ITEMID: 001-23456
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: FREIHEITLICHE PARTEI ÖSTERREICHS, LANDESGRUPPE NIEDERÖSTERREICH v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Mark Villiger
TEXT: The applicant, Freiheitliche Partei Österreichs, Landesgruppe Niederösterreich is the regional branch of the Austrian Freedom Party in Lower Austria. It is represented before the Court by Oberhofer, Fink & Lechner, lawyers practising in Innsbruck.
In December 1997 Mr H. Grabscheit, deputy mayor of Weistrach/Lower Austria and member of the Lower Austrian Regional Branch of the Austrian People’s Party (Österreichische Volkspartei Niederösterreich), published in the municipality’s party magazine “Weistracher Nachrichten”, inter alia, the following phrase:
“They are sitting in Regional Governments where a minister really ought to work for the benefit of the Land, but instead they are sabotaging the work of the Land from within the Regional Government. (Schnell in Salzburg, Schimanek in Lower Austria).”
Subsequently, Mr Schimanek, Minister of the Lower Austria Regional Government (Landesrat der Niederösterreichischen Landesregierung), lodged injunction proceedings under Section 1330 of the Civil Code (ABGB) against Mr Grabscheit. The proceedings were settled with the following disclaimer published by Mr Grabscheit in the above party magazine:
“I wrote in the December 1997 issue of the Weistracher Nachrichten (...) that the Minister of the Freedom Party Hans Jörg Schimanek ‘would sabotage the work of the Land from within the Regional Government’. I have assured myself of the fact that that is untrue and I, thus, withdraw this reproach against Minister Schimanek with sincere regret. Furthermore, I declare not to repeat this statement.”
Thereupon, the applicant published in no. 505/98 of its municipal party magazine the following article:
“How credible is Deputy Mayor Herwig Grabscheit?
A whole page of negative stories was published by federal, regional and municipal authorities (Bund, Land und Gemeinde) about Freedom Party deputies. One Minister of the Freedom Party was reproached of ‘sabotaging the work of the Regional Government’.
It must be embarrassing for a Deputy Mayor to admit to the population: ‘I have assured myself of the fact that that is untrue and I withdraw this reproach against Minister Schimanek with sincere regret.’
There’s a saying that crosses my mind: ‘If you are caught lying once, you are never believed even when telling the truth’ (‘Wer einmal lügt, dem glaubt man nicht und wenn er auch die Wahrheit spricht’).”
On 22 February 1999 Mr Grabscheit filed a compensation claim under Section 6 of the Media Act against the applicant.
On 15 November 1999 the St. Pölten Regional Court, after having held a hearing, at which the claimant and the applicant’s lawyer were present, ordered the applicant to pay ATS 10,000 (EUR 726) as compensation to the claimant and to publish the sentence. It noted in particular that the reproach against the claimant of having lied constituted defamation as it could not be established from his disclaimer that he had deliberately told the untruth when making the statement about the “sabotage” in the Regional Government. Further, the implied suggestion to the reader not to believe him in the future was capable to lower him in the public esteem. Though politicians had to display a higher degree of tolerance against criticism than private individuals, the reproach in the present case aimed at ridiculing and mocking the claimant, which exceeded the degree of lawful criticism against a politician.
On 31 March 2000 the applicant appealed against this sentence, complaining in particular that the court had failed to consider the above article in the light of the political criticism lodged by the claimant against Mr Schimanek. Therefore the article at issue constituted political criticism, lawful within the meaning of Article 10 of the Convention.
On 19 June 2000 the Vienna Court of Appeal, after having held a hearing, attended by the claimant and the applicant’s lawyer, dismissed the applicant’s appeal and confirmed the Regional Court’s sentence. The court found that withdrawing criticism against a political opponent did not constitute a sufficient factual basis for a reproach against a municipal politician of having deliberately told the untruth. In the present case the claimant, a deputy mayor who was not in the very centre of the public eye, had in the court’s view, “quasi” apologised to Minister Schimanek, which did not therefore raise the limits of lawful criticism. Furthermore, the claimant had stated in the proceedings that he had made his disclaimer in the Weistracher Nachrichten on strategic procedural grounds and because he had obtained the minutes of a meeting where the Lower Austrian Regional Governor, Mr Pröll, had acknowledged good co-operation within the Regional Government. Thus, it could not be established that the applicant had proved the truth of its allegations.
Section 6 § 1 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Section 111 of the Criminal Code (Strafgesetzbuch), as follows:
“1. As it may be perceived by a third party, anyone who makes an accusation against another of having a contemptible character or attitude, or of behaving contrary to honour or morality, and of such a nature as to make him contemptible or otherwise lower him in public esteem, shall be liable to imprisonment not exceeding six months or a fine (...)
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine (...)
3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true."


ITEMID: 001-98200
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SUBASIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mrs Maja Šubašić, is a Croatian national who was born in 1977 and lives in Split. She was represented before the Court by Mr T. Vukičević, an advocate practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 August 1998, while visiting Athens, the applicant gave birth prematurely to her twin daughters, S.A. and K.A. Because she had given birth when she was only six months pregnant, her daughters barely survived. They were kept in a hospital in Athens for three months, two and a half months of which was spent in intensive care. They were discharged on 28 November 1998.
On 25 September 1998 the applicant made a request to the Split Regional Office of the Croatian Heath Insurance Fund (Hrvatski zavod za zdravstveno osiguranje – Područni ured Split) seeking reimbursement in respect of the costs of her medical treatment. On 22 October 1998 the Split Regional Office granted the request and awarded her the equivalent in Croatian kunas (HRK) of 1,455,177 Greek drachmas (GRD) for urgent medical services rendered abroad.
On 20 October 1998 in Athens the applicant married I.B.A., an Italian national and the father of her daughters.
On 12 November 1998 the applicant made another request to the Split Regional Office of the Croatian Heath Insurance Fund, this time seeking reimbursement in respect of the costs of the medical treatment of her daughters.
