ITEMID: 001-82654
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF NASRULLOYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1-f;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 5. The applicant was born in 1954 and lives in the Moscow Region.
6. The applicant was the chairman of the Tajik Consumers' Union (“Tajikpotrebsoyuz”).
7. In May 1992 the Tajik opposition, comprising a coalition of Islamic groups and Islamic fundamentalists, seized power from the Tajik Supreme Soviet, which led to civil war. In November 1992 the Supreme Soviet elected Mr Rakhmonov as its chairman and head of State. Mr Rakhmonov was supported by armed forces of the People's Front. The applicant was the leader of the People's Front in the Hissar region of Tajikistan.
8. In 1994 Mr Rakhmonov was declared winner in the Presidential election. The applicant supported the opposition candidate, Mr Abdulajanov.
9. On 27 June 1997 Mr Rakhmonov signed a “peace and accord” agreement with the representative of the United Tajik Opposition. On 1 August 1997 the Majlisi Oli (Parliament) of Tajikistan passed the Amnesty Act which provided for discontinuation of criminal proceedings against the participants in the political and military conflict after 1992. Pending criminal cases, in which convictions had not been yet handed down, were to be discontinued, and no new cases were to be opened.
10. On 3 November 1998 a force led by Mr Khudoyberdiev and Mr Abdulajanov launched an offensive in Leninabad province. The Government began a counter-offensive, joined by the United Tajik Opposition's forces. By 10 November 1998 the Government had retaken control of the province after intense fighting. The applicant declared that he had not taken part in the offensive; he had been ill and had stayed in Tashkent.
11. On an unspecified date the applicant's youngest son was convicted for participation in the offensive and sentenced to seventeen years' imprisonment. A search warrant was issued against the applicant who had fled to Russia together with his family.
12. On 30 June 2003 an investigator in charge of particularly serious cases in the Tajikistan Prosecutor General's Office charged the applicant with criminal offences allegedly committed between November 1992 and February 1997. The charges included kidnapping, manslaughter, participation in an anti-Government organisation, participation in an armed group with a view to attacking Government institutions, subversive activities, high treason and conspiracy to seize State power.
13. By a separate decision of the same date, the investigator held that the applicant should be taken into custody and that his name should be put on the list of fugitives from justice. The decision was approved by the acting Prosecutor General of Tajikistan.
14. On 13 August 2003 the applicant was arrested in Moscow. On the same day the Tajikistan Prosecutor General's Office sent a request for the applicant's extradition to its Russian counterpart which was received on 18 August 2003.
15. On 21 August 2003 the Nagatinskiy District Court of Moscow ordered the applicant's detention on the basis of Articles 97, 99 and 108 of the Code of Criminal Procedure, finding as follows:
“Having heard the parties to the proceedings, the court finds the [prosecution's] request justified because the criminal-procedure laws governing application of measures of restraint have been complied with and the case file contains sufficient grounds showing that no measure of restraint other than deprivation of liberty may be applied to the accused. Mr Nasrulloyev is charged with serious and particularly serious crimes carrying a penalty of no less than two years' imprisonment. His name is on the international list of fugitives from justice. Furthermore, the court considers that, since Mr Nasrulloyev is a foreign national and has no permanent place of residence within Russian territory, he may abscond from investigation and prosecution or otherwise hinder the criminal proceedings.”
The District Court did not set a time-limit for detention.
16. On 28 October 2003 the applicant and his counsel asked the Prosecutor General to refuse the request for his extradition. He submitted that he was being prosecuted in Tajikistan on political grounds, that he risked a death sentence if found guilty as charged, and the guarantee against inhuman treatment and the right to a fair trial would not be respected in Tajikistan. He indicated that he had applied for political asylum in Russia.
17. On 6 February 2004 counsel for the applicant asked the director of the remand centre to release the applicant. In her submission, as there had been no arrest warrant issued by a Tajikistani court, the provisions of the Russian Code of Criminal Procedure on pre-trial detention were to be applied. Article 109 set the maximum detention period at two months. As the detention period had not been extended following the expiry of that period on 21 October 2003, the applicant's subsequent detention was unlawful. In these circumstances, the director of the remand centre had a statutory duty to release anyone detained unlawfully.
18. On 17 February 2004 the director of the remand centre replied to her that the applicant was still detained under the District Court's decision of 21 August 2003 and that his release would only be possible if there was a new judicial decision or a decision by the Prosecutor General refusing his extradition.
19. On 26 February 2004 counsel asked the Prosecutor General to release the applicant, submitting that his detention had been unlawful under domestic terms and that, in any event, the European Convention on Extradition limited the period of provisional arrest to forty days (Article 16 § 4). No reply was received.
20. In December 2004 Tajik counsel for the applicant asked the Sino District Court of Dushanbe to review the lawfulness of the applicant's detention because the maximum term of detention under the Tajikistani Code of Criminal Procedure was fifteen months. On 13 December 2004 the District Court refused to consider the complaint, claiming that it should be examined by the court having territorial jurisdiction for the detention centre.
21. On 20 December 2004 counsel lodged complaints with the Prosecutor General's Office, and the Nagatinskiy and Babushkinskiy District Courts of Moscow, seeking the applicant's release on the ground that the maximum term of detention under the Tajikistani Code of Criminal Procedure had expired.
22. On 31 December 2004 the Nagatinskiy District Court returned the complaint, indicating that it had no territorial jurisdiction. It also pointed out that the measure of restraint had been applied under the Russian Code of Criminal Procedure and that counsel's references to the Tajikistani Code of Criminal Procedure were therefore irrelevant.
23. On 17 January 2005 a deputy head of the International Cooperation Department of the Prosecutor General's Office told counsel to petition the “competent authorities” of Tajikistan in order to have the measure of restraint varied.
24. On 18 January 2005 counsel applied, with the same request, to the Tajikistan Prosecutor General's Office. By letter of 15 February 2005, the head of the department for investigation of particularly serious crimes informed her that the Tajikistani Code of Criminal Procedure was not applicable because the applicant was not in Tajikistan and because his detention had never been extended in Tajikistan. Accordingly, the complaint would only be considered after the applicant had been extradited.
25. On 13 February 2005 the maximum eighteen-month detention period laid down in Article 109 of the Russian Code of Criminal Procedure expired.
26. On 18 February 2005 the director of the remand centre told counsel that within the meaning of the Russian Code of Criminal Procedure the applicant was neither a “suspect” nor a “defendant”, whereas the provision concerning the statutory duty to release anyone detained unlawfully only mentioned “suspects” and “defendants”. He further reminded counsel that there had so far been no judicial decision on the applicant's release or a refusal by the prosecutor to extradite him.
27. Counsel for the applicant unsuccessfully sought judicial review of the applicant's detention in the Moscow City Court, and the Babushkinskiy and Tverskoy District Courts of Moscow. She relied on Article 110 of the Code of Criminal Procedure.
28. On 21 April 2005 the Tverskoy District Court disallowed the counsel's complaint about the Prosecutor General's Office's failure to release the applicant, finding as follows:
“The measure of restraint was imposed on Mr Nasrulloyev exclusively for the purposes of providing legal assistance in criminal proceedings conducted in Tajikistan. The procedure for detaining persons with a view to extradition is governed by Chapter 54 of the Code of Criminal Procedure of the Russian Federation.
Chapter 54 does not limit the period of detention of individuals whose extradition is being sought... The international-law instruments submitted to the court do not limit [that period] either. In these circumstances, the court considers unsubstantiated counsel's reliance on Article 109 of the Code of Criminal Procedure and their reference to the fact that Mr Nasrulloyev's detention had never been extended.
In the territory of the Russian Federation there is no investigation of Mr Nasrulloyev and he is not a party to criminal proceedings within the meaning of the Russian Code of Criminal Procedure...
The court also takes into account the fact that the decision on Mr Nasrulloyev's extradition has not been taken to date because he had applied for asylum in Russia and then lodged an appeal against the decisions... rejecting his asylum claim.”
29. On 9 June 2005 the Moscow City Court upheld that decision, reproducing its reasoning verbatim.
30. The applicant complained to the Constitutional Court, claiming that the legal situation where detention of a person with a view to extradition was not limited in time was incompatible with the constitutional guarantee against arbitrary detention.
31. On 4 April 2006 the Constitutional Court declared the application inadmissible. It pointed out that there was no ambiguity in the contested provisions because the general provisions governing measures of restraint should apply to all forms and stages of criminal proceedings, including proceedings on extradition (for further details on the Constitutional Court's decision, see paragraph 54 below).
32. On 6 April 2006 counsel for the applicant lodged a complaint against the Prosecutor General's Office. She submitted that there were no legal provisions permitting the holding of the applicant in custody beyond the maximum eighteen-month period and that the applicant's detention should be subject to judicial review. She alleged, in particular, a violation of Article 5 §§ 1 and 4 of the Convention.
33. On 23 June 2006 the Tverskoy District Court dismissed the complaint, finding that the Prosecutor General's Office was not responsible for the applicant's detention and that the Code of Criminal Procedure did not require it to extend the period of detention until the decision on extradition had been taken.
