ITEMID: 001-108478
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF VLADIMIR VASILYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 7. The applicant was born in 1953 and is serving a prison sentence in a correctional colony in the town of Solikamsk, Perm Region (Russia).
8. The applicant was arrested on 8 February 1996 in the town of Ukhta, Komi Republic. On 25 December 1997 the Supreme Court of the Komi Republic convicted him of, inter alia, attempted rape and several counts of murder, and sentenced him to death. On 22 December 1998 the Supreme Court of Russia upheld the trial judgment in substance.
9. In 1999 the President of Russia issued an act of clemency in respect of the applicant, replacing the death penalty with life imprisonment. Thereafter, the applicant unsuccessfully sought a supervisory review of the conviction.
10. Between February 1996 and January 2000 the applicant was detained for various periods of time in Sosnogorsk remand centre no. 11/2 in the Komi Republic and other detention facilities. After his arrest the applicant was admitted to hospital because he had frostbite on his feet. He underwent a surgical operation resulting in the amputation of the fifth toe on his right foot and the distal part of his left foot. In 1996 he was diagnosed with diabetes. In December 1999 the applicant was examined in a hospital. A group of experts concluded that he was able to work, except if it required physical exertion; no disability status was attributed.
11. In 2001 the applicant was transferred to Solikamsk colony no. 2 in the Perm Region (“the colony”). Between 2002 and 2004 he was treated for tuberculosis. It was indicated that he would shortly be examined to determine whether he needed dental and ophthalmological treatment and orthopaedic footwear. In late 2004 the applicant was treated for his diabetes, diabetic angiopathy (the generic term for a disease of the blood vessels) and other diseases. The doctors recommended oral medication to lower blood glucose and a diet. The applicant received medication by Maninil, an oral blood-glucose-lowering drug. It does not transpire from the available medical record that any blood or urine tests were carried out between late 2004 and late 2005 (see paragraph 13 below).
12. The applicant lodged complaints in relation to the allegedly inadequate treatment of his diabetes, unavailability of books on diabetes, insufficient nutrition and some other matters relating to medical care. On 3 May 2005 the Solikamsk Penitentiary Office stated that it was not incumbent on this office or another public authority to supply books to individual detainees; that all relevant counselling on diabetes could be obtained from the detainee’s doctor, and that the applicant had been examined by a therapist on a number of occasions and received the necessary medication, including oral medication by Maninil. Another complaint was examined on 31 October 2005 by the Perm Region Penitentiary Department. It rejected the applicant’s complaints, indicating that no special or high-vitamin diet was required for prisoners suffering from diabetes; that they were to be fed according to the standard set by the Ministry of Justice (see paragraph 37 below); that the applicant was given appropriate medication; and that in December 2005 he would be able to have a medical consultation concerning his requests for dental treatment, orthopaedic footwear and an eyesight check-up.
13. In October 2005 blood and urine tests were carried out; the applicant also had an X-ray, which showed no anomalies. From 28 November to 8 December 2005 he was admitted to prison hospital no. 9 to receive dental treatment. The applicant was diagnosed with a partial maxillary and full mandibular adentia (loss of teeth) connected to his then sub-compensated diabetes status. The applicant also had various blood and urine tests (glucose, bilirubin, lipoproteid, cholesterol, alanine and aspartate aminotransferase). He was examined by specialist doctors (a surgeon, a neuropathologist and an ophthalmologist) who recommended regular medical check-ups. The ophthalmologist diagnosed slight myopia in both eyes and angiopathy. The applicant also had chronic pancreatitis but was in a stable condition. The applicant was given a dental prosthesis and instructions on how to use it. The final recommendations in the discharge certificate included provision of enzymes when needed, a low carbohydrate diet, monthly blood and urine tests, as well as exclusion of medication by Maninil.
14. In May 2006 the applicant complained about chest pain and was given medication. In June 2006 he had a check-up by a physician, an ophthalmologist, a dentist and a surgeon. No specific prescriptions were made. The dentist indicated that the applicant’s oral cavity “had been sanitised”. On an unspecified date the applicant handed over his allegedly defective dental prosthesis to his lawyer, apparently, to have this prosthesis adjusted. Subsequently he was examined by a radiologist and a tuberculosis specialist. On a number of occasions he was given medication for his headaches, hypertension and insomnia. The applicant had several check-ups and X-rays in 2007, 2008 and 2009.
15. As follows from the applicant’s medical record compiled in colony no. 2, various blood tests were carried out twice in 2006 (25 January and 7 August 2006); five times in 2007 (10 April, 20 June, 3 and 9 October, 10 December); eight times in 2008 (15 January, 5 and 19 March, 9 and 16 April, 11 June, 24 October, 3 December); four times in 2009 (6 March, 24 June, 9 July and 16 December) and at least once in 2010 (February). Urine tests were carried out in January and July 2006, October 2007, April 2008, June and December 2009, and February 2010.
16. The applicant wrote to the Perm Region Ombudsman, requesting his re-admission to prison hospital no. 9. This letter was forwarded to the Perm Region Penitentiary Department. On 24 October 2007 the Penitentiary Department rejected the applicant’s request as follows:
“The complaint has been examined by the medical unit of the Penitentiary Department. Since 2001 [the applicant’s] state of health has been monitored in the colony...In November 2005 he was examined and received treatment inter alia from a dentist in prison hospital no. 9. He was discharged from this hospital in a satisfactory condition and was given recommendations to be followed within the regime of an out-patient observation. At present, his state of health is satisfactory; the most recent laboratory tests were carried out in October 2007. For the time being, a consultation with a dentist was not possible because [the applicant] did not have his dental prosthesis (which he had handed over to his lawyer).
In-patient treatment in the prison hospital is not necessary.”
17. The applicant was examined again in August 2009 by a medical panel composed of the governor of the prison hospital and the head officers of the gastroenteritis and neurology units in this hospital. The applicant’s condition was classified as satisfactory. The medical panel confirmed the diabetes (Type 2) diagnosis and symptoms of encephalopathy. The panel concluded that the applicant did not require in-patient treatment in the prison hospital and made the following recommendations:
“to carry out a glycemic profiling (thirty minutes before eating and at 2 p.m.); to follow a low fat and carbohydrate diet (which has been followed by the patient on his own)...and to continue intake of Glidiab (each morning), and treatment by vasoactive and nootropic substances.”
18. The management of Ukhta colony no. 24 in the Komi Region affirmed in a certificate dated 14 August 2009, produced by the Government, that they could not provide the applicant with orthopaedic footwear because it could only be manufactured in another town and there was a long waiting list. Apparently, the applicant had been detained in this colony in 2000 or 2001. The management of Ukhta medical facility no. 18 stated in a certificate dated 14 August 2009, produced by the Government, that the applicant needed orthopaedic footwear; however, the relevant regulations on supplies to convicted detainees did not require that it be provided by the State. The applicant had been detained in this medical facility in 1996.
19. A certificate dated 17 August 2009 and issued by Solikamsk colony no. 2 (in the Perm Region) states that during the entire period of his detention in that detention facility the applicant was provided with adequate medication, including glucose-related medicines and five meals per day. The management of the colony also stated in a certificate dated 29 July 2010, produced by the Government, as follows:
“[The applicant] was not given a prescription for any special diet and receives a ration in compliance with the standards adopted for convicted detainees.”
20. In August 2010 the Perm Region Penitentiary Department issued a report in relation to the applicant’s grievances previously raised before various national authorities and the European Court. The report reads as follows:
“In 2001 the applicant was transferred to colony no. 2, where on numerous occasions he underwent out-patient examinations and treatment in relation to various diseases. He was also admitted to prison hospital no. 9, from which he was discharged in a satisfactory condition, provided that recovery had been obtained for acute illnesses and that amelioration had been observed for chronic diseases...
The medical unit of the colony has the requisite licences for providing health care (medication, out-patient treatment, therapy and assessment of disability). The colony has the requisite medical staff (head of the unit, two therapists and two medical assistants) with the necessary qualifications...
For providing consultations on diagnoses and hospitalisation the above staff is assisted by external specialists from hospital no. 9 or municipal or State medical institutions...Certain types of health care (dental treatment, X-ray imaging, laboratory testing) are carried out in the medical unit of prison no. 1.
In 2005 [the applicant] received dental treatment and prosthesis in prison hospital no. 9 and was discharged from it in a satisfactory condition. The final recommendations included a low carbohydrate diet. In 2007 he handed over the prosthesis to advocate V., as can be seen from [the applicant’s] written statement. After 2005 he did not request a replacement of prosthesis from the medical unit of prison no. 2.
Food is supplied [to the applicant] in the colony in compliance with the standards set in Decree no. 125 of 2 August 2005 by the Ministry of Justice...Since 2001 he has been receiving five meals per day in order to impede undesired changes in the blood glucose levels. The recommendations for a low carbohydrate diet and low glucose have been followed [by the applicant] under monitoring by the medical personnel in the colony.
