbruch’s formula, which were difficult to apply because of their imprecision, had been supplemented by more specific assessment criteria, since the international human rights covenants provided a basis for determining when a State was infringing human rights according to the convictions of the world-wide legal community.
(b) That assessment is in keeping with the Basic Law. It is also supported by this Court’s judgment of 31 July 1973 on the Basic Treaty [Grundlagenvertrag], which acknowledged that the GDR’s practice at the intra-German border was inhuman, and that the Wall, the barbed wire, the ‘death strip’ [Todesstreifen] and the shoot-to-kill order were incompatible with the treaty obligations entered into by the GDR ...
(c) Against the finding that a ground of justification derived from State practice and purporting to allow ‘border violators’ to be killed must be disregarded as an instance of extreme State injustice, it cannot be objected by the appellants that the right to life and the right to freedom of movement are not unreservedly guaranteed by the International Covenant on Civil and Political Rights and that even democratic States of the Western type, based on the rule of law, have adopted legal provisions which expressly provide for the use of firearms under certain circumstances, particularly in connection with the pursuit and arrest of criminals. Admittedly, the wording of the GDR’s legal provisions, in so far as they regulated the use of firearms at the intra-German border, corresponded to that of the Federal Republic’s provisions on the use of force [unmittelbarer Zwang]. But the findings in the impugned judgments show that, superimposed on those legal provisions, there were orders which left no room for limitation of the use of firearms according to the principle of proportionality, and which conveyed to the border guards on the spot the view of their superiors – and ultimately of the National Defence Council – that border violators were to be ‘annihilated’ if they could not be prevented from crossing the border by other means. Through that subordination of the individual’s right to life to the State’s interest in preventing border crossings, the written law was eclipsed by the requirements of political expediency. Objectively speaking, this constituted extreme injustice.
(d) Nor can the appellants argue that, having accepted that a justification could be disregarded, the Federal Court of Justice had still not answered the question whether and in what circumstances the act thus held to be unlawful was punishable ... To establish punishability there is no need here for recourse to supra-positive legal principles [überpositive Rechtsgrundsätze]. Reference need only be made to the values which the GDR itself took as the basis for its criminal law. At the material time Articles 112 and 113 of the GDR’s Criminal Code absolutely prohibited the intentional taking of human life and marked the seriousness of such offences by prescribing severe punishment. If, for the reasons discussed above, there is no admissible ground of justification for a homicide, the definition of the offences in the above-mentioned provisions of criminal law makes such a homicide a punishable criminal offence.
3. The first three appellants object that it was incompatible with Article 103 § 2 of the Basic Law for the Federal Court of Justice, applying the law of the Federal Republic, to find them guilty of intentional homicide as indirect principals. That objection fails.
The criminal courts established, on the basis of the provisions in force in the GDR at the material time, that the appellants had rendered themselves liable to punishment through their involvement in the killing of fugitives. The Federal Court of Justice expressly endorsed the Regional Court’s finding that according to those provisions the appellants were guilty of incitement to murder (Articles 2 § 2, sub-paragraph 1, and 112 § 1 of the GDR’s Criminal Code). Only at a second stage did the Federal Court of Justice apply the law of the Federal Republic of Germany, in one case on the basis of Article 315 § 4 of the Introductory Act to the Criminal Code taken together with Article 9 § 1 of the Criminal Code (the place-of-commission, or place-of-effect rule) and in the other cases under Article 315 § 1 of the Introductory Act taken together with Article 2 § 3 of the Criminal Code, the law of the Federal Republic being more lenient than that of the GDR. In neither case were those decisions contrary to Article 103 § 2 of the Basic Law. Regarding the application of the place-of-commission rule, the Chamber [Senat] has already ruled on the issue in its decision of 15 May 1995 and it stands by that decision.
In view of its protective purpose, Article 103 § 2 of the Basic Law does not preclude the application of law more lenient than that applicable at the material time. The Federal Court of Justice, in agreement with academic writings ..., took the view that the more lenient law was the law which, on the basis of an overall comparison in the specific individual case, yielded a judgment more favourable to the offender, even if this or that criterion of assessment might appear to be less favourable than criteria laid down by the other law, the decisive factor being the legal consequences of the offence. That conclusion is compatible with the above-mentioned protective purpose of Article 103 § 2 of the Basic Law and cannot be questioned on constitutional grounds.”
23. In a judgment of 25 August 1997 the Berlin Regional Court sentenced the third applicant to six years and six months’ imprisonment for intentional homicide as an indirect principal, on the ground that, as he had participated in two decisions of the Political Bureau (on 7 June 1985 and 11 March 1986) and two decisions of the National Defence Council (on 2 February 1984 and 25 January 1985) on the GDR’s border-policing regime, he shared responsibility for the deaths of four young people who had attempted to flee the GDR between 1984 and 1989 by crossing the border between the two German States. These persons had been shot to death by East German border guards.
The cases concerned were the following.
On 1 December 1984 two GDR border guards fired shots at Mr Michael-Horst Schmidt, aged 20, as he was trying to climb over the Berlin Wall using a ladder, hitting him in the back. He was not given any first aid. He did not reach the hospital of the GDR’s People’s Police until two hours later, by which time he had bled to death. The guards who had shot him were congratulated, the only regret expressed being that they had used that much ammunition.
On 24 November 1986 two GDR border guards shot at Mr Michael Bittner, aged 25, who was also trying to climb over the Berlin Wall using a ladder, hitting him in the back. He lost his balance, fell to the ground and died a few minutes later from a wound to the heart while he was being taken outside the border zone. The guards who had shot him were awarded medals and given a few days’ special leave.
On 12 February 1987 Mr Lutz Schmidt, aged 24, attempted to climb over the Berlin Wall with his friend, Mr Peter Schultze, aged 34, using a ladder. As the ladder was too short, the two men helped each other with their hands, but Mr Schultze fell on the west side of the Wall and Mr Schmidt on the east, where he was mortally wounded in the heart by shots fired by two GDR border guards. The guards who had shot him were awarded medals and given a few days’ special leave and a bonus of 300 German marks.
During the night of 5 to 6 February 1989 Mr Chris Gueffroy and Mr Christian Gaudian, both aged 20, attempted to climb over the Berlin Wall. Mr Gueffroy was shot by a GDR border guard and died instantly. Mr Gaudian received bullet wounds. The guards who had shot them were congratulated.
On the basis of the criminal law applicable in the GDR at the material time, the Regional Court first declared the third applicant guilty of incitement to murder (Articles 22 § 2 (1) and 112 § 1 of the StGB-DDR – see paragraph 32 below), basing its decision on the grounds it had already given for the convictions of the first two applicants in its judgment of 16 September 1993 (see paragraph 19 above). It then applied the criminal law of the FRG, as being more lenient than that of the GDR, and convicted the applicant as an indirect principal in the intentional homicides committed (Articles 25 and 212 of the StGB – see paragraph 44 below).