On 20 April 1999 the Regional Office dismissed her request, finding that her daughters were not registered as insured persons with the Croatian Health Insurance Fund.
The applicant appealed, arguing, inter alia, that her daughters had acquired the status of insured persons at the moment of their birth and that they had been formally registered as such after all official documents had been obtained, having regard to the fact that they had been born abroad.
On 17 April 2000 the Directorate of the Croatian Health Insurance Fund (Hrvatski zavod za zdravstveno osiguranje – Direkcija), acting as the second-instance authority, dismissed the applicant’s appeal and upheld the first-instance decision. After it had collected certain information from various administrative authorities, the Directorate established that the daughters had been recorded in the register of births (matica rođenih) on 15 April 1999 and in the register of citizens and the domicile register on 22 April 1999, and that their health insurance cards were valid from 26 April 1999. Against that background the Directorate reasoned as follows:
“From the printout of the database [of insured persons] the second-instance authority has established that [the appellant’s claim that her daughters] K.A. and S.A. were insured ‘through the mother’ is not correct because their status as persons insured with the Croatian Health Insurance Fund was recognised on 23 April 1999 with the registration date of 26 April 1999 as family members of the insurance holder: [their grandmother] S.Š.
The case file shows that the twins S.A. and K.A. at the time of their medical treatment in Athens did not have the status of insured persons with the Croatian Health Insurance Fund, owing to the appellant’s failure to notify the Consulate of the Republic of Croatia in Athens of the birth of the children; whereas all the necessary notifications were made only after the first-instance decision had been adopted.
Pursuant to section 55 paragraph 1 of the Ordinance on Rights Related to Compulsory Health Insurance and the Criteria for their Enjoyment ... the status of an insured person is established by the Croatian Health Insurance Fund on the basis of the prescribed application [for registration]...
The insured person acquires the rights related to compulsory health insurance on the day their status as an insured person is established.
Section 3 of the Ordinance on the Criteria for Registration and Deregistration of an Insured Person requires legal and natural persons to apply for [registration with] the compulsory health insurance with the Fund’s competent regional office within eight days after the conditions for recognition as an insured person have been met.
Section 7 of the same Ordinance allows for the status of family member [as the ground for insurance] to be established only in respect of persons having their domicile or habitual residence in the Republic of Croatia.
The enclosed domicile certificates show ... that K. and S.A. have their domicile in Split, ... – from 22 April 1999, that is, after the adoption of the [impugned first-instance] decision, after which they were also registered with compulsory health insurance ...
[In the light of the] foregoing the ... arguments adduced by the appellant are unfounded ...”
The applicant then brought an action in the Administrative Court (Upravni sud Republike Hrvatske) challenging the second-instance decision.
On 11 November 2004 the Administrative Court dismissed her action. It held as follows:
“Section 3 of the Ordinance on the Criteria for Registration and Deregistration of an Insured Person and the Establishment of Status of the Person Insured under Compulsory Health Insurance requires natural persons to apply for compulsory health insurance with the Fund’s competent regional office within eight days of the conditions for recognition as an insured person having been met.
Under section 56 paragraph 2 point 7 of the Ordinance on Rights Related to Compulsory Health Insurance and the Criteria for their Enjoyment ... the status of an insured person is established from the date of birth, on the basis of the application [for registration].
However, section 7 of the Ordinance on the Criteria for Registration and Deregistration of an Insured Person and the Establishment of Status of the Person Insured under Compulsory Health Insurance ... allows the status of a family member [as the ground for insurance] to be established only in respect of persons having their domicile or habitual residence in the Republic of Croatia, unless an international agreement provides otherwise.
Since it was established during the proceedings ... that at the time of their medical treatment abroad the ... twins did not have the status of insured persons with the Fund in accordance with section 2 of the Ordinance on the Rights Related to Compulsory Health Insurance and the Criteria for their Enjoyment, it follows that, according to section 3 of that Ordinance, they did not have the right to healthcare nor the right to reimbursement [of costs of medical services rendered abroad.]
In the light of the foregoing, this court has no legal possibility to find the impugned decision unlawful.”
The applicant then lodged a constitutional complaint alleging violations of her constitutional rights to equality, judicial review of administrative decisions, a fair hearing and healthcare. On 25 May 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint. In finding so it held that:
“The administrative authority conducting proceedings following a request for reimbursement of costs of medical treatment abroad is bound by the ... existence (or non-existence) of the status of the insured person ... This status of the complainant’s children was decided in other proceedings, different from those from which the impugned decisions originate.
In proceedings following a request for reimbursement of costs of medical treatment abroad (or in subsequent proceedings following an administrative action) the administrative authority or the Administrative Court are neither authorised under the relevant legislation to question the lawfulness and the correctness of the proceedings for acquisition of the status of an insured person ... nor to alter the decisions delivered in those proceedings (namely, the documents which were, as a result of those proceedings, issued to the complainant for her children), even in cases when those proceedings have not been conducted properly and in accordance with the law. Therefore, when reaching the impugned decisions, neither the competent administrative authority nor the Administrative Court could have examined questions such as the lawfulness and the correctness of the registration of domicile of the new-born children with the date when the request for registration was made (and not with the date of birth) or the lawfulness and the correctness of the issuance of the health insurance cards with a date different from the date of birth.
It follows that the possible violations of the constitutional rights which occurred in the proceedings for acquisition of the status of an insured person ... cannot be examined in the instant constitutional court proceedings.
Examining the [impugned] decisions by which the complainant was denied reimbursement of the costs of her children’s medical treatment abroad, because when these costs were incurred the children had not been recognised as having the status of insured persons ..., the Constitutional Court has established that these decisions are based on the relevant provision of section 2 of the Ordinance on the Rights and Criteria for the Use of Healthcare Abroad.
