ITEMID: 001-60310
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF SABUKTEKIN v. TURKEY
IMPORTANCE: 1
CONCLUSION: No violation of Art. 2 concerning the death of the applicant's husband;No violation of Art. 2 concerning the effectiveness of the investigation;Not necessary to examine Art. 6-1;No violation of Art. 13
JUDGES: Matti Pellonpää
TEXT: 7. On 28 September 1994 the applicant's husband, Salih Sabuktekin, a building contractor, was killed outside his house as he was getting into his van. He was a member of the pro-Kurdish political party, HADEP (the People's Democracy Party) and a delegate of the local Yüregir/Adana branch. According to the witnesses, he was gunned down by two men in civilian clothes in front of a number of people, including his brother, Halil Sabuktekin, who was waiting for him in the vehicle.
8. There are discrepancies between the parties' accounts of what took place, as regards both the timing of the incident and events immediately after the shooting.
9. According to the applicant, the shooting took place between 6.30 a.m. and 7 a.m. Her brother-in-law, Halil Sabuktekin, attempted to chase his brother's killers but had been prevented from doing so by plainclothes police officers, who had proceeded to arrest him and taken him into police custody. In her observations of 31 March 1997 the applicant added that her brother-in-law had set off in pursuit of the killers with another person whom she named in a statement of 21 June 1999 as Latif Turan.
10. In corroboration of her account, the applicant inter alia sent the Commission a statement made by her brother-in-law on 31 March 1997 before a member of the Human Rights Association and a member of the HADEP. According to that statement, the shots had been fired at approximately ten minutes past seven. He had set off in pursuit of the killers with a friend, but they had been intercepted by police officers. After questioning them about the PKK, Hizbullah (the Party of God), and the HADEP, the police officers had taken them firstly to Adana State Hospital, where Halil Sabuktekin had caught sight of his brother on a bench, and then to the police station, where they were questioned. The police had released them an hour later. Halil Sabuktekin had then returned to the hospital, where he learnt that his brother had died in the meantime.
11. The applicant added that some twenty people had been taken into police custody while her husband's funeral was taking place. Moreover, on at least three occasions before her husband's death the police had burst into their house at night and carried out searches. On the first two occasions they had enquired as to her husband's whereabouts and on the third had taken him away. However, he had been released the following day. She also said that their house had been kept under constant police surveillance.
12. The applicant affirmed that she was not asked to attend for interview by the investigators until February or March 1998.
13. The Government maintained that the shots had been fired just before 6 a.m. The investigation revealed that Halil Sabuktekin had immediately taken his brother to Adana Hospital.
14. The Government also maintained that the applicant had been sent a letter requiring her to attend the local police station after the murder, but had failed to do so.
15. The record of the victim's examination on his admission to hospital, which was signed by two doctors, put the time of his arrival at 6.20 a.m. A police report recorded as having been made up at 6.30 a.m. on 28 September 1994 and which was signed by two police officers, A.Ö. and S.A., and a doctor, stated that the applicant's husband had arrived at the casualty and emergency department of the Adana State Hospital at 6.20 a.m. and had been taken to an operating theatre. A second police report signed by the same two officers and Halil Sabuktekin had been made up at 6.30 a.m. on 28 September 1994 to record the remittance of various objects and money in the wounded man's possession to his brother, Halil Sabuktekin.
16. After the incident the police made inquiries at the scene, drew up a sketch map of the locality and took the names of everyone who was present when the shooting occurred. The incident report states that seven cartridges were found.
17. On 28 September 1994 five people, including Halil Sabuktekin, made statements to the police. Halil Sabuktekin said that the incident had occurred at about 6.30 a.m. and that he had taken his brother to hospital on discovering that he had been hit. He made no mention of having chased the assailants or of being stopped by police officers. Abdullah Ertekin, an employee of the victim who was in the back of the vehicle when the shooting took place, made no mention of any such events in his account either. He was questioned by police officers at 7 a.m. and put the time of the shooting at 6.30 a.m., immediately after he and one Mesut Şen had pulled up outside the victim's house in the van. These two witnesses were only able to give a brief description of the two gunmen. Müslüm Olcay, the owner of a tearoom, gave information on the age, height and hair colour of one of the gunmen, but was unable to describe the second. He did, however, say that there were approximately ten people in his tearoom in addition to the workmen who had just left to get into the van. He made no reference in his statement to the suspects being chased after the shooting. Questioned by the same officers, Suphi Özbudak, a baker working nearby, was unable to provide any helpful information.
18. The Adana Public Prosecutor began a preliminary investigation into the murder of the applicant's husband. On 13 October 1994 the Head of the Adana Anti-Terrorist Branch sent a report to the Adana Public Prosecutor, to which were attached the records of the four interviews conducted on 28 September 1994, a sketch map of the scene of the crime and three other police reports giving details of the searches made at the scene and of the vehicle and confirming that the police had received the bullet that had been removed from the victim's body. Two medical reports were also attached, namely the death certificates concluding that an autopsy was required, and the toxicological analysis report. Among other matters referred to in the Head of the Anti-Terrorist Branch's report and enclosed with it were the results of the ballistics report.
19. On 6 December 1994, in the course of that investigation, the Adana Public Prosecutor issued an arrest warrant against a person or persons unknown for murder and requested the relevant police department to investigate the crime and arrest the suspects. It was instructed to report to the Principal Public Prosecutor's Office quarterly on progress.
20. In July 1995 the Adana Anti-Terrorist Branch Headquarters launched an operation against the illegal organisation Hizbullah after several members of the HADEP and a number of PKK supporters were killed. In an interview on 27 July 1995, Z.T., one of fourteen people arrested in that operation, said that another member of the organisation, H.T., had asked him to obtain information on members of the PKK and the HADEP living in the vicinity, including Salih Sabuktekin. After completing his mission, he learnt that the people concerned had been killed in 1994 and 1995. He added that he had no idea who the killers were or who had ordered the murders to be carried out. H.T., who was also among those arrested, was questioned the same day but denied the accusations. That information was passed on to the Adana Public Prosecutor, with a summary of the interviews of the persons questioned.
21. Meanwhile, forensic tests were carried out on firearms and ammunition that had been seized at the homes of some of the people who had been arrested on 20 July 1995. It showed that the cartridge cases from the seized ammunition were not the same as cartridge cases that had been found at the scene of certain unsolved cases.
22. On 4 August 1995 the Adana Public Prosecutor questioned the fourteen suspects. He made an application on the same day for six of them to be remanded in custody.
23. After hearing these suspects the Second Division of the Adana Criminal Court remanded five of them, including H.T. and Z.T., in custody and ordered the release of the sixth.
24. Also on 4 August 1995 the Adana Public Prosecutor relinquished jurisdiction over the case, as he considered that some of the criminal activities of which the persons arrested were accused, namely the counts of being members of and activists in an illegal organisation, fell within the jurisdiction of the Public Prosecutor at the Konya National Security Court.
25. On 11 August 1995 the Public Prosecutor at the Konya National Security Court dropped charges against eight of the fourteen defendants, as he considered that there was no concrete evidence to show that they had played an active role in the illegal organisation. He committed the six remaining defendants to stand trial before the National Security Court.