34. On 26 June 2006 counsel for the applicant wrote to the Prosecutor General's Office and the director of the remand centre that the applicant's detention was unlawful and that he should be released immediately.
35. On 29 June 2006 the Moscow City Court rejected, in the final instance, the applicant's request for political asylum in Russia.
36. On 1 July 2006 the first deputy prosecutor of the Babushkinskiy District of Moscow asked the Babushkinskiy District Court to extend the applicant's detention by fourteen days on the ground that, after his application for asylum had been turned down, the prosecution needed additional time to examine the request for extradition.
37. On the same day the District Court granted the prosecution's request, relying on Articles 109 and 466 § 1 of the Code of Criminal Procedure. The District Court noted that the prosecution had produced evidence showing that the extradition request was being decided upon, and that the applicant was charged with serious and particularly serious crimes, had no permanent place of residence in Russia and would abscond if released.
38. On 13 September 2006 the Moscow City Court upheld that decision on appeal, finding that it was lawful and justified. It did not refer to any legal provisions governing the applicant's detention.
39. By letter of 3 July 2006, a deputy Prosecutor General informed the applicant that a decision had been taken to extradite him to Tajikistan. A copy of the decision was not enclosed.
40. Counsel challenged the decision before the Moscow City Court and applied to this Court with a request for interim measures under Rule 39 of the Rules of Court.
41. On 12 July 2006 the Court indicated to the respondent Government that the applicant should not be extradited to Tajikistan until further notice.
42. By letter of 19 July 2006, the Government acknowledged receipt of the Court's decision and confirmed that the domestic authorities had been informed accordingly.
43. On 21 August 2006 the Moscow City Court overruled the prosecutor's decision to extradite the applicant. It noted at the outset that the Tajikistan Government had not furnished the guarantees required by Russian law that the applicant would only be tried for the offences for which the extradition was sought, that he would be free to leave the country after serving the sentence and that he would not be deported, transferred or extradited to a third State without the consent of the Russian Federation.
44. The City Court further found that, in granting the extradition request, the deputy Prosecutor General had failed to consider whether the applicant could be prosecuted for an offence connected with a political offence, whereas the Convention on Extradition prohibited extradition in such situations. As the applicant's extradition was sought in connection with offences allegedly committed from 1992 to 1997, the City Court determined that his prosecution had been initiated in breach of the Amnesty Act of 1 August 1997 (see paragraph 9 above) and was therefore politically motivated. Moreover, the applicant was eligible for amnesty under the General Amnesty Act of 2001.
45. The City Court ordered the applicant's release, finding that the maximum detention period set out in Articles 108 and 109 of the Code of Criminal Procedure had expired and that his detention in excess of that period had been unlawful in the light of the Constitutional Court's decision of 4 April 2006.
46. On 25 August 2006 the prosecution lodged an appeal. They claimed, in particular, that the allegedly political motives of the applicant's prosecution had been examined “by way of an exchange of secret correspondence” between the Prosecutor General's Office, the Federal Security Service and the Ministry of the Interior which the City Court had not taken into account. They also alleged that the applicant's period of detention had not expired because the District Court's decision of 1 July 2006 had not been quashed.
47. On 2 October 2006 the Supreme Court of the Russian Federation dismissed the appeal by the prosecution and refused the extradition of the applicant to Tajikistan.
48. The Constitution guarantees the right to liberty (Article 22):
“1. Everyone has the right to liberty and personal integrity.
2. Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.”
49. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the 1993 Minsk Convention”), to which both Russia and Tajikistan are parties, provides as follows:
“1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order or a final conviction and shall indicate that a request for extradition will follow...”
“1. A person arrested pursuant to Article 61 § 1 ... shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest...”
“The requested Party shall notify the requesting Party of the place and time of surrender. If the requesting Party does not accept the person being extradited within fifteen days of the scheduled date of surrender, that person shall be released.”
50. The European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows:
“1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.
...
4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.”
51. Chapter 13 of the Code of Criminal Procedure (“Measures of restraint”) governs application of measures of restraint, or preventive measures (меры пресечения), which include, in particular, placement in custody. A custodial measure may only be ordered by judicial decision in respect of a person who is suspected of, or charged with, a criminal offence punishable by more than two years' imprisonment (Article 108 “Placement in custody”). The time-limit for detention pending investigation is fixed at two months (Article 109 “Time-limits for detention”). A judge may extend that period up to six months (Article 109 § 2). Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). A judicial decision ordering or extending the application of a custodial measure may be appealed against to a higher court within three days of its issue (Articles 108 § 10 and 109 § 2). A custodial measure may be revoked or varied by a judicial decision if it is no longer considered necessary (Article 110 “Revoking or varying the measure of restraint”).
52. Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. Article 466 is the only provision in the chapter that governs application of measures of restraint with a view to extradition. Paragraph 1 deals with the situation where a request for extradition is not accompanied by a detention order issued by a foreign court. In that case a prosecutor must decide whether it is necessary to impose a measure of restraint “in accordance with the procedure provided for in the present Code”. Paragraph 2 establishes that, if a foreign judicial decision on placement in custody is available, a prosecutor may place the person in detention or under house arrest. In that eventuality no confirmation of the foreign judicial decision by a Russian court is required.
53. Chapter 15 (“Petitions”) provides that suspects, defendants, victims, experts, civil plaintiffs, civil defendants, and their representatives may petition officials for taking procedural decisions that would secure rights and legitimate interests of the petitioner (Article 119 § 1). Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of damaging the constitutional rights or freedom of the parties to criminal proceedings (Article 125 § 1). The competent court is that which has jurisdiction for the place of the preliminary investigation (ibid.).
54. Verifying the compatibility of Article 466 § 1 of the Code of Criminal Procedure with the Russian Constitution, the Constitutional Court reiterated its constant case-law that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings.
In the Constitutional Court's view, the absence of a specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is, the procedure laid down in the Russian Code of Criminal Procedure. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Measures of restraint”) which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for examination of extradition requests.
The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the Code of Criminal Procedure did not allow the authorities to apply a custodial measure without respecting the procedure established in the Code of Criminal Procedure or in excess of time-limits fixed in the Code.
55. The Prosecutor General asked the Constitutional Court for an official clarification of its decision in Mr Nasrulloyev's case (see above), for the purpose in particular of elucidating the procedure for extending a person's detention with a view to extradition.
The Constitutional Court dismissed the request, finding it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That matter was within the competence of courts of general jurisdiction.
56. In the case of Mr A., concerning his detention with a view to extradition to Armenia, the Criminal Division of the Supreme Court held as follows (case no. 72-005-19, 8 June 2005):
“The term of detention of the person who is to be extradited to the place of commission of the offence... is not governed by Article 109 of the Code of Criminal Procedure. In accordance with the requirements of [the 1993 Minsk Convention], the person arrested at the request of a foreign state, may be held in custody for forty days until a request for extradition has been received. Subsequent detention of the person is governed by the criminal law of the requesting party (Armenia in the instant case).”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4
VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-83946
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: RAJKOWSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs Irena Rajkowska, was a Polish national who was born in 1948 and lived in Wroclaw. On 24 April 2006 the applicant’s grandson, Mr Bartłomiej Cieślak, represented by Mr R. Sochański, a lawyer practising in Wrocław, informed the Registry that the applicant had died in September 2005.
The respondent Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 August 1997 the applicant’s husband died in a car accident. Three cars (a Ford, a Fiat and the deceased’s car) were found to be involved in the accident. Soon after the accident police officers came to the scene and made an inspection of the locus in quo. The deceased’s identity documents were found. A death certificate was issued by a doctor. On the same day the deceased’s car was transported to the Wrocław District Police Station parking site. The body was taken to a private funeral parlour which did not have a cold storage chamber. On the fourth day after the accident it was transported to a forensic police unit with a cold storage chamber.
On 21 August 1997 the applicant, who had made inquiries as she had become increasingly worried when her husband had failed to return home on time, was informed by the Wrocław Regional District Station that no car accidents had been recorded in the region on that day. The Wałbrzych Regional District Station gave her the same information.
On 23 August 1997, two days after the accident, the applicant was informed of her husband’s death.
In a decision of the District Prosecutor given on an unspecified date in the proceedings instituted by the applicant for the failure to inform her speedily of her husband’s death, it was stated that the lack of information had been the result of poor coordination between the police stations.
On 25 August 1997 an autopsy was conducted at the Forensic Medicine Centre at the Wrocław Medical Academy. On 4 September 1997 a blood test was carried out which showed that the deceased had 3.1 ‰ of alcohol in his blood.
On 26 September 1997, by a decision of the Strzelin District Prosecutor, the investigation into the death of the applicant’s husband was prolonged until 27 October 1997 as further measures had to be taken (including the obtaining of an expert opinion on traffic accidents and the questioning of further witnesses).
On 15 October 1997, 40 days after the blood test had been carried out, the results were lodged with the Strzelin District Prosecutor.
On 28 October 1997, by a decision of the Strzelin District Prosecutor, the investigation was prolonged until 27 November 1997 since the expert opinion had not yet been obtained. On 25 November 1997 the inquest proceedings were again prolonged until 20 December 1997.
On 27 November 1997 the applicant learned from the forensic expert appointed in the case the result of the blood test conducted on 4 September 1997.