In finding so, it has to be noted that the decision of the second-instance administrative authority and the judgment of the Administrative Court are partly based on legislation that is not relevant in the present case ... in particular ... section 3 of the Ordinance on the Criteria for Registration and Deregistration of an Insured Person and the Establishment of Status of the Person Insured under Compulsory Health Insurance. That provision provides for a time-limit of eight days to apply for [registration with] compulsory health insurance. The above-mentioned provision relates, however, only to legal and natural persons obliged to pay health insurance contributions, which [is not the case with] the complainant or her mother, who is the person from whose health insurance the insurance of the complainant’s children is derived.
This finding, however, has no bearing on the possibility of a different resolution of the case or [this] court’s view that the impugned decisions are lawful and did not violate the constitutional rights of the complainant or her children.”
The relevant part of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum)) provides as follows:
“Everyone shall be guaranteed the right to health care, in accordance with the law.”
“The State shall protect maternity, children and youths, and shall create social, cultural, educational, material and other conditions promoting the right to a decent life.”
Article 64(1)
“Everyone shall have a duty to protect children and the infirm.”
The relevant provisions of the Health Insurance Act (Zakon o zdravstvenom osiguranju, Official Gazette of the Republic of Croatia, nos. 75/1993, 55/1996, 1/1997. (consolidated text), 109/1997, 13/1998, 88/1998, 10/1999, 34/1999, 69/2000, 59/2001 and 82/2001), in force at the material time, read as follows:
II. COMPULSORY HEALTH INSURANCE
Section 3
Section 6 (1)
...
Section 79
The relevant provisions of the Ordinance on the Rights Related to Compulsory Health Insurance and the Criteria for their Enjoyment (Pravilnik o pravima, uvjetima, i načinu ostvarivanja prava iz obveznog zdravstvenog osiguranja, Official Gazette of the Republic of Croatia, nos. 4/1994, 81/1994, 31/1995, 57/1996, 71/1996, 108/1996 and 79/1997), in force at the material time, read as follows:
1. Establishment of the status of an insured person
Section 54
Section 55
The relevant provisions of the Ordinance on the Criteria for Registration and Deregistration of an Insured Person and the Establishment of Status of the Person Insured under Compulsory Health Insurance (Pravilnik o načinu prijavljivanja i odjavljivanja, te utvrđivanju statusa osigurane osobe iz obveznog zdravstvenog osiguranja, Official Gazette of the Republic of Croatia, nos. 57/1994, 89/1994 and 65/2001), in force at the material time, read as follows:
II. ESTABLISHMENT OF THE STATUS OF AN INSURED PERSON
Section 2
Section 3 (1)
Legal or natural persons who are obliged to pay [health insurance] contributions are obliged to apply for [registration with] compulsory health insurance (application for registration, application for registration of changes in the insurance and for deregistration) with the competent regional office of the Fund within eight days of the conditions for recognition of the status of an insured person having been met ...
Section 7
The relevant provisions of the Decision on the Form and Content of the Document Proving the Status of Persons Insured with the Croatian Health Insurance Fund (Odluka o sadržaju i obliku isprave kojom se dokazuje status osigurane osobe Hrvatskog zavoda za zdravstveno osiguranje, Official Gazette of the Republic of Croatia nos. 57/1994, 140/1997, 31/1999 and 77/2000), in force at the material time, read as follows:
Section 6 (2)
Section 8 (1)
The relevant provisions of the Ordinance on the Rights and Modalities of, and the Conditions for, the Use of Healthcare Abroad (Pravilnik o pravima, uvjetima i načinu korištenja zdravstvene zaštite u inozemstvu, Official Gazette of the Republic of Croatia, nos. 6/1994 and 87/1996), in force at the material time, read as follows:
Section 2
Section 17
The relevant provisions of the Domicile and Residence of Citizens Act (Zakon o prebivalištu i boravištu građana, Official Gazette of the Republic of Croatia, no. 53/1991, read as follows:
Section 2
A domicile is a place where a citizen has settled with the intention of permanently living there.
Section 4(1) and (2)
Domicile of minors ... shall be established according to the last common domicile of their parents.
When the parents of such persons do not have common domicile or are not married, their domicile shall be established according to the domicile of the parent exercising parental authority [that is, having custody].
Section 6(1) and (2)
Citizens have a duty to register and deregister domicile, register habitual residence and register a change of address.
Applications [for registration or deregistration] referred to in paragraph 1 of this section for the persons without capacity to act shall be lodged by their parents or legal guardians.
Section 8
Application for registration of domicile or change of address shall be lodged within eight days of deregistration of the previous domicile or address.
The [competent] official shall issue a certificate of domicile or of change of address.
In its decision, no. Gr 650/01-2 of 10 October 2001 the Supreme Court (Vrhovni sud Republike Hrvatske) interpreted the Domicile and Residence of Citizens Act in the following way:
“... [It] follows that a citizen establishes domicile in a certain place on the day he or she settles in that place with the intention of permanently living there ... and not from the moment he or she applied to register [his or her] domicile.”
The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia 47/1986 (consolidated text), and Official Gazette of the Republic of Croatia no. 53/1991), which was in force at the material time, provided as follows:
Section 144(1) provided that, if the authority before which the administrative proceedings were pending found that the case could not be decided without deciding an issue the resolution of which was within the competence of a court or other authority (preliminary issue), it could decide on that issue itself or stay the administrative proceedings until the competent authority had resolved it.
Section 249 provided that administrative proceedings that had ended in a definitive decision could be reopened if, inter alia, the contested decision had been based on a preliminary issue, a substantial part of which the competent authority had later resolved differently.


ITEMID: 001-70464
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ZAGOREC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1956 and lives in Ivanec Zaprešički, Croatia.
5. On 4 December 1992 the applicant instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking non-pecuniary damages for injuries he had suffered in a traffic accident.