26. On 16 August 1995 the Public Prosecutor at the Konya National Security Court requested the Adana Public Prosecutor to arrange a confrontation between the four witnesses who had been questioned on 28 September 1994 and six of the persons who had been arrested in July 1995, including Z.T. and H.T. On 1 September 1995 the Adana Public Prosecutor instructed Adana Police Headquarters to produce the four witnesses concerned and the Governor of Adana Prison to produce the six prisoners for a confrontation. Müslüm Olcay was brought before him on 26 September 1995. According to a note dated 29 September 1995, it was not possible to produce Halil Sabuktekin, as he was performing his military service at Doğubayazıt in another region. Abdullah Ertekin and Suphi Özbudak could not be produced either, as they had moved and the police could not find anyone who knew their new address. In letters of 25 September and 18 October 1995 the Adana Public Prosecutor informed the Public Prosecutor at the Konya National Security Court that it had not been possible to hold the requested confrontation, since there was no record of one of the accused in the prison register and the others had been transferred to Karaman Prison.
27. On 7 November 1995 the Public Prosecutor at the Konya National Security Court requested the Adana Anti-Terrorist Branch Headquarters to produce the four witnesses concerned. On 21 November 1995 the Adana Anti-Terrorist Branch Headquarters repeated that Halil Sabuktekin was performing his military service at Doğubayazıt and said that the other witnesses had insufficient means to pay their travel expenses and would attend as soon as they were able.
28. On 28 November 1995, referring in particular to the report of 13 October 1994 (see paragraph 18 above), the Public Prosecutor at the Konya National Security Court requested the Adana Anti-Terrorist Branch Headquarters to conduct a thorough search for those responsible for the murders of Salih Sabuktekin and another person. He asked for quarterly progress reports on the investigation.
29. On 12 December 1995 the Public Prosecutor at the Konya National Security Court invited the Adana Public Prosecutor's Office to arrange for a confrontation between the witnesses to Salih Sabuktekin's murder and the defendants who had been committed on 11 August 1995 for trial by the National Security Court.
30. On 7 March 1996 the Anti-Terrorist Branch Headquarters informed the Public Prosecutor at the Konya National Security Court that, despite its efforts, it had not yet managed to identify those responsible for the two murders referred to in the latter's letter of 28 November 1995. It assured him that as soon as it obtained any further information it would pass it on to him.
31. On 14 March 1996 the Public Prosecutor at the Konya National Security Court again invited the Adana Public Prosecutor's Office to arrange for a confrontation between the persons who had witnessed the murder and the defendants who had been committed on 11 August 1995 for trial by the National Security Court.
32. On 25 July 1996 the Konya National Security Court acquitted the six defendants who on 11 August 1995 had been committed to stand trial before it for lack of evidence. On 1 August 1996 the Public Prosecutor appealed to the Court of Cassation, which, in a judgment of 16 February 1998, upheld the judgment of 25 July 1996.
33. On 25 September 1996, having received no reply to his letters of 12 December 1995 and 14 March 1996, the Public Prosecutor at the Konya National Security Court repeated his request of 14 March 1996 for a confrontation to be arranged. He gave instructions for photographs to be taken of the persons concerned for use for identification purposes should the need subsequently arise. On 3 and 7 October 1996 he received a reply informing him among other things that it had not been possible to arrange for the presence of the persons indicted on 11 August 1995 as, according to the information contained in the indictment, they were in custody.
34. On 18 October 1996 the Public Prosecutor at the Konya National Security Court renewed his requests to the Adana Public Prosecutor's Office for a confrontation to be arranged, explaining that the persons who were to be confronted by the witnesses had been released as a result of their acquittal.
35. On 5 November 1996 the Public Prosecutor at the Konya National Security Court invited the Adana Public Prosecutor's Office to recover the clothing the victim was wearing when he was killed for use in forensic tests. He explained that it might have been handed over to his brother, Abdulvahap. He also requested a further hearing of the four witnesses who had given evidence on 28 September 1994 and a further inspection of the scene of the crime.
36. The Konya National Security Court was abolished by Law no. 4210 of 13 November 1996 and replaced by the Adana National Security Court, to which the case was transferred.
37. On 23 June 1997 the Public Prosecutor at the Adana National Security Court instructed the Anti-Terrorist Branch Headquarters to pursue its investigations into the five crimes of murder and assault, including the murder of Salih Sabuktekin, that had been committed in 1994 and 1995. He invited it to explore the possibility that the crimes were the work of the illegal Hizbullah or PKK organisations further. He pointed out that H.T. and Z.T. remained under suspicion in that regard, and requested that nine witnesses, including Halil Sabuktekin and Müslüm Olcay, be shown the photographs of the suspects that had been taken at the request of the Public Prosecutor at the Konya National Security Court on 25 September 1996.
38. On 3 July 1997 the Public Prosecutor at the Adana National Security Court took a deposition from Müslüm Olcay; it did not add to the information contained in his deposition of 28 September 1994. Müslüm Olcay was shown the photographs of suspects, but said that he did not recognise any of them and had not seen the killers' faces.
39. Also on 3 July 1997 the Anti-Terrorist Branch Headquarters informed the Public Prosecutor that it was unable to bring the other witnesses before him, as they were not staying at their addresses.
40. On 30 July 1997 the Public Prosecutor at the Adana National Security Court again invited the Anti-Terrorist Branch Headquarters to pursue its investigations into the five crimes of murder and assault and reminded them that H.T. and Z.T. were suspects. He also requested monthly progress reports.
41. Referring to the letters of 23 June and 30 July 1997 the Anti-Terrorist Branch Headquarters informed the Public Prosecutor on 28 August 1997 that it had not been able to establish where H.T. and Z.T lived. It had found the addresses of Z.T.'s brothers and H.T.'s brother, but the latter did not know where H.T. lived. On 9 September 1997 the Anti-Terrorist Branch Headquarters informed the Public Prosecutor that it had been unable to obtain data or information about the murder on 28 September 1994.
42. By letters of 6 November 1997, 6 January, 3 February and 19 March 1998, the Public Prosecutor at the Adana National Security Court again invited the Anti-Terrorist Branch Headquarters to pursue its investigations into the death and to provide him with monthly progress reports. The Anti-Terrorist Branch acknowledged receipt of the letters and promised to take the necessary action. By letters of 20 May, 20 June, 20 July, 20 August and 22 September 1998 it informed him that no new information had been obtained from its further inquiries.
43. Meanwhile, on 14 April 1998 the Public Prosecutor at the Adana National Security Court invited the Anti-Terrorist Branch Headquarters to arrange for the applicant and Abdulvahap and Halil Sabuktekin to attend his office for questioning. The request concerning Abdulvahap Sabuktekin was forwarded the following day to the Public Prosecutor's Office in Izmir, where he lived.