The Regional Court further held that the applicant could not plead in justification the fact that the GDR’s sovereignty had been limited by its dependence on the Soviet Union, since obligations arising from an alliance (Bündnisverpflichtung) did not absolve an individual of his criminal responsibility (strafrechtliche Verantwortung). In fixing the length of the applicant’s sentence, the Regional Court likewise applied the criminal law of the FRG, as it was more lenient than that of the GDR.
24. On 9 April 1998 the applicant appealed against the above judgment to the Federal Court of Justice, relying, in particular, on Article 103 § 2 of the Basic Law and the principle of the non-retroactive application of criminal laws.
25. After holding a hearing on 27 October 1999, the Federal Court of Justice gave judgment on 8 November 1999, upholding on every point the judgment of the Regional Court and referring to a number of landmark judgments it had previously delivered on the same issues, including, in particular, the judgment of 26 July 1994 (see paragraph 20 above).
It noted, moreover, that the Regional Court had meticulously detailed the successive instructions given in the case (Anordnungsketten), starting with the decisions of the Political Bureau and the National Defence Council in which the applicant had participated, going on to the military chain of command (militärische Befehlskette), and ending with the orders given to border guards and the fatal shootings.
26. On 12 January 2000, sitting as a panel of three judges, the Federal Constitutional Court refused to entertain a constitutional appeal by the applicant, referring, in particular, to its landmark judgment of 24 October 1996 (see paragraph 22 above).
27. The German Unification Treaty (Einigungsvertrag) of 31 August 1990, taken together with the Unification Treaty Act (Einigungsvertragsgesetz) of 23 September 1990, provides, in the transitional provisions of the Criminal Code (Articles 315 to 315 (c) of the Introductory Act to the Criminal Code (Einführungsgesetz in das Strafgesetzbuch), that the applicable law is in principle the law applicable in the place where an offence was committed (Tatortrecht). That means that, for acts committed by citizens of the GDR inside the territory of the GDR, the applicable law is in principle that of the GDR. Pursuant to Article 2 § 3 of the Criminal Code, the law of the FRG is applicable only if it is more lenient than GDR law.
28. The relevant provisions of the Constitution were the following:
“The generally recognised rules of international law intended to promote peace and peaceful cooperation between peoples are binding [sind verbindlich] on the State and every citizen.”
“Respect for and protection of the dignity and liberty of the person [Persönlichkeit] are required of all State bodies, all forces in society and every citizen.”
“(1) The person and liberty of every citizen of the German Democratic Republic are inviolable.
(2) Restrictions are authorised only in respect of conduct punishable under the criminal law ... and must be prescribed by law. However, citizens’ rights may be restricted only in so far as the law provides and when such restriction appears to be unavoidable [unumgänglich].”
“The Council of State shall lay down the principles to be followed in matters of national defence and security. It shall organise the defence of the State with the assistance of the National Defence Council.”
“Legal rules shall not contradict the Constitution.”
29. The first chapter of the Special Part (Besonderer Teil) of the StGB-DDR, entitled “Crimes against the national sovereignty of the German Democratic Republic, peace, humanity and human rights”, included the following introduction:
“The merciless punishment of crimes against the national sovereignty of the German Democratic Republic, peace, humanity and human rights, and of war crimes, is an indispensable prerequisite for stable peace in the world, for the restoration of faith in fundamental human rights [Wiederherstellung des Glaubens an grundlegende Menschenrechte] and the dignity and worth of human beings, and for the preservation of the rights of all.”
30. Article 95 of the StGB-DDR was worded as follows:
“Any person whose conduct violates human or fundamental rights, international obligations or the national sovereignty of the German Democratic Republic may not plead [kann sich nicht berufen auf] statute law, an order or written instructions in justification; he shall be held criminally responsible.”
31. Article 84 of the StGB-DDR provided:
“Crimes against peace, humanity or human rights, and war crimes shall not be subject to the rules on limitation set out in this law [laying down the limitation periods for the various categories of offences].”
32. Article 112 § 1 of the StGB-DDR prescribed a prison sentence of ten years to life for murder (Mord). Article 22 § 1 of the StGB-DDR contemplated the offence of participation (Teilnahme) in an offence, and in particular incitement (Anstiftung) to commit one. Article 22 § 2 provided that criminal responsibility was to be determined by the law defining the offence. Article 82 § 1 (5) of the StGB-DDR laid down a limitation period of twenty-five years for the prosecution of offences attracting a sentence of more than ten years’ imprisonment.
33. Article 119 of the StGB-DDR was worded as follows:
“Any person present at the scene of an accident or a situation in which human life or health are endangered who fails to lend necessary assistance within his capacity to provide, although able to do so without any real danger to his own life or health and without breaching other important obligations, must give a satisfactory account of his conduct to a social organ of justice [gesellschaftliches Organ der Rechtspflege] or shall be punished by a public reprimand, a fine, a suspended sentence or a term of imprisonment of up to two years.”
34. Article 213 of the StGB-DDR (1979 version) provided:
“(1) Any person who illegally crosses the border of the German Democratic Republic or contravenes provisions regulating temporary authorisation to reside in the German Democratic Republic and transit through the German Democratic Republic shall be punished by a custodial sentence of up to two years, a suspended sentence with probation, imprisonment or a fine.
...
(3) In serious cases the offender shall be sentenced to one to eight years’ imprisonment. Cases are to be considered serious, in particular, where
1. the offence [die Tat] endangers human life or health;
2. the offence is committed through the use of firearms or by dangerous means or methods;
3. the offence is committed with particular intensity;
4. the offence is committed by means of a forgery [Urkundenfälschung], falsified documents [Falschbeurkundung] or documents fraudulently used, or through the use of a hiding-place [Versteck];
5. the offence is committed jointly with others; or
6. the offender has already been convicted of illegally crossing the border.
(4) Preparations and attempts shall be criminal offences.”
35. Article 1 § 3 of the second chapter of the StGB-DDR, which defined the term “serious crime” (Verbrechen), was worded as follows:
“Serious crimes are attacks dangerous to society [gesellschaftsgefährliche Angriffe] against the sovereignty of the German Democratic Republic, peace, humanity or human rights, war crimes, offences against the German Democratic Republic and deliberately committed life-endangering criminal acts [vorsätzlich begangene Straftaten gegen das Leben]. Likewise considered serious crimes are other offences dangerous to society which are deliberately committed against the rights and interests of citizens, socialist property and other rights and interests of society, which constitute serious violations of socialist legality and which, on that account, are punishable by at least two years’ imprisonment or in respect of which, within the limits of the applicable penalties, a sentence of over two years’ imprisonment has been imposed.”