6. On 29 October 1997 the Zagreb Municipal Court gave judgment awarding part of the damages sought.
7. On appeal, on 9 February 1999 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment and remitted the case.
8. In the resumed proceedings, the court held two hearings and gave another judgment on 18 March 2002. It again awarded part of the damages sought. The judgment was served on the applicant on 30 July 2002.
9. Meanwhile, on 5 July 2002 the applicant filed a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining about the length of the proceedings. On 7 November 2002 the Constitutional Court declared the applicant’s complaint inadmissible, since the Municipal Court had given its judgment in the case.
10. On the respondent’s appeal, on 17 December 2002 the Zagreb County Court again quashed the first-instance judgment and remitted the case.
11. In the resumed proceedings, the court held two hearings and concluded the main hearing on 13 May 2004. However, since the presiding judge had been dismissed from office, the main hearing was reopened and, subsequently, a judgment given on 16 December 2004.
12. The proceedings are currently pending before the Zagreb County Court, following an appeal against the above judgment.
13. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002, of 3 May 2002; “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81021
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: POZHARSKYY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Oleksandr Yukhymovych Pozharskyy, is a German national who was born in 1965 and lives in Berlin. He was represented before the Court by Mr A. Vronsky, a lawyer practising in Kyiv.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 September 1995 the applicant deposited an amount of 175,600 United States dollars (hereafter “the USD”) in cash with Mr Nevmerzhytsky, who at the relevant time was the Head of the Kyiv office of the Poltava Bank (hereafter “the Bank”). Mr Nevmerzhytsky issued a receipt for this money, in which he undertook to repay it immediately on the applicant’s demand. The receipt was countersigned by the applicant and two witnesses.
On 28 September 1995, in the course of an ongoing preliminary criminal inquiry, the premises of the Bank were searched by the police and an amount of USD 184,761 in cash was seized which had been stored underneath the table of an employee.
On 18 October 1995 the Investigative Division of the Main Department of the Ministry of Internal Affairs of Ukraine in Kyiv began a criminal investigation into allegations of illegal currency transactions that had allegedly been committed by Mr Nevmerzhytsky. Subsequently this charge was dropped and he was charged with financial fraud, forgery committed by an official, aggravated forgery, abuse of power, tax evasion, aggravated fictitious trading and aiding and abetting the concealment of the proceeds of currency sales (see Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 10-25, ECHR 2005).
On 27 October 1995 a police investigator ordered that the money seized at the premises of the Bank be attached to the file in the criminal case against Mr Nevmerzhytsky and be used in the subsequent trial as real evidence.
On 19 April 1997 the applicant was put on the list of wanted persons for his alleged involvement in illegal currency transactions. On 6 May 1997 he was apprehended by the police. On 8 May 1997 the applicant was formally charged with engaging in illegal currency transactions.
On 10 June 1998 the investigator discontinued the criminal proceedings against the applicant, holding that there was no evidence that the applicant had been aware of the fact that Mr Nevmerzhytsky had conducted illegal financial transactions.
On 3 August 1998 the applicant lodged a civil-party application in the context of the criminal case against Mr Nevmerzhytsky, asserting his rights to the money seized at the bank in the amount of USD 175,600.
On 5 August 1998 the investigator dealing with case against Mr Nevmerzhytsky, allowed the applicant to join the proceedings as a civil claimant. In his decision the investigator stated, inter alia, that the applicant had a valid claim for part of the money seized at the premises of the Bank.
During the trial proceedings against Mr Nevmerzhytsky, which started in August 1999 and continued, with several interruptions (see Nevmerzhitsky, cited above, §§ 19-26), until February 2001, the applicant was heard as a witness. He stated that on several occasions in summer and autumn 1995 he had deposited cash with the defendant, including the amount USD 175,600, handed over on 21 September 1995.
On 19 February 2001 the Kyiv City Court convicted Mr Nevmerzhytsky of repeated financial fraud, acts in preparation of financial fraud, forgery committed by an official, aggravated forgery and abuse of power. It sentenced him to five years and six months’ imprisonment, and ordered the confiscation of all his personal property. The trial court acquitted him of the offences of aiding and abetting the concealment of the proceeds of currency sales, tax evasion and aggravated fictitious trading. The Kyiv City Court also ordered the amount of USD 184,761 forfeited to the State as its rightful owner had not been established during the hearings.
On the same date the Kyiv City Court issued a separate ruling, noting that the investigating authorities had permitted the applicant to join the proceedings as a civil claimant on the ground that in summer and autumn 1995 he had deposited substantial amounts in cash with Mr Nevmerzhytsky. However, the applicant could not be a party to the criminal proceedings as the authorities had failed to verify the source of this money and the lawfulness thereof. The Kyiv City Court suggested that the investigating authorities should reconsider their decision of 10 June 1998 to discontinue the criminal proceedings against the applicant. There is no indication that the criminal investigation against the applicant was ever reopened.
On an unspecified date the applicant appealed against the judgment of 19 February 2001, stating that the Kyiv City Court had unfairly denied him access to the proceedings in his capacity as civil claimant. The applicant further complained that the trial court had unreasonably ordered the forfeiture of the cash seized at the premises of the Bank, as the major part of this money belonged to him.
Pursuant to Article 347 of the Code of Criminal Procedure, the applicant’s appeal in cassation was handed over to the Kyiv City Court, which examined its compliance with the relevant procedural requirements (see the relevant domestic law below). On 1 March 2001 this court declared the appeal inadmissible as the applicant was not a party to the criminal trial and therefore not entitled to appeal against the judgment of 19 February 2001. The applicant challenged this decision before the Supreme Court.