On 18 December 1997 the applicant requested that a further blood test be conducted. On the same day the Strzelin District Prosecutor gave a decision ordering a new blood test to be carried out. The test was conducted on the same day. Its results were different from those of 4 September 1997 as the new examination showed that there had been 0.1 ‰ of alcohol in the deceased’s blood. Both examinations relied on the same blood samples taken on 4 September 1997.
On 18 December 1997 the Forensic Medicine Centre sent a letter to the Strzelin District Prosecutor explaining that the different results of the tests had been caused by a mistake in copying the results from one medical document to another.
On 23 August 1999 the applicant instituted criminal proceedings alleging that the results of the forensic tests had been forged.
On 11 December 1999 the proceedings were discontinued by a decision of the District Prosecutor. It was found that no criminal offence had been committed in connection with the forensic tests. The applicant appealed.
On 7 April 2000 the Regional Prosecutor upheld the decision. The applicant appealed.
On 13 April 2000 the District Court quashed the decision and remitted the case to the prosecutor with a view to obtaining a supplementary opinion of an expert in graphology. Nevertheless, the prosecution authorities did not order such an opinion to be prepared and the applicant’s subsequent request to that effect was refused.
On 2 October 2000 the District Prosecutor again discontinued the proceedings as the error was found to have been unintentional and as such could not constitute the offence of forgery. The applicant appealed. On 17 November 2000 the Regional Prosecutor upheld the decision.
On 27 December 2000 the applicant lodged a private bill of indictment with the court against persons who, in her opinion, had been negligent in the preparation of the results of the blood tests.
On 17 July 2001 the Wrocław District Court discontinued the proceedings, finding that no criminal offence had been committed. The applicant appealed. On 5 April 2002 the Wrocław Regional Court upheld the decision.
The applicant was a party to these proceedings as she had the status of a victim in the investigation and that of auxiliary prosecutor (oskarżyciel posiłkowy) in the judicial proceedings.
On 5 September 1997 the driver of the Ford was questioned by the police. On 8 December 1997 he was declared to be suspected of causing death by dangerous driving. On 11 December 1997 he was questioned again.
On 22 December 1997 the Strzelin District Prosecutor lodged with the Strzelin District Court a bill of indictment charging him with causing death by dangerous driving. In January 1998 the case was transferred to the Strzelin District Court and subsequently, in February 1998, to the Wrocław District Court.
On 29 September 1998 an expert opinion prepared by M.L. was submitted to the court.
Subsequent hearings were held on 23 November and 10 December 1998. On the latter date the court decided to conduct the proceedings anew as a new judge rapporteur had been assigned to the case. The hearings were resumed and held on 5 January, 4 February, 25 February, 31 March, 5 May, 7 June and 24 August 1999. On the last date the applicant requested that the case be remitted for further investigation. The request was dismissed by the court on 27 September 1999.
On 9 December 1999 the applicant lodged a hierarchical complaint with the President of the Wrocław District Court concerning the excessive length of the proceedings. By a letter of 20 January 2000 the President of the Wrocław District Court informed the applicant that there were no grounds for finding that the proceedings were too lengthy.
On 27 January 2000 the applicant challenged the judge rapporteur, a motion which was dismissed on 15 February 2000. On 8 March 2000 the court allowed her motion for another expert opinion to be prepared. The next hearings were held on 13 and 17 March and 29 June 2000.
On 31 July 2000 the court allowed the applicant’s motion for another (fourth) expert opinion to be prepared. It was submitted to it on 12 March 2001. At a hearing held on 19 June 2001 the court refused the applicant’s request for another (fifth) opinion.
On 3 July 2001 the Wrocław District Court gave a judgment by which it acquitted the accused. Altogether 29 hearings were held before the firstinstance court.
On 21 October 2001 the applicant appealed.
On 16 April 2002 the Wrocław Regional Court quashed the judgment and remitted the case. It found, inter alia, that the length of proceedings had been excessive as they had lasted almost three years. The court pointed out that numerous procedural shortcomings on the part of the firstinstance court had resulted in the erroneous assessment of the evidence. It found that the erroneous decisions taken in the course of the proceedings showed that the court had been unable to obtain a full picture of the circumstances relevant for the assessment of the case. In particular, it had admitted in evidence several expert opinions and later refused the applicant’s request to summon the experts for questioning. The court had also organised four subsequent superfluous hearings during which it only informed the parties that the expert opinions had not yet been obtained. It had also dismissed a request to admit the evidence of new witnesses, without specifying which request and which witnesses it had referred to. The Regional Court further doubted whether one of the experts had had access to the court file, which would have been indispensable for giving his opinion. It also pointed out that although the expert opinions differed substantially, the first-instance court had not ordered the experts to be questioned.
The case was remitted to the Wrocław District Court and ten hearings were held.
On 30 October 2002 the Wrocław District Court stayed the proceedings in order to obtain a new expert opinion. The applicant appealed and her appeal was allowed. The proceedings were resumed on 6 December 2002. The new opinion was submitted to the court on 28 February 2003.
In 2003 hearings were held on 5 and 28 May, 16 and 23 June and 21 July and 17 September. Hearings scheduled for 17 October and 12 November 2003 were adjourned as the experts had failed to comply with the summonses.
On 21 January 2004 the Wrocław District Court found the accused guilty of causing death by dangerous driving and sentenced him to one year’s imprisonment, suspended conditionally for three years, and to a fine. On 26 February 2004 the defendant appealed.
On 29 June 2004 the Wrocław Regional Court quashed the judgment and remitted the case. It found that there were serious discrepancies between the terms of the judgment and its written grounds and that numerous shortcomings of a procedural character had occurred in the proceedings.
Three hearings were held before the District Court after the case had been again remitted.
On 14 December 2004 the Wrocław District Court found the accused guilty, sentenced him to one year’s imprisonment, suspended conditionally for 3 years, to a fine and to the payment of damages to the applicant. Both the applicant and the defendant appealed.
On 2 June 2005 the Wrocław Regional Court upheld the first-instance judgment in its part concerning the conviction and the sentence. It quashed the part concerning the payment of damages. It observed that the firstinstance judgment of 21 January 2004 had not contained any decision concerning compensation as the court had availed itself of the possibility of leaving the civil claim undecided. It had been appealed against by the defendant and was subsequently quashed. In this situation, the firstinstance court, when deciding the case again, could not rule on the compensation claim as this was in breach of the reformationis in peius prohibition.
The applicant was a party to these proceedings having the status of a victim of the offence.
On 2 February 1998 the driver of the Ford was heard by the police as a witness.
On 27 February 1998 the District Prosecutor decided to discontinue the inquest proceedings as he found that although the driver of the Fiat had been responsible for the accident, his or her identity had not been established. On 9 March 1998 the applicant appealed.
On 7 April 1998 the Wrocław Regional Prosecutor upheld the decision. On 11 May 1998 the applicant appealed.
On 2 June 1998 the Wrocław Appellate Procurator ordered the investigation to be reopened with a view to taking additional investigatory measures, including questioning of further witnesses and obtaining an expert opinion on traffic accidents.
On 30 September 1998, by a decision of the police, the investigation was discontinued as the driver of the Fiat had not been identified. On 15 October 1998 the applicant appealed.
On 9 February 1999 the Strzelin District Court upheld the decision. On 20 February 1999 the applicant appealed.
On 23 February 1999 the President of the Strzelin District Court found the applicant’s appeal inadmissible in law. The applicant appealed. On 16 April 1999 the Wrocław Regional Court upheld the contested decision.
Under Article 415 § 3 of the Code of Criminal Procedure, the criminal court shall not decide on a civil claim brought in the criminal proceedings if it finds that the evidence gathered in those proceedings is insufficient to make a ruling and the gathering of such evidence would unduly prolong the proceedings. It is open for the victim of the offence to seek compensation in civil proceedings.


ITEMID: 001-113499
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: YOLTAGIL v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 1. The applicant, Mr Hasan Yoltagil, is a Turkish national, who was born in 1955 and lives in Malatya, Turkey. He was represented before the Court by Mr N. Sert, a lawyer practising in Turkey.
2. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. According to the applicant, he came to Azerbaijan in 1992 with the intention of settling permanently in Ganja. He worked in the leather business and established two private companies in 1992 and 1996.
5. The applicant was recognised as a victim in two different sets of criminal proceedings which ended in June 2000 and May 2003, respectively. According to the relevant judgments, the convicted defendants had to pay the applicant 118,434 United States dollars (USD) and USD 25,150 as compensation for damage. The defendants failed to pay and the applicant applied to the domestic authorities asking for the execution of the court judgments and payment of the debts. According to the applicant’s submission, he was also owed large amounts of money by two other private individuals.
6. During a standard passport check on 25 April 2006, officers of the Ganja City Police Office discovered that the applicant had been living in Azerbaijan without a valid residence permit or passport.
7. On 26 April 2006 the Ganja City Police Office drew up a record for an administrative offence (inzibati xəta haqqında protocol), by which the applicant was found to be in breach of Article 330 of the Code of Administrative Offences (“the CAO”). It decided to fine him in the amount of 110,000 old Azerbaijani manats (equivalent to 22 new Azerbaijani manats) and to deport him from Azerbaijan.