36. Article 258 of the StGB-DDR provided:
“(1) Members of the armed forces shall not be criminally responsible for acts committed in execution of an order issued by a superior save where the execution of the order manifestly violates the recognised rules of public international law or a criminal statute.
(2) Where a subordinate’s execution of an order manifestly violates the recognised rules of public international law or a criminal statute, the superior who issued that order shall also be criminally responsible.
(3) Criminal responsibility shall not be incurred for refusal or failure to obey an order whose execution would violate the rules of public international law or a criminal statute.”
37. Section 17 of the People’s Police Act, which came into force on 11 June 1968, provided:
“...
(2) The use of firearms is justified
(a) to prevent the imminent commission or continuation of an offence [Straftat] which appears, according to the circumstances, to constitute
– a serious crime [Verbrechen] against the sovereignty of the German Democratic Republic, peace, humanity or human rights
– a serious crime against the German Democratic Republic
– a serious crime against the person [Persönlichkeit]
– a serious crime against public safety or the State order
– any other serious crime, especially one committed through the use of firearms or explosives;
(b) to prevent the flight or effect the rearrest [Wiederergreifung] of persons
– who are strongly suspected of having committed a serious crime, or who have been arrested or imprisoned for committing a serious crime
– who are strongly suspected of having committed a lesser offence [Vergehen], or who have been arrested, taken into custody or sentenced to prison for committing an offence, where there is evidence that they intend to use firearms or explosives, or to make their escape by some other violent means or by assaulting the persons charged with their arrest, imprisonment, custody or supervision, or to make their escape jointly with others
– who have received a custodial sentence and been incarcerated in a high-security or ordinary prison;
(c) against persons who attempt by violent means to effect or assist in the release of persons arrested, taken into custody or sentenced to imprisonment for the commission of a serious crime or lesser offence.
(3) The use of firearms must be preceded by a shouted warning [Zuruf] or warning shot [Warnschuss], save where imminent danger may be prevented or eliminated only through targeted use of the firearm.
(4) When firearms are used, human life should be preserved wherever possible. Wounded persons must be given first aid, subject to the necessary security measures being taken, as soon as implementation of the police operation permits.
(5) Firearms must not be used against persons who appear, from their outward aspect, to be children, or when third parties might be endangered. If possible, firearms should not be used against juveniles [Jugendliche] or female persons.
...”
Under section 20(3) of the Act, these provisions were also applicable to members of the National People’s Army.
38. Section 27 of the State Borders Act, which came into force on 1 May 1982, and which replaced the People’s Police Act 1968, provided:
“(1) The use of firearms is the most extreme measure entailing the use of force against the person. Firearms may be used only where resort to physical force [körperliche Einwirkung], with or without the use of mechanical aids, has been unsuccessful or holds out no prospect of success. The use of firearms against persons is permitted only where shots aimed at objects or animals have not produced the result desired.
(2) The use of firearms is justified to prevent the imminent commission or continuation of an offence [Straftat] which appears in the circumstances to constitute a serious crime [Verbrechen]. It is also justified in order to arrest a person strongly suspected of having committed a serious crime.
(3) The use of firearms must, in principle, be preceded by a shouted warning or warning shot, save where imminent danger may be prevented or eliminated only through targeted use of the firearm.
(4) Firearms must not be used when
– the life or health of third parties may be endangered;
– the persons appear, from their outward aspect, to be children; or
– the shots would impinge on the sovereign territory of a neighbouring State.
If possible, firearms should not be used against juveniles [Jugendliche] or female persons.
(5) When firearms are used, human life should be preserved where possible. Wounded persons must be given first aid, subject to the necessary security measures being taken.”
39. Under the legal provisions on the issue of passports and visas in the GDR (the Passport Act (Passgesetz) of 1963 and the Passport Act and Order on Passports and Visas of 28 June 1979, as supplemented by the Order of 15 February 1982 (Passgesetz und Pass- und Visaanordnung vom 28. Juni 1979, ergänzt durch die Anordnung vom 15. Februar 1982)), it was impossible until 1 January 1989, for persons who enjoyed no political privileges, had not reached retirement age or had not been exempted on account of certain types of urgent family business, to leave the GDR legally.
Under Article 17 of the Order of 28 June 1979, no reasons had to be given before 1 January 1989 for decisions on applications for permission to leave, and no appeal lay against such decisions until the Order on Visas of 30 November 1988 was promulgated.
40. The United Nations International Covenant on Civil and Political Rights was ratified by the GDR on 8 November 1974 (see paragraph 20 above).
The relevant provisions of the Covenant are worded as follows.
“1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.”
“2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order [ordre public], public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant.”
41. Before German reunification several members of the United Nations Human Rights Committee, which is charged under Article 28 of the Covenant with the task of ensuring that the Contracting Parties fulfil their obligations, expressed criticisms of the border-policing regime set up in the GDR.
The summary records of the 533rd and 534th meetings of the Human Rights Committee refer to the following comments, among other criticisms.
On 19 July 1984 Sir Vincent Evans, the British member of the Committee, pointed out
“[that with] respect to automatic weapons positioned along frontiers ... Article 6 § 2 of the Covenant authorised capital punishment ‘only for the most serious crimes’. An attempt to cross a frontier, even illegally, could in no case be considered a most serious crime. The killing of a person in such circumstances was simply a summary execution, without trial – a practice that was unjustifiable under Article 6.”
Sir Vincent also said
“that ... he was not convinced that the German Democratic Republic was really complying with the provisions of Article 12 of the Covenant. Everyone had the basic freedom to leave his own country; some restrictions were permitted by Article 12 § 3, but on three grounds only. The basic principle which determined whether or not persons might leave the German Democratic Republic was consistency with the rights and interests of that country; that seemed unduly broad when compared to the provisions of Article 12 § 3 of the Covenant.”
On the same day Mr Birame Ndiaye, the Senegalese member of the Committee, said
“that ... it seemed that the Government of the German Democratic Republic envisaged the possibility of restricting freedom of movement on grounds other than those provided for in Article 12 of the Covenant”.
42. By Resolution 1503, adopted in 1970, the United Nations Economic and Social Council put in place a procedure under which individuals could refer complaints to the Commission on Human Rights, which was charged with investigating whether these complaints revealed the existence of a “consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms”.