[The applicant] has no disability status. No recommendation for orthopaedic footwear was issued. The regime for detainees on life sentences does not require any substantial movement, except for outdoor exercise...
[The applicant] was and continues to be provided with medical care in compliance with Decree no. 640/190 issued by the Ministry of Justice and the Ministry of Health. Such medical care is provided within the framework of the State programme concerning provision of free medical assistance to Russian nationals.
During his detention [the applicant] was given all requisite medical monitoring and treatment...”
21. The management of Solikamsk colony no. 2 in the Perm Region affirmed in a document dated 27 July 2011 and produced by the Government that they had no document which indicated that the applicant had asked them for special footwear or that it had been recommended (see also paragraph 18 above). The Government also submitted written statement made in August 2011 by a medical assistant in colony no. 2, who affirmed that the applicant could walk independently without any assistance and, in the absence of disability status, did not need special footwear.
22. According to the applicant, he was not provided with orthopaedic footwear, which was necessary on account of the injuries to his feet. In the absence of such footwear, he suffered pain in his feet and could hardly keep his balance, for instance during long routine line-ups organised by the prison staff or when cleaning cells; his standard footwear did not fit him properly and wore out quickly. For many years, the applicant was kept in a cell on the ground floor of the detention facility and had difficulty, in the absence of special footwear, to walk up and down the stairs to/from the first and second floors where the medical unit and the offices of the prison staff were located.
23. The applicant brought civil proceedings before the Ukhtinskiy District Court of the Komi Republic (“the District Court”) against the Ukhta Department of the Interior, the Federal Ministry of Finance, the Prosecutor’s Office of the Komi Republic and three detention facilities. The applicant alleged, inter alia, that he had not been provided with the requisite medical assistance in 1996; as a result of medical negligence, parts of his feet had had to be amputated; and he had not been given a special diet adapted to his diabetes in the late 1990s. His claim was dismissed on procedural grounds on several occasions.
24. In 2003 the applicant resubmitted his above claims to the District Court. The court opened a file and sought the applicant’s observations on the need for an expert report to be commissioned. In September and November 2003 the applicant wrote to the District Court giving his consent for an expert report to be commissioned and suggested that some questions be put to the expert (see also paragraph 28 below).
25. The applicant also wrote to the District Court asking that he be brought to court hearings in his civil case. The court dispatched summons to the applicant in prison. However, it issued no order for his transfer for any hearings. On 17 and 25 December 2003 the District Court held hearings and heard the prosecutor, the defendants and witnesses. The applicant was neither present nor represented at these hearings.
26. In December 2003 the presiding judge asked to see the applicant’s medical record from prison hospital VK-240/1-2 in Solikamsk.
27. In April 2004 a Mr Sh. applied to Ukhta Civil Hospital on behalf of the applicant, asking for the applicant’s medical file, in particular in relation to the year 1996. He was informed that the applicant’s medical record had been destroyed because the building in which the hospital had filed it had been flooded in June 1999.
28. An expert report was commissioned and carried out on the basis of the available material. The expert concluded that the surgical operation in 1996 had been justified; the applicant’s diabetes was hereditary and its treatment had been appropriate, including Maninil; and that an adequate diet had been given to the applicant. It was noted in this connection that type 2 diabetes required diet no.9, which consisted in five or six servings of food per day excluding or replacing sugar and reducing carbohydrates. A copy of the expert report was sent to the applicant in January 2005. According to the applicant, he never saw the documents which served as a basis for the expert report.
29. Hearings in February and March 2005 were adjourned in the absence of any proof that the applicant had been properly notified. On 31 March 2005 the court received a letter from the applicant in which he commented on the expert report and also sought his own participation in the hearing and access to the medical documents submitted by the defendants.
30. On 19 May 2005 the District Court held a hearing at which the applicant was neither present nor represented. By a judgment of 19 May 2005, the District Court rejected his claims. The applicant appealed. The defendants submitted their observations in reply. On 28 July 2005 the applicant was provided with a copy of the verbatim record of the trial. In August 2005 he was served with a copy of the defendants’ observations.
31. By a letter of 29 August 2005 the applicant was informed that an appeal hearing was listed for 29 September 2005 and that “his absence would not halt the proceedings”.
32. On 29 September 2005 the Supreme Court of the Komi Republic heard the representative of the Regional Prosecutor’s Office. The applicant was neither present nor represented at the appeal hearing. At the closure of this hearing the Supreme Court upheld the first-instance judgment. In October 2005 the applicant received a copy of the appeal decision.
33. Russian law gives detailed guidelines for the provision of medical assistance to detained individuals. These guidelines, found in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice, on Organisation of Medical Assistance to Individuals Serving Sentences or Detained (“the Regulation”), enacted on 17 October 2005, are applicable to all detainees without exception. In particular, section III of the Regulation sets out the procedure for initial steps to be taken by medical personnel of a detention facility on admission of a detainee. On arrival at a temporary detention facility all detainees must be subjected to preliminary medical examination before they are placed in cells shared by other inmates. The examination is performed with the aim of identifying individuals suffering from contagious diseases or in need of urgent medical assistance. No later than three days after the detainee’s arrival at the detention facility, he should receive a medical examination, including fluorography. During the in-depth examination a prison doctor should record the detainee’s complaints, study his medical and personal history, record injuries if present, and recent tattoos, and schedule additional medical procedures if necessary. A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses.
34. Subsequent medical examinations of detainees are performed at least twice a year or at detainees’ request. If a detainee’s state of health has deteriorated, medical examinations and assistance should be provided by medical personnel of the detention facility. In such cases a medical examination should include a general medical check-up and additional methods of testing, if necessary, with the participation of particular medical specialists. The results of the examinations should be recorded in the detainee’s medical history. The detainee should be fully informed of the results of the medical examinations.
35. Section III of the Regulation also sets the procedure for cases of refusals by detainees to undergo medical examination or treatment. In each case of refusal, a corresponding entry should be made in the detainees’ medical record. A prison doctor should fully explain to the detainee the consequences of his refusal to undergo the medical procedure.
36. Detainees take prescribed medicines in the presence of a doctor. In a limited number of cases the head of the medical department of the detention facility may authorise his medical personnel to hand over a daily dose of medicines to the detainee for unobserved intake.
37. Until 2 August 2005 food supplies for detainees were regulated by Decree no. 136 of 4 May 2001 of the Federal Ministry of Justice. Since 2 August 2005 they have been regulated by Decree no. 125. Neither decree has provided for any specific diet for detainees suffering from diabetes.
38. On 11 December 2007 the Federal Ministry of Health issued a standard protocol for out-patient treatment of persons suffering from non-insulin-dependent diabetes. The protocol recommends, inter alia, a yearly provision of thirty-six glucose (laboratory) tests and/or for one hundred and eighty glucose meter tests.
39. The Code of Civil Procedure of the Russian Federation (“the CCP”) provides that individuals may appear before a court in person or act through a representative (Article 48 § 1). A court may appoint a lawyer to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in court proceedings in civil disputes concerning alimony or pension payments or claims for compensation for employment-related health damage (section 26 § 1). In 2005 the Russian Government launched a test project in a number of regions concerning provision of free legal assistance in civil law matters (Decree no. 534 of 22 August 2005).
40. Articles 57 and 149 of the CCP provide that parties may seek a court’s assistance in obtaining evidence. The relevant party should indicate the circumstances impeding access to such evidence and its relevance to the case, as well as the location from where such evidence should be collected. An unjustified failure to comply with the court order could lead to the person or official in possession of the relevant evidence being fined.
41. In a given civil case a civil court could ask a court in another location to carry out specific actions in relation to the evidence situated in that location (Article 62 of the CCP). This request is mandatory and has to be carried out within one month from its receipt.
42. Under Articles 58 and 184 of the CCP, a court may hold a session outside the court-house if, for instance, it is necessary to examine evidence which cannot be brought to the court-house.
43. As follows from Ruling no. 2 of 10 February 2009 by the Plenary Supreme Court of Russia, complaints brought by detainees in relation to the inappropriate conditions of detention (for instance, a lack of adequate medical assistance) should be examined by a court under the procedure prescribed by Chapter 25 of the CCP. The latter provides that a person may bring court proceedings if an action or omission by a public authority or official violated this person’s rights or freedoms, impeded their exercise or unlawfully imposed an obligation or liability (Articles 254 and 255 of the CCP). Such court action should be lodged within three months of the date when the person learnt about the violation of his or her rights or freedoms (Article 256). If a court considers that the complaint is justified, the court orders the respondent authority or official to remedy the violation (Article 258).
44. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). A convicted person may consult his or her lawyer (Articles 12 and 89).
45. On several occasions the Constitutional Court examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person’s access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving the sentence, or the court in which the case is being heard may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant’s submissions or take any other procedural action (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004 and no. 94-O of 21 February 2008).