8. The applicant gave a handwritten explanation, in the section of the report designed for this purpose, that his passport was at the Turkish Embassy at the time. He made no reference to the residence permit. He then confirmed that he had read the report, by signing it in three different places.
9. It appears that at a later date the applicant received his passport back from the Embassy and presented it to the Ganja City Police Office.
10. By a letter dated 26 July 2006 the Ganja City Police Office forwarded the applicant’s passport and other documents to the Department of International Cooperation of the Ministry of Foreign Affairs, informing them that it had been decided to deport the applicant and requesting the Department’s assistance with the deportation.
11. According to the applicant, he was deported from Azerbaijan on 10 September 2006 without any explanation.
12. According to the Government, the applicant was deported on 13 September 2006 pursuant to the decision of 26 April 2006.
13. According to the applicant, after his deportation, he applied for a visa to the General Consulate of the Republic of Azerbaijan in Istanbul. On 22 September 2006 he was granted a month-long Azerbaijani visa by the consulate. However, he was refused entry to Azerbaijan on 25 September 2006 at the Turkish-Azerbaijani border and again on 4 October 2010 at the Georgian-Azerbaijani border.
14. In October 2006 the applicant applied to the Turkish Ministry of Foreign Affairs, complaining that he had been deported from Azerbaijan because he had asked the domestic authorities to ensure the payment of unpaid debts. On 5 December 2006 the Turkish Ministry of Foreign Affairs informed the applicant that his complaint had been sent to the Azerbaijani authorities in the form of a diplomatic note. By a letter dated 16 February 2007, the Turkish Ministry of Foreign Affairs informed the applicant that, according to the information provided by the Azerbaijani authorities, he had been deported on 13 September 2006 under Article 330 of the CAO for residing on the territory of Azerbaijan without the relevant residence permit.
15. The relevant provisions of the Code of Administrative Offences (“the CAO”), in force at the material time, read as follows:
Article 330. Residence without registration or unlawful stay in the Republic of Azerbaijan of foreign nationals or stateless persons
“Foreign nationals or stateless persons who reside on the territory of the Republic of Azerbaijan without registration or ... stay without an official permit or visa shall be fined ... and deported outside the borders of the Republic of Azerbaijan under the administrative procedure.”
Article 430. The right to lodge a complaint or appeal against a decision on administrative offences
“430.1. A person against whom an administrative decision has been taken, ... as well as his or her counsel or representative, may lodge a complaint against the decision.
430.2. A complaint ... against a decision on an administrative offence is lodged according to the following procedure:
...
430.2.3. against a decision taken by the competent authority or official – to the superior authority or official, or to court.”
16. According to Article 12 of the Law on the Entry into and Departure from the Country and on Passports, as in force at the material time, a foreign national could be refused entry into the country if he or she had breached the requirements of Azerbaijani law during his or her previous stays in the country.


ITEMID: 001-107570
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: RIZI v. ALBANIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Ms Violeta Ngjela, née Rizi, is an Albanian national who was born in 1938 and lives in Durrës. She was represented before the Court by Mr E. Todhe, a lawyer practising in Durrës. The Albanian Government (“the Government”) were represented by their then Agent, Mrs E. Hajro of the State Advocate’s Office.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 22 July 1993 the Durrës District Court (“the District Court”) recognised the existence of the applicant’s father’s property rights over a plot of land measuring 520 sq. m situated in the city of Durrës (vendim vërtetim fakti). On an unspecified date, a six-storey building was constructed on that plot of land, including the bar-restaurant “Primavera”, located on the ground floor.
4. On an unspecified date the President of the then Court of Cassation made a request for supervisory review in respect of the decision of 22 July 1993. On 18 November 1994 the Court of Cassation decided to quash that decision on the ground that a thorough investigation had not been conducted by the lower court, and remitted the case for fresh examination. On 17 January 1995, following a request for interpretation, the then Court of Cassation ruled that its decision of 18 November 1994 had not had any effect on the outcome of the proceedings decided by way of the District Court decision of 5 May 1994 (see paragraph 7 below).
5. It would appear that the rehearing proceedings were dismissed by the District Court on an unspecified date, following the applicant’s loss of interest in the case.
6. On 1 April 1994 the Durrës Commission on Restitution and Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të Pronave – “the Commission”) recognised the Ks’ (third parties) inherited property title to a plot of land measuring 1,830 sq. m (“Commission decision no. 1”), including the right to first refusal on the premises of the bar-restaurant “Primavera”.
7. On an unspecified date the Ks requested the District Court to recognise their property title to the plot of land on which the “Primavera” had been built. On 5 May 1994 the District Court, relying on its decision of 22 July 1993 (see paragraph 3 above), dismissed their claim. It annulled Commission decision no. 1 and recognised the applicant’s and her siblings’ property rights over the plot of 520 sq. m. On an unspecified date the Ks appealed.
8. On 16 September 1994 the Durrës Court of Appeal upheld the District Court’s decision recognising the applicant’s and her siblings’ title to the plot of 520 sq. m. However, it quashed the part of the District Court’s decision that had annulled Commission decision no. 1, in so far as the Commission had not been invited as a party to the proceedings. On an unspecified date the Ks appealed to the Court of Cassation.
9. On 22 November 1994 the Court of Cassation quashed both lower courts’ decisions. Deciding on the facts, it dismissed the Ks’ complaints in the light of their withdrawal from the case. The Commission decision of 1 April 1994 thus became enforceable.
10. Interpreting the Court of Cassation decision of 22 November 1994 as having recognised the applicant and her siblings’ property title to the plot of land, on 2 February 1995 the Commission recognised the applicant’s and her siblings’ inherited property title to 520 sq. m (“Commission decision no. 2”), including the right to first refusal in respect of the premises of the “Primavera”. On 21 February 1995 the applicant’s siblings, by means of a contract of donation, donated their equal shares in the land to the applicant.
11. On 7 February 1995 a contract of sale was concluded between a State-owned company, NTUS, the National Agency for Privatisation, (“the NAP”), and the applicant, whereby the latter acquired the premises of the “Primavera” for 1,607,310 Albanian leks (ALL).
12. The applicant was also issued with a certificate of registration of property (no. 6085) by the Office for Registration of Immovable Property, dated 21 February 1995.
13. On 18 September 1995 the Ks lodged a complaint with the District Court requesting the annulment of Commission decision no. 2. It appears from the file that the applicant was not a party to these proceedings.
14. On 16 October 1995 the District Court annulled Commission decision no. 2. Relying on the Court of Cassation decision of 22 November 1994 (see paragraph 9 above), it found that Commission decision no. 2 had been issued in breach of the law as the applicant’s property rights had been quashed. The District Court further noted that since the applicant had failed to pursue the application following the remittal of her case by virtue of the Court of Cassation decision of 18 November 1994 (see paragraph 4 above), it had dismissed the proceedings.
This decision became final, no appeal having been filed against it.
15. In the light of the invalidity of Commission decision no. 2, on 3 April 1996 the NAP and the Ks filed a complaint with the District Court against the contract of sale, alleging that it was null and void.
16. On 2 October 1997 the Kavaja District Court annulled the contract of sale, relying on the same reasoning as in the decision of 16 October 1995 (see paragraph 14 above). It decided that the amount paid, indexed to take account of inflation, should be returned to the applicant. On 13 October 1997 the applicant appealed.
17. On 20 May 1998 the Tirana Court of Appeal quashed the Kavaja District Court’s decision and remitted the case for re-examination by a different formation of that court, holding as follows:
“In re-examining the case the District Court should take into account any overlapping of the plots of land allocated by the Commission’s decisions... The District Court should correctly identify the parties, summon the Commission and conduct a topographic study to look into and clarify the foregoing.”
18. On 7 April 2000 the Durrës District Court declared Commission decision no. 2 null and void. It also declared void the contract of sale and ordered the NAP to reimburse the sum paid by the applicant, indexed to take account of inflation. On an unspecified date the applicant appealed.
19. On 29 June 2000 the Durrës Court of Appeal (“the Court of Appeal”) quashed the District Court decision. It found that Commission decision no. 2 was still in force as it had not been challenged before the domestic courts. No reference was made to the District Court decision of 16 October 1995 (see paragraph 14 above). The proceedings initiated by the Ks were dismissed. On an unspecified date the Ks lodged an appeal with the Supreme Court.
20. On 22 November 2001 the Supreme Court quashed the Court of Appeal’s decision and remitted the case for re-examination. It found that the Court of Appeal had failed to rule on all of the Ks’ complaints.
21. On 7 October 2002 the Court of Appeal upheld the Durrës District Court’s decision of 7 April 2000. It found, inter alia, as follows:
“The Court of Cassation by a decision ... in 1996 ... made an interpretation of the decision ... dated 22 November 1994. According to its interpretation, the plaintiffs’ [the Ks’] withdrawal resulted from the fact that they had become the owners of the plot of land as a result of the Commission decision of 1 April 1994 [Commission decision No. 1].
The Court of Cassation’s judgment of 22 November 1994 did not recognise the right of property of the defendant [i.e. the applicant] and, as such, it could not serve as a property title on the basis of which the Commission could act.