On account of its restrictive policy on the freedom of movement, the GDR was repeatedly criticised under the Resolution 1503 procedure for failure to comply with the general obligation to respect human rights enshrined in Articles 1 § 3, 55 and 56 of the United Nations Charter. Thus, in the years 1981 to 1983, the GDR appeared in the list of countries to be examined under the Resolution 1503 procedure, as more than fifty persons (the number required for it to be possible to speak of a “consistent pattern of gross violations”) had complained to the Commission on Human Rights about the GDR’s policy of holding its people captive. However, the GDR authorised some of the complainants to leave its territory, thus succeeding in bringing their number below fifty and avoiding censure.
43. Article 103 § 2 of the Basic Law (Grundgesetz) provides:
“An act shall not be punishable unless it has been so defined by law before it was committed.”
44. Article 212 of the FRG’s Criminal Code (“the StGB”) prescribes a prison sentence of from five years to life, in particularly serious cases, for intentional homicide (Totschlag). Article 25 of the StGB provides that the perpetrator of an offence is the person who committed it or who caused another to act in his place (mittelbare Täterschaft).
45. The instrument of ratification of the Convention deposited by the German government on 13 November 1952 included a reservation and a declaration worded as follows:
“In conformity with Article 64 of the Convention [Article 57 since the entry into force of Protocol No. 11], the German Federal Republic makes the reservation that it will only apply the provisions of Article 7 paragraph 2 of the Convention within the limits of Article 103 paragraph 2 of the Basic Law of the German Federal Republic. This provides that any act is only punishable if it was so by law before the offence was committed.
The territory to which the Convention shall apply extends also to Western Berlin.”
NON_VIOLATED_ARTICLES: 14
7
NON_VIOLATED_PARAGRAPHS: 7-1


ITEMID: 001-94229
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF IORDANIS IORDANOU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 8 - Right to respect for private and family life
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: 7. The applicant was born in 1923 and lives in Nicosia.
8. The applicant stated that he was born in Karavas, a village on the coast in the Kyrenia district of northern Cyprus. On the death of his father, he inherited the house, located at 15, Lambousa Street, in which he had lived throughout his childhood. It was situated on plots nos. 268 and 269, sheet/plan XI/16W1 and 8W2, and was registered in the name of the applicant by virtue of registration no. 5725 of 23 March 1956; it consisted of three ground floor rooms, two basement rooms, one kitchen, two wells, one turbine water pump and one water storage tank. The applicant continued to make use of this house, where his sister lived, until July 1974.
9. However, when he married in 1963, the applicant moved to a house nearby which he had purchased. It was situated on plots nos. 20 and 21/3, sheet/plan XI/16W2.E1, and was registered in the name of the applicant by virtue of registration no. 5678 of 23 January 1970. This second house, located at 10, Kanaris Street, consisted of three ground floor rooms, one room upstairs, two wells, one electric water pump and one water storage pump.
10. The applicant also owned three plots of land in Karavas, some of which were lemon groves, with olive and carob trees growing on the others, and a share in a natural water spring. These properties were registered as follows:
(a) plot no. 273, sheet/plan XI/16W1, field with lemon groves of a total extent of 6,355 m², registered in the name of the applicant by virtue of registration no. 151 of 23 March 1956;
(b) plot no. 25, sheet/plan XII/18W1, field with carob and olive trees of a total extent of 11,372 m², registered in the name of the applicant by virtue of registration no. 4091 of 16 April 1957;
(c) plots nos. 76 and 79, sheet/plan XII/18W1, field with carob and olive trees of a total extent of 35,452 m², registered in the name of the applicant by virtue of registration no. 4269 of 23 January 1970;
(d) plot no. 140, sheet/plan XI/24W2, source of running water, registered for the 1/224 share in the name of the applicant.
11. In support of his claim to ownership the applicant produced the original Land Certificates concerning each of his alleged properties, with the exception of the house described under paragraph 9 above. He alleged that the relevant Land Certificate had been submitted to the Kyrenia Land Survey Office for amendment in June 1974 and had been lost due to the Turkish invasion. He therefore produced an extract from the registries of the Republic of Cyprus, dated 29 June 1993, and indicating that the property at issue was registered in his name.
12. Upon the 1974 Turkish intervention, the applicant left with his wife and two children for Limassol, southern Cyprus. He claimed that he had been deprived of his property rights, all his property being located in the area which was under the occupation and control of the Turkish military authorities. The latter had prevented him from having access to and from using and possessing his houses and fields.
VIOLATED_ARTICLES: 8
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-72900
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: TANASENKO v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs Lyubov Tanasenko, is a Ukrainian national, who was born in 1937 and lives in the village of Liubitkoe, Ukraine. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Pârlog.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1998 the applicant brought a civil action against a person who refused to pay his debt to her (N.).
On 6 April 1998 the Botanica District Court found for the applicant and ordered N. to pay her 56.447 Moldovan lei.
The applicant obtained an enforcement warrant which the Bailiff did not enforce.
The applicant requested and obtained, on 1 July 1998, a court order for the seizure of N.’s apartment.
N. requested the same court to lift the seizure and on 22 November 1999 this request was granted. On 30 December 1999 N. purchased the apartment from the State (in the privatisation process).
The applicant requested a new order for the seizure of N.’s apartment, which was granted on 16 February 2000. This order was annulled by the same court on 16 March 2000.
On 24 March 2000 the same court issued another order for the seizure of N.’s apartment, which was annulled on 28 April 2000. The applicant did not appeal against any of the court decisions to annul the seizures.
On 3 May 2000 the apartment was sold to a third party; N. left for Russia.
The applicant subsequently complained about the non-enforcement of the decision to various authorities, which responded that enforcement was not possible in view of the fact that the applicant’s debtor lacked any assets and had left the country.
The judgment of 6 April 1998 has not been enforced to date.
The relevant domestic law has been set out in this Court’s judgment in the case of Prodan v. Moldova, no. 49806/99, ECHR 2004... (extracts).


ITEMID: 001-5650
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: D.D. v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Polish national, a teacher born in 1957 and living in Bielsko-Biała. She is represented before the Court by Mr W. Hermeliński, a lawyer practising in Warsaw, Poland.
The respondent Government are represented by Mr K. Drzewicki of the Ministry of Foreign Affairs, Agent.
At the oral hearing on 19 October 1999 the parties were represented by:
(a) the Government
Mr K. Drzewicki, Agent,
Mr K. Karpiński, Counsel,
Mrs B. Drzewicka,
Mr A. Kaliński,
Mrs M. Wąsek-Wiaderek,
Mrs R. Kowalska, Advisers;
(b) the applicant
Mr W. Hermeliński, Counsel
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant and her brother are co-owners of a house. The applicant lives on the first floor and her brother on the ground floor. In September 1993 the applicant complained to the local police that her brother had been harassing her and trying to coerce her, by disconnecting the heating system of her apartment, into agreeing to certain alterations in the house.