On 24 May 2001 the Supreme Court, following a hearing held in presence of the applicant’s lawyer, upheld the Kyiv City Court’s finding that the applicant was not a civil party to the criminal proceedings against Mr Nevmerzhytsky and was therefore not entitled to file an appeal against the judgment of 19 February 2001. The Supreme Court stated, inter alia, that the amount of cash seized during the search differed from that deposited by the applicant with Mr Nevmerzhytsky on 21 September 1995 and that the seized cash did not have any features that would permit to identify it as that belonging to the applicant. Moreover, it was highly improbable that such a significant sum of money would be stored for seven days (from 21 to 28 September 1995) by the bank employees in the counter hall underneath a table.
2. Civil proceedings
On 29 November 1995 the applicant sued Mr Nevmerzhytsky for breach of contract, claiming that the latter owed him USD 175,600.
On 7 December 1995 the Svyatoshynsky District Court of Kyiv suspended the proceedings in this case.
On 24 April 1996 the Kyiv City Court, acting as supervisory instance, quashed this decision and remitted the case for examination on the merits.
On an unidentified date the case was transmitted from the Svyatoshynsky to Starokyivskyy District Court of Kyiv.
On December 1997 the Starokyivskyy District Court of Kyiv dismissed the applicant’s claim because he had repeatedly failed to appear in court.
On 25 November 1998 the Kyiv City Court, on the applicant’s appeal, quashed this decision on the ground that the case file did not contain any evidence that the applicant had been duly informed of the scheduled hearings.
On an unknown date before February 1999 the applicant amended his claims, requesting the court to order to the Kyiv City Police Department to join the proceedings as a co-defendant and requesting that the sum of USD 175,600 be excluded from the attachment order of 27 October 1995.
On 1 February 1999 the Starokyivskyy District Court of Kyiv suspended the proceedings pending the outcome of the criminal proceedings against Mr Nevmerzhytsky.
This decision was quashed on an unspecified date by a higher court.
On 5 June 2000 the Starokyivskyy District Court of Kyiv dismissed the applicant’s claims because he had repeatedly failed to appear. The applicant did not appeal against this decision.
Article 28 of the Code of Criminal Procedure provides that a person who sustained material damage from a crime shall be entitled to lodge a civil claim against the accused person or any other persons who bear material liability for the actions of the accused. The civil claim can be filed during the pre-trial proceedings as well as at the initial stages of the trial proceedings. The person who has not filed a civil claim in the context of the criminal proceedings, as well as a person, whose claim was left without consideration, is entitled to bring proceedings before civil courts.


ITEMID: 001-91471
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: NIEDERMEIER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Jürgen Niedermeier, is a German national who was born in 1953 and lives in Nuremberg. He was represented before the Court by Mr P. Wollenschläger, a lawyer practising in Nuremberg.
On 26 August 2002 the applicant was issued with a penal order (Strafbefehl) by the Nuremberg District Court on the ground that, in his capacity as managing director of a limited liability company, he had wilfully omitted to notify the company’s insolvency within the statutory time limit pursuant to sections 64(1) and 84(2) of the Code pertaining to companies with limited liability. He was sentenced to a fine of 75 euros per day for ninety days.
Upon the applicant’s objection lodged with the assistance of his lawyer at the time, main proceedings were instituted before the District Court. A hearing was first scheduled for 10 November 2003 and then postponed to 22 June 2004. Even though the applicant was present, the hearing was not opened but discussions only took place between the judge, public prosecutor and the applicant’s counsel at the time.
On 10 November 2004 the Nuremberg District Court provisionally stayed the proceedings on an application by the Public Prosecutor’s Office pursuant to Section 154(2) of the Code of Criminal Procedure with reference to separate preliminary proceedings instituted against the applicant on account of different criminal charges. The applicant’s objection against the decision to stay the proceedings was not accepted by the District Court.
On 21 December 2004 the Nuremberg-Fürth Regional Court rejected an appeal by the applicant as inadmissible on the ground that the applicant had not been adversely affected by the District Court’s decision. The Regional Court found that a decision to provisionally stay proceedings pursuant to Section 154(2) of the Code of Criminal Procedure would only be to the detriment of the accused in the event his innocence was clearly established and he therefore would have a right to be acquitted. It held that these criteria had not been met in the instant case.
On 7 April 2005 the Federal Constitutional Court (Az.: 2 BvR 301/05) declined to consider a constitutional complaint lodged by the applicant on the ground that the decision of the District Court to provisionally stay the proceedings did not constitute a legal detriment for the applicant and that there was no indication that the decision had been arbitrary. It further held that the applicant still benefited from the presumption of innocence and that in general there was no right to demand continuance of criminal proceedings with a view to being acquitted. The decision was served on the applicant’s counsel on 18 April 2005.
Section 154(2) of the Code of Criminal Procedure provides for the provisional stay of criminal proceedings in the following terms:
“...
(2) Once proceedings have been instituted, the court may provisionally stay them at any stage at the request of the Public Prosecutor’s Office.
...
(4) If the proceedings were provisionally terminated on account of a penalty or measure of reform and prevention which is to be expected for another offence, the proceedings may be resumed, unless barred by limitation in the meantime, within three months after the judgment imposed for the other offence has entered into force.
(5) If the court has provisionally terminated the proceedings, a court order is required for their resumption.”


ITEMID: 001-68404
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF POZNAKHIRINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1951 and lives in Novovoronezh, Voronezh Region.
5. In 1999 the applicant brought proceedings against the Chief Department of Finance of the Voronezh Region to claim welfare payments to which she was entitled in respect of her child.
6. On 5 January 2000 the Novovoronezh Town Court of the Voronezh Region awarded the applicant 3,387.87 roubles (RUR). This judgment entered into force on 15 January 2000.
7. On 10 February 2000 the enforcement order was issued and sent to the bailiff service of the Tsentralnyy District of Voronezh.
8. On 10 April 2000 the applicant complained to the Department of Justice of the Voronezh Region about the bailiffs’ failure to execute the judgment in her favour.
9. On 20 April 2000 the Department of Justice of the Voronezh Region informed the applicant that her award would be enforced in accordance with the order of priority set out by the Federal Law on Enforcement Procedure.