44. On 15 April 1998 the Public Prosecutor at the Adana National Security Court invited the Anti-Terrorist Branch Headquarters to arrange for the police officer who had been the first to the scene to be brought before him for questioning. The Anti-Terrorist Branch informed him the same day that it had been unable to contact the police officer as he was performing his military service and it was not known to which barracks he had been assigned.
45. On 15 April 1998 the Public Prosecutor at the National Security Court took a deposition from the applicant, in which the latter stated:
“On 28 September 1994 my husband left the house at approximately 6.53 a.m. to go out in our van. He set off in the direction of the tearooms to fetch the workmen who were waiting for him there. He was getting into the van when two people came up alongside him. They shot him from behind from a distance of approximately two metres. As I was a little way off, I cannot say who fired the shots: it is possible that both the assailants did. I ran towards the scene of the murder to try to grab hold of the killers, but they fled. One of the persons who fired the shots was short and stout, the other was thin and approximately 1 metre 70 tall. I saw them from behind.”
The complainant is asked to examine photographs of the suspects, but says that she cannot recognise the killers as she did not see their faces.
“The accused fired the shots with a pistol. I do not know how many shots were fired. I would say six or seven. I did not see the pistols. I do not know who killed my husband, nor do I know whether he was executed by an organisation. I wish to file a complaint if the killers are found. I would add that my husband was killed as he opened the van door and started to get in.”
46. Abdullah Ertekin was heard on 16 April 1998 and gave similar information to that contained in his deposition of 28 September 1994. He added that after the shots had been fired, the injured man was taken to Adana Hospital, where he died. Müslüm Olcay was heard the same day but did not add to the information he had given in his previous depositions, (see paragraph 17 above).
47. The victim's brother, Abdulvahap Sabuktekin, was heard by the Public Prosecutor on 20 April 1998. He had little information to give about his brother's death. He had been informed of events at work and had gone to the hospital where he learnt that his brother had died. He added that his brother's clothes had not been handed over to him and he did not know what had been done with them. Halil Sabuktekin was heard by the Public Prosecutor on 22 April 1998. The record of his deposition reads as follows:
“'Towards 6.30 a. m. on the morning of 28 September 1994, I went to the tearoom. My elder brother's van arrived at about 6.30 a.m. I got into the driver's cabin, and my elder brother, Mehmet Salih Sabuktekin, did likewise. He had already put a foot inside when I heard six pistol shots and my brother collapsed in the driver's cabin of the van. There were four of us in the cabin and my brother fell on top of us. I started to run after the two men who had fired the shots. I did not see their faces, but there had been other people in the tearoom while I was there, apart from the workmen. It was they who shot my brother. Both of them had a pistol in their hands but I am unable to identify the make. One of the killers was approximately 1 metre 80 tall, the other 1 metre 60. He was stout. The man who was 1 metre 80 tall was slim, had a black moustache and hollow cheeks. The other man was 1 metre 60 tall, stout, blond and had bright coloured eyes. I ran after them but was unable to catch them. They turned into another street and got away. They did not fire at me or anyone else.'
The witness was shown the photographs in the case file [including the photographs of the fourteen people who were arrested in July 1995 (see paragraph 20 above)]. He said: 'The men who shot my brother are not any of the men in the photographs. I do not know what clothes my brother was wearing the day he was killed or where they are, but they are not in our house. I saw my brother's killers from behind, not from the front. However, they were in the tea-room: one was tall and dark, the other small and blond. I did not see the killers after the murder.'
The witness's statements of 28 September 1994 were read over to him. He replied:
'The statements are correct and the signature is mine. In our suburb the owner of a bookshop was killed. He was Z.T.'s elder brother. Two months after that murder, my brother was killed. After the bookshop owner was killed, a group of men gathered outside our office in the 19 May suburb, shouting 'They are the killers'. I do not know these people. It is possible that my brother Mehmet Salih Sabuktekin was believed to be responsible for the death of the bookshop owner and was executed by Hizbullah supporters. I have nothing else to say.'”
48. By a letter sent on 24 April 1998 the International Relations Department at the Ministry of Justice informed the Ministry of Foreign Affairs of the position in the investigation and forwarded information from the case file. It advised that following the murder of Salih Sabuktekin, the police had began inquiries the same day and had summoned Halit Sabuktekin, the applicant (Sultan Sabuktekin), Abdullah Ertekin, Müslüm Olcay and Suphi Özbudak to give statements as witnesses.
49. Halil Sabuktekin was questioned further by the Public Prosecutor on 8 May 1998 and stated inter alia:
“When we recovered the body of my brother, Mehmet Salih Sabuktekin, he was not wearing any clothes. The clothes were not returned to us.
At the time of the murder, I was inside the van on the corner of 1034 Street in the 19 May district. My brother was shot as he was getting into the van. He collapsed, but later managed to sit up. We took him to Adana Hospital. He was not operated on by the Casualty and Emergency Department. We were told later that he had died as he was being taken for an operation.
I saw the killers. They were not people I knew. I would recognise them if I saw them again.”
50. On 18 September 1998 the Public Prosecutor at the Adana National Security Court issued further instructions to the Anti-Terrorist Branch Headquarters concerning the five murders and/or assaults committed in 1994 and 1995, including:
“(a) In the light of your replies regarding these case files, we note that no analyses have been carried out, the acts remain unexplained and no inquiries have been made to resolve them. These acts may have been the work of either the PKK organisation or Hizbullah. In any event, in view of the importance of the events, inquiries must be made and a detailed reply given...
(e) The murders and attempted murders have profoundly affected public opinion, creating a sense of insecurity. It is for that reason that you are asked to investigate these cases carefully and to inform us of the results of your inquiries.”
51. On 28 September 1998 the Anti-Terrorist Branch Headquarters brought the following information about the present case to the Public Prosecutor's attention:
“It is considered that the murder of Mehmet Salih Sabuktekin on 28 September 1994 was perpetrated by Hizbullah. During questioning, Z.T., a member of Hizbullah, stated that H.T., a member of the same organisation, had given an order for information to be obtained on members of the PKK with a view to ridding the district of those people. Z.T. has admitted that he compiled a list containing the names of those people and gave it to B.T. Mr Salih Sabuktekin's name was included on the list. Z.T. has also said that he heard about the murder later. H.T. denied Z.T.'s allegations. No organisation has claimed responsibility for this murder.”
Abdullah Ertekin appeared before the public prosecutor again on 5 November 1998 and provided similar information to that contained in his deposition of 28 September 1994. He added that he had remained at the scene of the murder while the driver of the van, Mesut Şen, took the victim, his brother-in-law, to hospital.
52. Referring to the letter of 19 March 1998 (see paragraph 42 above), the Anti-Terrorist Branch informed the Public Prosecutor at the Adana National Security Court in a letter of 21 October 1998 that it was pursuing its inquiries and would inform him of developments.
