ITEMID: 001-101913
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF YURIY LOBANOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - reserved;Non-pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage)
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1938 and lives in Shuya in the Ivanovo Region.
6. The applicant is a holder of 1982 State premium loan bonds (облигации Государственного внутреннего выигрышного займа 1982 года) having a total nominal value of 19,845 “promissory roubles” (see paragraph 17 below).
7. In 1982, the USSR issued a State internal premium loan to finance certain State programmes (see paragraph 13 below). According to the conditions of the loan, individuals could invest their money in State premium bonds and redeem them at any time during the term of the loan with interest at three per cent per annum. The term of the loan was fixed at twenty years. In that period, 160 State-organised draws were to be held in which some bonds would win cash prizes.
8. In 1992, the Government of the Russian Federation acknowledged its succession in respect of the obligations of the USSR under the 1982 loan and suspended payments under the 1982 State premium bonds (see paragraph 14 below).
9. Between 1995 and 2000, a series of Russian laws was adopted which provided for conversion of Soviet securities, including the 1982 loan bonds, into special Russian promissory notes (see paragraphs 16 to 20 below). The Government was mandated to devise a procedure for the conversion and fix the value of the promissory notes. Although a regulation on the conversion was adopted in 2000 (see paragraph 21 below), the actual conversion did not start and application of the regulation has remained suspended to the present day (see paragraph 22 below).
10. In early 2002, the applicant wrote to the Ministry of Finance to inquire about possibilities and time-limits for converting his 1982 bonds into Russian promissory notes. By a letter of 27 April 2002, a deputy director of the Internal Debt Department confirmed to the applicant that his bonds should be converted into the Russian promissory notes in accordance with the Savings Protection Act. The deputy director went on to explain why the conversion had not yet been possible:
“Section 10 of the [Conversion Procedure] Act provides that the procedure for calculating the interest accrued on the Russian promissory notes and the procedure for servicing the [internal] debt would be set out in a special federal law, which has not yet been enacted. In this connection, actual payments in [Russian] roubles under the promissory notes – as provided in the [Conversion Procedure] Act – cannot be made and the determination of the value of the ['promissory rouble'] would be of no practical significance since its application has not yet been defined by the legislator.
...
Once the legislation on the procedure for calculating the interest and the debt-servicing procedure has been adopted, the Ministry of Finance will make the necessary arrangements for the conversion of USSR securities... into promissory notes and the servicing of them; it will also launch an open tender for selection of the conversion agent ...”
11. In November 2002 the applicant brought proceedings before the Supreme Court of the Russian Federation challenging the Government for inactivity and failure to put the redemption programme into effect.
12. On 4 December 2002 the Supreme Court refused to examine the applicant's claim. It found as follows:
“By virtue of the constitutional principle of separation of powers, the court may not, in civil proceedings, require the Government of the Russian Federation to enact a specific legal act if the law does not explicitly set out the duty of the Government to adopt appropriate regulation; the claim may not be accepted for examination by the court.”
13. On 30 December 1980 the USSR Cabinet of Ministers approved, by Resolution no. 1220, the issue of bonds of the 1982 State premium internal loan having nominal values of 25, 50 and 100 Soviet roubles. Their period of circulation was set at twenty years, from 1 January 1982 to 1 January 2002. Soviet citizens could either buy the 1982 bonds with their own money or obtain them in exchange for bonds from the earlier 1966 State premium internal loan. The 1982 bonds could be sold and redeemed throughout the entire period of circulation.
14. On 19 February 1992 the Government of the Russian Federation issued Resolution no. 97 concerning the 1982 State internal premium loan and a new Russian internal premium loan to be issued in 1992. It provided as follows:
“1. To confirm succession of the Government of the Russian Federation in respect of obligations of the former USSR to Russian Federation citizens arising out of the bonds of the 1982 State internal premium loan.
2. Starting from 20 February 1992, to discontinue sale and purchase of bonds of that loan and holding of prize draws.
3. To issue the 1992 Russian internal premium loan.
...
6. To give Russian Federation citizens who are holders of bonds of the 1982 State internal premium loan the right to voluntary exchange of the bonds against State securities, including 1992 Russian internal premium loan bonds, shares in the Savings Bank of the Russian Federation, and also to credit the proceeds from sale of bonds to deposits open in the Savings Bank of the Russian Federation, from 1 October 1992...”
15. By Resolution no. 549 of 5 August 1992, the Russian Government decided that from 1 October 1992 to 1 October 1993 the Savings Bank would be authorised to purchase 1982 bonds and exchange them for 1992 bonds at the rate of 160 Russian roubles for one bond with a nominal value of 100 roubles.
16. On 10 May 1995 the Savings Protection Act (no. 73-FZ, ФЗ «О восстановлении и защите сбережений граждан Российской Федерации») was enacted. The State guaranteed the protection of Russian citizens' savings, including their investments in State securities issued by the USSR and RSFSR before 1 January 1992 (section 1). Guaranteed savings were recognised as part of the internal State debt of the Russian Federation secured with the entirety of the assets available at the disposal of the Government of Russia (sections 2 and 3). Soviet securities were to be converted into special promissory notes of the Russian Federation with a special promissory value (sections 5 and 7). Separate laws were to be enacted to determine the procedure for converting Soviet securities into Russian promissory notes and to determine their current value (section 12).
17. On 6 July 1996 the Promissory Value Act (no. 87-FZ, ФЗ «О порядке установления долговой стоимости единицы номинала целевого долгового обязательства Российской Федерации») introduced the “promissory rouble” as the currency of special promissory notes of the Russian Federation (section 1). The actual value of the “promissory rouble” was to be determined as a proportion of the “control value” of the consumer goods basket and its “base value” at the prices that prevailed in the RSFSR in 1990 (section 2). The “control value” was to be calculated on a weekly basis by the State Statistical Service and the “base value” was to be fixed in a federal law (sections 3 to 7). The Government was to publish the current value of the “promissory rouble” within one month of the Act's coming into force.
18. On 4 February 1999 the Base Value Act (no. 21-FZ, ФЗ «О базовой стоимости необходимого социального набора») was enacted in pursuance of the Promissory Value Act. It set the “base value” at 464 Soviet roubles. Its application was suspended from 1 January 2003 to 1 January 2012 by successive federal laws (no. 176-FZ of 24 December 2002, no. 186-FZ of 23 December 2003, no. 173-FZ of 23 December 2004, no. 189-FZ of 26 December 2005, no. 238-FZ of 19 December 2006, no. 198-FZ of 24 July 2007, and no. 206-FZ of 24 November 2008).
19. On 15 March 1999 the State Statistical Service approved guidelines on calculation of the “control value” (resolution no. 19).
20. On 12 July 1999 the Conversion Procedure Act (no. 162-FZ, ФЗ «О порядке перевода государственных ценных бумаг СССР и сертификатов Сберегательного банка СССР в целевые долговые обязательства Российской Федерации») confirmed that bonds of the 1982 State internal premium loan which are still in circulation in Russia are part of the guaranteed savings of Russian citizens (section 1). Sections 3 to 8 set out the general principles for conversion of the bonds into special promissory notes of the Russian Federation. The debt servicing procedure was to be governed by a separate federal law (section 10). Section 11 specified that the guarantees of the Savings Protection Act were fully applicable to securities which had not been converted into Russian promissory notes and that no statute of limitation applied to claims arising out of those securities.
21. In pursuance of section 15 of the Conversion Procedure Act, on 29 January 2000 the Russian Government approved a regulation on the procedure for conversion of USSR securities into Russian promissory notes (Resolution no. 82). It set out that conversion into promissory notes would be performed by putting a stamp on the face of the bonds, which would certify the fact of conversion and also the nature, face value and interest rate of the new promissory note (paragraph 3). Converted bonds were to be entered into a register maintained by the Ministry of Finance (paragraph 4). The conversion was to be carried out by a designated lending agency, which the Ministry of Finance was to choose by tender (section 5).
22. Starting from 2003, the application and implementation of Resolution no. 82 was repeatedly suspended by successive Government Resolutions (no. 625 of 14 October 2003, no. 349 of 13 July 2004, no. 489 of 4 August 2005, no. 467 of 28 July 2006, no. 479 of 25 July 2007, no. 558 of 22 July 2008, no. 594 of 21 July 2009, and no. 387 of 1 June 2010).
23. On 17 March 2004 the Presidium of the Moscow Regional Court quashed, by way of supervisory review, all the judgments in a civil case in which the claimants sued the Russian Government for their failure to determine the value of the “promissory rouble” (decision no. 229). It held as follows:
“The claims raised by Mr and Ms K. fall outside the courts' competence; a court may not encroach on the competence of the executive body by requiring it to perform actions or to issue regulations which are within the competence of that body. The court may only ... assess the compliance of the Government regulations with Russian federal legislation. Besides, district courts have no competence over such claims. Pursuant to Article 220 § 1 of the Code of Civil Procedure, a court shall discontinue the proceedings if the claim may not be examined and determined in civil proceedings.”