46. The Code of Civil Procedure, as interpreted by the Constitutional Court in its ruling no. 4-П of 26 February 2010, allows for a reopening of the domestic civil proceedings on the basis of a European Court judgment.
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72757
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF EKO-ELDA AVEE v. GREECE
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Anatoly Kovler;Christos Rozakis;Françoise Tulkens;Loukis Loucaides;Peer Lorenzen;Snejana Botoucharova
TEXT: 8. The applicant is a limited company specialising in petroleum products. Its predecessor was called Greek petroleum, oil and lubricants – Industrial and commercial limited company (EKO AVEE).
9. On 8 May 1987 the applicant company paid the tax authorities 137,020,491 drachmas (GDR) (approximately 402,338 euros (EUR)) as an advance payment on the income tax due for the tax year 1987. On 11 May 1987 the tax authorities granted the applicant company a 10% reduction on the amount paid, as a bonus for paying the full advance payment due without requesting to pay by instalments. Accordingly, the advance tax payment ultimately paid by the applicant company amounted to GDR 123,387,306 (approximately EUR 362,105).
10. On 10 May 1988 the applicant company filed its tax return with the tax authorities for the year 1987. The return showed that the company had sustained a substantial loss of profit, which meant that the authorities had to refund the applicant company the amount paid as an advance payment since it had been unduly paid.
11. On 24 June 1988 and 9 December 1991 the applicant company sought a refund of GDR 123,387,306 from the Athens tax authorities dealing with limited companies, which was the amount levied in income tax for the year 1987. On an unspecified date the State refused to comply with its request.
12. On 27 December 1991 the applicant company brought proceedings against the State in the Athens Administrative Court. It requested a refund, under section 38(2) of Law no. 1473/1984, of the sum of GDR 123,387,306 that had been unduly paid in income tax. It also claimed default interest on that amount accruing from 10 May 1988, when the State had been informed that the tax had been unduly paid, up until payment. The applicant company based its claims on Article 345 of the Civil Code, which provides for the payment of default interest in the event of a pecuniary debt.
13. Law no. 2120/1993 was published on 4 March 1993. Section 3 of that Law provides that the State will pay interest in the event of a refund of tax unduly paid. With regard to cases pending at the time of publication of the Law, it provides that interest shall start to accrue on the first day of the month following a period of six months after its publication.
14. On 12 November 1993, prior to the hearing in the case listed for 23 September 1994, the State refunded the applicant company GDR 123,387,306, which corresponded to the tax it had paid. In its submissions before the Administrative Court, the applicant company limited its claims to statutory interest for the delay in paying the refund.
15. On 26 January 1995 the Administrative Court declared the applicant company’s application inadmissible (decision no. 512/1995). On 3 November 1995 the applicant company appealed.
16. On 6 June 1996 the Athens Administrative Court of Appeal declared the applicant company’s appeal admissible, but held that it was ill-founded on the ground that at the material time the Code for the Collection of Public Revenues did not provide that the State was liable to pay interest in the event of a delay in refunding tax unduly paid. Moreover, the court held that Article 345 of the Civil Code did not apply to the present case, since the provision governed only civil-law relations (decision no. 4042/1996).
17. On 27 June 1997 the applicant company lodged an appeal on points of law.
18. On 8 November 2000, by judgment no. 3547/2000, the Supreme Administrative Court dismissed the appeal. It found that the State was not bound to pay late-payment interest in the event of tax unduly paid. Such an obligation did not derive from the relevant provisions of the Civil Code relating to late-payment interest because these did not apply to a debt arising from a public-law relationship. Furthermore, the Supreme Administrative Court pointed out that no such obligation had been incumbent on the State prior to Law no. 2120/1993, published on 4 March 1993 (see paragraphs 21 and 22 below). That judgment was finalised and certified by the court on 26 October 2001.
19. The relevant Articles of the Civil Code provide:
“A creditor of a pecuniary debt is entitled, when serving notice to pay, to claim default interest stipulated by law or by the legal document concerned without having to prove loss. Subject to any contrary statutory provision, a creditor who also establishes other loss is entitled to claim compensation for that as well.”
“A debtor owing a pecuniary debt, even if not served with a notice to pay, shall be liable to pay statutory interest accruing from the date of service of legal proceedings relating to the debt due.”
“Anyone who has been unjustly enriched by means of or to the detriment of another’s property shall make restitution of the gain. This obligation shall apply, inter alia, in the event of a payment made unduly or a service rendered for a purpose that has not been realised or has ceased to exist or is illegal or immoral. ...”
“Anyone who benefits [inter alia from unjust enrichment] shall be subject to the same obligations as if a writ of action had been served on him: (1) in the event of a claim for an amount unduly received, if he was aware that the debt did not exist or from the time when he became aware; (2) in the event of a claim on grounds of an illegal or immoral purpose.”
20. Article 6 of Legislative Decree no. 356/1974 provides:
“Debts due and owing from the State shall be subject to a late-payment surcharge that shall accrue from the first working day following the date on which the debt falls due. The surcharge shall accrue at a rate of 1% per month’s delay.”
21. Section 38(2) of Law no. 1473/1984 provided that the State was bound to refund tax unduly paid without having to pay interest. Section 3 of Law no. 2120/1993 amended section 38(2) of Law no. 1473/1984. That provision, as amended, now provides:
“Any direct or indirect, principal or additional, tax or duty, or any fine, recognised in a final decision of an administrative court as having been unduly paid ... shall be offset or refunded with interest at the rate applicable to State bonds for a three-month period. ... With regard to cases pending at the time of publication of this statute, interest shall start to accrue from the first day of the month following a period of six months after publication of the said statute.”
22. In two judgments (nos. 1274 and 1275/2002) the Supreme Administrative Court held that the State had an obligation to pay default interest even in respect of cases that were pending, that is, those in which the tax unduly paid had not yet been refunded on the date of publication of Law no. 2120/1993 (4 March 1993). According to the Greek Supreme Administrative Court, that obligation was incumbent on the State from the date on which proceedings were brought in the relevant courts.


ITEMID: 001-92503
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MILOSEVIC v. SERBIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 6. The applicant was born in 1972 and lives in Belgrade.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. On 28 October 1999 the Fifth Municipal Public Prosecutor’s Office (Peto opštinsko javno tužilastvo) in Belgrade filed a request for the opening of a judicial investigation (zahtev za sprovođenje istrage) against the applicant, alleging that he had committed numerous offences of theft under Article 166 § 1 of the Criminal Code.
9. On 16 December 1999 the investigating judge of the Fifth Municipal Court in Belgrade (Peti opštinski sud u Beogradu, hereinafter “the Municipal Court”) instituted a judicial investigation (doneo rešenje o sprovođenju istrage) in respect of these charges.
10. On 18 January 2000 the same court’s investigating judge found that the applicant’s whereabouts were unknown and issued a warrant, ordering his detention for a period of up to one month.
11. On 16 April 2002 the Municipal Court, acting ex officio, appointed a lawyer to represent the applicant in the proceedings.
12. On 20 January 2005, at 4 p.m., the applicant was arrested by the police and taken to the District Prison (Okružni zatvor) in Belgrade. This arrest was carried out on the basis of the Municipal Court’s detention order of 18 January 2000.
13. On 21 January 2005 the Municipal Court attempted to contact the applicant’s lawyer, but he could not be reached. On 24 January 2005, therefore, the court appointed another lawyer to represent the applicant.
14. Since the newly appointed lawyer was unable to go to the District Prison on 25 January 2005, the applicant’s hearing was re-scheduled for 27 January 2005.
15. On 27 January 2005, at 9.30 a.m., the applicant, in his lawyer’s presence, was heard by the investigating judge of the Municipal Court, on which occasion, inter alia, he denied all charges and explicitly waived his right to file an appeal against the detention order of 18 January 2000. It would appear that the applicant considered that he had little chance of being released on appeal and preferred instead to be tried as soon as possible.
16. On 3 February 2005 the Fifth Municipal Public Prosecutor’s Office issued an indictment against the applicant.
17. On 4 February 2005 the three-judge panel of the Municipal Court extended the applicant’s detention for another 30 days, without having heard him or his lawyer in person.
18. On 11 February 2005 the applicant filed an appeal against this decision, pointing out, inter alia, that he had not been brought promptly before a judge, “in breach of Article 5 § 3 of the Convention”.
19. On 18 February 2005 the District Court (Okružni sud) in Belgrade rejected this appeal, ruling again in the absence of the applicant and his lawyer. It also failed to consider the applicant’s specific complaint made under Article 5 § 3 of the Convention.
20. The applicant’s trial began on 2 March 2005, but his detention had been extended.
21. On 18 May 2005 the applicant was found guilty by the Municipal Court, sentenced to one year and two months in prison and released from detention.
22. On 19 December 2005 the District Court quashed the impugned judgment and ordered a retrial.
23. On 16 February 2007 the Municipal Court, based on a somewhat amended indictment, found the applicant guilty and sentenced him to eight months in prison.