10. On 26 June 2001 the bailiff terminated execution proceedings in respect of the judgment of 5 January 2000, as the debtor had no sufficient funds. The applicant was suggested to bring an action against the Administration of the Voronezh Region.
11. On 13 February 2002 the Tsentralnyy District Court of Voronezh granted the applicant’s request to resume enforcement proceedings. In this decision the court dismissed the bailiff’s argument that an action against the Administration of the Voronezh Region was necessary to secure execution of the judgment against the Chief Department of Finance. The court found that the judgment of 5 January 2000 could be enforced as it stood.
12. The sum awarded has not been paid to the applicant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60034
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF UYGUR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Feyyaz Gölcüklü;Georg Ress
TEXT: 10. On 19 October 1980 the applicant was arrested on suspicion of membership of an illegal organisation, the THKP-C (Turkish People’s Liberation Party/Front).
11. On 4 November 1980 the applicant was detained on remand.
12. On 4 March 1981 the Military Public Prosecutor filed a bill of indictment with the İstanbul Martial Law Court against the applicant and 127 other defendants. The Public Prosecutor accused the applicant, inter alia, of membership of an illegal armed organisation, namely the THKP/C, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. He further charged the applicant with having been involved in a number of crimes such as bombing and armed robbery of private properties, and killing of several individuals at a security directorate.
13. The prosecution sought the death penalty under Article 146 § 1 of the Criminal Code.
14. By decisions of 24 March and 14 and 28 December 1981 the Torba Assize Court (ağır ceza mahkemesi) declined jurisdiction ratione materiae in respect of the criminal proceedings brought before it against the applicant. The court held that the alleged crimes fell within the jurisdiction of the martial courts. The case-files were joined to the case before the İstanbul Martial Law Court.
15. In a judgment of 8 November 1984 the İstanbul Martial Law Court convicted the applicant of membership of the THKP/C and his involvement in the alleged crimes. It sentenced the applicant to death penalty under Article 146 § 1 of the Criminal Code.
16. As the applicant’s sentence exceeded 15 years’ imprisonment, his case was automatically referred to the Military Court of Cassation (Askeri Yargıtay).
17. On 12 April 1988 the Military Court of Cassation quashed the judgment of the first instance court on the ground that the latter failed to establish the guilt of the applicant in some of the alleged crimes. It referred the case to the Istanbul Martial Law Court.
18. On 17 August 1990 the İstanbul Martial Law Court convicted the applicant under Article 146 § 1 of the Criminal Code and sentenced him to lifetime imprisonment, permanently debarred him from employment in the civil service and placed him under judicial guardianship. The applicant appealed.
19. On 23 August 1991 the İstanbul Martial Law Court ordered the applicant’s release pending trial.
20. Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Court of Cassation (Yargıtay) acquired jurisdiction over the case and on 4 January 1994 the case file was transmitted to it.
21. On 18 April 1995 the Court of Cassation upheld the applicant’s conviction.
22. Article 146 § 1 of the Criminal Code provides:
“Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Republic of Turkey or to effect a coup d’état against the Grand National Assembly formed under the Constitution or to prevent it by force from carrying out its functions shall be liable to the death penalty.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99411
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SEWERYN v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 4. The applicant was born in 1940 and lives in Warsaw.
5. On 15 January 1999 the applicant lodged with the Warsaw District Court (Sąd Rejonowy) a counterclaim for payment against the “Adwokat” Housing Co-operative (Spółdzielnia Mieszkaniowa “Adwokat”). The proceedings for payment instituted by the housing co-operative had been pending since 10 October 1997.
6. On 2 February 1999 the applicant lodged a motion for joinder of the cases.
7. On 17 June 1999 the court held a hearing; however it did not give any decision on the applicant's motion.
8. After three years and ten months, on 20 October 2002, the court gave a decision that the case should be examined separately in another set of proceedings and returned the statement of claim to the applicant because of procedural shortcomings. The applicant lodged an interlocutory appeal.
9. On 30 January 2003 the Warsaw Regional Court (Sąd Okręgowy) quashed the first-instance decision and remitted the case.
10. On an unspecified date the Warsaw District Court again returned the statement of claim to the applicant because of procedural shortcomings. The applicant lodged another interlocutory appeal.
11. On 15 November 2005 the Warsaw Regional Court quashed the contested decision and remitted the case.
12. Hearings scheduled for 25 January and 6 March 2008 were adjourned as another case had been given priority.
13. On 12 May 2008 the Warsaw District Court gave a default judgment.
14. On 9 June 2008 the court supplemented the judgment by ordering its immediate enforceability.
15. On 30 June 2008 the defendant filed an objection (sprzeciw) against the default judgment.
16. On 8 July 2008 the Warsaw District Court quashed the order of immediate enforceability.
17. On 19 August, 30 September, 18 November, 16 December 2008 the Warsaw District Court held hearings. Hearings scheduled for 19 February and 2 April 2009 were adjourned due to the absence of one of the witnesses. On 26 June and 17 November 2009 the court held hearings.
18. The case is still pending before the first-instance court.
19. On 20 March 2008 the applicant lodged a complaint with the Warsaw Regional Court under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
20. The applicant sought a ruling that the length of the proceedings before the Warsaw District Court had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx. 2,500 euros (EUR)).
21. On 25 April 2008 the Warsaw Regional Court dismissed the complaint. The court did not analyse the conduct of the trial court. It limited its consideration to the applicant's conduct, namely to the fact that she had made use of her procedural rights, which, in the court's view, had led to delays in the proceedings.
22. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-105847
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF YAVUZ ÇELİK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (procedural aspect)
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque
TEXT: 3. The applicant was born in 1968 and lives in Istanbul.
4. On 11 August 2006 the Muğla Magistrates’ Court issued an arrest warrant against the applicant in order to obtain his statement in relation to a charge of slander.