The defendant argued that her property title was based on the District Court decision of 22 July 1993. However, this decision was quashed by the Court of Cassation decision of 18 November 1994.”
22. On 11 November 2002 the applicant lodged an appeal with the Supreme Court.
23. On 1 July 2004 the Supreme Court, by a majority, upheld the decision. It confirmed that the applicant’s right to property had not been recognised, finding that the Commission had not only committed procedural violations in awarding the property to the applicant, but had also misinterpreted the merits of the applicant’s case. The Supreme Court ordered that the sum paid by the applicant should be reimbursed in accordance with the terms of the decision of the Durrës District Court of 7 April 2000. On 28 January 2005 the applicant filed a constitutional complaint with the Constitutional Court.
24. On 7 February 2005 the Constitutional Court declared the applicant’s complaint inadmissible, finding that it did not raise any breaches of the right to a fair hearing.
25. On 24 October 2005 the NAP ordered that the amount of ALL 1,607,310 be returned to the applicant pursuant to the 2004 Supreme Court judgment.
26. On 10 March 2011 the applicant informed the Court in writing that the judgment had been enforced on an unspecified date. No supporting documents were submitted by the applicant, despite the Registry’s request to do so in their letter of 18 February 2011.
27. On 11 April 2005 the applicant filed an application with the Supreme Court for review of its decision of 1 July 2004 in the light of new evidence and facts. She complained, inter alia, in the light of a letter from the Ministry of Territorial Adjustment and Tourism, that two of the three experts who had prepared the experts’ report had not been licensed by the authorities.
28. On 11 November 2005 the Supreme Court rejected that application. It made reference to the previous court rulings, outlined the reasons for the applicant’s request for review and concluded that the request did not comply with Article 494 of the Code of Civil Procedure (see “Relevant domestic law” below). Judge N.K, who had also been in the majority which had ruled against the applicant in the Supreme Court’s decision of decision of 1 July 2004, was a member of the bench.
29. On 6 March 2006 the applicant lodged a constitutional appeal.
30. On an unspecified date the applicant renewed her request for review.
31. On 24 March 2006 the Supreme Court rejected it as being substantially the same as the previous request.
32. On 27 September 2006 the Constitutional Court declared the applicant’s complaint inadmissible, finding that the issues raised fell within the jurisdiction of the lower courts.
33. By a letter of 1 November 2007 the applicant informed the Registry that she had brought proceedings against the NAP for reimbursement of expenses incurred in the maintenance and renovation of the bar-restaurant “Primavera”.
34. On 16 June 2006 and 20 December 2007 the District Court and the Court of Appeal, respectively, ruled in favour of the applicant. The parties have not provided copies of the courts’ decisions. However, an appeal before the Supreme Court appears to be currently pending.
35. The relevant parts of the Albanian Constitution read as follows:
“Article 42 § 2
In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
“Article 131
The Constitutional Court shall determine: ... (f) complaints by individuals alleging a violation of their constitutional rights to a fair hearing, provided all legal remedies for the protection of those rights have been exhausted.”
“Article 142 § 3
State bodies shall comply with judicial judgments.”
36. Articles 494-502 of the CCP govern the review of court judgments. Article 494 provides that the review of a final decision may occur, inter alia, when: (a) new circumstances or new written evidence which are important to the case, which could not have been known to the party during the proceedings, are discovered; or (b) it is proved that witnesses’ statements or experts’ opinions on which the decision is based were false.
37. Under Article 496 of the CCP a request for review is submitted within 30 days of the date on which the requesting party had knowledge of the ground for review and, in any case, not later than one year from the date on which the ground for review came into existence. Article 498 of the CCP states that an inadmissibility decision on the request for revision is taken by the Supreme Court without the parties being present.


ITEMID: 001-58842
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF VARBANOV v. BULGARIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (abuse of right of petition);Violation of Art. 5-1;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 8. The applicant is a Bulgarian national born in 1930 and living in Sofia. He is an economist, now retired.
9. On 6 October 1993 a Mr Z. lodged with the District Prosecutor's Office (Районна прокуратура) in Sofia a complaint against the applicant, stating that he was mentally ill and dangerous. The applicant and Mr Z. had been involved in disputes related to their joint business activity which had been the object of five sets of judicial proceedings between them. The applicant had apparently threatened Mr Z., stating in a letter to him that, inter alia, the only possible method of getting his money back was “the axe”, and that “a dog deserves a dog's death”. Mr Z., for his part, threatened the applicant with punishment according to medieval laws.
10. Following the receipt of Mr Z.'s complaint, the District Prosecutor's Office opened an inquiry. The purpose of the inquiry was, initially, to establish whether there were grounds to institute criminal proceedings against the applicant for having threatened to kill someone. On 14 October 1993 the prosecutor transmitted the file to the local police department with instructions to investigate Mr Z.'s complaint and to serve the applicant with a warning that he should cease his unlawful behaviour. On 20 October 1993, after hearing the applicant, a police officer drew up a report in which he stated, inter alia, that the applicant had repeated his threats against Mr Z., and that he appeared to have mental problems and was likely to carry out his threats. The police officer also heard a neighbour of the applicant who stated that he was a troublemaker.
11. The parties have submitted to the Court documents in respect of the applicant's mental health. A certificate issued on 18 October 1993 by a doctor at the Sofia City Psychiatric Clinic (Градски психиатричен диспансер) established that the applicant, who had requested a psychiatric examination declaring that he needed to have his capacity to make a will certified, was mentally healthy. In their report of 9 November 1995, the medical experts who examined the applicant during his confinement in a psychiatric hospital (see paragraph 26 below) concluded that he had a paranoiac psychosis, that he was aggressive and posed a threat to others. In a later certificate, issued on 4 March 1996, another doctor who had examined the applicant found that he was mentally healthy. The applicant did not have a history of psychiatric problems.
12. In February 1994 the District Prosecutor's Office instructed the local police department to inquire whether it was necessary to request, from the competent court, the applicant's compulsory psychiatric treatment under section 36 of the Public Health Act (Закон за народното здраве).
13. According to the applicant's version of the facts, in October 1993 and again in April 1994 he submitted to the prosecution authorities a copy of the certificate of 18 October 1993 which established that he was mentally healthy (see paragraph 11 above) and another document to that effect. He alleged that he had gone to the Sofia City Psychiatric Clinic on two occasions requesting to be examined, but that had been refused.
14. As it transpires from the summary of facts contained in the medical report of 9 November 1995 (see paragraph 26 below), in the course of the prosecutor's inquiry the applicant was invited on 9 May and again on 5 September 1994 by the director of the Sofia City Psychiatric Clinic to come for a psychiatric examination. It appears that the applicant received these invitations. He sent letters in reply stating, inter alia, that he would not undergo an examination unless an international commission were set up, and described the hospital as “corrupt” and as a “department of the State security police”.
15. On 27 January 1995 a prosecutor from the District Prosecutor's Office ordered that the applicant should be brought by force to a psychiatric hospital, and be kept there for twenty days to undergo a psychiatric examination. This was necessary in view of the prosecutor's intention to submit to the competent court a request for the applicant's committal for compulsory psychiatric treatment. The order also stated that it was issued pursuant to section 36 of the Public Health Act, section 22 of Guidelines no. 295/85 of the Chief Public Prosecutor's Office (Указание на Главна прокуратура) and section 4(2) of Instruction no. 1/81 of the Ministry of Public Health (инструкция на Министерство на народното здраве). It was based on the material collected in the course of the inquiry (see paragraphs 10-14 above).
16. On 30 January 1995 the prosecutor's file was sent to the psychiatric clinic in Sofia, with a copy to the local police. On 3 May 1995 the District Prosecutor's Office asked the police to explain their failure to enforce the order of 27 January 1995. On 16 August 1995 the police returned the file to the District Prosecutor's Office with the explanation that the applicant had not allowed access to his home. On 23 August 1995 the District Prosecutor's Office again transmitted the file to the police and insisted on the enforcement of the order of 27 January 1995.
17. On 31 August 1995, on the basis of the prosecutor's order of 27 January 1995, the applicant was taken from his home by the police and brought to a psychiatric hospital.
The applicant underwent psychiatric examinations. He was given sedatives. The doctors also interviewed his wife, asking her questions about his past.
18. On 4 September 1995 the applicant was diagnosed as suffering from pneumonia. A treatment with antibiotics was applied.
19. On 5 September 1995 the applicant's wife submitted a complaint to the Sofia City Prosecutor's Office (Градска прокуратура). She stated, inter alia, that the manner in which her husband was treated was inhuman, that she had not been given a copy of the prosecutor's order and that she had not been allowed to visit her husband in the hospital until 2 September 1995. She asked the prosecutor to release the applicant from the psychiatric clinic.
20. On 15 September 1995 the applicant was transferred to a general hospital in a critical condition because of the developing pneumonia. In the following days his health improved.
21. It appears that during the first few days after his transfer to the general hospital the applicant remained under the control of a psychiatrist. He was instructed not to leave the room where he had been placed and was tied to his bed during the night. The applicant stated, and the Government did not dispute, that this situation lasted until 24 September 1995, when his health started to improve.