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-110251
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF LUTSENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority)
JUDGES: André Potocki;Ganna Yudkivska;Mark Villiger
TEXT: 4. The applicant was born in 1959 and lives in Kryvyy Rig.
5. On 29 September 2009 the local prosecutors instituted criminal proceedings against him on suspicion of bribery.
6. On 30 September 2009 the applicant was arrested under Article 115 of the Code of Criminal Procedure.
7. On 2 October 2009 the Dzerzhynskyy District Court of Kryvyy Rig (“the District Court”) remanded the applicant in custody on the ground that he might abscond, obstruct justice and continue criminal activities.
8. On 18 November 2009 the same court extended the maximum period of the applicant’s detention to four months (until 29 January 2010) on similar grounds.
9. As it appears from the case file, on 29 January 2010, following the completion of the pre-trial investigation, the prosecutors sent the case to the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) to determine which court had jurisdiction. On 8 February 2010 the latter court determined that the case should be examined by the District Court and forwarded the case to that court for trial.
10. On an unspecified date the applicant’s representative asked the District Court to release the applicant from detention as the time-limit for his detention had expired on 29 January 2010.
11. On 9 March 2010, at the committal hearing, the court rejected the request stating that on 29 January 2010 the case had been sent to the Court of Appeal and, subsequently, to the District Court for trial. It further held that there were no grounds for changing the applicant’s preventive measure. It did not fix any time-limit for the applicant’s subsequent detention.
12. On 7 June 2010 the applicant and his representative requested the court to change his preventive measure from detention on remand to undertaking not to abscond. On the same day the court rejected the request due to the gravity of charges against the applicant and because he did not plead guilty and might obstruct justice at liberty. It did not fix any time-limit for the applicant’s further detention.
13. According to the Government, on 23 May 2011 the District Court convicted the applicant and sentenced him to an unspecified term of imprisonment on probation. On 10 October 2011 the Court of Appeal upheld that judgment.
14. The relevant provisions of the domestic law pertinent to the issue of the applicant’s pre-trial detention are summarized in the cases of Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 5354, ECHR 2005II (extracts), and Yeloyev v. Ukraine, no. 17283/02, § 35, 6 November 2008.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-109070
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ARRAS AND OTHERS v. ITALY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6-1 - Fair hearing;Equality of arms);Pecuniary and non-pecuniary damage - award
JUDGES: Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 6. The applicants were born in 1939, 1933, 1933 and 1925 respectively and lived in Italy.
7. The applicants are all pensioners (retired prior to 31 December 1990) and former employees of the Banco Di Napoli (a banking group which was originally a public entity and was later privatised).
8. Before their privatisation, the Banco di Napoli and the Banco di Sicilia were subject to exclusive welfare systems according to Articles 11 and 39 of Law no. 486 of 1985. Their employees benefited from a more favourable equalisation mechanism (meccanismo perequativo) than that available to persons registered with the general compulsory insurance (assicurazione generale obligatoria). In particular, the annual pension increase of their pensioners was calculated on the basis of the salary increases of working employees in equal grades of service (perequazione aziendale).
9. In 1990 the Amato reform provided for the privatisation of public banks such as the Banco di Napoli. It suppressed their exclusive pension regimes, replacing them by integrated ones. It provided for the registration of the Banco di Napoli employees with a new welfare management system which was part of the general obligatory insurance managed by the Istituto Nazionale della Previdenza Sociale (“INPS”), an Italian welfare entity.
10. In 1992 a further partial pension reform took place.
11. In 1993 a number of former employees who had by then retired, entered into a dispute with the Banco di Napoli about the application of certain provisions. In particular, by means of a wide interpretation of section 9 of Law no. 503 of 1992 (hereinafter Law no. 503/92) and section 3 of Law no. 421 of 23 October 1992 (hereinafter Law no. 421/92) (see Relevant domestic law) the Banco di Napoli attempted to suppress the system of perequazione aziendale calculated on the basis of the salary increases of working employees in equal grades of service, also in respect of persons who were already retired, limiting the latter’s perequazione to an automatic one, namely a simple increase according to the cost of living (perequazione legale), which resulted in a less substantial pension.
12. The latter stand was taken notwithstanding that, according to the applicants, Law no. 218 of 30 July 1990 (Amato reform), particularly its section 3 paragraph 1 and 2, and section 3 of Law no. 421 of 23 October 1992 (see Relevant domestic law), limited this suppression solely to persons still employed and not persons already receiving a pension. Indeed persons still employed had been given the option of taking up other benefits as agreed by means of corporate collective bargaining.
13. On an unspecified date a number of pensioners in the applicants’ position instituted civil proceedings contesting the actions of the Banco di Napoli, since as a consequence they were receiving lesser amounts than those they claimed to be entitled to. They highlighted that Laws nos. 503/92 and 421/92 safeguarded any more favourable treatment applicable to persons who had retired prior to 31 December 1990. Thus, they requested the court to find that they had a right to retain the system of perequazione aziendale as applied before the enactment of such laws, and to order the Banco di Napoli to pay the sums it had failed to pay them.
14. By a judgment of 31 October 1994 in Acocella and others v. Banco di Napoli, the domestic court upheld the claimants’ arguments, holding that they had a right to remain under the system of perequazione aziendale even following the entry into force of Law no. 503/92. The same was confirmed in a number of other judgments in various jurisdictions, including the Court of Cassation (for example, judgments nos. 1388/00 and 12912/00) and more specifically the Court of Cassation in its ultimate formation, namely, sitting as a full court (Sezione Unite). The latter in its judgment (no. 9024/01) of 3 July 2001 upheld the claimants’ argument on the basis of the interpretation of Law no. 503/92 and Laws nos. 497 and 449 of 1996 and 1997 respectively, which explicitly made reference to perequazione aziendale, confirming that it had not been abrogated by the 1992 laws. The impugned amendments applied solely to persons still employed and not to persons who had retired on or before 31 December 1990. In consequence, the contested right was legitimately due to the former Banco di Napoli employees who had retired by 31 December 1990, for the period between 1 January 1994 (date when a general suspension of pension adjustments ceased) to 26 July 1996 (date when a new suspension of such adjustments started in respect of the Banco di Napoli).
15. This interpretation continued to be followed uniformly by all the judges sitting in such cases.
16. Subsequently, various legislative amendments took place attempting to limit the application of the system of perequazione aziendale. These culminated in the enactment of section 1 paragraph 55 of Law no. 243/04, which interpreted the relevant law to the effect that retired employees of the Banco di Napoli could no longer benefit from the system of perequazione aziendale and made it effective retroactively, with effect from 1992.
17. In the meantime, section 59 paragraph 4 of Law no. 449 of 27 December 1997 (legge finanziaria of 1998) had definitively suppressed all systems of perequazione aziendale, as from 1 January 1998.
18. Thus, generally the system of pension adjustment according to perequazione aziendale had been recognised and remained in force from 1994 to December 1997 (just before the entry into force of the legge finanziaria of 1998) for other public banking entities that had previously applied a system of perequazione aziendale, except for the Banco di Napoli. In reality, this benefit had already been suspended in respect of the employees of the Banco di Napoli (and Banco di Sicilia) with effect from 26 July 1996 by means of the Salvabanco law. Thus, for the latter’s employees the system of perequazione aziendale would have applied only from 1 January 1994 to 26 July 1996.
19. In 1996 the applicants instituted proceedings on the lines of the proceedings mentioned above, namely they argued that Laws nos. 503/92 and 421/92 safeguarded any more favourable treatments applicable to persons who had retired prior to 31 December 1990. Thus, they requested the Naples Tribunal (Labour Section) to find that they had a right to retain the system of perequazione aziendale as applied before the enactment of such laws and to order the Banco di Napoli to pay the sums it had failed to pay them.
20. The applicants expected a favourable outcome in view of the then applicable case-law. Indeed, in accordance with the latter, by a judgment of 26 February 2001, the Naples Tribunal (Labour Section) found in favour of the applicants. It ordered the Banco di Napoli to pay the outstanding amounts with inflation increases and legal interest to run from 1 January 1994.
21. On appeal, by a judgment of 24 April 2004, the Naples Court of Appeal confirmed the first-instance judgment upholding the applicants’ right to be covered by the system of perequazione aziendale, however only for the period from 1 January 1994 (date when a general suspension of pension adjustments ceased) to 26 July 1996 (date when a new suspension of such adjustments started in respect of the Banco di Napoli).
22. The Banco di Napoli appealed.
23. By a judgment (no. 22701/06) of 19 September 2006 deposited in the relevant registry on 23 October 2006 the Court of Cassation reversed the lower courts’ judgments and found against the applicants, ordering the costs of the three court instances to be paid equally between the parties. The Court of Cassation upheld the ground of appeal that the Naples Court of Appeal could not have taken account of Law no. 243/04 - not yet in force at the time of its judgment - an interpretation law applicable retroactively, which was designed to resolve a conflict of interpretation which had been present in domestic case-law and which had ultimately been resolved by the Court of Cassation (Sezioni Unite). Indeed, Law no. 243/04 was enacted to resolve the matter as to whether Articles 9 and 11 of Law no. 503/92 applied only to employees still in service or also to retired pensioners, and provided that as from 1994 onwards a perequazione legale (increase according to the standard of living) had to apply to “all” pensioners, irrespective of their date of retirement.