24. On 5 April 2007 the applicant seems to have filed an appeal against this judgment with the District Court in Belgrade.
25. Article 10 stated that the “provisions of international treaties on human and minority rights applicable in ... [the State Union of] ... Serbia and Montenegro shall be directly enforceable”.
26. Article 229 regulates police detention, providing, inter alia, that it can last up to 48 hours, which is when the suspect must be brought before the investigating judge who can, in accordance with Article 228, either order his release or have him placed in “judicial detention”.
27. Articles 143-145 concern “pre-indictment detention”, that is judicial detention following any police detention until the defendant’s indictment by the public prosecutor. Under these provisions, the investigating judge, in addition to conducting the investigation, is also authorised to order the defendant’s detention. The defendant whose detention was so ordered in his absence shall be served with this order upon arrest or, at the latest, within 24 hours thereafter. The defendant shall then have the right to lodge an appeal against this order, which appeal must be filed within 24 hours and considered by a three-judge panel of the same court within another 48 hours. The defendant and his counsel have no right to be heard in person on this occasion but the three-judge panel, if it so decides, may invite them to appear and state their views orally (see, also, Article 262). The investigating judge can order detention for up to one month. Throughout the judicial investigation stage of the proceedings, the defendant is not explicitly entitled to request his release, but the investigating judge may release the defendant with the consent of the competent public prosecutor. If there is disagreement between the two, the issue shall be resolved by a three-judge panel of the same court, within 48 hours. The defendant and his counsel have no right to be heard in person on this occasion (ibid.). The three-judge panel may also extend the defendant’s pre-indictment detention for another two months, without having heard him or his counsel in person (ibid.). The defendant and his counsel can lodge an appeal against this decision to a higher court, but again have no right to be present when this appeal is being considered (see, also, Articles 401 and 402 § 1, as well as Article 375 §§ 1 and 2). As regards crimes punishable by more than five years’ imprisonment, the three-judge panel of the Supreme Court can extend the defendant’s detention for an additional period of three months, without having heard him or his counsel in person (see, also, Article 262). The defendant and his counsel can lodge an appeal against this decision to another panel of the same court but, again, have no right to be present when this appeal is being considered (see, also, Articles 401 and 402 § 1, as well as Article 375 §§ 1 and 2). After these three months, the defendant has to be indicted or released. Domestic law, therefore, provides that pre-indictment detention cannot last more than 6 months in all.
28. Under Article 146, following the indictment of the defendant until the adoption of the judgement at first instance, detention is a matter for the trial chamber to decide, during the hearings themselves, or, indeed, for the same court’s three-judge panel in-between those hearings. Apart from that, “post-indictment detention” is automatically reviewed every thirty days until the indictment is confirmed and every two months following this confirmation until the adoption of the judgement at first instance. The accused and defence counsel have no explicit right to be heard in person by the said three-judge panel or to be present when their appeal against the decision rendered within the “automatic review mechanism” is being considered by a higher court (ibid.).
29. Pursuant to Article 152, the situation of persons detained on remand is regularly monitored by the president of the competent court or a judge appointed by the president who cannot be an investigating judge. The president of the court and the investigating judge, however, may visit persons detained on remand at any time, speak with them and receive their complaints.
30. Lastly, Article 419 provides, inter alia, that the competent public prosecutor “may” (može) file a Request for the Protection of Legality (zahtev za zaštitu zakonitosti) against a “final judicial decision”, on behalf of or against the defendant, if the relevant substantive and/or procedural “law has been breached” (ako je povređen zakon).
31. The relevant provisions of this Act read as follows:
“A party or another participant in the court proceedings shall have the right to complain about the work of a court when they consider the proceedings delayed, improper, or that there has been an [untoward] influence on their course and outcome.”
“The President of a higher instance court shall have the right to monitor the court administration of a lower instance court, and the President of a directly higher court shall have the authority to adopt an act from within the competence of the President of a lower instance court, if the latter omits to perform his duty.
The President of a higher instance court may request from the lower instance court information regarding the implementation of existing legislation, information concerning any problems about trials and all information regarding the work of the court.
The President of a higher instance court may order a direct inspection of the work of a lower instance court.”
“When a party to a case or another person taking part in the proceedings files a complaint, the President of the court must, having considered it, inform the complainant about his views concerning its merits as well as any measures taken in this respect, within 15 days of receipt of the complaint.
If a complaint was filed through the Ministry of Justice or through a higher instance court, the Minister and the President of a higher court shall be informed of the merits of the complaint and of any measures taken in this respect.”
32. Under Article 8, inter alia, the President of a court must ensure that the court’s work is carried out in a timely manner. He or she shall also look into every complaint filed by a party to the proceedings in respect of delay and respond within 15 days, giving his or her decision and, if necessary, ordering that steps be taken to remedy the situation.
33. Article 4, inter alia, provides that the Ministry of Justice shall supervise the work of the courts in terms of their timeliness. Should certain problems be identified, the Ministry shall “propose” specific measures to be undertaken within a period of 15 days.
34. The relevant provisions of this Act read as follows:
“The Supreme Court of Serbia shall set up a Supervisory Board [“Nadzorni odbor”] (“the Board”).
This Board shall be composed of five Supreme Court judges elected for a period of four years by the plenary session of the Supreme Court of Serbia.”
“In response to a complaint or ex officio, the Board is authorised to oversee judicial proceedings and look into the conduct of individual cases.
Following the conclusion of this process, the Board may initiate, before the High Personnel Council, proceedings for the removal of a judge based on his unconscientious or unprofessional conduct, or propose the imposition of other disciplinary measures.”
35. Articles 199 and 200 of the Obligations Act provide, inter alia, that anyone who has suffered fear, physical pain or, indeed, mental anguish as a consequence of a breach of his “personal rights” (prava ličnosti) is entitled, depending on their duration and intensity, to sue for financial compensation in the civil courts, as well as to request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-113234
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ABASHIDZE v. GEORGIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Aslan Abashidze, is a Georgian national, who was born in 1938 and currently lives in Moscow, the Russian Federation. He was represented before the Court by Mr Shalva Shavgulidze, a lawyer practising in Georgia.
2. On 4 January 2006 the applicant, former Head of the Ajarian Autonomous Republic (see Assanidze v. Georgia [GC], no. 71503/01, §§ 63, 69 and 84, ECHR 2004II), was charged with abuse of power, misappropriation of public funds and a number of other offences committed in public office. The applicant evaded the investigation and trial, but his lawyer, Mr Shavgulidze, ensured his defence in the criminal proceedings.
3. By a judgment of 22 January 2007, the Batumi City Court convicted the fugitive applicant of the above-mentioned offences in absentia, sentencing him to fifteen years in prison and to pay a fine of 98,229,530 Georgian laris (some 48,120,812 euros). The City Court explained in the operative part of its judgment, which was announced to the applicant’s lawyer at the end of the hearing on 22 January 2007, that, given the applicant’s absence, the judgment was final and immediately enforceable; an appeal lay against it only in the situation envisaged by Article 523 § 4 of the Code of Criminal Procedure (“the CCP”), namely after the applicant’s surrender to the law-enforcement authorities.
4. Article 523 § 4 of the Code of Criminal Procedure, as it stood at the material time, read as follows:
Article 523
“4. If a conviction was delivered following a trial in absentia, the accused may lodge an appeal [on points of law and findings of fact] within one month after having been arrested or surrendered to the relevant authorities”


ITEMID: 001-59057
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF SIEGEL v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Preliminary objection dismissed (non-exhaustion);Preliminary objection dismissed
JUDGES: Nicolas Bratza
TEXT: 8. The applicant, who was born in 1938, is unemployed and lives in Albi.
9. The widow of Paul Siegel, Mrs Schmitt, died on 4 July 1990. She left her estate in equal shares to her two children, Auguste Siegel (the applicant in the present case), and his brother, Louis Siegel, the latter enjoying full possession of the property until division.
10. On 8 January 1993 the applicant lodged an application with the presiding judge of the Illkirch-Graffenstaden District Court (département of Bas-Rhin) for partition of the deceased's estate. He sought the appointment of a notary (notaire) to deal with the partition, specifying that it should not be Mr Kirschner, Louis Siegel's representative.
11. On 23 April 1993 Louis Siegel was notified of the application. In a letter of 27 April 1993 Louis Siegel applied to the same District Court for partition of the estate of Paul Siegel, who had died on 27 December 1984. He pointed out that all the documents concerning the disposal of his parents' estate were being held by Mr Kirschner and requested that, if Mr Kirschner could not be appointed first notary for the purpose of dividing the estate, he be appointed second notary.
12. On 2 June 1993 the court forwarded Louis Siegel's application to the applicant's lawyer, inviting him to submit within one month his observations on commencing the procedure for partition of the father's estate. On 15 June 1993 the applicant's lawyer informed the court that he did not oppose commencing the procedure for partition or extending it; he also stated that he maintained his earlier submission regarding the choice of notary to deal with the partition of the estate.