22. On 18 September 1995 the psychiatrists who were in charge of conducting the applicant's compulsory examination at the psychiatric hospital informed the District Prosecutor's Office about the applicant's transfer and requested an extension until 20 October 1995 of “the time-limit for the forensic psychiatric report”. The request was granted orally by telephone. It appears that the prosecutor did not make any formal order terminating the compulsory stay of the applicant at the psychiatric clinic.
23. On 11 October 1995 a regional prosecutor wrote to the applicant's wife in relation to her complaint of 5 September 1995. The letter stated only that her husband had been transferred to a general hospital and that, therefore, the district prosecutor would be given additional time to deal with his inquiry.
24. On 16 October 1995 the applicant was discharged from the general hospital and went home as “no psychiatric treatment was necessary at [that] moment”, according to a psychiatrist who had examined him.
25. In November 1995 and later again the applicant complained in respect of the events of August-September 1995 to the prosecution authorities stating, inter alia, that the district prosecutor had acted unlawfully. The complaints were examined by the Sofia City Prosecutor's Office and then by the Chief Public Prosecutor's Office, which replied by letters of 1 February and 12 June 1996 respectively that the district prosecutor had complied with the applicable procedure.
The applicant also sent numerous letters to the Minister of Health, to the courts and to other institutions complaining that he had been ill-treated and that the doctors and the prosecutors wanted to kill him. He received answers from the public-health authorities reciting the sequence of events and assuring him that his suspicions were unfounded.
26. In the continuing inquiry of the district prosecutor, three medical experts, who had examined the applicant at the time when he was at the psychiatric hospital, delivered a report dated 9 November 1995 in which they recommended compulsory treatment because, inter alia, he did not understand his condition, refused any form of voluntary treatment and was extremely aggressive.
27. In January 1996 the district prosecutor submitted a request to the Sofia District Court (Районен съд) for an order committing the applicant for compulsory psychiatric treatment under section 36(3) of the Public Health Act. On 30 April 1996, after a hearing, the court dismissed the request. The applicant's and the prosecutor's ensuing appeals were rejected as being out of time.
28. According to section 36(3) to (6) read in conjunction with section 59(2), section 61 and section 62(1) of the Public Health Act, a mentally ill person can be committed for compulsory psychiatric treatment by a decision of a district court.
Such judicial proceedings are instituted by a district prosecutor who is under the obligation to undertake a prior inquiry, including a psychiatric examination, in order to assess the need for instituting proceedings. The prosecutor therefore would normally invite the person concerned to undergo an examination in the framework of his inquiry.
The Public Health Act, as in force at the relevant time, did not contain any provision expressly authorising a prosecutor to order a person to be brought by force to a hospital and detained there for the purpose of such a psychiatric examination. Under section 62(2), a prosecutor could issue an order for a compulsory examination, but only in respect of alcoholics or drug addicts.
Certain powers were given to the prosecutor where the person's state of health required emergency measures. In such a situation the chief medical officer of a hospital could order a person's temporary compulsory treatment. The doctor had to inform immediately the competent prosecutor, who had to institute proceedings before the competent court (section 36(5) of the Act and section 70 of the Act's implementing regulations). According to Section 70(2) of the Act's implementing regulations, if the prosecutor refused to institute judicial proceedings, the chief medical officer had to release the patient immediately.
29. The relevant law did not provide for an appeal to a court where persons were detained for an examination in the framework of a district prosecutor's inquiry. Section 105(4) of the Public Health Act, read in conjunction with the Administrative Procedure Act (Закон за административното производство), provided for a judicial appeal, but only against orders for compulsory treatment of persons suffering from a contagious disease (section 36(2)) and against “[other orders] of the public-health authorities”, not of the prosecution authorities.
30. Instruction No. 1/81 of the Ministry of Public Health is a piece of delegated legislation. It is based on section 2 of the supplementary provisions to the Public Health Act, which stipulates that the Minister of Public Health shall issue regulations and instructions for the implementation of the Public Health Act. The instruction is published in the Official Gazette.
Section 4(2) of the instruction, in its relevant part, provides as follows:
“... the [forensic psychiatric] examination shall be effected by the health-care authorities with the consent of the person concerned. Where the person concerned does not consent, the health-care authorities shall promptly request a written order and assistance from a prosecutor or a court for the [person's] examination without admission to a hospital, or for the [person's] temporary committal to a psychiatric clinic for the purpose of effecting a forensic psychiatric examination.”
31. Guidelines no. 295/85 of the Chief Public Prosecutor's Office is an internal document for prosecutors in their work in cases of compulsory medical treatment. It has not been published.
Sections 16 et seq. concern the steps to be taken where there has been information that a person may be liable to compulsory psychiatric or other treatment. These provisions deal with compulsory examinations and treatment of persons of unsound mind, alcoholics and drug addicts, without distinguishing between these three categories (in contrast to the provisions of the Public Health Act, where separate rules exist).
According to the guidelines, following the receipt of a complaint or other information the prosecutor has to conduct an inquiry and, if there are clear indications that a psychiatric problem is involved, to invite the person concerned for a psychiatric examination. Section 21(2) provides as follows:
“In case the person concerned does not appear [for the examination] within the time-limit indicated to him, the prosecutor shall order him to be brought by force by the police (section 62(2) of the Public Health Act).”
Section 22 of the guidelines provides as follows:
“Upon the proposal of the chief medical officer of the psychiatric clinic the prosecutor may, on the basis of the medical documentation provided, authorise in writing the temporary internment of mentally ill persons in a specialised hospital, for a psychiatric examination (section 70 of the Public Health Act's implementing regulations). The prosecutor shall then promptly submit a request for compulsory treatment.”
32. Certain amendments to the Public Health Act were introduced in February 1997. These amendments, in paragraphs 2 to 4 of section 61, provide that a prosecutor, in the framework of his inquiry, can order the confinement in a psychiatric hospital for up to thirty days (up to three months in exceptional cases), for the purpose of a medical examination, of a person who has refused to undergo such an examination voluntarily. However, no provision allowing judicial review of the prosecutor's order was introduced.
The Code of Criminal Procedure, by virtue of an amendment in force since 1 January 2000, introduced a judicial procedure for the confinement in a psychiatric clinic of a person against whom criminal proceedings have been brought. This procedure, however, does not concern persons who have been confined in a clinic for a psychiatric examination pursuant to a prosecutor's order under section 61 of the Public Health Act.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4


ITEMID: 001-102322
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ALEKSEY OVCHINNIKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 10
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1974 and lives in Ivanovo. He is a journalist writing for the Ivanovo-Press newspaper.
6. In early July 2002 a nine-year-old boy attending the Stroitel summer camp complained to his parents that he had been beaten up and sexually abused by his twelve-year-old roommates. Further to a complaint by the boy's parents, the police found evidence of criminal offences which, however, were not prosecutable because the offenders were minors.
7. One of the offenders was the son of two federal judges, Mr and Mrs B. Another culprit was the stepgrandson of the deputy head of the Ivanovo Regional Traffic Police, Mr V.
8. As the offenders' parents held prominent positions in the region, the media took an intense interest in the story. The first article about the incident was published on 26 August 2002 by the Kursiv-Ivanovo weekly newspaper. The publication listed the names and positions of the offenders' relatives.
9. After the victim's mother had brought the police reports and the relevant medical records to the applicant's newspaper, the applicant undertook independent research into the events. In particular, he interviewed the principal of the Stroitel summer camp, several of its teachers, an official responsible for the supervision of summer camps in the region, a spokesman for the police department charged with the investigation and the head of the Judicial Qualifications Board.
10. On 3 September 2002 the applicant published an article about the incident at the summer camp in the Ivanovo-Press newspaper, under the headline “Day of reckoning” (Час расплаты). He wrote, in particular, as follows:
“Any story [of battery and sexual abuse] deserves the most rapt attention. This one is particularly shameful because of the fact that the parents of one little bastard work as judges in a district court, and a close relative of another is one of the heads of the regional traffic police.
It is hard to write about this matter. The case affects children, their lives, their tragedy and their future. It is hard because the guilt and its extent should be determined by a court, but the underage participants in this story are, alas, not liable to prosecution ... Their parents should be responsible for their deeds vis-à-vis society and the State. This is why we have decided to take the matter up ...
I believe readers will excuse me for not providing a detailed description of the abuse to which the kid was subjected (in fact, our colleagues from the Kursiv newspaper have already provided one). I will say only one thing: the circumstances of those unchildlish deeds were established by evidence. They amount to assault and battery, punishable by Article 116, and sexual assault, punishable by Article 132 of [the Criminal Code]. Thus, if those moral freaks had been charged with criminal offences and committed for trial, they would have risked long terms of imprisonment.
... [After the parents of the victim had complained to the police,] an investigation was conducted by officers from the Interior Department of the Teykovskiy District, who established that the actions of the three minor rapists indeed disclosed all the elements of criminal offences. However, no criminal proceedings were opened because the suspects were minors. Meanwhile, the press learned about the events and a scandal erupted.