24. The Court of Cassation rejected a claim of unconstitutionality in so far as this interpretative law had retroactive effects impinging on the principle of legal and judicial certainty. In this respect it referred to previous Constitutional Court judgments which held that the legislator could impose norms specifying the meaning of other norms in so far as the meaning was one of the options emanating from the original text and in conformity with the principle of rationality.
25. In 2007, in two different civil cases, the Court of Cassation referred the matter to the Constitutional Court considering that paragraph 55 of Law no. 243/04 raised issues of constitutionality on a number of grounds: i) recourse to norms of authentic interpretation would be unreasonable in such circumstances, it being disproportionate and counterproductive visàvis the aim sought, namely the extinction of contentious proceedings; ii) the impugned law would make the determination of the parties interest dependent on an unconstitutional factor, namely the length of proceedings, and would constitute an inequality of treatment between persons whose proceedings have terminated and others whose proceedings were still pending; iii) the impugned law would unreasonably obliterate the role of the Court of Cassation.
26. By a judgment filed in the registry on 7 November 2008, the Constitutional Court upheld the legitimacy of Law no. 243/04. It considered that the impugned law was an interpretative norm to the provisions of law no. 503/92 which eradicated perequazione aziendale for all pensioners, irrespective of their date of retirement. Indeed, the interpretative nature of the norm was evident since it had confirmed one of the possible meanings of the original 1992 text, which had also been upheld in some jurisprudence. The impugned law had been reasonable because it aimed to achieve recognition of an equal and homogenous treatment of all pensioners under the current integrative regimes. Moreover, this law had not augmented contentious proceedings since it had rendered their outcome foreseeable. As to the other inconveniences mentioned by the Court of Cassation, it considered that these arose from a random number of circumstances and was not sufficient to consider the norm unconstitutional. It further considered that the legislator could enact interpretative laws, once they were based on one of the possible meanings of the original text even if there had been consistent jurisprudence about the matter, and this did not affect the role of the Court of Cassation.
27. Law no. 218 of 30 July 1990, in so far as relevant, reads as follows:
Section 1
“Employees of public banks will remain subject to the provisions in force on the date of the entry into force of the present law, up to the renewal of the national collective bargaining contract applicable to the relevant category or up to the stipulation of a new additional corporate contract.
Section 2
The foregoing is without prejudice to the said employees’ acquired rights, effects of special laws or laws pertaining to the original nature of the relevant public entity.”
28. Sections 3 and 4 of Law no. 357 of 20 November 1990, in so far as relevant, read as follows:
Section 3
“(3) The pension rates to be paid by the special management system are subject to automatic equalisation of the compulsory general insurance.
(4) Those entitled to pensions or other insurances (in accordance with paragraph 1 ((registration with INPS of bank employees)) retain their right to the more favourable global welfare treatment as provided for by the obligatory invalidity, old-age and survivors’ insurance as provided in the following Article.
Section 4
(1) ... is made without prejudice to a more favourable global welfare payment as provided for by the compulsory invalidity, old age and survivors insurance ... which remains applicable.
(2) The difference between the global welfare payments mentioned in paragraph 1 (tempo per tempo determinato) and the pension, or rate of pension, to be covered by the special management system (according to paragraphs 2 and 3), as increased by automatic equalisation, is to be paid by the employer.”
29. Section 3 paragraph 1 of Law no. 421/92 delegated to the Government the enactment of the relevant law in accordance with the following principles, which in so far as relevant read as follows:
“(p) the principles and criteria mentioned above (...) apply to employees as mentioned in section 2 of Law no. 357/90 (persons in employment on 31 December 1990)”
30. Section 9 paragraphs 2 and 3, of Law no. 503/92, in so far as relevant, reads as follows:
“(2) Sections 2, 3, 8, 10, 11, 12, and 13 apply with respect to supplementary company regimes with which the employees as mentioned in section 2 of Law no. 357/90 (persons in employment on 31 December 1990) are registered.
(3) Variation to pension payments as a result of paragraph 2 weigh upon the global sum (in accordance with section 4 of Law no. 357/90) unless otherwise agreed through collective bargaining.”
31. Section 1 paragraph 55 of Law no. 243/04 (regarding pension norms in the sector of public welfare, in support of complementary welfare and stable occupation and for the reorganisation of welfare entities and compulsory assistance), in so far as relevant, reads as follows:
“In order to extinguish the contentious judicial litigation relative to payments corresponding to each category of pensioners already registered under equivalent welfare regimes, by means of a full recognition of an equal and homogenous payment to all pensioners registered with the supplementary regimes in force, section 3 (1) (p) of Law no. 421 of 23 October 1992 and Article 9 (2) of Legislative Decree no 503 of 30 December 1992, applies to the global payment received by the pensioners in accordance with Article 3 of Legislative Decree no. 357 of 20 November 1990. The relevant expense is to be borne by the obligatory general insurance.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71362
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KOLODZIEJ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Mr Kazimierz Kołodziej and Mrs Teresa Kołodziej, are Polish nationals who live in Toruń, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants own a flower stall. On 12 February 1992 the Toruń City Board (Zarząd Miasta) ordered them to remove the stall from a public road, where they had located it without the required authorisation. The applicant’s did not obey and, on 9 March 1992, the stall was removed and put into storage.
The applicants have not attempted to recover it.
On 14 October 1993 the applicants sued the Toruń Municipality before the Toruń District Court (Sąd Rejonowy), seeking compensation for their stall, which had allegedly been damaged.
On 17 December 1996 the court dismissed the claim. It found that the applicants had wrongly sued the Municipality, as the party to the proceedings should have been the Toruń Governor (Wojewoda Toruński).
On 9 July 1997 the Toruń Regional Court (Sąd Okręgowy) upheld the first instance judgment.
Due to the value of the claim, a cassation appeal was not available in this case.
On 10 April 1989 the Architect of Toruń (Architekt Miejski) issued a building permit in favour of E.W. and Z.W., the applicants’ neighbours. They were to build an outhouse.
On 3 July 1989 the Toruń Governor (Wojewoda Toruński), upon the applicants’ appeal, upheld the contested decision.
On 28 December 1989 the Supreme Administrative Court (Naczelny Sąd Administracyjny) remitted the case.
The Governor upheld his original decision on 26 June 1990.
On 17 October 1990 the Supreme Administrative Court declared that decision null and void.
On 18 December 1990 the Governor again upheld his original decision.
It was quashed by the Supreme Administrative Court on 14 March 1991.
On 14 October 1991 the Toruń District Office ordered that E.W. and Z.W. make temporary arrangements to ensure the safety of the neighbouring house.
On 23 December 1991 the Toruń Governor upheld that decision.
The applicants appealed on 14 January 1992.
On 30 April 1992 the Supreme Administrative Court gave judgment.
On 27 August 1992 the Mayor of Toruń (Prezydent Torunia) ordered that the outhouse be demolished.
On 19 October 1992 the Toruń Governor upheld the first instance decision.
On 15 April 1993 the Supreme Administrative Court dismissed E.W’s and Z.W.’s further appeal.
On 15 July 1994 the Minister of Town and Country Planning and Construction (Minister Gospodarki Przestrzennej i Budownictwa) refused the applicants’ neighbours’ application for the annulment of the decisions of 27 August and 19 October 1992.
On 7 February 1996 the Supreme Administrative Court dismissed their appeal.
On 8 November 1997 the applicants complained to the Toruń Town Office (Urząd Miasta) about the fact that the outhouse had not been demolished.
In reply, the Office informed them that enforcement proceedings would be initiated.
On 27 April 1998 the applicants complained about inactivity on the part of the Town Office to the Mayor of Toruń. They maintained that the demolition order of 27 August 1992 had not been executed.
On 2 June 1998 the Mayor replied that the applicants’ neighbours had been fined for non-compliance with the order, but the relevant authorities had failed to execute that decision.
On 7 January 1999 the applicants complained to the Kujawsko-Pomorski Governor (Wojewoda Kujawsko-Pomorski) about the inactivity of the Town Office.
On 21 July 1999 the Toruń District Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego w Toruniu) informed the applicants that, since their neighbours had failed to demolish the outhouse, a so-called “vicarious” execution (wykonanie zastępcze) of the demolition order would be carried out.
On 18 October 1999 the District Inspector issued a decision ordering the vicarious execution.
On 5 November 1999 the Kujawsko-Pomorski Regional Inspector of Construction Supervision (Kujawsko-Pomorski Wojewódzki Inspektor Nadzoru Budowlanego) upheld that decision.
On 8 May 2002 the Supreme Administrative Court dismissed E.W.’s and Z.W.’s further appeal.