5. According to incident reports drawn up at the Üsküdar Doğancılar police station, an officer was sent to the applicant’s house early on 27 October 2006 to execute the arrest warrant. Upon discovering that the applicant was not at home, he left a note inviting him to present himself at the Üsküdar Doğancılar police station to make a statement regarding the charge brought against him.
6. Later the same day, at approximately 2.30 p.m., the applicant telephoned the police station and quarrelled with the officer Y.A. on the phone, arguing that the police had no authority to ask him to go to the police station as he had not received a summons from the court to make a statement. It is indicated in the incident report that the applicant was very aggressive on the phone and that he insulted and threatened officer Y.A. The applicant denied these allegations.
7. Immediately after this phone conversation, three police officers were sent to the applicant’s home to effect his arrest. Upon the applicant’s failure to cooperate and surrender, oral instructions were given from the office of the Üsküdar public prosecutor to make a forcible arrest. A scuffle then ensued between the parties, and the applicant attempted to throw himself off the balcony. He was, however, detained by the police, with the assistance of his neighbour E.A.
8. The applicant was subsequently taken to the Üsküdar Doğancılar police station at approximately 3.30 p.m. According to the police report, the applicant continued to behave aggressively and defiantly at the police station, shouting that the police had no authority to keep him there, and at one point he tried to jump out of the window to escape. The officers, however, managed to grab hold of him and restrained him with handcuffs. The applicant confirmed this, but claimed that he had only attempted to jump out of the window as a reaction to two police officers hitting him on the chest and foot.
9. On 27 October 2006 at 5.20 p.m. the applicant was examined by a doctor at the Haydarpaşa Numune Hospital, who noted no signs of illtreatment on his body. Following the medical examination, the applicant was taken back to the Üsküdar Doğancılar police station.
10. In the meantime, after handing the applicant over to the police station, two of the police officers who had made the arrest, namely M.Al. and M.Ak., underwent a medical examination at the Haydarpaşa Numune Hospital. Slight abrasions were noted on both officers’ right hands.
11. On 27 October 2006 the three police officers who were in charge of the applicant’s arrest, namely M.Al., M.Ak. and M.K., and the police officer the applicant had allegedly insulted on the phone earlier that day, namely Y.A., lodged criminal complaints with the Üsküdar public prosecutor against the applicant, accusing him of resisting police officers on duty and insulting them. In their complaints, they each gave identical accounts of the events that took place prior to and during the applicant’s arrest, which were also consistent with the official incident reports (see paragraphs 6 and 7 above).
12. At approximately 6 p.m. on the same day the applicant’s neighbour E.A., who had witnessed the whole incident and had assisted the police in restraining and arresting the applicant, was asked to testify as a witness. E.A. verified that the applicant had violently resisted arrest, including by shouting insults, whereas the arresting police officers had in no way assaulted or otherwise mistreated him.
13. On an unspecified date the Üsküdar public prosecutor initiated an investigation against the applicant on charges of obstructing police officers in the performance of their duties by insulting and assaulting them (investigation no. 2006/22778).
14. On 28 October 2006 at half past midnight the applicant was questioned at the police station in relation to the charges brought by the police officers. According to the official statement (sanık ifade tutanağı), which he declined to sign, the applicant chose to remain silent and refused the assistance of the lawyer appointed by the Bar Association. He declared that he would make his statement before the public prosecutor.
15. At around noon the same day the applicant was taken to the Üsküdar police headquarters by two police officers, K.B. and Ö.M., for a physical identity check, including the taking of fingerprints. The applicant claimed that when he inquired about the purpose of the identity check, K.B. started swearing at him and then punched him on the nose, eye and cheek and squeezed him by the throat in the yard of the headquarters, while his hands were cuffed behind his back.
16. At 2.45 p.m. on the same day he was referred to the Haydarpaşa Numune Hospital for a medical examination.
17. At 2.55 p.m. a doctor at the Haydarpaşa Numune Hospital examined the applicant and noted an oedema on his nose, hyperaemia of 5 x 5 cm on the right side of his neck, ecchymosis (bruising) of 2 x 1 cm on the left side of his neck, hyperaemia on his right shoulder blade and hyperaemia and abrasion of 1.5 cm on his left shin. An otolaryngologist who examined him at 3.15 p.m. also noted sensitivity on his cervix. No information was provided in the medical reports as to how the indicated injuries might have been sustained by the applicant.
18. The applicant was subsequently brought before the Üsküdar public prosecutor. In his statement, which was made in the presence of his lawyer, the applicant denied the charges against him in relation to the insult and assault of police officers on duty. He lodged a counter-complaint against the officers who had carried out his arrest for trespass and violation of the right to privacy of the home. He also complained that earlier that day he was beaten, strangled and sworn at by a police officer, K.B., outside the Üsküdar police headquarters, where he had been taken for an identity check, and that another officer who had accompanied them, namely Ö.M., had witnessed the incident. After having identified both police officers, who were waiting outside the office of the public prosecutor, he demanded that the public prosecutor initiate an investigation against K.B. for subjecting him to ill-treatment.
19. On 28 October 2006 at 10.30 p.m. the applicant was referred to the Istanbul Forensic Medicine Institute for a further medical examination. The doctor who examined him noted, in a preliminary report, that the applicant complained of having been hit on the face and squeezed around the neck earlier that day, as well as of having his chest crushed the day before during his arrest, on account of which he was suffering breathing problems. The doctor found an ecchymosis on the right side of the applicant’s nose, an ecchymosis of 1 x 0.5 cm on the front left side of the base of his neck and an abrasion of 2 x 2 cm on the front side of his left forearm, just below the joint. He referred the applicant to a specialist in pulmonary diseases before drawing up the final report. This preliminary report was apparently not made available to the applicant.
20. On 30 October 2006 the applicant was examined by a pulmonary specialist, who did not note any damage to his lungs apart from a scar from a previous operation.