It is not the first time that the attention of law-enforcement bodies has been riveted to the children of high-ranking parents. However, as a rule, such cases are abandoned at an early stage of the inquiry. Even when they are referred for trial, the general public hardly ever knows about it. Without any doubt, had the administration of the Stroitel summer camp paid attention to the facts and warned the parents in time, the investigators from [the Interior Department of the Teykovskiy District] would have hardly been allowed to go on with the investigation. The events were, however, left to take their course and were made public.
We must do some serious thinking here. How can it be? A kid whose parents work as JUDGES has committed a crime! Is it a coincidence or a pattern? What did his parents teach him? Perhaps they thought that the judge and the Law were one and the same thing, that the judge was not servant but master of the law, a superhuman? And that his children were superhumans, too; they could do whatever they pleased, in the knowledge that their mothers and fathers would exempt them from liability...
Another [offender] has a relative in the police force. Not an ordinary one, but a bigwig sporting star-studded epaulettes. So, is anything permitted? If something happened, would he 'cover up' and 'fix' it?
How will these people carry on working in the courts and the police force? Delivering judgments, sentencing men to prison terms for crimes for which their progeny could have been convicted? Or are they already used to doing this? After all, all these conjectures are based on real grounds and it is very likely that the case will be hushed up thanks to 'string pulling' by the rogues' parents.
We were told that pressure was being put on the victim's parents, that their physical integrity had been threatened. What is more, while our editorial board was working on that publication, we received a number of bizarre telephone calls asking us to stop the journalistic investigation and stay out of the way of the judges and their children. It is strange that none of the 'well-wishers' who called us considered the fate of the injured child, of how he will live after what happened. Nor did they consider the fate of the underage members of the 'criminal trio'. What will become of them? Could it be that, having gone unpunished once, they will resume their 'sexual experiments' in a couple of years? ...
P.S. Unfortunately, because of recent amendments to the Media Act, the newspaper may not name the young rascals or their parents and relatives ... We will carry on investigating the matter and in a future issue we will give concrete examples of how the children of judges and police officials have escaped punishment.”
11. According to the applicant, subsequent publications in the KursivIvanovo and Rabochiy Kray newspapers and on the Internet gave the names and official positions of the offenders' parents and relative.
12. On 17 September 2002 the applicant published a follow-up article, under the headline “Chocolate Kids. High-ranking parents of minor rapists seek to hush up the scandal” (“Шоколадные детишки. Высокопоставленные родители малолетних насильников пытаются замять скандал”). He wrote as follows:
“The case developed into a scandal because the parents of one suspect were the spouses [Mr and Mrs B.], judges in a district court of Ivanovo, and a close relative of another, [Mr V.], was deputy head of the regional traffic police.
Quite naturally, these high-ranking parents were not prepared to put up with the course of events. In addition to the ethical dimension, the scandal was a potential threat to their careers and financial well being. In the beginning they attempted to portray the events as an ordinary fist fight! With that purpose, and with the complicity of the regional administration, the prosecutor's office ordered an additional inquiry ...
Judging from the diligence with which all that has been done, as well as from the fact that the official newspapers were suddenly full of lengthy articles about this year's wonderfully organised summer holidays for children, attempts are being made to exert pressure on the course of the resumed investigation.
Most likely, this inquiry will establish that all the suspects are 'warm and fuzzy'. Yet, the fact that the abuse did indeed take place is confirmed by the fact that, precisely because of those scandalous events, one of the little scoundrels has been placed in a detention centre for juvenile offenders pursuant to an order of the Oktyabrskiy District Court. It follows that the son of simple factory workers is segregated from society, while his accomplices, the children of judges and bigwigs from the police, are at liberty! ...
Our journalistic inquiry uncovered sensational information about [Mr V.] It turns out that this criminal scandal is not the first one in his family. His eldest son, Valeriy, has been on the list of fugitives from justice since 1995: he was suspected of assault with intent to rob. His youngest son, also a traffic police officer, caused a road accident a few years ago, in which a young woman was seriously injured ... But he managed to escape responsibility. And now this gloomy story involving [Mr V.'s] stepgrandson. It begs a question for the management of the regional police, who are certainly aware of these facts: how can such a person still work in the field of law enforcement in a position of leadership in the traffic police?
This week the [judicial] qualification board will decide on the destiny of the judges [Mr and Mrs B]. If they carry on working as judges, this again begs a question: how will these people sentence others if they were unable to bring up their own child [properly]? ...”
13. Mr and Mrs B. brought a civil action for defamation and disclosure of private information on their own behalf and on behalf of their minor son. They named as defendants the founders of the Kursiv-Ivanovo newspaper and its journalists, as well as the applicant and the company that owned his newspaper. They sought a retraction and compensation for non-pecuniary damage. They enclosed the text of the retraction, containing an apology that they wished the applicant's newspaper to publish.
14. On 12 March 2003 the Sovetskiy District Court of Ivanovo gave judgment. It noted that the statements accusing Mr and Mrs B.'s son of violent acts were true because the police had found evidence of a criminal offence. The allegedly insulting statements (“little bastards”, “young rascals” and the like) were not actionable because they constituted value judgments not amenable to verification. The alleged breach of the duties of a journalist arising out of the Media Act, namely, disclosure of confidential or private information, was not actionable in civil proceedings because the Media Act provided for criminal or disciplinary, rather than civil, sanctions for such breaches. On the other hand, relying on Article 152 of the Civil Code, the court granted the claimants' request for a retraction of the allegation that they “had attempted to interfere with the investigation” because the journalists had not produced any proof of such interference. It ordered that the newspaper and the applicant publish a retraction containing an apology to Mr and Mrs B. It further ordered that the applicant pay Mr and Mrs B compensation in respect of non-pecuniary damage in the amount of 3,000 Russian roubles (RUB, approximately 85 euros (EUR)).
15. The applicant appealed. He submitted, in particular, that the articles authored by him did not contain any statements accusing Mr and Mrs B. of interfering with the investigation. He further complained that the order to publish a retraction containing an apology had had no basis in domestic law.
16. On 16 April 2003 the Ivanovo Regional Court upheld the judgment on appeal, finding that it had been lawful, well-reasoned and justified. As regards the order to publish an apology, the Regional Court found that it was for the District Court to determine the contents of the retraction.
17. Mr V., on his own behalf, and his daughter-in-law, on behalf of her son, brought a civil claim against the same defendants for defamation and disclosure of information about their private life. They sought compensation for non-pecuniary damage under Article 152 of the Civil Code. They also sought a retraction and submitted a draft retraction containing an apology.
18. On 19 February 2004 the Sovetskiy District Court granted the claim in part. It found that the journalists had failed to prove the allegation that Mr V. “had interfered with the investigation”, as required by Article 152 of the Civil Code. It rejected as unsubstantiated, without further reasoning, the applicant's argument that his articles had not contained any such statements. It also held the journalists liable for a violation of the claimants' constitutional right to the inviolability of their private lives, finding as follows:
“Under Article 151 of the Russian Civil Code, if a citizen has incurred non-pecuniary damage through actions impairing his personal non-pecuniary rights ... the court may order the person responsible to compensate for the damage.
In accordance with Articles 23 § 1 and 24 § 1 of the Russian Constitution, everyone has the right to the inviolability of his private life, to personal and family secrets, [and] to the protection of his honour and goodwill; it is an offence to collect, keep, use or disseminate information about a person's private life without that person's consent.
The court has not seen any proof that the authors of the articles published in the Kursiv-Ivanovo and Ivanovo-Press newspapers obtained consent to the dissemination of information about the private lives of [Mr V. and his minor stepgrandson]. Accordingly, [their] constitutional right to the inviolability of their private lives has been breached.”
19. The court ordered that the newspaper and the applicant publish a retraction containing an apology to Mr V. and his family. It further ordered that the applicant pay compensation to Mr V. and his daughter-in-law in the amount of RUB 2,000 (approximately EUR 55).
20. In his grounds of appeal the applicant complained about the District Court's inconsistent approach to the issue of whether disclosure of private information was actionable in the civil proceedings. In holding the applicant responsible for dissemination of personal information, the District Court had disregarded the fact that the information had been first published by another newspaper, Kursiv-Ivanovo, and that from that moment it had entered the public domain. Furthermore, the District Court had not identified any statements which could be construed as implying that Mr V. had interfered with the investigation.
21. On 19 April 2004 the Ivanovo Regional Court upheld the judgment, finding that disclosure of personal information was actionable under Article 151 of the Civil Code.
22. Article 24 prohibits collecting, storing, using or disseminating information about a person's private life without that person's consent.
23. Article 29 guarantees freedom of thought and expression and freedom of the mass media.
24. Article 151 provides that a court may award compensation for non-pecuniary damage to an individual who has incurred such damage as a consequence of acts that have violated his personal non-pecuniary rights. Article 150 lists, among other personal non-pecuniary rights, the inviolability of a person's private life, and personal and family secrets.
25. Article 152 provides that an individual may apply to a court with a request for a retraction of “statements” (сведения) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated the statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of the statements.
26. The Mass Media Act (Law no. 2124-I of 27 December 1991) provides that the mass media may not publish information which permits a minor who has committed a criminal or an administrative offence or is suspected of such an offence to be identified, directly or indirectly, unless the minor concerned and his or her guardian has consented to the publication (section 41(3)).