It appears that the demolition has not been carried out to date.
At the material time section 54 of the Law of 17 June 1966 on Enforcement Proceedings in Administration (“the 1966 Act”) provided that a creditor had a right to lodge a complaint about excessive length of enforcement proceedings with an authority superior to that carrying them out.
On 30 November 2001 section 54 of the 1966 Act was amended. Under §§ 2 and 3 of this provision a person whose legal or factual interest is infringed as a result of non-enforcement of the obligation has a right to lodge a complaint about the length of proceedings. Paragraph 5 provides for an appeal if a complaint is dismissed.
On 1 October 1995, the Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) entered into force.
Under section 17 of the 1995 Act the Supreme Administrative Court was competent to examine complaints against inactivity on the part of an authority obliged to issue an administrative decision or to carry out enforcement proceedings.
Section 26 of the Act provided:
“When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.”
Pursuant to section 30 of the 1995 Act, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity was legally binding on the authority concerned. If the authority did not comply with the decision, the court could, under section 31, impose a fine on it and might itself give a ruling on the right or obligation in question.
The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Proceedings before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004. Section 3 § 2 of the 2002 Act contains provisions analogous to section 17 of the 1995 Act. It provides that administrative courts examine complaints about inactivity on the part of authorities obliged to issue an administrative decision or to carry out enforcement proceedings. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.


ITEMID: 001-101440
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF KOWALENKO v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 5-3;No violation of Art. 6-1
JUDGES: Ján Šikuta;Lech Garlicki
TEXT: 6. The applicant, Mr Siergiej Kowalenko, is a Ukrainian national who was born in 1969 and is currently serving a prison sentence in Bydgoszcz Remand Centre.
7. The applicant was a defendant in a criminal case, which is not a subject of the instant application. He was at liberty, however, as no pre-trial detention had been imposed on him in connection with that case.
8. On 15 October 2001 he was arrested by the police in connection with a new case, in which he was suspected of having committed numerous offences, among others, aiding and abetting in the concealment and trafficking of stolen cars, fraud and many counts of car hijacking.
9. On 17 October 2001 the Toruń District Court (Sąd Rejonowy) ordered preventive measures, namely police supervision and a security deposit of 50,000 Polish zlotys (PLN) and the applicant was released. On 26 March 2002 those preventive measures were lifted but the applicant remained at liberty.
10. On 15 July 2002 the prosecutor introduced additional charges against the applicant concerning membership of an organised criminal gang and additional offences of car hijacking and fraud.
11. On 22 July 2002 the applicant, who came voluntarily to the prosecutor's office in connection with the other criminal case, was once more arrested and the new charges were brought against him.
12. On 24 July 2002 the Toruń District Court decided to remand the applicant in custody. That decision was justified by the authorities by strong evidence against the applicant, the risk that he would obstruct the proceedings and the possibility of a severe penalty being imposed for the offences charged.
13. Subsequently, the measure was extended by numerous decisions, inter alia, the decisions of the Toruń District Court of 21 October 2002, 22 January, 12 February,18 April, 28 July and 28 October 2003, 29 January, 29 April and 20 July 2004. The first-instance court's decision of 22 January 2003 was upheld by the Toruń Regional Court on 12 February 2003.
14. The domestic courts relied on the original grounds for the applicant's pretrial detention. In addition, it was noted that the applicant was presumed to have played an important role in the commission of the offences charged, irrespective of the fact that he had not pleaded guilty. The authorities also argued that a likelihood that a severe sentence would be imposed on the applicant given the serious nature of the offences with which he had been charged, created a presumption that he would obstruct the proceedings by going into hiding if released. Lastly, it was reiterated that the applicant was likely to attempt to induce witnesses to give false evidence because one of the charges which he was facing at the trial in question was that he had allegedly instructed two co-defendants to lie about the circumstances surrounding the burglary into the house of a certain E.C.
15. Meanwhile, on 15 March 2003 the bill of indictment was lodged with the Toruń District Court.
16. It appears that the investigation file at this stage of the proceedings comprised forty volumes, the bill of indictment was 198-page long and that the thirty-three defendants faced the total number of 214 counts, out of which the applicant himself was charged with as many as twelve offences.
17. The first trial was scheduled for 3 July 2003. Before that, however, on 18 April 2003 the trial court gathered to decide on the extension of the applicant's pre-trial detention (see paragraph 13 above).
18. On 17 June 2004 the applicant started serving his prison sentence which had been imposed in the other criminal case.
19. On 30 September 2004 the preventive measure was lifted. However, on 20 May 2005 the prosecutor made a formal request to the trial court that the applicant be remanded in custody as soon as he had completed his prison sentence in connection with his first criminal case, on 15 June 2005.
20. As a result, on 6 June 2005 the Toruń District Court decided to remand the applicant in custody. The court reiterated the grounds indicated in the decision of 20 July 2004. The court also relied on the presumption that the applicant would obstruct the proceedings since a heavy penalty could be imposed for the offences charged. Moreover, the risk that the applicant would attempt to induce the witnesses to give false evidence was considered a valid ground for his detention even at that stage of the proceedings. The latter was justified by the applicant's obstructive behaviour and his attempts to delay the proceedings. The court also pointed to the complexity of the case and the fact that at that stage of the proceedings as many as twenty-two co-defendants were on trial. Lastly, it was observed that the proceedings were already at an advanced stage and they were likely to be concluded shortly.
21. The applicant and his lawyer lodged two interlocutory appeals against that decision. The Gdańsk Court of Appeal (Sąd Apelacyjny) entertained the appeal lodged by the applicant's lawyer on 16 June 2005 and decided not to entertain the appeal lodged by the applicant himself. On an unspecified date the interlocutory appeal lodged by the applicant's lawyer was dismissed as no grounds had been found to justify the lifting of the applicant's pre-trial detention.
22. Subsequently the applicant's pre-trial detention was extended by the decisions of the Gdańsk Court of Appeal of 13 July and 11 October 2005, and 17 January 2006. The Court of Appeal found that the original grounds for the preventive measure in question were still valid. Moreover, mindful of the fact that the applicant's pre-trial detention had exceeded the statutory limit of two years, the court noted that the further extension of the measure was nevertheless justified because the proceedings were about to be concluded.
23. The applicant and his lawyer lodged interlocutory appeals against all the decisions extending the preventive measure. They also lodged numerous applications for release. All those appeals were rejected by the domestic courts.
24. On 16 February 2006 the Toruń Regional Prosecutor discontinued the investigation into the applicant's allegations that a judge competent to decide on the lifting of his pre-trial detention had asked him for a bribe. The investigation was discontinued due to the lack of evidence justifying any suspicion that the offence had been committed.
25. On 3 March 2006 the Toruń District Court convicted the applicant of several offences and sentenced him to 6.5 years' imprisonment.
26. In the course of the proceedings before the first-instance court the applicant and his lawyer lodged numerous requests to challenge both the lay and professional judges. All those requests were rejected as no reasons had been found to consider the judges biased. The applicant submitted that his lawyer and he had lodged approximately 100 different procedural motions in the course of the proceedings before the first-instance court.
27. Similarly, on 28 December 2006 the President of the Toruń Regional Court informed the applicant that the two judges with the same family name who had been assigned to the bench in the first and second-instance court were, in fact, not related.
28. On 21 June 2007 the Toruń Regional Court upheld the first-instance judgment in the part concerning the applicant.
29. On 18 March 2008 the Toruń Regional Court appointed a legal-aid lawyer to lodge a cassation appeal on behalf of the applicant. On an unspecified date the lawyer informed the court and the applicant that she had not found any grounds for lodging a cassation appeal in the case.
30. On 10 June 2008 the same court refused to appoint another lawyer as requested by the applicant. The court noted that the previously appointed lawyer had made a thorough analysis of the case file and found no reasons to contest the lawyer's decision not to lodge a cassation appeal.
31. On 16 September 2006 the applicant complained about the length of the proceedings under the Act of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). In particular, he submitted that the proceedings had been lengthy because the trial court had not severed his case from the cases of dozens of other co-defendants and because there had been long delays between hearings.
32. On 17 November 2006 the Toruń Regional Court dismissed the complaint.
33. The court took note of the fact that three years had lapsed from the date of the lodging of the bill of indictment against the applicant until the date when the applicant had been convicted by the first-instance court.
34. The court also observed that the applicant's case was complex because of the nature of the charges brought against the defendants and the voluminous evidence.
The case had initially involved thirty-three co-defendants and at the time of the firstinstance judgment, twenty-two. A number of the defendants were foreigners. The investigation files comprised forty volumes and an additional fifty-eight volumes had been produced in the course of the trial. The prosecutor had requested that eighty-seven witnesses be heard and the testimonies of eighty-nine other witnesses be read out at the trial. Moreover, the trial court had to examine over 500 items of evidence and obtain medical reports on the applicant's mental health. It was stressed that the defendants, especially the applicant, had made extensive use of their procedural rights to challenge the judges, submit motions for new evidence or to ask for adjournment of the hearings. The trial court had to rule on all those issues and, in addition, at separate sessions, on preventive measures. The court's first sessions, which concerned the preventive measures of the applicant and two other defendants, were held shortly after the bill of indictment had been lodged, namely on 28 March and 18 April 2003. Moreover, in 2003 the trial court held twenty-two hearings, in 2004 – thirtytwo, in 2005 – fourteen and in 2006 - eight.