21. There is no information in the case file as to the outcome of the investigation against the applicant.
22. On 28 October 2006 the Üsküdar public prosecutor questioned police officer K.B. regarding the applicant’s allegations of ill-treatment (investigation no. 2006/23358). K.B. stated that at approximately 11.30 a.m. that day he had taken the applicant to the Üsküdar police headquarters together with officer Ö.M. When the applicant asked why he had been brought there, they explained that the Üsküdar public prosecutor had issued written instructions for him to have a physical identity check for the purposes of the ongoing investigations against him. The applicant thereafter became extremely agitated and starting shouting loudly and swearing. When they tried to get him inside the building, he tried to hurt himself by hitting his head against the front window of the building. K.B. alleged that he then tried to cuff the applicant’s hands behind his back in order to get better hold of him. When the applicant resisted, Ö.M. tried to hold him down by the waist while he stabilised the applicant by putting his neck in an arm-lock and cuffing his hands behind his back. K.B. claimed that some police officers on patrol duty at the relevant time had witnessed these events. K.B. also pressed charges against the applicant on account of the insults and the injuries he had sustained, which consisted of a red line of 3 cm x 5 cm on his right forearm, as had been noted by the public prosecutor.
23. The public prosecutor subsequently took a statement from Ö.M., the police officer who had accompanied K.B. at the time of the impugned incidents. Ö.M., who was also a relative of K.B. by marriage, repeated the latter’s statement. He also claimed that two police officers on duty at the Üsküdar police headquarters had witnessed the events.
24. On 9 November 2006 the public prosecutor heard E.A., the applicant’s neighbour who had witnessed his arrest. E.A. verified his earlier police statement, except for the part about the applicant insulting the police officers, which he claimed had been misrecorded. E.A. stated that the applicant had at no point insulted the police officers, yet he had very strongly resisted arrest. He further stated that the police officers carrying out the arrest had not used excessive force or otherwise ill-treated the applicant.
25. On the same day the Üsküdar public prosecutor issued a decision not to prosecute the accused police officers M.Al., M.Ak., M.K. and K.B. He held that both the applicant and the police officers who had carried out his arrest had sustained slight injuries as a result of the applicant’s aggressive resistance to his arrest on 27 October 2006. However, as E.A. had also confirmed in his witness statement, the police had not used excessive force to effect the arrest. The public prosecutor did not indicate in the decision the medical reports and other evidence he relied on for the purposes of the investigation.
26. On 27 November 2006 the Forensic Medicine Institute delivered its final report regarding the applicant. After repeating the findings of the previous medical reports, it concluded that the injuries observed on the applicant’s body were not life-threatening and could be treated by a simple medical intervention.
27. On 4 December 2006 the applicant objected to the decision of the public prosecutor. The applicant argued, inter alia, that on 28 October 2006 at approximately 1.15 p.m. he had been punched on the face and strangled by police officer K.B., who had cuffed his hands behind his back to render him more defenceless. The injuries he had sustained as a result of this beating had been clearly indicated in the medical report issued by the Haydarpaşa Numune Hospital at 2.55 p.m. that day. The Forensic Medicine Institute, where the public prosecutor had referred him after taking his statement, had also noted his injuries in its preliminary report and had photographed them. However, neither the report of the Forensic Medicine Institute nor the photographs had been submitted to the investigation file at the Üsküdar public prosecutor’s office by the police officer in charge. The applicant asserted that when he had requested the Forensic Medicine Institute’s preliminary report from the public prosecutor’s office, the prosecutor had informed him in person that the report was not in the investigation file. In the absence of this report, his complaints against K.B. regarding the illtreatment he had been subjected to had not been duly examined by the public prosecutor. He further claimed that the public prosecutor had not heard his witnesses regarding the impugned incidents.
28. On 18 January 2007 the Kadıköy Assize Court upheld the decision of the public prosecutor, without responding to the applicant’s specific objections. That decision was served on the applicant on 10 February 2007.
29. On 7 February 2007 the applicant requested from the Forensic Medicine Institute the medical report issued by its Istanbul branch following his examination on 28 October 2006.
30. On 19 February 2007 the Forensic Medicine Institute informed the applicant that a copy of the report containing the findings of his medical examination had been sent to the Üsküdar public prosecutor’s office on the same date as the examination. In the event that it could not be found in the investigation file, a new copy could be supplied at the request of the public prosecutor’s office. It appears that no such request was made by the office of the Üsküdar public prosecutor.
31. In the meantime, on 12 February 2007 the applicant applied to the Üsküdar public prosecutor’s office, requesting, inter alia, that his medical report prepared by the Forensic Medicine Institute, together with the photographs, be found and communicated to him, and that the authorities responsible for concealing these documents be punished. He also demanded an explanation as to why K.B. had been charged with “excessive use of force” rather than “ill-treatment” and why the public prosecutor had heard evidence from a witness called by the police against him, E.A., but not accepted the examination of witnesses on his behalf. The applicant did not receive a reply from the public prosecutor’s office.
32. On 29 May 2007 the applicant applied once again to the Üsküdar public prosecutor’s office for the medical report issued by the Forensic Medicine Institute, which was not available in the investigation file. It appears that he did not receive a reply to this request either.
33. In the meantime, administrative proceedings were also initiated against the police officers who had effected the applicant’s arrest, namely M.Al., M.Ak., M.K. and Y.A. It appears that no administrative action was taken against K.B. in respect of the applicant’s allegations of ill-treatment.
34. On an unspecified date the chief superintendent officer in charge of the investigation submitted an investigation report, in which he expressed the opinion that the officers involved in the applicant’s arrest had acted strictly under orders from the public prosecutor and had not committed any offences which required disciplinary action.
35. On 8 January 2007 the Üsküdar District Governor’s Office discontinued the investigation against the police officers on the basis of the report of the chief superintendent officer.
VIOLATED_ARTICLES: 3