27. An individual or an organisation is entitled to require that the editorial board of a mass medium publish a retraction of untrue statements that are damaging to his/her/its honour, dignity or professional reputation. If the editorial board is unable to prove the truthfulness of the contested statements, it must publish a retraction in the same mass medium. If the individual or the organisation submits a draft text of the retraction, the editorial board must publish the submitted text, provided that it is compatible with the Act (section 43). A retraction must specify which statements are untrue, as well as where and when they were published (section 44(1)).
28. A journalist is entitled to express his personal opinions and valuejudgments in the publications bearing his name (section 47 (9)).
29. A journalist must check the truthfulness of the information he publishes. Before publishing information about an individual's private life, a journalist must obtain the consent of the individual concerned or his or her guardian, except in cases where the publication of such information serves the public interest (section 49(2) and (5). A journalist who has not complied with these duties may be held criminally, administratively or disciplinarily liable in accordance with the law (section 59(2)).
30. Editorial boards, editors-in-chief and journalists are not liable for untrue statements damaging the honour and dignity of individuals or organisations, or for statements infringing the rights and lawful interests of citizens, if such statements are a verbatim reproduction of statements or materials, or extracts of them, that have been published earlier by another mass medium that may be identified and held liable (section 57(6)).
31. Resolution of the Plenary Supreme Court of the Russian Federation no. 11 of 18 August 1992 (amended on 25 April 1995 and in force at the material time) provided that, in order to be considered damaging, statements had to be untrue and contain allegations of a breach of laws or moral principles (for example, the commission of a dishonest act, or improper behaviour at the workplace or in everyday life). “Dissemination of statements” was understood to be the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements were true and accurate (section 7).
32. On 24 February 2005 the Plenary Supreme Court of the Russian Federation adopted Resolution no. 3, which required the courts examining defamation claims to distinguish between statements of facts which can be checked for veracity, and value judgments, opinions and convictions which are not actionable under Article 152 of the Civil Code because they are expressions of a defendant's subjective opinion and views and cannot be checked for veracity (paragraph 9). Furthermore, it prohibited the courts from ordering defendants to extend an apology to a claimant, because that form of redress had no basis under Russian law, including Article 152 of the Civil Code (paragraph 18).
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-81078
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MÖREL v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
TEXT: 5. The applicant was born in 1944 and lives in Istanbul.
6. He is the grandson of Ayşe Saide Ergun, who was one of the joint owners of a 255,951 m² plot of land in Çorlu. The applicant's share corresponds to 4,000 m² of the land in question. The applicant's right of succession is established by four different court decisions dated 7 March 1973, 12 July 1974, 5 January 1982 and 12 February 1996. However, the title of the land in question was registered, among others, in the name of Ayse Saide Ergun.
7. On 6 April 1988 the Ministry of Defence informed the Çorlu Municipality that the land in question was going to be expropriated. It communicated to the Municipality the names of the owners who were mentioned on the title deed and requested the relevant tax declarations, in order to determine their addresses. However, only the original owners' first names and the first names of their fathers appeared on the title deed.
8. In its letter of 22 April 1988 the Municipality was only able to submit the tax declarations in respect of some of the owners. They informed the Ministry that since they had not been communicated sufficient information on the identity of some of the owners, they were unable to find their tax declarations.
9. The village headman, the title registry office, the birth registration office, the gendarmerie and the police department in Çorlu also informed the Ministry that they had been unable to ascertain the addresses of the owners, as their last names and their birth registrations were not communicated to them.
10. On 3 May 1988 it was announced in a local newspaper that the property in question had been expropriated. It was also noted that a committee of experts would be assessing its value on 5 May 2005. On the said date the committee of experts assessed the value of the land at 255,951,000 Turkish liras (TRL).
11. On 26 December 1988 and 10 January 1989 the Municipality announced the expropriation of the land over loudspeakers, throughout the town. On 28 December 1988 it was announced, in another local paper, that the compensation for expropriation was deposited in a bank account, in the name of the owners, including that of the applicant's grandmother. In January 1989, the same notification was published also in a national newspaper. In all these publications only the original owners' first names and the first names of their fathers were mentioned.
12. On 30 July 1991 the property in question was registered in the name of the Treasury.
13. On 10 November 1996 the applicant and some of the heirs, who were the joint owners of the land in question, became aware of the expropriation of their property.
14. On 23 November 1996 the applicant, together with four other heirs, filed an action for additional compensation before the Çorlu Civil Court of First Instance, against the Ministry of Defence.
15. The Ministry requested the court to dismiss the case for failure to comply with the statutory time-limit. The plaintiffs argued that the authorities failed to notify them of the expropriation of their property. They contended that the notifications were deprived of any legal effect as they were made in the name of their deceased ancestors.
16. In November 1997 a group of experts, appointed by the court, inspected the land and concluded that the total amount of additional compensation that had to be paid to the plaintiffs was TRL 44,450,601,360. The applicant's share amounted to TRL 2,247,668,465.
17. On 18 February 1998 the court maintained that the Ministry breached the rules of notification as provided in Article 13 of the Law on Expropriation. It noted that the authorities merely notified the expropriation by publishing it in a newspaper, without making an extensive enquiry, as required in Article 7 of the Law on Expropriation. It also noted that the authorities could have also issued a notification through the notary. The Çorlu Civil Court of First Instance therefore dismissed the Ministry's preliminary objection and upheld the plaintiffs' request by increasing the expropriation fee together with an interest rate which would run from 5 July 1989, the supposed date on which several of the owners renounced their property right over the land in question. Relying on the expert report of November 1997, it awarded the applicant TRL 2,247,668,465.
18. On 5 November 1998 the Court of Cassation upheld the decision of the first instance court by modifying the date from which the interest rate would run. It held that the interest should begin to run from 26 December 1996 the date on which the property was transferred to the Ministry.
19. Following the Ministry's request, on 22 February 1999, the Fifth Chamber of the Court of Cassation rectified the decision of 5 November 1998. It held that although the authorities had followed the procedure prescribed in Article 7 of the Law on Expropriation they were unable to ascertain the addresses of the owners. The court maintained that the fact that there were no tax declarations for these properties was also confirmed in the Çorlu Municipality's letter dated 22 April 1988. The Court of Cassation consequently rectified its decision of 5 November 1998 and quashed the decision of the first instance court.
20. On 15 June 1999 the Civil Court of First Instance followed the reasoning of the Court of Cassation. It held that the Ministry had to notify the owners through publication, since it had been unable to determine the addresses, even after carrying out all necessary inquiry. It therefore dismissed the applicant's case for failure to comply with the statutory time-limit.
21. On 7 October 1999 the Court of Cassation upheld the decision of 15 June 1999.
22. On 5 May 2000 the applicant and the other heirs requested the reopening of the proceedings.
23. On 15 February 2001 the Çorlu Civil Court of First Instance asked the Çorlu Municipality and the Çorlu Tax Department whether the owners and their heirs paid any tax for the land in question. All the names communicated in this letter were mentioned in full.
24. The Çorlu Tax Department advised the Ministry to refer to the Municipality, as all property tax declarations as of 1986 were handed over to the municipalities. Whereas, tax declarations which dated before 1986 were submitted for paper recycling.
25. Later on the same day, the Çorlu Municipality informed the court that they were in possession of tax declarations in respect of the land in question, for the years of 1986, 1990, 1994 and 1998, which contained some of the addresses. It also attached to its letter copies of sixteen property tax declarations for the year 1986. According to these declarations, Sermet Ergun, who was the son of Ayşe Saide Ergun and the uncle of the applicant, together with his co-owners paid a total of TRL 2,175 in total, for their property of 11,682 m2.
26. On 23 February 2001 the Çorlu Civil Court of First Instance dismissed the plaintiff's request for rectification.
27. On 24 January 2002 the Court of Cassation upheld the decision of the first instance court. It observed that the authorities tried to find the owners by relying on the information found in the title registry. It noted that it was evident that the original owners were deceased and that the heirs paid their tax duties concerning these lands. It concluded however, that the fact that the tax department did not inform the authorities about the names and addresses of the owners did not render the notification, which had been carried out by the Ministry of Defence in accordance with Article 7 of the Law of Expropriation, void of effect.
28. On 21 June 1934, in accordance with the Law no. 2525, all Turkish citizens, who were, until then, referred to by their first name and the first name of their father, were requested to adopt a family name.
29. Article 7 of the Law on Expropriation (Law no. 2942) provides that the expropriating authority is required to establish ownership and ascertain the addresses by making an enquiry at the title registry, tax department, and birth registry. Moreover they are further expected to make everything that is necessary to contact the owners. Article 13 of the same Law provides that if the addresses of the owners are not found, then the expropriation should be notified by publication.
Following the decision to expropriate a property, a committee of experts is requested to assess the value of the land. This amount is deposited in a bank account, in the name of the owners. Subsequently, all related documents are brought to the attention of the owners either by issuing a notification through a public notary or, when that is not possible, by way of publication (Article 10). If the owners do not request the annulment of the decision to expropriate, even if they file an action for additional compensation, all property rights over the land in question are transferred to the administration within 30 days from notification (Article 14).