On 25 April 1994 the Bielsko-Biała District Prosecutor discontinued the criminal proceedings against the applicant’s brother which had been instituted at the applicant’s request. On 23 June 1994 the Bielsko-Biała Regional Prosecutor dismissed the applicant’s appeal against this decision. Subsequently, the applicant complained to the Katowice Appeal Prosecutor, alleging that there had been serious deficiencies in the investigations.
In September 1994 policemen from the local station kept coming to the applicant’s apartment, often as late as 11 p.m., to question her about the dispute with her brother. On 7 September 1994 the applicant complained thereof to the Bielsko-Biała Regional Prosecutor.
On 7 September 1994 the applicant’s brother submitted a complaint to the local police station that the applicant had cut off the electricity in his apartment. On the same date the police took steps to contact the applicant.
On 12 September 1994 she came to the Regional Police Headquarters and requested the Chief Regional Officer to explain the reasons for her being harassed by the Police.
On 14 September 1994 at 6.40 a.m. two policemen and the electricians from the local electricity station, having stated that there was no electricity in the applicant’s brother apartment, made an unsuccessful attempt to visit the applicant’s apartment.
In a letter of 14 September 1994 the Katowice Appeal Prosecutor informed the Bielsko-Biała Regional Prosecutor of the results of the inquiry into the applicant’s complaint about the alleged deficiencies in the criminal investigations against her brother, which had been discontinued in June 1994. It was stated in this letter that, in order to establish relevant facts, the applicant herself should have been given an opportunity to give evidence in those investigations. The purpose of the investigations had erroneously been limited to establishing whether her brother had forged her signature on certain documents relating to their property, even though there had been ample evidence to support coercion charges against him, in particular as he had cut off the heating system of the applicant’s apartment. The Appeal Prosecutor stressed that throughout the investigations the applicant’s requests that certain evidence be taken had been disregarded without any justification. In conclusion, the Appeal Prosecutor ordered that the criminal proceedings against the applicant’s brother be resumed in order to remedy these shortcomings.
On 21 September 1994 the police instituted investigations concerning the complaint submitted by the applicant’s brother on 7 September and relating to charges of coercion committed by cutting off the electric current in his apartment. On 23 September 1994 two policemen came to the school where the applicant worked and tried to serve on her a summons to the police station for that day. She refused to accept it and requested that it be sent to her by post.
On 26 September 1994 a hearing in civil proceedings between the applicant and her brother was held in the Bielsko-Biała District Court. At 11.30 a.m., as the applicant was leaving the court building, she was arrested by two policemen, one in plainclothes and one in uniform. She was subsequently asked to accompany them to the police car. The applicant refused to comply, whereupon she was warned that coercive measures would be used if she persisted in her refusal. The applicant said that she would not obey and tried to walk away. Upon her arrest she was hit several times, pushed and jostled, and pushed out of the court building. The policemen caught her by both hands and brought her to the police car, parked nearby. The applicant resisted arrest by trying to get away, kicking and crying. After she was brought to the car, she refused to get in. As she was being pushed, crying, by two policemen into an unmarked car, the parking assistant helped them to shove her into the car.
At the police station the applicant was informed, at an unspecified time, that she had made it impossible for her brother, who lived in the same building, to use the electric installation. Later on, approximately at 2.30 p.m. a policeman received a prosecutor’s decision authorising a search of the applicant’s apartment, limited to an inspection of the electric installation. On the way to the applicant’s apartment, the policemen granted her request to fetch her father, who was present at the search. Having checked the installation, an electrician from the electricity board declared that one fuse in the fuse-box was blown and replaced it, whereupon the installation in the applicant’s brother’s apartment started to work normally. The applicant was not allowed to participate in the checking of the installation. The applicant was released at 6.30 p.m., after which the applicant was released at 6.30 p.m., she went to the emergency services, where she was given tranquillisers.
On 27 September 1994 the applicant was given sick leave of eight days.
On 28 September 1994 doctor S.S. issued a medical certificate at the applicant’s request, stating that she had several painful areas on her head and chest, and that she suffered from general nervous exhaustion.
On 30 September 1994 the applicant complained to the Bielsko-Biała District Court about her wrongful arrest on 26 September 1994 and about the manner in which it had been effected. She submitted in particular that the detention had been unlawful as she had never received any summons before the date of her arrest, either by post or by hand. Thus the legal requirements of detention had not been complied with. She contended that the record of her arrest was inaccurate and failed to recount relevant details, such as her complaint that she had felt unwell throughout her detention. She further complained about having been pushed, jostled and intimidated by the policemen. She stated that one of them had been particularly aggressive towards her, pushing her violently and hitting her on the head. Her brother, who had been a witness to her arrest, had told her that she would finally be “dealt with”. When taken to the police station, she had been refused permission to use the telephone. She had also been refused permission to use the toilet. The policemen had intimidated her, and her complaints that she felt unwell had been ignored. She had briefly been presented with a document containing charges against her, but it had been immediately taken away. She had been told that her brother had lodged a complaint against her and that she had to be questioned to investigate this complaint. She also stated that her request to be given the record of the arrest had not been complied with, at least until the time when she was lodging her complaint with the District Court.
The applicant concluded that she had been wrongfully arrested, especially given the nature of the offence concerned. She had not received any summonses by post, in particular none dated 20 September 1994.
The following medical documents were submitted to the court as annexes to the applicant’s complaint: first, the copy of an information card, issued by the Regional Emergencies Centre in Bielsko-Biała on 26 September 1994 at 10.30 p.m. in which a physician on duty had recommended that the applicant undergo medical treatment on an outpatient basis in the local clinic; secondly, a copy of the applicant’s eight-day sick leave of 27 September 1994; and a copy of a medical certificate issued by doctor S.S. on 28 September 1994.
Further, the applicant supplied the record of her arrest on 26 September 1994. She further submitted the search order for her apartment , given by the District Prosecutor and a copy of her complaint of 20 September 1994 to the Head of the Regional Police Headquarters.
On 3 October 1994 the police charged the applicant with coercion in that she had refused her brother access to the electricity fuses. On the same day the applicant’s sick leave was prolonged for a further eleven days.
On 4 October 1994 the President of the Bielsko-Biała District Court rejected the applicant’s complaint, finding that it had been filed with the court outside the forty-eight-hour time-limit.
On 14 October 1994 the Bielsko-Biała Police station supplemented the charges of 3 October 1994 with a charge that the applicant had unlawfully resisted arrest on 26 September 1994.
On 19 October 1994 the applicant filed an appeal with the Bielsko-Biała Regional Court against the decision of 4 October 1994, arguing that in fact the time-limit to complain about a wrongful arrest was seven days and not forty-eight hours as held by the District Court.