53. On 4 November 1998 the Anti-Terrorist Branch Headquarters questioned Halil Sabuktekin, who gave the following account:
“At about 7 a.m. on the day of the murder, I was waiting outside the tearoom on Cukurova Boulevard with about fourteen workers for my brother to arrive. He came to within approximately twenty metres of us and gestured for us to get into the van, a Skoda. I sat in the front. When my brother was next to us, some people who I did not know but had noticed drinking tea while waiting for my brother, one of whom was very corpulent, the other tall and slim, shot him. My brother collapsed on top of us. I got out on the driver's side and ran after the assailants. When they saw that I was giving chase, they fired two shots. That scared me and I turned back at that point. Nobody prevented me from chasing them. Later I took a collective taxi to the hospital to which my brother had been admitted.
The fourteen workmen who were in front of the tearoom on that day were our workmen. I do not remember their names and addresses.
In the deposition I made at the police station on 28 April 1994 I did not mention the fact that I had chased the assailants, but in my later depositions to the judicial authorities and the Public Prosecutor at the Adana National Security Court, I did explain that I had chased the suspects and that no one had stopped me doing so.
A day after I made my depositions to the judicial authorities and the Public Prosecutor, a man with a beard approached me saying he was a member of the Adana Section of the Human Rights Association. He got me to sign a blank sheet of paper and told me that he would fill it in and approach the authorities. When I asked him which authorities he had in mind, he told me not to worry and left.
I have made this deposition without being subjected to pressure of any sort and have expressed my opinion of my own will.
54. On 9 November 1998 Mesut Şen was heard by the Anti-Terrorist Branch Headquarters. The following is an extract from his statement:
“I knew Mehmet Salih Sabuktekin, who was killed on the aforementioned date, as I worked for him as a driver and he was married to my half sister, Sultane Sabuktekin. On the day of the murder I arrived outside the tearoom on Cukurova Boulevard in the 19 May of Yüregir District in Adana, to collect the workmen. Thirteen or fourteen workmen got into the back of the van. Seated next to me in the van were Halil Sabuktekin and one Abdullah. I do not know his surname or address. When our employer, Mehmet Salih Sabuktekin, got in beside me I heard pistol shots. I heard five or six shots. I did not see the suspects' faces. I leant over inside the vehicle to protect myself. Halil Sabuktekin got out of the van by climbing over me but I do not know whether he chased the suspects. I then saw the suspects from behind making their getaway along the D400 road. I did not give chase as I was afraid. Since I did not see their faces, I cannot identify them. Once I had got over the shock, I took Mehmet Salih Sabuktekin to the Adana State Hospital. I was questioned by police officers in the hospital. This is what I know about these events.”
55. Mesut Şen said virtually the same thing when he was questioned the same day by the Public Prosecutor at the Adana National Security Court. He explained that he was alone in the van when he stopped outside the tea room. Halil Sabuktekin and Abdullah Ertekin got in beside him and the other workmen got in the back.
56. Under further questioning on 9 November 1998 by the Public Prosecutor, Halil Sabuktekin gave the following details about the persons present in the tearoom just before his brother was killed:
“Those present were our workmen, Mesut Şen, Latif Turan, Ekrem Turan, Abdullah Ertekin and some others whose names I do not recall. The two people who killed my brother were sitting beside us. As I had no reason to be suspicious of them, I did not pay them any attention. My brother's van, whose vehicle registration number I do not recall, arrived to pick up the workmen. I was sat in the part reserved for the driver and passengers. My brother, Mehmet Salih Sabuktekin, put a foot inside the vehicle to sit down next to me and at that point I heard six pistol shots. My brother collapsed towards me. I got out of my seat of and began to run after the suspects. I did not see their faces. These were not the people whose photographs were shown to me earlier. The only persons at the scene were our workmen and the two suspects.”
57. The applicants was further questioned by the Public Prosecutor on 18 November 1998. The two records made of the interview read as follows:
“'At about 6.53 a.m. on 28 September 1994, my husband, Mehmet Salih Sabuktekin, left our house. His van was going to pick up the workmen outside Müslüm Olcay's coffee house to take them to the building site. When he left the house, I wondered whether he would manage to catch the van and that is why I waited outside the house. I was approximately 250 metres from the van and there was nothing obstructing my view of it. I knew that the van driver was Mesut Şen, but did not know the workmen. As my husband, Mehmet Salih Sabuktekin, got into the van alongside the driver, two people came up and fired shots, but I was unable to work out whether my husband was the target. At that point a person I did not know arrived and told me that my husband had been shot. One of the assailants was stout and short. The other was slim and approximately 1 metre 70 tall. I did not see their faces. From what I heard, they fired six or seven shots. I saw one of them fire a shot in the air. I do not know who killed my husband. I was not questioned after the killing. The first deposition I gave was to you on 15 April 1998. Mesut Şen was the van driver and that is how I know that he was at the scene of the murder. I do not know the identity of the other workmen. I do not remember whether I took any official action after the murder. The assailants ran towards me. At that point I did not know that they had shot my husband. They disappeared round the corner of the road just next to me. They were holding pistols. My brother-in-law, Halil Sabuktekin, arrived and told me that my husband had been shot. I did not see Halil run after the suspects. When he got up to me he fainted. I wanted to help him recover his senses and at the same time to follow the suspects, but I did not find them. I met an elderly person. I do not know his name, but do know his address. That person may know in which direction the suspects fled. When I asked him which way they had gone, he said that he had not seen them. To be precise, he said that they had run off and that there was no point in giving chase, as I would never be able to catch them up. No one stopped me when I tried to chase them. In any event, I was the only person who sought to follow the suspects. Three or four years before my husband was killed, there was an investigation. My husband was taken into police custody but was not detained. He was questioned about a person named Rıfat and another workman, who were working on one of the building sites in the sub-prefecture of Karatas. Rıfat and the other workman were suspected of being members of the PKK and I think my husband was suspected of helping them. I repeat that my husband was not detained but merely taken into police custody. I do not suggest that any plainclothes police officers were at the scene of the murder. No one sought to stop anyone from chasing the suspects. In any event, I was the only person who attempted to follow them. That is all I have to say.'
The depositions was read out and the witness approved it. Not knowing how to sign her name, she affixed a thumbprint.
'I did not tell the people who drew up the memorial [the memorial in reply that was lodged with the Commission] that my brother-in-law, Halil Sabuktekin, was prevented from chasing after the suspects by plainclothes police officers. I do not know where they obtained that information. I did not say that in my deposition of 15 April 1998, as it is not true and I was not asked about that subject. We buried the deceased the day he was killed. At about 5 a.m. the following day, I noticed someone in the fields, about 250 metres from my home, and another person walk past my house. I think that they were police officers, but they were not wearing uniforms. The person who walked past my house saw me crying and made off in the direction of the fields. He undoubtedly caught up with the person who was already there. I have nothing else to say.'”
58. On the afternoon of 18 November 1998, the Public Prosecutor took the following statement from Ali Acar:
“At about 3.30 p.m. today, police officers, accompanied by a person who I did not know beforehand but whom I subsequently learnt was Mrs Sultane Sabuktekin, came to my house. Pointing at me, Sultane said 'I am not sure, but he may be the person'. The police officers gave me an appointment to attend the office of the Public Prosecutor at the Adana National Security Court. In 1994 and 1995 several people were killed in our district. I did not know the person who was killed, Mehmet Salih Sabuktekin , or his wife, Sultane Sabuktekin. I had never seen Sultane before today. I am a brick manufacturer. I do not recall the murder of Mehmet Salih Sabuktekin. Mrs Sultane never spoke to me about the subject at that time. I do not know anything and have not seen anything. I do not know the suspects and have no information about the murder of Mehmet Salih Sabuktekin.”
59. When questioned on 19 November 1998, Latif Turan said that after hearing the first shots, he had been seized by panic and had not watched what happened. He had not seen the assailants or the persons who had chased after them and could not say whether there had been a chase. It was only later that he had noticed that Salih Sabuktekin had been wounded. Salih Sabuktekin and his brother were the only persons he knew among those who had been present. He could not remember whether his brother, Ekrem Turan, who was also working on the building site to which they were all going, was present that morning. Ekrem Turan was later questioned, but stated that he was not at the scene of the murder as he had taken the day off work.
60. The rules and procedures applicable to liability for illegal acts may be resumed as follows.
61. The Criminal Code contains provisions dealing with unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) and murder (Article 450).
62. The authorities' obligations with regard to conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure (CCP). Offences may be reported to the authorities or members of the security forces or to the public prosecutors' offices. Complaints may be made in writing or orally. If the complaint is made orally, the authority must make a record of it (Article 151 CCP).
63. If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal-court judge (Article 152 CCP).
64. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to suspicion that an offence has been committed has a duty to investigate the facts in order to decide whether or not a prosecution should be brought (Article 153 CCP).
65. Under section 13 of Law no. 2577 on Administrative Procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.
66. Article 125 §§ 1 and 7 of the Constitution provides:
“All acts or decisions of the authorities are subject to judicial review...
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.
67. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages for pecuniary loss (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal courts on the issue of the defendant's guilt (Article 53).
68. However, under section 13 of Law no. 657 on State Employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the employer (Article 50 of the Code of Obligations).
NON_VIOLATED_ARTICLES: 13
2


ITEMID: 001-93292
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GRZEGORZ HULEWICZ v. POLAND (No. 2)
IMPORTANCE: 4
CONCLUSION: No violation of Article 5 - Right to liberty and security
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 8. The applicant was born in 1974 and lives in Lębork. He is currently serving a prison term.
9. On 19 November 2002 the applicant was arrested on suspicion of forgery of documents as well as armed robbery and drug trafficking, committed in an organised criminal group. Since September 2002 he had been in hiding.
10. On 21 November 2002 the Gdańsk District Court (Sąd Rejonowy) remanded him in custody, relying on the reasonable suspicion that he had committed the offences in question. It also considered that detaining the applicant was necessary to secure the proper conduct of the proceedings, because the applicant had threatened the victim at the time of the commitment of the alleged offence. The court also stressed the severity of the anticipated sentence and the fact that the applicant had a previous criminal record.
11. An appeal by the applicant against the detention order was unsuccessful. On 16 December 2002 the Gdańsk Regional Court (Sąd Okręgowy) upheld the challenged decision, basically repeating the arguments of the District Court and relying additionally on the fact that in September 2002 the applicant had gone into hiding.
12. The argument that the applicant had gone into hiding was repeated by the Słupsk District Court in its decisions of 18 February 2003 and 3 June 2003, extending the applicant's detention.
13. Numerous appeals by the applicant against decisions extending his detention and all his subsequent applications for release were unsuccessful.
14. Subsequently, the applicant's pre-trial detention was prolonged on several occasions (on 18 February, 6 March, 3 June, 28 August and 5 December 2003 and on 16 February, 8 June and 17 August 2004). In all their detention decisions the courts repeatedly relied on a strong suspicion that the applicant had committed the offences in question, which was supported by evidence from witnesses. They attached importance to the grave nature of those offences and the likelihood of a severe sentence of imprisonment being imposed on the applicant.
15. On 22 July 2003 the Public Prosecutor lodged a bill of indictment with the Słupsk District Court. The bill of indictment comprised fifty charges of, among others, participation in an organised criminal group, drug trafficking, uttering threats and robberies brought against thirteen defendants. The applicant was charged with participation in an organised criminal group, drug smuggling, uttering threats and forgery of documents.
16. Once the length of the applicant's detention had reached the statutory two-year maximum laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks Postępowania Karnego), the first-instance court no longer had jurisdiction to extend it. Consequently, it was the Gdańsk Court of Appeal (Sąd Apelacyjny) which issued further extensions. In its first extension decision, on 13 October 2004, the Gdańsk Court of Appeal relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and on the considerable complexity of the case. The court also held that the risk that the applicant and other co-accused would obstruct the investigation had been established.
17. The applicant's detention was subsequently extended by the Gdańsk Court of Appeal on 1 December 2004, 26 January 2005 and 1 March 2005. The Court relied on the reasonable suspicion that the applicant had committed the offences in question and on their serious nature. It also stressed that the fact that the applicant and the co-defendants were charged with participation in an organised criminal group created the reasonable fear that they might obstruct the proceedings or try to influence witnesses. The Court additionally examined the conduct of the proceedings and found no undue or unjustified delays. Between 15 September and 23 November 2004 the District Court held nine hearings. In December 2004 four hearings were held and in January 2005 five hearings were held.
18. On 21 March 2005 the Słupsk District Court convicted the applicant as charged and sentenced him to four years' imprisonment.
19. On the same day the court lifted the applicant's detention.
20. On 2 January 2006 the applicant and his lawyer lodged appeals against the first-instance judgment.
21. On 11 December 2006 the Słupsk Regional Court heard the appeals, partly varied the first-instance judgment, acquitted the applicant of one charge of forgery and sentenced the applicant to two years and ten months' imprisonment.
22. The applicant lodged a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy).
23. On 28 February 2008 the Supreme Court dismissed the cassation appeal as manifestly ill-founded.
24. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court 's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
25. For the latest amendments of the provisions concerning detention on remand see the Court's judgment in the case of Kauczor v. Poland, no. 45219/06, § 25-33, 3 February 2009.
NON_VIOLATED_ARTICLES: 5


ITEMID: 001-93768
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF DVORACEK AND DVORACKOVA v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 2 (procedural aspect);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The first applicant, Mr Ivan Dvořáček, was born in 1942. The second applicant, Mrs Jozefa Dvořáčková, was born in 1945. They are married and live in Bratislava. They filed the application also on behalf of Ms Ivana Dvořáčková, their daughter.
6. Ms Ivana Dvořáčková was born in 1981 with Down Syndrome (trisomy 21) and a damaged heart and lungs. She was in the care of a specialised health institution in Bratislava. In 1986 she was examined in the Centre of Paediatric Cardiology in PragueMotole where it was established that, due to post-natal pathological developments, her heart chamber defect could no longer be remedied.
7. On 1987 she underwent vascular surgery in Prague. However, the doctors considered that comprehensive heart surgery with a view to eliminating the cardio-vascular defect was no longer feasible. A conservative treatment was recommended and the medical prognosis was that her heart or lungs would fail in the second or third decade of her life.