13. In an order of 8 July 1993 the presiding judge of the Illkirch-Graffenstaden District Court granted the application and ordered partition by the court of Mrs Schmitt's and Paul Siegel's estate. He instructed the parties to address their claims to Mr Deck, a notary in Benfeld, who had been appointed first notary, and to Mr Kirschner, a notary in Erstein, who had been appointed second notary. That decision was served on Louis Siegel on 5 August 1993 and on the applicant on 7 October 1993. In the Government's submission, the delay in service of the decision on the applicant was due to his failure to inform the court registry of his change of address.
14. Mr Deck convened a first meeting of the parties on 22 November 1993. All the parties were present or represented at the meeting, a record of which was sent to them on 27 December 1993.
15. On 24 August 1994 Mr Deck sent the parties a draft scheme of partition of the estate and requested their observations.
16. On 25 November 1994 the applicant's lawyer sent his observations to Mr Deck.
17. On 6 April and 18 July 1995 the applicant enquired of the notary as to progress in the proceedings. He never received a reply.
18. On 15 November 1995 a reminder was sent – in vain – to the presiding judge of the Illkirch-Graffenstaden District Court. A copy was sent to Mr Deck and Mr Kirschner on 27 November 1995.
19. On 13 November 1996 the applicant sent a further reminder to the presiding judge of the District Court, asking him to contact the two notaries with a view to concluding the proceedings.
20. The presiding judge of the court drew up an order forwarding the application to the court registry's temporary premises in Erstein. On 18 November 1996 the same reminder was sent to the court registry's permanent premises in Erstein. That letter also remained unanswered.
21. On 29 November 1996 the District Court judge sent both notaries the applicant's letter of 18 November 1996 and requested them to inform him of any reason why partition of the estate should not proceed and to indicate how they intended to deal with the applicant's application.
22. In a letter of 19 February 1997 the applicant's lawyer lodged a complaint with the Chairman of the Chamber of Notaries. He asked the chairman to instruct the two notaries in question to dispose of the case before 31 March 1997. He stated that, should they fail to do so, he had been instructed to bring an action for damages in the appropriate court.
23. On 17 March 1997 Mr Deck informed the Chairman of the Chamber of Notaries and the District Court judge that on 24 August 1994 he had prepared a draft scheme of partition of the estate and had since been waiting for Mr Kirschner's counter-proposal.
24. Mr Deck convened a further meeting of the parties on 9 April 1997.
25. Following that meeting, the two notaries officially drew up the final scheme of division; in that document the parties undertook to discontinue the proceedings for partition by the court which had commenced with the order of 8 July 1993. Having regard to that undertaking, Mr Deck decided to discontinue the proceedings and, in an order of 4 December 1997, the District Court judge stayed the proceedings.
26. Article 837 of the Civil Code provides:
“If a dispute should arise in connection with proceedings referred to a notary, the notary shall draw up a record of matters causing difficulty and of the statements of the parties and forward them to the judge designated to deal with the partition ...”
27. The procedure for partition of an estate applicable in the law of succession in Alsace and Moselle is a non-contentious procedure governed by the provisions of the Act of 1 June 1924. Section 220 of that Act provides: “Partition by the court shall be effected as prescribed in the present Act by means of a non-contentious procedure. The right shall be reserved to interested parties to institute contentious proceedings if they wish to obtain a decision on the merits and admissibility of the partition.” Article 25 of the new Code of Civil Procedure, relating to non-contentious proceedings, provides that a court can rule only where there is no dispute. Lastly, under section 232 of the above-mentioned Act, “if difficulties arise during proceedings before the notary and those difficulties are not resolved, the notary shall draw up a record of the matters in dispute and instruct the parties to bring contentious proceedings”.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58095
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF ROBINS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations;Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage)
JUDGES: John Freeland
TEXT: 7. The applicants, Mr and Mrs Robins, born respectively in 1942 and 1943, are resident in Crediton, Devon and in London.
8. The background to the case is a dispute between neighbours over sewerage. Initially the applicants’ neighbours, Mr and Mrs T., instituted proceedings seeking damages for problems experienced with their sewerage, allegedly caused by work carried out by the applicants. Mr and Mrs T. won their case. On 26 February 1988 the applicants then instituted proceedings against Mr and Mrs T. in the Exeter County Court in Devon, alleging that the latter’s sewage was seeping onto their land. On 1 May 1991, Judge Clarke gave judgment against the applicants. Their appeal was subsequently dismissed by the Court of Appeal.
9. In England and Wales it is usual that the unsuccessful party to litigation pays the costs of the successful party (see paragraph 19 below). On 31 May 1991, Mr and Mrs T., who were not in receipt of legal aid, requested a hearing to determine costs issues. The applicants had been and were legally aided throughout the litigation to appeal stage. Although this did not affect the amount of costs Mr and Mrs T. would be entitled to receive, after having made an order for costs it would be necessary for the judge to assess the applicants’ means for the purposes of section 17 of the Legal Aid Act 1988 (“the 1988 Act” – see paragraph 20 below).
10. After hearings on 5 and 6 August 1991, the matter was adjourned until 19 September 1991, to be heard at Torquay County Court, also in Devon. As the question of costs could not be resolved because of factual disputes and conflict between the parties, on 24 September 1991 Judge Clarke made a direction that the inquiry should be adjourned and not restored until a number of points concerning the applicants’ entitlement to legal aid had been clarified. In particular, information was sought as to whether the applicants had advised the Legal Aid Board (“LAB”) of any change in their circumstances and whether revocation of their legal-aid certificate, if necessary, would have any retrospective effect.
11. On 25 November 1991, the court received a report from the LAB outlining events from the time the applicants first applied for legal aid. This report was sent to the parties on 14 January 1992, when they were informed that the matter could be re-listed for hearing. However, on 4 February 1992, the LAB informed the court that a fresh Department of Social Security (“DSS”) assessment of the applicants’ means was required in view of the fact that they had separated. The DSS later explained, in a letter filed with the court on 10 November 1992, that a delay of nine months had been caused because of a misapprehension in this respect; in fact, the applicants had not separated.
12. The restored hearing was held on 12–13 November 1992 before Judge Darwall-Smith, as Judge Clarke had fallen ill. Examining the criteria set out in section 17 (1) of the 1988 Act (see paragraph 20 below), the judge ordered that 4,599 pounds sterling (GBP), which had previously been retained by the LAB following an award of damages to the applicants resulting from a successful negligence action against a firm of solicitors, should be paid to Mr and Mrs T. forthwith and that the applicants should in addition pay them GBP 6,000 in instalments of GBP 100 per month.
13. The applicants sought legal aid to appeal against this decision. On 11 January 1993 they applied for an extension of time, since the time-limit for appealing the costs order had expired on 11 December 1992. Subsequently queries were raised by a lawyer in the Civil Appeals Office as to whether leave to appeal was required, and the matter was referred to the registrar.
14. In March 1993, September 1993 and March 1994 the applicants contacted the Court of Appeal asking why there was a delay in dealing with their application.
15. On 10 April 1994, the registrar directed that leave was not required to appeal against the costs order. With a view to avoiding the time and expense of holding two hearings, one before him for the extension of time and another before the full Court of Appeal, he referred the application to the full court to determine the question of the time extension and, if granted, immediately to hear the appeal.
16. The applicants were requested to lodge the relevant documents by 2 May 1994. Extensions of this time-limit were granted on 25 April, 24 May, 16 June, 6 July and again on 27 July 1994 at the request of the applicants, because they were experiencing difficulty in obtaining transcripts and judge’s notes of hearings from the first-instance courts. It later transpired that Judge Clarke’s notes had been either lost or did not exist. On 6 October 1994, the registrar granted the applicants’ request that transcripts of the judgment of Judge Darwall-Smith be produced at public expense.
17. Another extension of the time-limit for the submission of documents was granted, upon the applicants’ request, on 16 February 1995. On 6 March 1995 the documents were finally lodged with the Court of Appeal’s Office and on 29 March 1995 the application was listed for hearing. After the hearing on 19 June 1995, the Court of Appeal confirmed Judge Darwall-Smith’s judgment of 13 November 1992 and dismissed the appeal.
18. Legal aid is available to litigants in the English courts subject to various requirements as to means and the merits of the case in question. Financial assessments of a litigant’s disposable income and capital are carried out by specialist staff of the Benefits Agency’s Legal Aid Assessment Office. The resources of the litigant’s spouse are treated as belonging to the litigant unless they are living “separate and apart” (see the Civil Legal Aid (Assessment of Resources) Regulations 1989 (Statutory Instrument 1989 no. 338), Regulations 4 and 7).
19. In the English courts, the award of costs generally (in all cases, including those where one or more parties are legally aided) is a matter for the discretion of the court (see the Supreme Court Act 1981, section 51). However, rules of court lay down certain principles which are normally applied in the exercise of this discretion, including the principle that the unsuccessful party to litigation pays the costs of the successful party (see the Rules of the Supreme Court, Order 62, Rule 3, and the County Court Rules, Order 38, Rule 1 (3)).