35. The court also addressed the applicant's complaint that too many defendants had been tried in one trial. To that effect the court noted that the cases of two defendants had been severed already in May 2003, of eight others, gradually, prior to August 2003 and of another defendant, at the later stage of the proceedings. The trial court had considered that the remaining twenty-two co-defendants had to be tried together because the charges against them were intertwined and the testimonies of witnesses summoned concerned several defendants at a time.
36. Moreover, the court observed that some delays had occurred because the applicant had been making use of his procedural rights in an abusive manner or because he had been taken ill.
The applicant had lodged multiple applications to challenge each judge of the bench. His oral submissions at some hearings had lasted several hours. He had applied for the adjournment of many hearings because of a medical indisposition. Several other hearings had to be interrupted because the applicant had asked for an ambulance to be called to the court. Finally, when the trial had come to an end on 24 February 2006 the applicant had asked for an adjournment in order to prepare his own closing speech. The trial court had complied with the request and had scheduled a new hearing for 3 March 2006. On that date, however, the applicant had left the court room, refusing to participate in the proceedings.
37. Lastly, the court pointed out that the first-instance judgment, convicting the applicant and all other defendants, comprised eighty pages and additional 373 pages of a reasoned opinion. That element proved, in the court's opinion, that the case in question had been very complex and justified further procedural extensions (for example, to serve the hard copy of the judgment on the parties).
38. It was also taken under consideration that, at the time when the court was giving its ruling under the 2004 Act, two appeals, which had been lodged by the applicant and his lawyer, were pending for three weeks before the court of appeal.
39. In the light of the above findings, the Toruń Regional Court concluded that the time taken by the trial court to complete the applicant's case was not excessive. On the contrary, the overall length of the proceedings was justified by the complexity of the charges, the voluminous material and the necessity to secure to all co-defendants the effective enjoyment of their procedural rights.
40. The applicant has corresponded extensively with the State authorities, non-governmental organisations and the Court. He submitted that his letters had been withheld and censored by the authorities.
Practically each envelope of the applicant's numerous letters sent during his incarceration had the stamp of the detention facility in which he was being held at the relevant time. The stamp in question also indicated the date of receipt of the letter and a registration number. For example: “Bydgoszcz Remand Centre ... received on... No. ...” (Areszt Śledczy w Bydgoszczy Wpł. ... Nr...), Toruń Remand Centre ... received on... No. ... Signature” (Areszt Śledczy w Toruniu Wpł. ... Nr...Podpis). The blank spaces were filled in by a printed or handwritten date and a handwritten number. In addition, an illegible signature was visible on several of the envelopes. It appears that the envelopes had not been opened before they were forwarded to the addressee.
41. The envelope containing the applicant's letter sent to the Registry of the Court on 5 April 2006 bears a stamp: “Censored agreeing on delivery Toruń on ... [space for date and signature] President of Criminal Department” (Ocenzurowano zezwalam na doręczenie, dn ... Przewodniczący Wydz. Karnego). The stamp, however, is crossed out and the space for the date and signature are not filled in. It appears that the envelope had not been opened before it was received by the Court.
42. The applicant lodged several complaints with the prosecution and penitentiary authorities alleging that his correspondence had been withheld or monitored.
43. On 2 February 2006 the Toruń District Prosecutor decided not to open an investigation into the matter because the applicant had failed to substantiate his allegations. On 14 June 2006, however, the Toruń Regional Prosecutor quashed the above decision and ordered an additional inquiry.
44. On 28 November 2006 the Toruń District Prosecutor upheld the police decision of the same date to discontinue the inquiry into the applicant's allegations that his letters had been withheld or monitored by the administration of Bydgoszcz Remand Centre and the Toruń District Court. The inquiry did not confirm that the alleged facts had taken place. On 9 February 2007 the Toruń Regional Prosecutor quashed that decision and ordered a further inquiry. The applicant did not submit any information as to the subsequent developments in the case.
45. By letter of 6 March 2007 a penitentiary judge of the Toruń Regional Court informed the applicant that his letters had not been sent by Toruń Remand Centre via the court because the applicant had the status of a convicted person. Consequently, the applicant's correspondence could not have been withheld or monitored.
46. The relevant domestic law and practice concerning the imposition of pretrial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are set out in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 2733, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 2223, 4 August 2006.
47. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V; Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
48. The legal provisions concerning monitoring of detainees' correspondence applicable at the material time and questions of practice are set out in paragraphs 65-66 of the judgment delivered by the Court on 4 May 2006 in Michta v. Poland , no. 13425/02.
49. The relevant statistical data, recent amendments to the Code of Criminal Procedure designed to streamline criminal proceedings and references to relevant Council of Europe materials can be found in the Court's judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, §§ 27-28 and 30-35, 3 February 2009).
NON_VIOLATED_ARTICLES: 5
6
NON_VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-102811
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KÜBLER v. GERMANY
IMPORTANCE: 3
CONCLUSION: Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies, victim);Remainder inadmissible;No violation of Art. 6-1;Violation of Art. 6-1;Just satisfaction reserved
JUDGES: Bertram Schmitt;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 6. The applicant was born in 1960 and lives in Stuttgart.
7. The applicant has been practising as a lawyer since 1989. In November 2001 the applicant applied for one of the six posts of advocate notary (Anwaltsnotar) officially advertised by the Baden-Württemberg Ministry of Justice (hereafter: “the Ministry of Justice”) enabling qualified lawyers to practise simultaneously as a solicitor and as a notary in the Stuttgart court circuit.
8. On 18 March 2002 the Ministry of Justice informed the applicant that it intended to appoint six other lawyers as advocate notaries. The applicant's subsequent request to compel the Ministry of Justice to review its decision was dismissed by the Stuttgart Court of Appeal.
9. On 31 March 2003 the Federal Court of Justice rejected the applicant's appeal.
10. On 3 April 2003 the applicant informed the Ministry of Justice that he intended to lodge a constitutional complaint with and apply for interim legal protection to the Federal Constitutional Court. He requested the Ministry of Justice to await the outcome of the proceedings before the Federal Constitutional Court before appointing the advocate notaries.
11. On 7 April 2003 the Ministry of Justice informed the applicant it would no longer wait to make the appointments.
12. On 9 April 2003 the applicant lodged a constitutional complaint and requested the Federal Constitutional Court to grant him interim legal protection, arguing that there was a danger that the Ministry of Justice would appoint the advocate notaries and thus create irreparable damage to him.
13. On 10 April 2003 the Federal Constitutional Court granted the applicant interim legal protection and ordered the Ministry of Justice to keep one post of advocate notary free until the statutory time-limit for the submission of the grounds for the applicant's constitutional complaint had elapsed. On the same day the Federal Constitutional Court sent its decision by fax to the Ministry of Justice.
14. Nonetheless, on 10 April 2003 the Ministry of Justice appointed five notaries. On the following day it appointed the sixth notary.
15. On 29 April 2003 the Ministry of Justice informed the Federal Constitutional Court that it had received the court's interim injunction on 10 April 2003, but that this had been submitted to the competent head of division in the Ministry only on 14 April 2003. However, it also announced that it would advertise a further post as advocate notary as of 30 June 2003.
16. On 14 May 2003 the applicant submitted the reasons for his constitutional complaint to the Federal Constitutional Court, which extended its interim injunction on 3 June 2003, 19 November 2003 and 4 May 2004, until such time as it had issued its final decision on the applicant's constitutional complaint.
17. On 8 October 2004 the Federal Constitutional Court found for the applicant. First, it held that the applicant's constitutional complaint had not become inadmissible following the appointment of the six notaries by the Ministry of Justice. In particular, the applicant had an interest in a declaration that the application procedure had been unconstitutional and in a fresh examination of his application or, if that was impossible, in being granted compensation. The right to an effective remedy under Article 19 § 4 of the German Basic Law permitted the continuation of the proceedings before the Federal Constitutional Court, since the Ministry of Justice had failed to abide by its interim injunction.
18. On the merits, the Federal Constitutional Court found that the recruitment procedure as practised by the Ministry of Justice had violated the applicant's freedom of profession as guaranteed by Article 12 of the Basic Law and the principle of equal access to public office as provided for by Article 33 § 2 of the Basic Law (see “Relevant domestic law” below), mainly because it had not taken sufficient account of the relevant professional experience of the candidates. The Federal Constitutional Court remitted the case to the Court of Appeal for fresh consideration, as “it was not excluded that [the applicant], who had obtained better results in the second state exam and had more relevant professional experience than the candidate who, on account of his seniority, was appointed as sixth advocate notary in the recruitment procedure, could succeed in the initial proceedings if his application was reassessed.”