8. Ms Ivana Dvořáčková died of heart failure on 14 March 2004 at the age of 23.
9. On 26 October 1987 Ms Ivana Dvořáčková and her parents instituted proceedings in the Bratislava I District Court. They claimed compensation for damage on the ground that Ms Ivana Dvořáčková’s health had been seriously and irreparably damaged as a result of shortcomings in the post-natal treatment she had received in a hospital to which the defendant was the legal successor. In particular, on the basis of the aforementioned examination in the Centre of Paediatric Cardiology in Prague, they alleged that the health institution in Bratislava had failed to diagnose in time the extent of the damage to her health and to ensure appropriate and timely treatment of the defect.
10. The District Court held eleven hearings in the case and dismissed the action on 9 August 1990. On 19 June 1991 the Regional Court in Bratislava quashed that judgment. The case file was returned to the District Court on 5 August 1991.
11. In 1994 and 1995 the District Court took various procedural steps. It scheduled two hearings in 1997.
12. On 2 March 1998 the District Court appointed an expert, who submitted an opinion on 17 November 1999.
13. Another hearing in the case was scheduled for 3 October 2000. The plaintiffs requested an adjournment but the District Court dismissed their request on 18 May 2001. On 30 November 2001 the Regional Court quashed that decision. After obtaining further evidence, the District Court stayed the proceedings on 19 March 2002 at the applicants’ request. On 13 June 2003 the plaintiffs requested that the proceedings be resumed.
14. On 11 December 2003 the District Court held a hearing at which Ms Ivana Dvořáčková challenged the expert.
15. On 20 April 2004, after their daughter had died, the first and second applicants asked the District Court to proceed with their case and determine whether the defendant was liable for damage to their daughter’s health. They indicated that the question arose whether her death had been caused by shortcomings in her medical treatment and that they intended to claim damages in that respect. On 5 May 2004 the first and second applicants specified their claims for damages with the District Court.
16. On 7 June 2004 the District Court dismissed the request for the exclusion of the expert. In a separate decision, which was rectified on 30 August 2004, it discontinued the proceedings. On 30 September 2004 the Bratislava Regional Court varied the first-instance court’s decision in that it discontinued the proceedings only to the extent that they concerned part of Ms Dvořáčková’s claim for compensation which under the relevant law could not pass to her heirs. The appellate court remitted the case to the District Court for further examination.
17. On 26 May 2005 the District Court adjourned the case as the defendant’s representative did not attend the hearing.
18. A further hearing was held on 28 June 2005. The first applicant stated that he challenged the three expert opinions included in the file as the experts involved either lacked the requisite qualifications or were biased. The District Court decided to obtain another expert opinion. A hearing scheduled for 20 March 2006 had to be adjourned as the judge was ill.
19. After the case had been transferred to a different judge, a hearing was held on 24 April 2006. The first applicant urged the court to determine the case. He maintained that the evidence available was sufficient and that obtaining another expert opinion was not necessary. The judge decided to obtain a fourth expert opinion in the case. In a decision of 25 May 2006 the District Court instructed the Medical Faculty of the P.J. Šafárik University in Košice to submit an opinion on the relevant issues within 40 days.
20. On 24 July 2008 the Bratislava I District Court asked the Hradec Králové District Court (Czech Republic) for assistance in obtaining a further opinion by two Czech medical experts.
21. In January 2009 the parties informed the Court that the proceedings were pending.
22. On 4 March 2004 the Constitutional Court held that the Bratislava I District Court had violated Ms I. Dvořáčková’s right to a hearing within a reasonable time. It found that the case was not particularly complex and that the plaintiff had not by her conduct contributed to the length of the proceedings in a substantial manner. The decision stated that there had been unjustified delays in the proceedings before the District Court, totalling approximately six years.
23. The Constitutional Court ordered the Bratislava I District Court to proceed with the case without further delay and to pay to the plaintiff, within two months from its judgment becoming final, the equivalent of 3,452 euros (EUR) as just satisfaction. It also ordered the Bratislava I District Court to reimburse the plaintiff’s costs related to the constitutional proceedings within fifteen days.
24. On 21 April 2004 the parents of Ms I. Dvořáčková, represented by an advocate, lodged a complaint with the Constitutional Court alleging a violation of their right under Article 6 § 1 of the Convention to a hearing within a reasonable time.
25. They submitted further arguments and documents subsequently. In particular, in two letters which they personally sent by registered mail to the Constitutional Court and its President on 23 July 2004, they alleged that the inactivity of the District Court amounted to a denial of justice and that Articles 2, 8 and 14 of the Convention had also been violated. As regards Article 2 in particular, they submitted that their daughter had died as a result of medical negligence. The applicants referred to the States’ obligation to protect the life of persons within their jurisdiction and to “apply all civil-law remedies, such as compensation for damage, in cases of medical negligence”.
26. On 11 October 2004 the applicants appointed a different advocate to represent them in the proceedings before the Constitutional Court. In a submission of 21 October 2004 the advocate asked the Constitutional Court to have regard to all earlier submissions in the case and to consider the scope of the breach of the applicants’ rights guaranteed by both the Constitution and the Convention. At the request of the Constitutional Court the advocate submitted, on 18 February 2005, further information about the scope of the proceedings complained of and about the complaint under Article 127 of the Constitution. He indicated in his letter that in the proceedings before the Constitutional Court the plaintiffs “alleged a breach of their right under Article 48 § 2 of the Constitution to a hearing without unjustified delays and that they also complained of interference with their human rights guaranteed by the European Convention on Human Rights”.
27. On 23 May 2005 the Constitutional Court declared admissible the complaint of unjustified delays in the proceedings before the Bratislava I District Court. It stated that the plaintiffs had claimed damages in the action brought on 26 October 1987 and therefore had standing as a party to the proceedings complained of.
28. To the extent that the plaintiffs complained of “interference with their human rights guaranteed by the European Convention on Human Rights” the Constitutional Court rejected their complaint as not complying with the statutory requirements. In particular, the plaintiffs had not specified the rights which they alleged had been violated, submitted any arguments in support of their allegation or provided draft wording for the operative part of the decision they sought to obtain from the Constitutional Court with respect to that complaint.
29. On 11 October 2005 the Constitutional Court found that the Bratislava I District Court had violated the plaintiffs’ right to a hearing within a reasonable time. It ordered the District Court to proceed with the case without further delay and granted the equivalent of EUR 1,287 each to the first and second applicants as just satisfaction payable within two months. It also ordered the Bratislava I District Court to reimburse the costs of the constitutional proceedings to the applicants (the equivalent of EUR 807).
30. The Constitutional Court noted that the proceedings in issue concerned a claim for compensation for serious damage to the health of Ms Ivana Dvořáčková. That claim was based on allegedly incorrect medical diagnoses as a result of which I. Dvořáčková’s lung and heart had been damaged to the extent that she had been permanently handicapped as from 7 April 1987. Subsequently the plaintiffs had extended the claim to include, inter alia, compensation for the costs of medical treatment and care for their daughter, expenses relating to her burial and damages for unjustified interference with their privacy.
31. The Constitutional Court found that the case was not particularly complex and that the overall duration of the proceedings could not be imputed to the plaintiffs. In addition to the delays in the proceedings to which it had pointed in its judgment of 4 March 2004 (see paragraph 22 above), the Constitutional Court found that the case had been with an expert for eighteen months. During the subsequent period the District Court had not proceeded with the case effectively with the exception of a period of approximately one year between March 2002 and April 2003 when the proceedings had been stayed.
32. The following provisions of the Constitutional Court Act 1993 are relevant in the present case.
33. Section 20(1) provides that a request for proceedings to be started before the Constitutional Court must indicate, inter alia, the decision which the plaintiff seeks to obtain, specify the reasons for the request and indicate evidence in support.
34. Pursuant to paragraph 2 of section 20, plaintiffs are required to submit an authority for a lawyer to represent them in the proceedings before the Constitutional Court.
35. Under paragraph 3 of section 20, the Constitutional Court is bound by a plaintiff’s request for proceedings to be started unless the Act expressly provides otherwise.
36. The Constitutional Court has declared itself bound, in accordance with section 20(3) of the Constitutional Court Act 1993, by a party’s submission aimed at initiating proceedings before it. The Constitutional Court has expressly stated that the submission was particularly relevant as regards the wording of the order which parties sought to obtain from it as it could only decide those matters which a party had requested be determined (see, for example, decisions III. ÚS 166/02 of 6 November 2002 or III. ÚS 65/02 of 9 October 2002).
VIOLATED_ARTICLES: 2
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82483
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MAHMUT ASLAN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (victim, non-exhaustion of domestic remedies, six-month period);Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1959 and lives in Seewen, Switzerland.
5. On 17 May 1982 the applicant was arrested and taken into custody. On 8 July 1982 he was remanded in custody.
6. On 6 December 1982 the public prosecutor at the Diyarbakır Martial Law Court filed a bill of indictment with the latter, accusing the applicant of membership of an illegal organisation. He requested that the applicant be convicted and sentenced under Article 168 § 1 of the Criminal Code.
7. On 19 February 1985 the Diyarbakır Martial Law Court convicted the applicant as charged and sentenced him to twenty-four years' imprisonment. This judgment was quashed by the Military Court of Cassation on 10 April 1990.
8. On 27 November 1990 the applicant was released from detention.
9. Subsequent to promulgation of Law no. 3953 on 27 December 1993, which abolished the jurisdiction of the Martial Courts, the Diyarbakır Assize Court acquired jurisdiction over the applicant's case.
10. On 13 July 1998 the Diyarbakır Assize Court ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time limit under Articles 102 and 104 of the Criminal Code had expired. At the time of this decision the applicant was not represented by a lawyer before this court. However, this judgment was erroneously notified to Mr S.D. (the legal representative of another co-accused, who bore the same name and surname as the applicant, during the proceedings before the Diyarbakır Martial Law Court) and became final on 12 March 1999.
11. The applicant inquired about the developments in his case on 16 May 2000. As the judgment was in his favour, the applicant did not lodge an appeal with the Court of Cassation.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61852
LANGUAGEISOCODE: ENG
RESPONDENT: LIE
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF FROMMELT v. LIECHTENSTEIN
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress;Mark Villiger
TEXT: 6. The applicant was born in 1946.
7. On 14 August 1997 the investigating judge at the Vaduz Regional Court (Landgericht), having heard the applicant, ordered that he be taken into pre-trial detention on suspicion of, inter alia, embezzlement and continuous aggravated fraud (file no. 10 Vr 203/97). He found that there was a reasonable suspicion that the applicant had enticed a number of persons to entrust him with the investment of their capital, which he had then fraudulently diverted using a network of partly foreign companies. Giving detailed reasons, the investigating judge found that there was a danger of absconding, a danger that the applicant might influence witnesses, and also a danger of repetition of the offences. Finally, having regard to the seriousness of the offence, the applicant’s detention was proportionate to the sentence he risked incurring.
8. On 19 September 1997 the Court of Appeal (Obergericht) held a hearing on the applicant’s request for release (Haftprüfungsverhandlung). The applicant was not represented by counsel at this hearing. Following the hearing, the court ordered that the applicant’s detention be continued. It confirmed the reasons advanced by the Regional Court.
9. On the same day the Vaduz Regional Court dismissed the applicant’s request of 18 August to have a legal-aid counsel appointed for him. Regarding the applicant’s submissions concerning his income and assets, and the fact that he was represented by two counsel of his own choosing in a second set of proceedings (file no. 282/92), it found that he had sufficient means to pay for counsel.
10. On 10 December 1997 the Regional Court ordered the applicant’s representation by legal aid counsel. It noted that the investigations and, in particular, an expert opinion, which had meanwhile been submitted, had shown that the applicant had been living exclusively on money obtained from the investors in his various companies and had therefore no means to pay for defence counsel. In the evening of 16 December 1997 the Lawyers’ Chamber appointed Mr B.
11. On 17 December 1997 the Court of Appeal held a hearing on the applicant’s renewed request for release.
12. At the beginning of the hearing, the applicant’s counsel pointed out that he had only been appointed at 6 p.m. on the day before and had therefore been limited to two hours of consultation with the applicant without having had a possibility to study the voluminous file. The Court noted that it had not been informed of the late appointment of counsel for the applicant and drew his attention to the fact that he remained free to request that the hearing be adjourned as the statutory three days’ time-limit for its preparation had not been complied with. However, counsel did not request an adjournment.
13. At the close of the hearing, the court ordered the continuation of the applicant’s detention. It confirmed the reasons given in the decisions of 14 August and 19 September 1997.
14. On 17 December 1997 the Lawyer’s Chamber appointed Mr K. as legal-aid counsel for the applicant.
15. On 14 January 1998 the Court of Appeal, sitting in camera as a panel of five judges, dismissed the applicant’s appeal against the decision of 17 December 1997. As to the applicant’s complaint that he did not have sufficient time to prepare for the hearing of 17 December 1997 concerning his detention, the court noted that his counsel had waived the right to request an adjournment. There were no reasons to doubt the validity of the waiver.
16. On 29 January 1998 the Public Prosecutor’s Office requested that the applicant’s pre-trial detention be extended to up to one year on account of the complexity of the case. The investigating judge supported this request on 30 January. The applicant was given no opportunity to comment.
17. On 11 February 1998 the Court of Appeal, sitting in camera as a panel of five judges, ordered that the applicant’s detention would be allowed to last up to one year, i.e. until 13 August 1998 at the latest. With regard to the suspicion against the applicant and the danger of absconding and of a repetition of the offences, the court referred to its decision of 14 January 1998. Invoking Article 131 of the Code of Criminal Procedure (Strafprozessordnung), according to which detention on remand must not exceed six months unless the investigations are particularly complex, it found that the present proceedings concerned an exceedingly complex case of white-collar crimes. The offences to be investigated had been committed by a number of co-accused over a period of four years, numerous companies with links to foreign countries were involved and a great number of witnesses had to be heard, many of them under letters rogatory. A period of detention of up to one year appeared proportionate, all the more so because, given the maximum sentence of 10 years’ imprisonment, even a further prolongation of the detention to up to two years would be admissible under Article 131.
18. On 5 March 1998 the Supreme Court (Oberster Gerichtshof) declared inadmissible the applicant’s appeal against the decision of 14 January 1998.
19. On 2 April 1998 the Supreme Court, sitting in camera, dismissed the applicant’s appeal against the decision of 11 February 1998. As to the applicant’s complaint that he had not been heard on the requests for prolongation of his detention prior to the Court of Appeal’s decision, the Supreme Court, referring in detail to the Constitutional Court’s (Staatsgerichthof) case-law, found that the right to be heard could also be complied with where the person concerned had a possibility to appeal against the decision. However, it was advisable in the future to hear detainees on requests for prolongation of the detention.
20. On 4 September 1998 the Constitutional Court dismissed the applicant’s complaint against the Supreme Court’s decision of 2 April 1998. As to the applicant’s complaint that he had not been heard prior to the decision of 11 February 1998, the Constitutional Court noted that the Code of Criminal Procedure did not require that a detainee be heard prior to a decision to prolong the detention. In these circumstances, the lack of an opportunity to comment was remedied by the possibility to appeal against the decision itself. Nevertheless - as the Supreme Court had rightly pointed out - it would be desirable to hear a detainee before deciding on a request for prolongation of the detention. The Constitutional Court also found that the Supreme Court as well as the Court of Appeal had given sufficient reasons for their decisions.
21. Also on 4 September 1998, the Constitutional Court dismissed the applicant’s complaint against the Supreme Court’s decision of 5 March 1998. It found that the Court of Appeal had rightly noted that the applicant’s first request for legal aid had, on the basis of his own submissions, been dismissed on the ground that he was not indigent. It added that, even conceding that the applicant lost his income on account of his detention, he had considerable assets and had admitted it. The assumption that he was not indigent was confirmed by the fact that at the time he was represented by two counsel of his own choosing in a second set of criminal proceedings. Moreover, the applicant’s financial situation had become transparent only after the expert opinion had been filed in November 1997. Shortly afterwards a legal-aid counsel was appointed for him. As to the complaint that the legal aid counsel appointed on 16 December 1997 did not have sufficient time to prepare for the hearing of 17 December, the Constitutional Court confirmed the finding that counsel had validly waived his right to request an adjournment of that hearing.
22. Both the Constitutional Court’s decisions were served on 2 October 1998.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-76694
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BABICHKIN v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 6. The applicant was born in 1939 and lives in Asenovgrad.
7. On 29 May 1991 he entered into an employment agreement with a local company (the “company”) whereby he undertook to work for it abroad. Several months later, while working for the company in Germany, the applicant fell seriously ill, underwent an operation and was on sick leave for about two months. At the end of his sick leave on 18 October 1991, the applicant found that his employment agreement had been unilaterally terminated by the company. He returned to Bulgaria soon thereafter.
8. On 19 May 1992 the applicant initiated an action against the company. He sought damages in the amount of 13,170 German marks (DEM), or their equivalent of 184,389 Bulgarian levs (BGL), on account of the company’s failure to pay out sick leave entitlements, back pay for overtime work and a payment for an insurance policy.
9. The Plovdiv Regional Court conducted ten hearings between 2 September 1992 and 23 January 1995, scheduled two to five months apart. During this time it obtained two experts’ reports and questioned witnesses. Of the hearings conducted, one was adjourned from 5 March to 5 May 1993 due to the absence of the applicant, another was postponed from 12 May to 14 September 1994 at the request of the defendant and a third, was adjourned from 14 September to 28 November 1994 because the defendant was hindering an expert from completing his report.
10. In a judgment of 2 March 1995 the Plovdiv Regional Court found partly in favour of the applicant. It awarded him BGL 1,032 for sick leave entitlements and dismissed the remainder of his claims. On 22 March 1995 the applicant appealed against the judgment.
11. A hearing was held before the Supreme Court on 28 February 1996.
12. In a judgment of 16 July 1996 the Supreme Court declared the judgment of the Plovdiv Regional Court null and void and remitted the case to the lower court. It established that the lower court had been sitting in an unlawful composition of three judges rather than of one judge and two jurors.
13. At the retrial, the Plovdiv Regional Court conducted nine hearings between 28 October 1996 and 12 June 1998, scheduled one to four months apart. During this time it obtained an expert’s report and questioned witnesses. Of the hearings conducted, one was adjourned from 29 April to 2 May 1997 because the applicant could not be summoned at his address. In addition, between 3 September 1997 and 16 April 1998 three consecutive hearings were postponed because the applicant or his lawyer were ill and at the request of the defendant in order to acquaint himself with the expert’s report.
14. In a judgment of 22 December 1998 the Plovdiv Regional Court again found partly in favour of the applicant. It awarded him BGL 24,100 for sick leave entitlements and dismissed the remainder of his claims. On 25 February 1999 the applicant appealed against the judgment.
15. The Plovdiv Court of Appeals conducted four hearings between 10 September 1999 and 17 April 2000, scheduled one to four months apart. One of the hearings was adjourned from 10 September to 19 November 1999 because the applicant was ill.
16. In a judgment of 3 July 2000 the Plovdiv Court of Appeals quashed part of the judgment of the lower court in respect of the amount awarded to the applicant for sick leave entitlements in Bulgarian levs and rendered a judgment in the case whereby it re-calculated the award in German marks, specifying it to be DEM 1,679 plus interest as from 22 May 1992. It upheld the remainder of the judgment of the Plovdiv Regional Court in respect of the dismissal of the applicant’s other claims. On 13 September 2000 the applicant appealed against the judgment.
17. A hearing was held before the Supreme Court of Cassation on 5 June 2001.
18. In a judgment of 10 August 2001 the Supreme Court of Cassation quashed part of the judgment of 3 July 2000 of the Plovdiv Court of Appeals, in which the latter had upheld the dismissal of the applicant’s claims for back pay and overtime work, and remitted that part of the case to the lower court. It upheld the remainder of the judgment of the Plovdiv Court of Appeals in respect of the amounts awarded for sick leave entitlements.
19. The Plovdiv Court of Appeals conducted three hearings between 24 October 2001 and 23 January 2002, scheduled one to two months apart, during which time an expert’s opinion was obtained.
20. In a judgment of 22 February 2002 the Plovdiv Court of Appeals quashed the remaining part of the judgment of 22 December 1998 of the Plovdiv Regional Court and rendered a judgment in the case in which it ordered the company to pay the applicant DEM 2,220 for back pay and overtime work plus interest as from 22 May 1992.
21. On 25 March 2002 the applicant obtained a writ of execution against the company for the amounts awarded. It is unclear whether and if the applicant obtained execution of the same.
22. On 3 April 2002 the company appealed against the judgment of the Plovdiv Court of Appeals.
23. A hearing was held before the Supreme Court of Cassation on 25 February 2004.
24. In a final judgment of 5 March 2004 the Supreme Court of Cassation upheld the judgment of 22 February 2002 of the Plovdiv Court of Appeals.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1