20. This principle is not affected by the fact that an unsuccessful litigant is legally aided. However, after an order for costs has been made against such a person, the court which tried or heard the proceedings must determine how much of these costs it would be reasonable for the legally aided litigant to pay, in accordance with section 17 (1) of the Legal Aid Act 1988, which provides:
“The liability of a legally assisted party under an order for costs made against him with respect to any proceedings shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including the financial resources of all the parties and their conduct in connection with the dispute.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22260
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: AVETISSOV v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Serguei Avetissov, is a Russian national of Chechen origin, who was born in 1971.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant arrived in Sweden on 10 April 2000 but continued immediately to Norway where he was stopped at the border. He applied for asylum but was sent back to Sweden in accordance with the Nordic Passport Control Agreement. He then applied for asylum in Sweden.
The applicant claimed that he is an intelligence officer at the Ministry of State Security of Chechnya and that he has taken part in the hostilities between Chechen and Russian forces, including the Chechen defence of the city of Grozny. He stated that he had sent several letters to President Putin and other Russian politicians, protesting against the war and calling the President, inter alia, a bandit and a criminal. He left Russia to escape from the Russian security police which, allegedly, had threatened his life and was searching for him. During the autumn of 1999, he had been arrested by the Russian police and detained in a psychiatric clinic for two weeks. Also, on one occasion, the flat where he lived had been under fire. He continued to send letters to President Putin while waiting for his asylum application to be determined. He maintained that he would be arrested and executed upon his return to Russia.
On 15 January 2001 the Migration Board (Migrationsverket) rejected the asylum application and ordered the applicant’s expulsion to Russia. The Board considered that the applicant’s fears were exaggerated and that his political activities were not such as to constitute a ground for asylum or otherwise demonstrate that he was in need of protection in Sweden.
The applicant appealed, adding to what he had previously stated that he would risk imprisonment for eight years due to the contents of the letters he had sent.
On 21 June 2001 the Aliens Appeals Board (Utlänningsnämnden) rejected the appeal. The Board considered that the letters in question could have given the Russian security police occasion to check the applicant, maybe even to keep him under surveillance. However, no further interest from the security police could be expected. The Board concluded that neither the nature of the applicant’s activities, his possible encounters with the security police nor the possible future trial and sentence under ordinary Russian law for statements made in the letters could be considered as grounds for asylum.
On 6 July 2001 the Court indicated to the respondent Government, under Rule 39 of the Rules of Court, that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Russia pending clarification of the facts submitted by the applicant.
The same day the Court was informed by the Swedish Ministry of Foreign Affairs that the applicant, on 5 July, had returned to Russia voluntarily.
Following the Court’s request for certain factual information, under Rule 49 § 2 (a) of the Rules of Court, the respondent Government submitted that the applicant had voluntarily attended a meeting with the Migration Board on 28 June 2001 to discuss his return to Russia. As the applicant expressed hesitation about the return, it was decided that he was to be accompanied to the airport on the day of departure by two officials from the Board. These officials were not authorised to compulsorily enforce the deportation, however. The applicant was at the time staying at one of the Migration Board’s reception centres but was not detained or subjected to other restrictions. On 5 July 2001, at 12.05 p.m., the applicant, who had a valid Russian passport, travelled by plane to St. Petersburg. He was supposed to continue the journey to his home town Vladikavkaz the next day by plane and bus.
In reply, the applicant claimed that he was deported to Russia by force. Upon arrival in St. Petersburg he was arrested but he was released after he bribed the border guards. He then returned to Vladikavkaz. By a letter of 4 December 2001 he informed the Court that he had travelled without a visa to Germany, where he was detained with a view to his deportation back to Russia. On 10 January 2002 the District Court (Amtsgericht) of Güstrow prolonged his detention until 21 February 2002.


ITEMID: 001-23922
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: OLLINGER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Mr Karl Öllinger, is an Austrian national who was born in 1951 and lives in Vienna. He was represented before the Court by Mr J. Unterweger, a lawyer practising in Vienna.
The facts of the case, as submitted by the parties, may be summarised as follows.
In May 1995 the W.B. company, i.e. a big Austrian steel company, was taken over by the A. holding. On 4 May 1995, in the course of the negotiations preceding the take-over, H.L., a businessman and president of the executive board of the A. holding, gave a written assurance that there would be no reduction in personnel at the Viennese site of the W.B. company within the next three to four years. On 17 May 1995 the assurance was repeated in the records of a meeting between H.L., the executive manager of the W.B. company, staff representatives and representatives of several banks.
On 16 March 1999 the W.B. company announced staff cuts of up to 430 employees, including 270 dismissals to be carried out at the company's Viennese site.
On 17 March 1999 the applicant, in his capacity as a member of parliament, namely as spokesperson for social affairs of the Green Party, issued a press release under the heading:
“Massive Staff Cuts in Vienna Alarming” (“Massive Arbeitsplatzverluste in Wien bedenklich”)
The press release included the following statement:
“H.L.'s plans which include staff cuts and the shut down of W.B.'s Viennese site constitute a clear breach of [his] promise given in public on the occasion of the takeover.”
The above statement was reported in a number of daily newspapers.
Thereupon, H.L. brought injunction proceedings under Article 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) against the applicant with the Vienna Commercial Court (Handelsgericht). He requested that the latter be prohibited from stating or repeating that he “had broken his word with regard to his policy of no staff cuts as announced in May 1995”. He also requested that the statement be retracted and that this retraction be published in specified Austrian daily newspapers.
On 22 November 1999 the Commercial Court granted the injunction. It ordered the applicant not to repeat the impugned statement and to publish a retraction in the newspapers requested at his own cost. The court found that, contrary to the applicant's assertion, his statement was not a valuejudgment made in a political context, but a statement of fact, which jeopardised H.L.'s reputation as a business man. In this respect, the court also noted that H.L. was not a politician and that, according to the written statement of May 1995, the latter had only promised to make no staff cuts for a period of three to four years. Given the lack of precision regarding the time-frame it could not be assumed that the promise to make no staff cuts covered four full years. Thus, the allegation that H.L. had broken his word, by announcing in March 1999 that he intended to dismiss employees, was not supported by evidence.
The applicant appealed against the injunction. He submitted that the Commercial Court had not assessed the relevant facts against the background of the economic development of the W.B. company and that the impugned statement constituted a value-judgment.
On 29 May 2000 the Vienna Court of Appeal (Oberlandesgericht) dismissed the appeal. It considered that the Commercial Court had correctly assessed the relevant facts. Observing in particular that the applicant had himself failed to make any reference to the economic situation of the W.B. company in the material press release, it found, with reference to that text, that the only question at stake was whether H.L., by announcing staff cuts, had broken his word. In this respect, the Court of Appeal confirmed the Commercial Court's view that the impugned statement was a statement of fact. Referring to the written statement of May 1995, according to which there would be no reduction in manpower for a period of three to four years, it considered that the claimant's “guarantee” had lasted until May 1998 at the very most and concluded that the applicant had failed to prove his allegation.
On 13 March 1995 the applicant introduced an extraordinary appeal on points of law (außerordentliche Revision) against the Court of Appeal's decision.
On 23 October 2000 the Supreme Court (Oberster Gerichtshof) declared the extraordinary appeal inadmissible as it found that the qualification of the statement at issue as a statement of fact was in accordance with its previous case-law. This decision was served on the applicant on 15 November 2000.
Article 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows:
“(1) Everyone who has suffered material damage or loss of profit because of an insulting statement may claim compensation.
(2) The same applies if anyone disseminates statements of fact which jeopardise another person's credit, gain or livelihood and if the untruth of the statement was known or must have been known to him. In such a case the retraction of the statement and the publication thereof may also be requested ...”


ITEMID: 001-22630
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: P.K. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Finnish national, who was born in 1942 and lives in Imatra. He was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The respondent Government were represented by Mr Holger Rotkirch, Agent, and Mr Arto Kosonen, Co-Agent, both from the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was charged before the Imatra District Court (käräjäoikeus, tingsrätt) with three counts of aggravated fraud and debtor’s dishonesty. In the same case six other defendants were charged with various types of economic offences.
On 11 August 1994 the court proceedings in the District Court of Imatra commenced. The court was composed of one professional presiding judge and three lay members. The court heard the defendants and four witnesses. The case was adjourned until 23 September 1994.
On 23 September 1994 five witnesses gave evidence and the defendants were again heard. The case was adjourned until 9 November 1994.
On 9 November 1994 two witnesses gave evidence and the defendants were again heard. The case was adjourned until 18 January 1995.
Meanwhile, the presiding judge was changed and a new judge presided over the hearing on 18 January 1995. One witness gave evidence. The case was adjourned until 13 March 1995, when one witness gave evidence and the final statements were presented.