19. On 7 April 2005 the Stuttgart Court of Appeal quashed the decision of the Ministry of Justice of 18 March 2002 and compelled it to reassess the application, taking into account the findings of the Federal Constitutional Court.
20. On 28 November 2005 the Federal Court of Justice quashed the Court of Appeal's decision. It found that the applicant had lacked an interest in a decision compelling the Ministry of Justice to appoint him as an advocate notary or to reassess his application, as the Ministry had already allocated the six notary posts to other applicants. Thus the principle of stability of office (Grundsatz der Ämterstabilität – see “Relevant domestic law” below) prohibited the annulment of one of the six appointments. Furthermore, it was impossible to allocate the applicant the next available notary post or to create a new post for him as this would infringe the rights of other potential candidates and be in violation of section 4 of the Federal Notaries Act (Bundesnotarordnung - see “Relevant domestic law” below). The court held that its findings complied with the Federal Constitutional Court's decision of 8 October 2004, which had not specified the manner in which the applicant should obtain redress. It was thus possible that the applicant could be granted redress in official liability proceedings rather than having his application re-examined.
21. On 29 March 2006 the Federal Constitutional Court refused to admit the applicant's constitutional complaint. It found that the applicant could not attain more with the second constitutional complaint than he had already obtained in its decision of 8 October 2004. In that decision the Federal Constitutional Court had not specified the manner in which the lower courts were to grant the applicant legal protection. It had referred to two options, namely the reassessment of the applicant's application by the Ministry of Justice or compensation for damage. It was thus still open to the applicant to request damages in official liability proceedings.
22. On 27 November 2003 the Stuttgart Court of Appeal dismissed the applicant's request to annul the appointment of the sixth advocate notary. It found that even if this appointment had been unlawful, it could not be annulled. In particular, the applicant had not submitted any reason allowing for the revocation of an appointment of a notary under the relevant provisions of the Federal Notaries Act.
23. On 10 August 2004 the Federal Court of Justice rejected the applicant's appeal as the principle of stability of office did not allow for revoking the appointment of notaries. Equally, it was not possible to create a special post as an advocate notary for the applicant.
24. On 26 October 2004 the Federal Constitutional Court declared the applicant's constitutional complaint inadmissible, as its decision of 8 October 2004 had already given him the possibility to have the lawfulness of the recruitment procedure reviewed by the lower courts. He therefore lacked standing for this constitutional complaint.
25. In 2006 the applicant instituted official liability proceedings against the Land Baden-Württemberg before the Stuttgart Regional Court, on the ground that the Ministry of Justice had appointed the sixth advocate notary in spite of the Federal Constitutional Court's interim injunction in his favour.
26. On 22 February 2008 the Stuttgart Regional Court dismissed the applicant's action. It found that, irrespective of the possibility that the Ministry of Justice could have breached its official duty when disregarding the Federal Constitutional Court's interim injunction, there had been no causal connection between the applicant's damage and the alleged breach of duty. Had the Ministry of Justice complied with the interim injunction, it would have halted the recruitment procedure, refrained from appointing the advocate notaries and started a fresh recruitment procedure for the six posts. During such a procedure it would have assessed the new applications in accordance with the Federal Constitutional Court's decision of 8 October 2004. However, it remained totally unclear whether the applicant could have succeeded in such a fresh procedure with a new field of candidates.
27. On 25 April 2008 the applicant appealed that decision before the Stuttgart Court of Appeal.
28. On 21 January 2009 the Stuttgart Court of Appeal requested the Land of Baden-Württemberg to submit a written statement on whether a fresh recruitment procedure would have led to the applicant being selected for one of the six notary posts. On 22 July 2009 the Land submitted its written opinion, alleging that the applicant under no conceivable circumstances would have ranked among the six top candidates. In July 2010, the proceedings were still pending before the Stuttgart Court of Appeal.
29. By e-mail dated 23 July 2010 the presiding judge of the Stuttgart Court of Appeal informed the applicant's counsel that he was obliged to postpone the hearing originally scheduled for 17 November 2010 to the second half of February 2011. This was due to the fact that the senate had to hear other, more urgent cases, which had to be prepared by the same rapporteur judge. Even taking into account the length of the instant proceedings, the presiding judge considered the applicant's case to be less urgent for the following reasons: If the applicant should obtain compensation, he would be awarded interests at a rate which exceeded the interest rates which could be obtained elsewhere. If he should lose his action, some additional months would not matter.
30. Article 12 § 1 of the Basic Law provides that all Germans have the right to freely choose their profession, their place of work, and their place of training.
31. Under Article 33 § 2 of the Basic Law every German is equally eligible for any public office according to his or her aptitude, qualifications and professional achievements.
32. Article 33 § 5 of the Basic Law provides that the law governing public service is to be regulated with due regard to the traditional principles of the professional civil service. One of the latter is the principle of stability of office, according to which appointments to public office are not to be revoked or annulled following legal remedies instituted by unsuccessful candidates.
33. Some Länder, like Baden-Württemberg, provide for the possibility for qualified lawyers to be appointed as so-called “advocate notaries” (Anwaltsnotare) enabling them to exercise the profession as notary alongside their activity as solicitors. Advocate notaries (like single profession notaries) are “independent holders of a public office” who are appointed by the competent judicial authority. Once officially appointed, notaries do not receive a salary from the state, but charge fees (fixed by law) to the parties. As a rule, notaries do not enjoy the status of civil servants.
34. The Federal Notaries Act lays down the access requirements, the rights and obligations of notaries and their organisation and functions. It is complemented by respective orders of the Länder.
35. Section 4 of the Federal Notaries Act provides that the number of appointments of notaries is to be restricted to what is necessary to ensure the sound administration of justice. In particular, the number of notaries must correspond to the need of individuals to be provided with notarial services, and a balanced age structure must be ensured in the profession of notary. In Baden-Württemberg the Ministry of Justice has responsibility for and discretion in deciding on this need (Organisationsermessen) and therefore in fixing the number of advocate notaries. In so doing it takes account of the average number of notarisations taking place within the areas of the various district courts. Once the Ministry of Justice has decided to create a new notary post, it publishes – in compliance with section 6 (b) of the Federal Notaries Act – a vacancy notice for the Court of Appeal district (Oberlandesgerichtsbezirk) in which such a need has been identified.
36. According to section 111 of the Federal Notaries Act, disputes surrounding the appointment and selection of notaries are adjudicated by the civil Court of Appeal (Oberlandesgericht) and in the second instance by the Federal Court of Justice. Since 1 September 2009, the proceedings are governed by the Administrative Courts Act (Verwaltungsgerichtsordnung, see section 111b of the Federal Notaries Act).
37. Pursuant to Article 34 of the Basic Law, taken in conjunction with Article 839 of the Civil Code, the State or a public body is liable to pay compensation to an individual for any damage arising from an intentional or negligent breach of official duties committed by its officials. No such obligation to afford redress arises where the injured party has wilfully or negligently omitted to avoid the damage by means of another legal remedy.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58371
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1997
DOCNAME: CASE OF AYDIN v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (estoppel);Violation of Art. 3;Violation of Art. 13;Not necessary to examine Art. 6-1;No violation of Art. 25-1;Not necessary to examine Art. 28-1-a;Not necessary to examine Art. 53;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;John Freeland;N. Valticos;R. Pekkanen
TEXT: 13. The applicant, Mrs Şükran Aydın, is a Turkish citizen of Kurdish origin. She was born in 1976. At the time of the events in issue she was 17 years old and living with her parents in the village of Tasit, which is about ten kilometres from the town of Derik where the district gendarmerie headquarters are located. The applicant had never travelled outside her village before the events which led to her application to the Commission.
14. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces.
At the time of the Court’s consideration of the case, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule.
15. The facts in the case are disputed.
16. According to the applicant, a group of people comprising village guards and a gendarme arrived in her village on 29 June 1993. Although the applicant put the time of their arrival at 5 p.m., the Commission, relying on the recollection of the applicant’s father and sister-in-law, found that it was more likely that this occurred early in the morning of 29 June at around 6 a.m.
17. Four members of the group came to her parents’ home and questioned her family about recent visits to the house by PKK members (see paragraph 14 above). Her family were threatened and subjected to insults. They were then taken to a village square where they were joined by other villagers who had also been forcibly taken from their homes.
18. The applicant, her father, Seydo Aydın, and her sister-in-law, Ferahdiba Aydın, were singled out from the rest of the villagers, blindfolded and driven away to Derik gendarmerie headquarters.
19. The Government have disputed the applicant’s claim that she and two members of her family were detained in the circumstances described above. In his oral evidence to the Commission delegates who heard evidence from witnesses in Ankara from 12 to 14 July 1995 (see paragraph 40 below), Mr Musa Çitil, the commander of Derik gendarmerie headquarters in 1993, stated that no operations had been conducted in or immediately around the village on the day in question and no incidents had been recorded. Furthermore, in support of their challenge to the applicant’s account of the events the Government drew attention to the inconsistencies in the evidence concerning the time of the incident and the number of village guards involved as well as to the fact that the applicant and her family failed to recognise any of the village guards although they all would have come from neighbouring villages.