On 20 October 1994 the applicant complained to the Bielsko-Biała Regional Police Headquarters about the manner in which her arrest had been effected. She submitted that the police had acted unlawfully in that her detention had been unjustified; that she had never received any summons prior to her arrest; that she had not committed any offence; and that she had been refused any information as to the grounds for her arrest. She contended that she had been intimidated by the police. She submitted that the police had arrested and harassed her as a “personal favour” to her brother, who had many friends among the police. She submitted that her arrest and detention were in breach of Articles 3 and 5 of the Convention and constituted an abuse of power within the meaning of the Police Act.
On 3 November 1994 the applicant’s parents, in a letter to the Bielsko-Biała District Prosecutor, stated that the applicant’s brother had had electricity in his apartment during the material period and had never complained to them that the applicant had been causing him any difficulties in using the electric installations.
On 22 November 1994 the Bielsko-Biała Regional Court quashed the decision of 4 October 1994, considering that the applicant had complied with the applicable time-limit of seven days for lodging complaints about wrongful arrest, and referred the case back to the District Court.
On 30 December 1994 the Bielsko-Biała District Prosecutor lodged an indictment against the applicant with the Bielsko-Biała District Court. She was charged with coercion in that from 6 to 27 September 1994 she had refused her brother access to the main electricity fuses in her apartment and that this had deprived him of electricity. She was further charged with unlawfully resisting arrest on 26 September 1994.
On 10 January 1995 the Bielsko-Biała District Court dismissed the applicant’s complaint about her wrongful arrest.
The Government contend that the court considered, inter alia, the following evidence in the case-file: the applicant’s complaint of 20 September 1994 to the Regional Headquarters of the Police, two letters by the applicant’s brother dated 7 September 1994 requesting the prosecutor to institute proceedings against the applicant, seven reports of the police officers concerning the circumstances of the applicant’s arrest, the decision of 23 September 1994 to bring charges against the applicant, and records of testimony given by two eye witnesses.
The case-file further contained records of the administrative proceedings undertaken following the applicant’s complaints filed with the Regional Police Headquarters. The Government contend that it was established in these proceedings that the policemen involved in the applicant’s arrest on 26 September 1994 had acted in conformity with the law and that there had been no abuse of their powers.
In its decision of 10 January 1995, the Bielsko-Biała District Court found that the police had twice tried to visit the applicant in her apartment to inspect the electric installations, on 9 and 14 September 1994, and that the applicant had refused to let them in. On 20 September 1994 the applicant had received a summons for 23 September 1994 by registered post and she had failed to comply with it. The applicant had also refused to receive the summons at her workplace in the presence of her superior, A.P. In these circumstances the applicant’s arrest had been lawful as it was only by arresting her that the policemen could, acting upon the Public Prosecutor’s orders, question her and inform her of the charges.
On 24 January 1995 the applicant filed an appeal against the decision of 10 January 1995 with the Bielsko-Biała Regional Court. She argued that there was no trace of evidence in the case-file that the police had tried to contact her at her apartment on 9 and 14 September 1994. As regards the summons for 23 September 1994, it was only at the same date that the post office had informed her that a registered letter was to be served on her, with a time-limit fixed for 27 September 1994. She further stated that she had taken this summons from the post office on that date and emphasised that there had not been any previous summonses. As to the summons which the applicant had allegedly refused to accept at her workplace in the presence of A.P., the headmaster, the applicant referred to a written statement of the latter in which she had declared that no attempt had been made to serve the summonses on the applicant at school. She further stressed that the irregularities in the issuing and service of the summonses were clearly attributable to the police. The applicant concluded that arresting in a public place a person who had not jeopardised the conduct of the investigations in any way, who had a permanent address and a permanent job, should therefore be seen as an abuse of power by the police.
On 29 January 1995 a forensic medical expert stated in a certificate issued upon the applicant’s request that the injuries suffered by her as shown in the medical documents could have originated from the events of 26 September 1994 as described by the applicant.
On 31 January 1995 the President of the Bielsko-Biała District Court rejected the applicant’s appeal as no appeal lay against the court’s decision of 10 January 1995.
On 25 May 1995 the Bielsko-Biała Regional Court upheld the rejection of the applicant’s appeal against the decision of 31 January 1995, finding that the President of the District Court had been right in holding that no appeal lay against a dismissal of a complaint against a decision on allegedly unlawful arrest.
On 15 September 1998 the Bielsko-Biała District Court found that the offence of coercion with which the applicant had been charged, had ceased to constitute a criminal offence under the provisions of the new Criminal Code which had entered into force on 1 September 1998, and, accordingly, discontinued the proceedings.
On the same date the District Court discontinued the criminal proceedings against the applicant relating to the charges of resisting arrest. The court found that on 26 September 1994 two policemen, D.S. and W.M., came to the Bielsko-Biała District Court to arrest the applicant. On 12 a.m. approximately they had done so. They had given her their names, grades and ordered her to follow them to the police car. The applicant had said that she was under no obligation to obey their orders and had begun to walk away. Thereupon the policemen had caught her by arms and had led to the police car. The applicant had been crying, trying to get away and kicking. She had also refused to get into the car. Then D.S. had got into the car and, holding her by her arm, pulled her inside. A parking attendant S.S. had helped him by forcing the applicant’s head down. Subsequently the applicant had been taken by car to the police station.
The court relied on evidence given by one of the policemen, D.S., by the applicant’s brother and by two other witnesses, S.S. and A.P.
The court further observed that the applicant had denied all charges. She had stated that on the material date she had been approached by two men who assaulted her and forced her to go to the parking beside the court building. There she had been hit on the head several times and pushed into the car.
The court had regard to the applicant’s submissions, but found that they were contradicted by the submissions of other witnesses. Witness D.S., a policeman, had submitted that he had arrested the applicant together with W.M., having given his name and grade to the applicant, and having ordered her to follow their orders. Since she had refused to comply, they had got hold of her and had taken her to the car. She had been kicking and trying to get away. The court noted that his submissions were corroborated by the testimony of the applicant’s brother who had also been present at the scene, and by those of S.S., the parking assistant, who had stated that he had helped the policemen to put the applicant into the car by pushing her head down. The latter witness had also confirmed that the applicant had been kicking and trying to get away. Also, witness A.P. had confirmed that the applicant had not wanted to get into the car and kept resisting.
The court considered as credible the testimony of all the witnesses who had given a concordant recount of the material events. The testimony of D.S. had been corroborated by the evidence given by other impartial witnesses who had accidentally been present at the scene. The court further considered that the applicant’s conduct amounted to an offence with which she had been charged. However, the court decided to discontinue the proceedings, finding that the seriousness of the offence was infinitesimal. In taking this decision the court took into consideration the circumstances in which the offence had been committed, and in particular the context, i.e. the fact that the applicant had been involved in a conflict with her brother, which manifested itself in numerous civil and criminal proceedings to which they were parties. The court observed that the applicant had been acting under an intense emotional stress and her motives could not be considered as contemptible.
Acts of ill-treatment causing physical harm amount to criminal offences prosecuted under the relevant provisions of the Criminal Code on various forms of assault. In instances concerning ill-treatment amounting to moral harm, in particular an attack on the privacy or dignity of the person concerned, a victim may use two remedies. Firstly, in cases concerning acts committed by police officers the victim can, under Article 142 of the Police Act of 6 April 1990, request the prosecutor to institute criminal proceedings against police officers involved in any incident which allegedly infringed his or her privacy or other personal rights, such as dignity or physical inviolability.
Pursuant to Article 255 of the Code of Criminal Procedure of 1969, applicable at the relevant time, the authorities had to open criminal proceedings ex officio in any case in which suspicion arose that a criminal offence had been committed.
Article 417 § 1 of the Civil Code provides that the State Treasury shall be liable for damage caused by a State agent in the exercise of his or her duties.
According to the case-law of the Polish Supreme Court, a plaintiff seeking damages under Section 417 of the Civil Code must show that the act in question is unlawful and that the State agent committed a fault (the Supreme Court judgments: No. I PR 468/70 of 29.12.1970, unpublished, No. I CR 24/71 of 19.4.1971, unpublished and No. I CR 152/74 of 11.4.1974, unpublished).
Under Article 205 of the Polish Code of Criminal Procedure, as applicable at the relevant time, the police could arrest a person if there were reasonable grounds for suspicion that he or she had committed an offence and if there was a risk of absconding or collusion.
Chapter 50 of the Code of Criminal Procedure of 1969, provided in its Article 487 § 4 for compensation regarding damages arising out of obviously unjustified detention on remand and for arrest and detention up to 48 hours. The Regional Court in whose jurisdiction the detained person had been released was competent to examine whether the conditions for awarding compensation were met. The decision of the Regional Court could be appealed against to the Court of Appeal.
According to Article 489 of the Code, a request for compensation for manifestly unjustified detention on remand had to be lodged within one year from the date on which the final decision terminating the criminal proceedings in question had become final. Therefore, in practice, a request for compensation for unjustified detention under Article 487 of the Code of Criminal Procedure could not be lodged until the criminal proceedings against the person concerned were terminated (see also the decision of the Supreme Court no. WRN 106/96, 9.1.96, published in Prok. iinter alia, the decision of the Supreme Court no. II KRN 124/95, 13.10.95, published in OSNKW 1996/1-2/7).
Chapter 58 of the new Code of Criminal Procedure of 1997 provides for a request for compensation for, inter alia, unjustified detention. Current Article 552 § 4 of the Code is the equivalent of Article 487 § 4 of the Code of 1969.
The modalities for permissible use of direct coercive measures by the police are laid down by Article 16 of the Police Act, which provides that in situations in which a police order is not obeyed, such measures can be resorted to only insofar as they correspond to the requirements of a particular situation and insofar as they are necessary to obtain compliance with that order.
The Ordinance of 17 September 1990 on the Use of Coercive Measures by the Police provides in its Article 5 § 1 that direct physical force can be used to overpower a person, to counter an attack and to ensure compliance with an order. When such force is being used, it is forbidden to strike the person against which the action is being carried out, unless in self-defence or to counter an attack against another person’s life, health or property.


ITEMID: 001-92484
LANGUAGEISOCODE: ENG
RESPONDENT: MNE;SRB
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BIJELIC v. MONTENEGRO AND SERBIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of P1-1;Pecuniary and non-pecuniary damage - award
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nebojša Vučinić;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 10. The first, second and third applicants were born in 1950, 1973 and 1971, respectively, and currently live in Belgrade, Serbia.
11. The facts of the case, as submitted by the parties, may be summarised as follows.
12. The first applicant, her husband and the other two applicants were holders of a specially protected tenancy concerning a flat in Podgorica (nosioci odnosno korisnici stanarskog prava), Montenegro, where they lived.
13. In 1989 the first applicant and her husband divorced and the former was granted custody of the other two applicants.
14. On 26 January 1994 the first applicant obtained a decision from the Court of First Instance (Osnovni sud u Podgorici) declaring her the sole holder of the specially protected tenancy on the family’s flat. In addition, her former husband (“the respondent”) was ordered to vacate the flat within fifteen days from the date when the decision became final.
15. On 27 April 1994 the decision of the Court of First Instance was upheld on appeal by the High Court (Viši sud u Podgorici) and thereby became final.
16. Given that the respondent did not comply with the court order to vacate the flat, on 31 May 1994 the first applicant instituted a formal judicial enforcement procedure before the Court of First Instance.
17. The enforcement order was issued on the same date.
18. On 8 July 1994 the bailiffs attempted to evict the respondent together with his new wife and minor children but the eviction was adjourned because he threatened to use force.
19. On 14 July 1994 they tried again, this time assisted by the police, but apparently the planned eviction was adjourned for the same reason.
20. On 15 July 1994 the first applicant bought the flat and became its owner.
21. On 26 October 1994 the bailiffs and the police once again failed to evict the respondent who kept threatening the first applicant in their presence and bore arms on his person. There also appear to have been additional weapons, ammunition and even a bomb in the flat at the time. The police took the respondent to their station but released him shortly afterwards without pressing charges.
22. On 28 November 1994 and 16 March 1995 another two scheduled evictions failed, the latter due to the “respondent’s request for the provision of social assistance” in respect of his minor children.
23. On 23 October 1995 the first applicant gifted the flat to the second and third applicants.
24. On 3 June 1996 and 1 August 1996, respectively, another two scheduled evictions failed.
25. On 3 June 1998 the Ministry of Justice informed the first applicant that the Court of First Instance had committed to enforce the eviction order before the end of the month.
26. On 27 October 1998 and 1 November 1999 another two scheduled evictions failed.
27. In the meantime, on 13 August 1999, the Real Estate Directorate (Direkcija za nekretnine) issued a formal decision recognising the second and the third applicants as the new owners of the flat in question.
28. In March of 2004 another eviction was attempted but failed. In the presence of police officers, fire fighters, paramedics, bailiffs and the enforcement judge herself, as well as his wife and their children, the respondent threatened to blow up the entire flat. His neighbours also seem to have opposed the eviction, some of them apparently going so far as to physically confront the police.
29. Throughout the years the first applicant complained to numerous State bodies about the non-enforcement of the judgment rendered in her favour, but to no avail.
30. On 9 February 2006 another scheduled enforcement failed because the respondent had threatened to “spill blood” rather than be evicted.
31. On 5 May 2006 and 31 January 2007, respectively, the enforcement judge sent letters to the Ministry of Internal Affairs, seeking assistance.
32. On 15 February 2007 the enforcement judge was told, at a meeting with the police, that the eviction in question was too dangerous to be carried out, that the respondent could blow up the entire building by means of a remote control device, and that the officers themselves were not equipped to deal with a situation of this sort. The police therefore proposed that the applicants be provided with another flat instead of the one in question.
33. On 19 November 2007 the enforcement judge urged the Ministry of Justice to secure the kind of police assistance needed for the respondent’s ultimate eviction.
34. On 26 March 2004 the second applicant, on her own behalf and on behalf of the third applicant, authorised the first applicant to sell the flat in question.
35. On 30 January 2006 the second and third applicants authorised the first applicant, inter alia, to represent them in the enforcement proceedings.
36. The applicants maintain that the gift contract of 1995 (see paragraph 23 above) and the said powers of attorney were submitted to the enforcement court. The first applicant was therefore the second and third applicants’ legal representative in the enforcement proceedings.
37. The relevant provisions of this Charter read as follows:
“The Member States shall regulate, ensure and protect human and minority rights and civic freedoms in their respective territories.
...
[The State Union of] ... Serbia and Montenegro shall monitor the implementation of human and minority rights and civic freedoms and ensure their protection if such protection has not been provided in the Member States.”
“Should Montenegro break away from the State Union of Serbia and Montenegro, the international documents pertaining to the Federal Republic of Yugoslavia, particularly the United Nations Security Council Resolution 1244, would concern and apply ... to Serbia as the successor.
The Member State which ... [breaks away] ... shall not inherit the right to international legal personality, and any disputable issues shall be regulated separately between the successor State and the newly independent State.”
38. The relevant provisions of this Charter read as follows:
“The human and minority rights guaranteed under this Charter shall be directly regulated, secured and protected by the constitutions, laws and policies of the Member States.”
39. The relevant part of this Opinion reads as follows:
“The domestic legal system offers no legal remedy against violations of the right to a hearing within a reasonable time, which is why the courts in the Republic of Montenegro have no jurisdiction to rule in respect of claims seeking non-pecuniary damages caused by a breach of this right. Any person who considers himself a victim of a violation of this right may therefore lodge an application with the European Court of Human Rights, within six months as of the adoption of the final judgment by the domestic courts.
[When asked to rule in respect of the compensation claims referred to above] ... the courts in the Republic of Montenegro must refuse jurisdiction ... and declare ... [them] ... inadmissible (pursuant to Article 19 para. 3 of the Civil Procedure Code).”
40. The relevant provisions of the Constitution read as follows:
“The Constitutional Court shall ...
(3) ... [rule on a] ... constitutional appeal ... [filed in respect of an alleged] ... violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted ...”
41. This Constitution entered into force on 22 October 2007.
42. The relevant provisions of this Act read as follows:
“Provisions of international treaties on human rights and freedoms, to which Montenegro acceded before 3 June 2006, shall be applied to legal relations which have arisen after their signature.”
43. This Act also entered into force on 22 October 2007.
44. Articles 48-59 provide additional details as regards the processing of constitutional appeals.
45. This Act entered into force in November 2008.
46. This Act provides, under certain circumstances, for the possibility to have lengthy proceedings expedited, as well as an opportunity for the claimants to be awarded compensation therefor.
47. Article 44, in particular, provides that this Act shall be applied retroactively to all proceedings as of 3 March 2004, but that the duration of proceedings before that date shall also be taken into account.
48. This Act entered into force on 21 December 2007, but contained no reference to the applications involving procedural delay already lodged with the Court.
49. Pursuant to Article 7 § 1 the police are obliged to assist other State bodies in the enforcement of their decisions if there is physical resistance or such resistance may reasonably be expected.
50. Article 4 § 1 provides that the enforcement court is obliged to proceed urgently.
51. Under Article 47, if needed, the bailiff may request police assistance; should the police fail to provide such assistance, the enforcement court shall inform thereof the Minister of Internal Affairs, the Government, or the competent parliamentary body.
52. Finally, Article 23 § 1 states that enforcement proceedings shall also be carried out at the request of a person not specifically named as the creditor in the final court decision, providing he or she can prove, by means of an “official or another legally certified document”, that the entitlement in question has subsequently been transferred to that individual from the original creditor.
53. On 3 March 2004 the Convention and Article 1 of Protocol No. 1 entered into force in respect of the State Union of Serbia and Montenegro.
54. On 3 June 2006 the Montenegrin Parliament adopted its Declaration of Independence.
55. On 14 June 2006 the Committee of Ministers of the Council of Europe, inter alia, noted that:
“1. ... the Republic of Serbia will continue the membership of the Council of Europe hitherto exercised by the ... [State Union] ... of Serbia and Montenegro, and the obligations and commitments arising from it;
2. ... the Republic of Serbia is continuing the membership of [the State Union of] Serbia and Montenegro in the Council of Europe with effect from 3 June 2006; ...
4. ... the Republic of Serbia was either a signatory or a party to the Council of Europe conventions referred to in the appendix ... to which [the State Union of] Serbia and Montenegro had been a signatory or party [including the European Convention on Human Rights]; ...”
56. Finally, on 7 and 9 May 2007 the Committee of Ministers decided, inter alia, that:
“2. ... a. ... the Republic of Montenegro is to be regarded as a Party to the European Convention on Human Rights and its Protocols No. 1, 4, 6, 7, 12, 13 and 14 thereto with effect from 6 June 2006; ...”
57. The relevant provisions of the Statute read as follows:
“Any European State which is deemed to be able and willing to fulfil the provisions of Article 3 may be invited to become a member of the Council of Europe by the Committee of Ministers. Any State so invited shall become a member on the deposit on its behalf with the Secretary General of an instrument of accession to the present Statute.”
“The Committee of Ministers shall, subject to the provisions of Articles 24, 28, 30, 32, 33 and 35, relating to the powers of the Consultative Assembly, decide with binding effect all matters relating to the internal organisation and arrangements of the Council of Europe. For this purpose the Committee of Ministers shall adopt such financial and administrative arrangements as may be necessary.”
58. The Human Rights Committee has made clear, in the context of obligations arising from the International Covenant on Civil and Political Rights, that fundamental rights protected by international treaties “belong to the people living in the territory of the State party” concerned. In particular, “once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in government of the State party, including dismemberment in more than one State or State succession” (General Comment No. 26: Continuity of obligations: 08/12/97, CCPR/C/21/Rev.1/Add. 8/ Rev.1).