On 29 May 1995, the District Court found the applicant guilty on one count of aggravated fraud and debtor’s dishonesty. He was sentenced to a suspended term of imprisonment of one year and six months and ordered to pay FIM 3,686,000 in damages jointly and severally with three other defendants. The applicant was acquitted in respect of two charges. In so far as the judgment concerned his conviction for debtor’s dishonesty, the court based itself on documentary evidence and the testimony of one of the witnesses heard before the presiding judge was changed. That witness’s testimony concerned certain banking transactions with which the witness had been charged in her capacity as bank employee.
The applicant appealed to the Kouvola Court of Appeal (hovioikeus, hovrätt), requesting an oral hearing. On 20 June 1996 the Court of Appeal rejected the request for an oral hearing and upheld the conviction in respect of debtor’s dishonesty, but acquitted the applicant of the aggravated fraud. The Court of Appeal ordered that one of the defendants should not have to pay damages. It upheld the District Court’s decision in respect of the applicant and two other defendants, but limited the damages to be paid by those two to FIM 500,000 each. In addition, the Court of Appeal convicted the applicant and another defendant to pay, with joint liability, FIM 304,200 based on the claim of the bankruptcy estate, which claim the District Court had dismissed.
The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) which, on 12 February 1997, granted such leave concerning the Court of Appeal’s order for damages to be paid by the two co-defendants.
On 19 June 1997 the Supreme Court gave its judgment and lifted the Court of Appeal’s order in so far as it concerned the limitation of the damages to be paid by the co-defendants to the bankruptcy estate. The Supreme Court found that this issue had not been addressed before the Court of Appeal and therefore the Court of Appeal should not have decided it. The District Court’s order concerning damages was thus upheld.
The relevant domestic law as in force at the relevant time may be summarised as follows:
According to Chapter 26, section 7, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), the Court of Appeal could, when necessary, hold an oral hearing where parties, witnesses and experts could be heard, and other evidence could be taken. The oral hearing could be restricted to a certain issue.
According to the domestic legislation in force at the relevant time there was no prohibition against changing the presiding judge during the proceedings. The new Criminal Procedure Act (laki oikeudenkäynnista rikosasoissa, lag om rättegång i bråttmål) came into force on 1 October 1997. According to Chapter 6, section 11 of that Act, the main hearing shall be restarted in case the district court has to take on a new member due to the lack of quorum.
According to the Code of Judicial Procedure the chairman and three lay judges constitute the quorum in a district court. The lay judges have a personal vote. The presiding judge shall explain to the lay judges the issues that have arisen in the case and the provisions applicable to the issues. In case of a vote, the opinion of the majority is to prevail. In the event of a tie, the opinion more lenient to the defendant is to prevail.


ITEMID: 001-94204
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ANDREOU PAPI v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 1 of Protocol No. 1 - Protection of property;No violation of Article 3 - Prohibition of torture;No violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial;No violation of Article 7 - No punishment without law;No violation of Article 11 - Freedom of assembly and association;No violation of Article 13 - Right to an effective remedy;No violation of Article 14+5 - Prohibition of discrimination (Article 5 - Right to liberty and security);No violation of Article 14+6 - Prohibition of discrimination (Article 6 - Right to a fair trial);No violation of Article 14+7 - Prohibition of discrimination (Article 7 - No punishment without law);Just satisfaction reserved (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 7. The applicant was born in 1933 and lives in Limassol.
8. The applicant claimed that in 1952, when she was 19 years' old, she had permanently settled in Famagusta (northern Cyprus), where she got married and had two sons. She had her home and other immovable property there. In order to substantiate her claim to ownership, the applicant produced an “affirmation of ownership of Turkish-occupied immovable property” issued by the Republic of Cyprus, according to which her properties could be described as follows:
- Famagusta, Chrysi Akti, plot no. 778, block C, sheet/plan 33/21.1.IV, description: buildings with house, yard and shop on ground floor and house on the first floor; use: residence; area of the houses: 115 m² each; share: ¾.
9. The applicant submitted that the property described above had been transferred to her by way of gift from her husband, Mr Andreas Papis, on 28 June 2000 (Declaration of transfer no. D-971). The latter had acquired it on 8 July 1994 by way of gift (Declaration of transfer no. D-1044) from his mother, who had become the owner of the whole property in 1971. The applicant produced a copy of the two above-mentioned declarations of transfer.
10. The applicant also claimed to have a “possession” within the meaning of Article 1 of Protocol No. 1 with regard to the following property:
- Kato Dherynia, provisional no. 19, D/959; description: building site under subdivision; share: whole.
11. In particular, the applicant declared that she had entered into a contract to purchase the site on 24 December 1971 and had paid the purchase price in monthly instalments. The sale price was CYP 2,750 (approximately EUR 4,613) and the applicant had given a lump-sum of CYP 200 (approximately EUR 341) as an advance payment. The remaining sum of CYP 2,550 should have been paid as follows: CYP 500 on 31 January 1972, plus 48 monthly instalments of not less than CYP 45 (approximately EUR 76). All the instalments had been paid off, with the final one being paid on 2 July 1974. In accordance with the contract, the transfer was to be effected on payment of the full sale price. However, the applicant's title to the land was not registered owing to the Turkish intervention. The applicant produced the contract of sale and copies of the receipts of payment.
12. The applicant submitted that since the 1974 Turkish intervention she had been deprived of her property rights, since her property was located in the area that was under the occupation and control of the Turkish military authorities. She had made an attempt to return to her home and property on 19 July 1989, but had not been allowed to do so by the Turkish military authorities. They had prevented her from having access to and using her house and properties.
13. On 19 July 1989, the applicant joined an anti-Turkish demonstration in the Ayios Kassianos area in Nicosia in which the applicants in the Chrysostomos and Papachrysostomou v. Turkey and Loizidou v. Turkey cases (see below) also took part.
14. According to an affidavit sworn by the applicant before the Nicosia District Court on 4 August 2000, the demonstration of 19 July 1989 was peaceful and was held on the fifteenth anniversary of the Turkish intervention in Cyprus, in support of the missing persons and to protest against human rights violations.
15. The applicant and other women had gathered in the Ayios Georgios church, where a service was in progress. While she was in the chapel, she heard cries coming from outside and at the same time saw Turkish policemen entering the church, indiscriminately grasping women, beating them and pulling them out.
16. A policeman had seized the applicant by one hand and twisted the other backwards. He started to push her out of the church and to hit her fiercely with a baton and with his knee in the lower part of her head and on the back of her neck as well as on other parts of her body. She felt electricity passing through her body and realised that the baton was electric. The applicant and other women were forcefully dragged into the area controlled by the authorities of the “Turkish Republic of Northern Cyprus” (the “TRNC”).
17. She was then arrested and taken by bus to the so-called “Pavlides Garage”. During the journey she was subjected to assaults, beatings and gestures of a sexual nature by the officers who had detained her. The crowd outside the garage was swearing, shouting abuse and threats and throwing stones at the garage, some of which came through the roof. Some of the Turkish policemen threatened to open the doors and let the crowd lynch the detainees. At the garage there were also two UN men who merely acted as observers. One of the women detainees (Mrs Vrahimi – see application no. 16078/90) was seriously beaten. At about midnight the applicant was interrogated. Her interrogation took place in Greek. The applicant lied when asked for details concerning the members of her family. She was told to sign a statement in Turkish but did not do so as she did not understand Turkish and considered that signing the statement would have been tantamount to recognising the “TRNC”. On the morning of 20 July 1989 she was given some food and water and then taken to court where she was remanded in custody for forty-eight hours. At the hearing, an interpreter explained the procedure to the accused. The applicant understood that she was accused of having violated the borders of the “TRNC”.
18. She was subsequently transferred to a prison outside Nicosia, where she was kept in a cell with another two women. Since there were not enough mattresses she and the other detainees in her cell took turns to lie down; however, she could not sleep due to the severe pain from the blows she had received. During the night the applicant and the other detainees were harassed by the guards and told that the long-term prisoners would rape them. The toilets and showers were filthy and had no doors so the guards could see the detainees bathing. Essential means of hygiene were lacking. At night, the guards continually picked out individual detainees for checks.
19. At around midnight on 21 July 1989, the applicant was taken to court. She had no legal representation and the quality of the interpretation was poor; the applicant felt that the interpreter was not translating all of what was being said. The judge asked whether the accused wanted legal representation; they replied that they would only accept as defence counsel a lawyer registered with the bar association of the Republic of Cyprus. As a result, they were not assisted by a lawyer. One of the accused spoke on behalf of the others.
20. Some prosecution witnesses were interrogated. They lied about the basic facts surrounding the demonstration and the circumstances of the arrest and the accused tried to protest. However, they were told to stay quiet if they did not want to be handed over to the vociferous crowd that had gathered outside the courtroom.