20. The applicant alleges that, on arrival at the gendarmerie headquarters, she was separated from her father and her sister-in-law. At some stage she was taken upstairs to a room which she later referred to as the “torture room”. There she was stripped of her clothes, put into a car tyre and spun round and round. She was beaten and sprayed with cold water from high-pressure jets. At a later stage she was taken clothed but blindfolded to an interrogation room. With the door of the room locked, an individual in military clothing forcibly removed her clothes, laid her on her back and raped her. By the time he had finished she was in severe pain and covered in blood. She was ordered to get dressed and subsequently taken to another room. According to the applicant, she was later brought back to the room where she had been raped. She was beaten for about an hour by several persons who warned her not to report on what they had done to her.
21. The Government have challenged the credibility of the applicant’s account of the events. They pointed out that there was no indication in the custody register kept at Derik gendarmerie headquarters that anyone had been detained on 29 June 1993. Had the applicant and the members of her family been taken into custody on that date the responsible duty officer would have followed the proper procedure and entered the details in the custody register. The station commander and the custody officer on duty at the time had been heard by the Commission delegates as witnesses and both had confirmed that no one had been taken into custody at that time. Furthermore, interrogation of terrorist suspects never took place at the Derik headquarters but at the provincial headquarters in Mardin. The Government also found it significant that the applicant failed to recognise photographs of the premises when shown to her. Furthermore, the Government highlighted several inconsistencies in the way in which the applicant reported on the details of the alleged rape and assault to the public prosecutor and to the Diyarbakır Human Rights Association (see paragraph 23 below).
22. According to the applicant, she, her father and her sister-in-law were taken away from the gendarmerie headquarters on or about 2 July 1993. They were driven by members of the security forces to the mountains where they were questioned about the location of PKK shelters. They were subsequently released separately. The applicant made her own way back to her village.
The Government argued that the applicant’s account of her release also undermined the credibility of her allegations. They contended that it would have been extremely naïve on the part of the security forces to take the applicant and the members of her family to a location within ten minutes of Tasit after three days of detention to ask about the whereabouts of terrorists.
23. On 8 July 1993 the applicant together with her father and her sister-in-law went to the office of the public prosecutor, Mr Bekir Özenir, in Derik to lodge complaints about the treatment which they all alleged they had suffered while in detention. The public prosecutor took statements from each of them. The applicant reported that she had been tortured by being beaten and raped. Her father and sister-in-law both alleged that they had been tortured. According to the applicant, she confirmed her account of what happened to her in a statement given to the Diyarbakır Human Rights Association on 15 July 1993, which was submitted, undated, to the Commission along with her application.
24. All three were sent the same day to Dr Deniz Akkuş at Derik State Hospital. The public prosecutor had requested Dr Akkuş to establish the blows and marks of physical violence, if any, in respect of Seydo and Ferahdiba. In respect of the applicant, he requested that she be examined to establish whether she was a virgin and the presence of any marks of physical violence or injury.
In his report on the applicant dated 8 July 1996, Dr Akkuş, who had not previously dealt with any rape cases, stated that the applicant’s hymen was torn and that there was widespread bruising around the insides of her thighs. He could not date when the hymen had been torn since he was not qualified in this field; nor could he express any view on the reason for the bruising. In separate reports he noted that there were wounds on the bodies of the applicant’s father and sister-in-law.
25. On 9 July 1993 the public prosecutor sent the applicant to be examined at Mardin State Hospital with a request to establish whether she had lost her virginity and, if so, since when. She was examined by Dr Ziya Çetin, a gynaecologist. According to the doctor’s report, dated the same day, defloration had occurred more than a week prior to her examination. No swab was taken and neither the applicant’s account of what had happened to her nor whether the results of the examination were consistent with that account were recorded in his report. Dr Çetin did not comment on the bruising on her inner thighs on account of the fact that he was a specialist in obstetrics and gynaecology. He did not frequently deal with rape victims.
26. On 12 August 1993 the public prosecutor took a further statement from the applicant who by that stage was married. On the same day he referred the applicant to Diyarbakır Maternity Hospital requesting that a medical examination be carried out to establish whether the applicant had lost her virginity and, if so, since when. The medical report dated 13 August 1993 confirmed Dr Çetin’s earlier findings (see paragraph 25 above) that the hymen had been torn but that after seven to ten days defloration could not be accurately dated.
27. On 13 July 1993 the public prosecutor wrote to Derik gendarmerie headquarters enquiring as to whether the applicant, her father and her sister-in-law had been held in custody there and, if so, as to the dates and duration of the detention and the names of those who carried out the interrogations. By letter dated 14 July 1993, the commander of the gendarmerie headquarters, Mr Musa Çitil, replied that they had not been taken into custody. On 21 July 1993, he supplied the public prosecutor with a copy of the entries for 1993. There were only six entries for that year.
28. On 22 July 1993 the public prosecutor wrote to Derik gendarmerie headquarters requesting that the custody register for the months JuneJuly 1993 be sent to him for inspection. The register contained no entries for the months in question.
29. The public prosecutor sent the applicant’s file to the Forensic Medicine Institute in Ankara. By letter dated 22 December 1993, the chief coroner requested that the applicant attend for an examination.
30. The public prosecutor wrote to the chief of security in Derik on 18 January and 17 February 1994 requesting that the applicant be brought to the office of the Attorney-General. In a follow-up letter of 18 April 1994 the public prosecutor referred to the fact that he had received no reply to his earlier letters. In a further letter dated 13 May 1994, the public prosecutor informed the chief of security at Derik that the applicant, her father and her sister-in-law should attend at his office.
31. By report dated 13 May 1994 in reply to a request for information of 9 May 1994, the public prosecutor informed the office of the Attorney-General in Mardin that there was no evidence to support the applicant’s claims but that the investigation continued.
32. On 18 May 1994 the public prosecutor in Derik took two further statements from the applicant’s father who confirmed his earlier account of the events of 29 June 1993. Her father also declared that the applicant and her husband had left the district in March 1994 to find work elsewhere and that he did not know of their whereabouts.
33. On 19 May 1994 the public prosecutor, Mr Bekir Özenir, interviewed Mr Harun Aca, a former PKK activist. Mr Aca alleged that the PKK members used the applicant’s home as a shelter and that around April and May 1993 she was having a sexual relationship with two PKK members.
34. On 25 May 1995, after the applicant’s complaint had been declared admissible by the Commission, a public prosecutor, Mr Cahit Canepe, took a statement from Mr Ali Kocaman who commanded Derik gendarmerie headquarters from 1992 to 1994. Mr Kocaman, who admitted to memory loss as a result of a road accident, stated that he had no recollection of any incident of rape or torture at the time in question and denied any involvement.
35. The applicant also alleged that she and her family have been subjected to intimidation and harassment following the communication by the Commission of her application to the Government and particularly following the Commission’s decision to invite her to give oral evidence. Her father was repeatedly asked her address by the public prosecutor and, on occasion, by the police. The applicant and her husband were also repeatedly called to the police station for no apparent reason, their house had been searched (once before 19 October 1995 and again on 1 and 8 November 1995) and they were questioned about her application to the Commission. The applicant was also made to sign a statement of the contents of which she is ignorant. Further, on or about 14 and 18 December 1995, the applicant’s husband was taken into custody. On the first occasion, he was slapped, kicked and severely beaten with truncheons by three police officers, one of his teeth being broken in the process. On the second occasion, he was again severely beaten by the same three officers.
36. Furthermore, the applicant alleged that on 16 January 1996, the applicant, her husband, father and father-in-law were called to Derik police station from where they were sent to the public prosecutor. He showed them the applicant’s husband’s statement of 19 October 1995 and asked questions about it. The applicant’s husband was asked whether the police were intimidating them, to which he replied “Yes”. While they were not ill-treated on this occasion, the applicant’s husband strongly considered that they all felt intimidated by the very fact of being called by the police and that the constant calls by the police to their homes were making their situation very difficult. The applicant also referred to incidents of harassment, including the stoning of her father-in-law’s house which neighbours attributed to the security forces.
37. The Government were requested by the Commission to respond to the above allegations. By letter and comments dated 12 January 1996, the Government referred to the provisions of Turkish criminal procedure whereby it is the duty and unavoidable obligation of public prosecutors to investigate the facts of crimes, which involves finding and questioning witnesses. In this context, police officers function as assistants to the public prosecutors. The public prosecutor who conducted the investigation instigated by the applicant and her father, and the police officers who acted under his authority, contacted the applicant and her father with the sole purpose of investigating the facts of the allegations and assembling the evidence. They submitted that the statements taken by the public prosecutor revealed no element of pressure being exerted and it was in the interests of the applicant for further evidence to be gathered. There was, they contended, no substantiation of the allegations of intimidation and harassment, the statements submitted by the applicant’s representatives having been taken by extra-judicial means and their authenticity disputed. They submitted a letter from the Ministry of the Interior (Gendarmerie Department) stating that no search took place at the applicant’s house and that the purpose of the police officers’ visit to Seydo Aydın was to communicate to the applicant the summons to attend the Commission’s hearing. Since she was not there, he was asked for her address and there was no persecution involved. In an earlier communication of 16 June 1995 in response to the first allegations of harassment of the applicant’s father, the Government had responded that they rejected these allegations categorically and that they formed part of a campaign to influence the course of the proceedings and the holding of hearings to take evidence.
38. At the taking of evidence before delegates of the Commission in Strasbourg on 18 October 1995, the Agent of the Government responded to allegations made orally by the applicant’s representative concerning the repeated questioning of the applicant’s father. He stated that it was the duty of the Turkish Government to facilitate the proceedings of the Commission and that they had to notify the applicant. To avoid any problems of non-attendance or the waste of expenditure of coming to Strasbourg if she did not intend to comply with the summons, it was necessary to obtain her address from her father and that was why he was continually asked for the address. Requesting that information from her father could not, in his view, be regarded as harassment.
39. In the absence of any findings of fact reached by the domestic authorities on the applicant’s complaint, the Commission assessed the evidence and established the facts on the basis of:
40. The Commission’s findings can be summarised as follows:
“... the evidence of these officers as regards the facilities for taking persons into custody and the practice regarding taking persons into custody during 1993 has been less than frank. It finds itself left with serious doubts as to whether the gendarmerie custody register is an accurate record of persons taken into custody during 1993. In these circumstances, the Commission considers that the lack of any official confirmation of the applicant’s detention is insufficient evidence to discredit the account of the applicant and her father, which it finds to be credible and on the whole consistent.” (paragraph 172 of the Commission’s report)
“... the applicant was blindfolded, beaten, stripped, placed inside a tyre and sprayed with high-pressure water, and raped. It would appear probable that the applicant was subjected to such treatment on the basis of suspicion of collaboration by herself or members of her family with members of the PKK, the purpose being to gain information and/or to deter her family and other villagers from becoming implicated in terrorist activities”. (paragraph 180 of the Commission’s report)
“... have been subjected to significant pressure from the authorities in circumstances which threaten to impinge on their continued participation in the proceedings before the Commission and that this has rendered the exercise of the applicant’s right of individual petition more difficult”. (paragraph 217 of the Commission’s report)
41. The Turkish Criminal Code makes it a criminal offence
42. Under Article 153 of the Turkish Code of Criminal Procedure, the public prosecutor must investigate the facts on being informed of the commission of a crime. He must conduct the necessary inquiries to identify the perpetrators, hear witnesses, take statements from suspects, issue search warrants, etc.
Article 154 of the Code authorises the public prosecutor to conduct a preliminary investigation into an offence either directly or with the support of the police.
According to Article 163 the public prosecutor may institute criminal proceedings if he decides that the evidence justifies the indictment of a suspect. If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, he may close the investigation. However, the public prosecutor may decide not to prosecute if and only if the evidence is clearly insufficient. Under Article 165 a complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
43. Decree no. 285 modifies the application of Law no. 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the administration or of the security forces is removed from the public prosecutor and conferred on local administrative councils.
These councils are composed of civil servants. Decisions of the local council may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal. If the offender is a member of the armed forces, he would fall under the jurisdiction of the military courts and would be tried in accordance with the provisions of Article 152 of the Military Criminal Code.
44. Article 125 of the Turkish Constitution provides as follows:
“All acts or decisions of the administration are subject to judicial review.
…
The administration shall be liable to indemnify any damage caused by its own acts and measures.”
45. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus the administration is liable to indemnify persons who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
46. The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the state of emergency, which provides:
“... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.”
47. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Civil Code, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 and non-pecuniary or moral damages may be awarded under Article 47.
48. Article 13 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 requires that a State party
“shall ensure that any individual who alleges that he has been subjected to torture in any territory under its jurisdiction has the right to complain to and have his case promptly and impartially examined by its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against ill-treatment or intimidation as a consequence of evidence given”.
Article 12 of the Convention requires each State party to ensure
“that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction”.
49. In its public statement on Turkey adopted on 15 December 1992 (CPT/inf (93) 1), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”), following three visits to Turkey, found:
“In light of all the information at its disposal, the CPT can only conclude that the practice of torture and other forms of severe ill-treatment of persons in police custody remains widespread in Turkey ...” (paragraph 21)
It emphasised the words “persons in police custody”, having heard fewer allegations and finding less medical evidence of torture and other forms of premeditated severe ill-treatment by members of the gendarmerie (paragraph 24). It considered that “the phenomenon of torture and other forms of ill-treatment of persons deprived of their liberty in Turkey concerns at the present time essentially the police (and to a lesser extent the gendarmerie). All the indications are that it is a deep-rooted problem” (paragraph 25).
50. In its second public statement issued on 6 December 1996 the CPT noted that some progress had been made in implementing the remedial measures which it had recommended but that “the translation of words into deeds is proving to be a highly protracted process” (paragraph 2).
The committee noted in its statement that in the course of visits to Turkey in 1996 its delegations had found clear evidence of the practice of torture and other forms of severe ill-treatment by the Turkish police (paragraph 2). It concluded that the information at its disposal
“... demonstrates that resort to torture and other forms of severe ill-treatment remains a common occurrence in police establishments in Turkey. To attempt to characterise this problem as one of isolated acts of the kind which can occur in any country – as some are wont to do – is to fly in the face of the facts”. (paragraph 10)
51. In their written submissions to the Court (see paragraph 6 above) Amnesty International noted that the rape of a female detainee by an agent of the State for purposes such as the extraction of information or confessions or the humiliation, punishment or intimidation of the victim was considered to be an act of torture under current interpretations of international human rights standards. They referred in this respect to the Fernando and Raquel Mejia v. Peru decision of 1 March 1996 (Report no. 5/96, Case 10,970) of the Inter-American Commission on Human Rights taken under Article 5 of the American Convention on Human Rights, to the reports published by the United Nations Special Rapporteur on Torture and to the fact that the International Criminal Tribunal for Former Yugoslavia had approved bills of indictment against individuals for torture based on allegations that they had raped female detainees.
Amnesty International also drew attention to current international legal standards on the investigation of allegations of rape made by detainees, in particular Articles 11 and 12 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted in 1984 (see paragraph 48 above).
VIOLATED_ARTICLES: 13
3
NON_VIOLATED_ARTICLES: 25
NON_VIOLATED_PARAGRAPHS: 25-1


ITEMID: 001-120063
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF ÇAKIR AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 5. The applicants’ birth years are indicated in the annex below. They all live in Sinop.
6. On various dates in 2005 and 2006 the applicants brought separate sets of proceedings against their employer, claiming compensation for their unpaid salaries.
7. In 2006, 2007 and 2008 respectively, the Sinop Civil Court of General Jurisdiction, sitting as a Labour Court, delivered its judgments, ruling in favour of the applicants. The court stated that in addition to the compensation, the employer company had to pay proportional court fees ranging from 66 to 785 Turkish liras (TRY).
8. On 20 October 2008 the applicants requested copies of the writs of execution in order to enforce the judgments in their favour, as the employer company had not paid the required court fees. They argued that the company had gone bankrupt and that they would not be able to obtain the compensation awarded to them by the court at a later date.
9. On 6 November 2008 the Sinop Civil Court of General Jurisdiction rejected the applicants’ request. The court stated that pursuant to section 28(1)(a) of the Law on Fees (Law no. 492), the writs could not be served on the applicants unless all the fees were paid, either by the employer company or by the applicants themselves in the event that the former failed to do so.
10. The judgments in favour of the applicants have not been executed to date.
11. At the time of the events, section 28(1)(a) of the Law on Fees read:
“Section 28(1) – Time-limit for the payment of fees
The proportional fees set out in scale no. 1 shall be paid within the following periods:
(a) One quarter of the fees for the judgment and the writ shall be paid beforehand and the rest shall be paid within two months of the judgment’s delivery ... The writ shall not be served on the party concerned unless the [court] fees for the judgment and the writ of execution are paid ...”
12. Decision of the Constitutional Court and the subsequent change in section 28(1)(a) of the Law on Fees
In a decision dated 14 January 2010, the Constitutional Court repealed the provision in the second sentence of section 28(1)(a). The court indicated that to put the burden of paying the court fees on the party whose case had been accepted and who had been held exempt from those very fees by the first-instance court’s judgment was incompatible with the right of access to court and, in particular, with the right to have a judgment executed. In this respect, the higher court pointed out that the repealed provision referred to proportional fees, which were calculated on the basis of the main amount at issue.
Subsequently, in July 2010 section 28(1)(a) was amended. Following that change, the second sentence reads as follows:
“... Failure to pay the court fees for the judgment and the writ of execution would not prevent the execution of the judgment, its service on the parties or the parties’ right to have recourse to appeal proceedings.”
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1