21. At around midnight on 22 July 1989 the court sentenced the applicant to three days' imprisonment and to a fine of 50 Cyprus pounds (CYP) – approximately 85 euros (EUR) – with five additional days in prison in default of payment within 24 hours. She was brought back to prison where she was given some personal hygiene items that had been sent by the Red Cross.
22. On 24 July 1989 the applicant was released. At the time of her release she was examined by UN doctors, who took some notes, and then transferred to southern Cyprus. On 28 July 1989 she made a statement to Limassol police and was also examined by a Government doctor at Limassol Hospital. The applicant produced a medical report issued on that same day by Dr. Charalambos Michael, a medical officer. This document reads as follows:
“On 28.7.1989 and at approximately 23.00 hours I was requested by the Limassol District Police to examine Mrs Despo Andreou Papi from Famagusta and presently living at 16 Chrysanthou Mylona Street in Limassol.
Mrs Papi alleges that on 19.7.1989 she was hit (kicks, fists and use of police baton) on various parts of her body by Turkish pseudo-policemen in the area of Ayios Kassianos in Nicosia.
At the examination the following were found:
1. Multiple and extensive bruises on various parts of the body, particularly obvious and serious in the areas of the right buttock and the posterior surface of the left hip.
2. Haematoma and swelling on the left elbow joint.
3. Pain at various parts of the body particularly in the region of the ribs (both sides), the neck, the left elbow, both buttocks, the coccyx and the waist.
X-ray examination was requested.”
23. The applicant alleged that she continued to suffer from the effects of the beatings inflicted on her.
24. The Government alleged that the applicant had participated in a violent demonstration with the aim of enflaming anti-Turkish sentiment. The demonstrators, supported by the Greek-Cypriot administration, were demanding that the “Green Line” in Nicosia should be dismantled. Some carried Greek flags, clubs, knives and wire-cutters. They were acting in a provocative manner and shouting abuse. The demonstrators were warned in Greek and English that unless they dispersed they would be arrested in accordance with the laws of the “TRNC”. The applicant was arrested by the Turkish-Cypriot police after crossing the UN buffer zone and entering the area under Turkish-Cypriot control. The Turkish-Cypriot police intervened in the face of the manifest inability of the Greek-Cypriot authorities and the UN Force in Cyprus to contain the incursion and its possible consequences.
25. No force was used against demonstrators who did not intrude into the “TRNC” border area and, in the case of demonstrators who were arrested for violating the border, no more force was used than was reasonably necessary in the circumstances in order to arrest and detain the persons concerned. No one was ill-treated. It was possible that some of the demonstrators had hurt themselves in the confusion or in attempting to scale barbed wire or other fencing. Had the Turkish police, or anyone else, assaulted or beaten any of the demonstrators, the UN Secretary General would no doubt have referred to this in his report to the Security Council.
26. The applicant was charged, tried, found guilty and sentenced to a short term of imprisonment. She pleaded not guilty, but did not give evidence and declined to use the available judicial remedies. She was asked if she required assistance from a lawyer registered in the “TRNC”, but refused and did not ask for legal representation. Interpretation services were provided at the trial by qualified interpreters. All the proceedings were translated into Greek.
27. In his report of 7 December 1989 on the UN operations in Cyprus, the UN Secretary General stated, inter alia:
“A serious situation, however, arose in July as a result of a demonstration by Greek Cypriots in Nicosia. The details are as follows:
(a) In the evening of 19 July, some 1,000 Greek Cypriot demonstrators, mostly women, forced their way into the UN buffer zone in the Ayios Kassianos area of Nicosia. The demonstrators broke through a wire barrier maintained by UNFICYP and destroyed an UNFICYP observation post. They then broke through the line formed by UNFICYP soldiers and entered a former school complex where UNFICYP reinforcements regrouped to prevent them from proceeding further. A short while later, Turkish-Cypriot police and security forces elements forced their way into the area and apprehended 111 persons, 101 of them women;
(b) The Ayios Kassianos school complex is situated in the UN buffer zone. However, the Turkish forces claim it to be on their side of the cease-fire line. Under working arrangements with UNFICYP, the Turkish-Cypriot security forces have patrolled the school grounds for several years within specific restrictions. This patrolling ceased altogether as part of the unmanning agreement implemented last May;
(c) In the afternoon of 21 July, some 300 Greek Cypriots gathered at the main entrance to the UN protected area in Nicosia, in which the UN headquarters is located, to protest the continuing detention by the Turkish-Cypriot authorities of those apprehended at Ayios Kassianos. The demonstrators, whose number fluctuated between 200 and 2,000, blocked all UN traffic through this entrance until 30 July, when the Turkish-Cypriot authorities released the last two detainees;
(d) The events described above created considerable tension in the island and intensive efforts were made, both at the UN headquarters and at Nicosia, to contain and resolve the situation. On 21 July, I expressed my concern at the events that have taken place and stressed that it was vital that all parties keep in mind the purpose of the UN buffer zone as well as their responsibility to ensure that that area was not violated. I also urged the Turkish-Cypriot authorities to release without delay all those who had been detained. On 24 July, the President of the Security Council announced that he had conveyed to the representatives of all the parties, on behalf of the members of the Council, the Council's deep concern at the tense situation created by the incidents of 19 July. He also stressed the need strictly to respect the UN buffer zone and appealed for the immediate release of all persons still detained. He asked all concerned to show maximum restraint and to take urgent steps that would bring about a relaxation of tension and contribute to the creation of an atmosphere favourable to the negotiations.”
28. The applicant produced 21 photographs taken at different times during the demonstration on 19 July 1989. Photographs 1 to 7 were intended to show that, notwithstanding the deployment of the Turkish-Cypriot police, the demonstration was peaceful. In photographs 8 to 10 members of the Turkish-Cypriot police are seen breaking up the UNFICYP cordon. The final set of photographs shows members of the Turkish-Cypriot police using force to arrest some of the women demonstrators.
29. Section 70 of the Cypriot Criminal Code reads as follows:
“Where five or more persons assemble with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace they are an unlawful assembly.
It is immaterial that the original assembly was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.
When an unlawful assembly has begun to execute the purpose, whether of a public or of a private nature, for which it assembled by a breach of the peace and to the terror of the public, the assembly is called a riot, and the persons assembled are said to be riotously assembled.”
30. According to section 71 of the Criminal Code, any person who takes part in an unlawful assembly is guilty of a misdemeanour and liable to imprisonment for one year.
31. Section 80 of the Criminal Code provides:
“Any person who carries in public without lawful occasion any offensive arm or weapon in such a manner as to cause terror to any person is guilty of a misdemeanour, and is liable to imprisonment for two years, and his arms or weapons shall be forfeited.”
32. According to section 82 of the Criminal Code, it is an offence to carry a knife outside the home.
33. The relevant part of Chapter 155, section 14 of the Criminal Procedure Law states:
"(1) Any officer may, without warrant, arrest any person -
...
(b) who commits in his presence any offence punishable with imprisonment;
(c) who obstructs a police officer, while in the execution of his duty ..."
34. Section 9 of Law No. 5/72 states:
"... Any person who enters a prohibited military area without authorisation, or by stealth, or fraudulently, shall be tried by a military court in accordance with the Military Offences Act; those found guilty shall be punished."
35. Subsections 12 (1) and (5) of the Aliens and Immigration Law read as follows:
“1. No person shall enter or leave the Colony except through an approved port.
...
5. Any person who contravenes or fails to observe any of the provisions of subsections (1), (2), (3) or (4) of this section shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding one hundred pounds or to both such imprisonment and fine.”
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_ARTICLES: 11
13
14
3
5
6
7


ITEMID: 001-76597
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: DIKICI AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Tahsin Dikici, Mr Abdurrahim Dikici, Mr Halil Dikici, Mr Aziz Dikici, Mr İlham Dikici, Mr Abdurezzak Dikici and Mr İhsan Dikici, are Turkish nationals and live in Turkey. They are represented before the Court by Mr M. Vefa and Mr B. Deyar, lawyers practising in Diyarbakır.
The facts of the case, as submitted by the parties, may be summarised as follows.
Until May 1994, the applicants lived in Dolapdere village in Silvan, Diyarbakır, where they own property. Sometime in late 1993, Dolapdere inhabitants started to refuse to serve as village guards – a security system designed to protect villages against possible terrorist attacks by the PKK militants. Upon their continued refusal, the security forces evacuated the hamlet.
The applicants had to move to the city centre of Diyarbakır, where they currently live. On 18 May 1994 the security forces set fire to the houses and the cultivated fields in the village.
Following the incidents, the applicants filed applications with the administrative and military authorities, asking for an authorization to return to their hamlet, or in the alternative, to continue to cultivate their fields. They also requested to be remedied for the incidents. The applicants maintained that they were unable to provide copies of the complaints and requests they had filed but stated that the authorities had either disregarded or rejected them.
The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not destroyed the applicants’ village or forced them to leave their homes.
The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI)