ITEMID: 001-88495
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: TAMM v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ants Kull;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Andres Tamm, is an Estonian national who was born in 1955 and lives in Kuressaare. He is represented before the Court by Mr L. Glikman, a lawyer practising in Tallinn. The respondent Government are represented by Ms M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a lawyer (advokaat) who practises law mainly in Kuressaare where he has established the Andres Tamm Law Firm, a private limited company (OÜ Advokaadibüroo Andres Tamm).
On 1 August 2002 the applicant’s law firm concluded a rental agreement with OÜ H. Consulting, a private limited company, in respect of rooms at Sakala Street in Tallinn. The rooms were to be used by the law firm.
On 25 August 2002 the applicant applied to the Board of the Bar Association (Advokatuuri juhatus) for authorisation to act as a member of the management board of OÜ H. Consulting, which had its registered office at Sakala Street in Tallinn. He also informed the Board of his intention to open a branch of his law office at the same address in Tallinn on 1 September 2002.
On 5 May 2003 a criminal investigation was initiated in respect of tax offences related to a company, H. Inc, a client of the applicant. The applicant and his law firm as well as OÜ H. Consulting were among those involved in business transactions with H. Inc.
On 24 September 2003 a police investigator interviewed the applicant as a witness. According to the applicant, he had had business transactions with H. Inc. In the record of the interview the applicant is not mentioned as a legal counsel of H. Inc.
On 24 September 2003 the police investigator drew up a seizure order in respect of four documents concerning transactions between the applicant’s law firm and H. Inc. The documents were seized on the same date in Kuressaare, at an unspecified location. According to the seizure report the applicant voluntarily handed over the documents, making no statements or complaints.
On 25 September 2003 the police investigator drew up a search warrant, approved by the Public Prosecutor’s Office, in respect of the premises of OÜ H. Consulting at Sakala Street in Tallinn. According to the warrant, the evidence collected in the criminal case of H. Inc referred to the possibility that documents and other items relevant for the criminal case might be found at OÜ H. Consulting at Sakala Street in Tallinn. The search was carried out on the same date. Several documents and letters and a laptop computer were seized. The applicant was present but did not state that the search and seizure concerned privileged lawyer-client information.
On 26 September 2003 the police investigator drew up a further seizure order in respect of two specific accounting documents of the applicant’s law firm from 2 November 1999 and its accounting documentation for the whole of 1999. The documents were seized on the same date at the applicant’s law firm in Kuressaare in the applicant’s presence; the latter, according to the seizure report, gave the documents voluntarily to the investigator and made no statements or complaints.
On 29 September 2003 the applicant lodged a complaint with the Public Prosecutor’s Office of Saaremaa and the police investigator. He argued that the search in his law office’s branch in Tallinn and the seizure of confidential legal documents and a computer as well as the seizures at his law office in Kuressaare had been unlawful as the investigator had not presented a court order authorising these measures. Such a court order had been required, since inviolable data carriers (puutumatud teabekandjad) related to the provision of legal services by a lawyer had been concerned. He noted that his state of health at the time when the search and seizure orders were executed had been such that he could not complain about the investigator’s activities.
On 2 October 2003 the police investigator made two applications to the Tallinn City Court (linnakohus) in which he requested, under Article 145-1 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), judicial authorisation for the seizure from the applicant of the laptop computer and the 1999 accounting documents of the applicant’s law firm.
In the request concerning the seizure of the computer, the investigator noted that on 25 September 2003 the police had searched the premises of OÜ H. Consulting at Sakala Street in Tallinn. Certain documents and a laptop computer had been seized, the latter having been securely sealed. The investigator had presumed that in the registered office of OÜ H. Consulting there could not be inviolable data carriers related to the provision of legal services. However, considering the applicant’s allegation that the seized data carriers could contain information related to the provision of legal services, the investigator requested the court to authorise the seizure.
On 2 October 2003 the City Court authorised the seizure of the laptop computer. It held that, since the search had been performed in the premises of another private limited company (not a law firm), the investigator had had no reason to presume at the time of the search that the computer could contain inviolable information related to the provision of legal services by a lawyer. The computer had been packed and sealed and no unauthorised persons had examined its contents. In order for the investigator to find out whether the computer contained information required for the investigation of the criminal case, it was necessary for him to examine its contents. At the same time, it could not be ruled out that the computer might contain information protected by the lawyer’s professional confidentiality, which the investigator had the right to become aware of only if authorised by a court. Accordingly, the judge authorised, apparently with immediate effect, the seizure of the laptop computer from the applicant, relying on Article 145-1 § 2 of the Code of Criminal Procedure. The judicial decision bears the applicant’s signature to the effect that he has familiarised himself with it on 8 October 2003. It was not specified in the decision whether an appeal lay against it.
In the second request, made on 2 October 2003, concerning the seizure of the law firm’s accounting documents, the investigator noted that the applicant had been requested voluntarily to hand over the documents specified in the seizure order, which he had done without objection. He had not disclosed during the seizure that the documents could include inviolable data carriers and since, according to the Bar Association Act (Advokatuuriseadus), the lawyer had to store data carriers related to the provision of legal services separately from other data carriers (section 44(1)(4)), the investigator had presumed that the seized accounting documents did not contain inviolable information.
On 2 October 2003 the City Court granted this request as well, noting that since the seizure had concerned accounting documents of the law firm and it had not been immediately challenged by the applicant, the investigator had had no ground to presume, at the time of the search, that the seized accounting documents could contain inviolable information related to the provision of legal services by a lawyer. The seized documents had been packed and sealed and no unauthorised persons had examined their contents. In order for the investigator to find out whether the seized documentation contained information required for the investigation of the criminal case, it was necessary for him to examine its contents. At the same time, it could not be ruled out that the documents might contain information protected by the lawyer’s professional confidentiality, which the investigator had the right to become aware of only if authorised by a court. Accordingly, the judge authorised, apparently with immediate effect, the seizure from the applicant of the applicant’s law firm’s accounting documents from 1999, referring to Article 145-1 § 2 of the Code of Criminal Procedure. The judicial decision bears the applicant’s signature to the effect that he has familiarised himself with it on 8 October 2003. It was not specified in the decision whether an appeal lay against it.
On 8 October 2003 the accounting documents and the computer – the packaging and seals not having been opened in the meantime – were returned to the applicant on police premises in Tallinn. The applicant requested that the documents seized at Sakala Street on 25 September 2003 also be returned, but the investigator refused. At the applicant’s request, it was stated in the report that the investigator had not accessed the content of the returned items or copied or opened them. Some hours later on the same date, still on police premises, the computer and the accounting documents were seized again. The applicant objected, arguing that both the computer and the accounting documents contained information related to the provision of legal services by a lawyer and they were therefore inviolable under the Code of Criminal Procedure. Only the Board of the Bar Association could assess whether the computer also contained other information.
On 8 October 2003 the police investigator declared the applicant a tax evasion suspect.
On 10 October 2003 the Public Prosecutor’s Office replied to the applicant’s complaint of 29 September 2003. It asserted that on 8 October 2003 the computer and documents had been returned to him; accordingly, his complaint was without substance. Nevertheless the applicant had voluntarily surrendered the accounting documents without arguing that they contained inviolable information and therefore the investigator had had no grounds not to seize the documents. At Sakala Street, a search had been carried out in respect of OÜ H. Consulting and not in respect of a law office. The Public Prosecutor’s Office noted that at the time it was replying to the applicant, the City Court’s rulings served as grounds for the seizure of the documents and the computer. In so far as the documents seized at Sakala Street were concerned, the Public Prosecutor’s Office was of the opinion that they did not relate to the provision of legal services by a lawyer but were items related to the business transactions of H. Inc. Therefore, the guarantees provided for under the Bar Association Act were not applicable and, accordingly, the search of the premises of OÜ H. Consulting and seizure of the documents had been lawful.
On 13 October 2003 the applicant lodged a new complaint with the Public Prosecutor’s Office. He argued that the search and seizure carried out on 25 and 26 September 2003 could not be legitimised retroactively by the judicial rulings of 2 October 2003. He also asserted that the seizure executed on 8 October 2003 had been unlawful. The Code of Criminal Procedure was flawed as it did not set out the grounds on which a judge had to grant the investigator’s request and in which circumstances a request could be refused. He was of the opinion that lawyer’s privilege had been insufficiently protected. The applicant referred to the Supreme Court’s (Riigikohus) judgment of 22 December 2000, according to which search and seizure were measures in public law that restricted a person’s fundamental rights and freedoms. The Supreme Court had held that judicial review of such measures fell within the jurisdiction of administrative courts under Article 3 § 1 of the Code of Administrative Court Procedure (Halduskohtumenetluse seadustik). The applicant concluded that he had the right to judicial protection up to the “European Court”.
On 23 October 2003 the Public Prosecutor’s Office replied that the Code of Criminal Procedure explicitly provided for a possibility of search and seizure in a law office, on the condition of judicial authorisation. In the case at hand such an authorisation had been granted and, accordingly, there was no ground for declaring the investigator’s activities unlawful. It was also emphasised that the seizure had not been aimed at obtaining information concerning the clients of the applicant’s law firm or at taking any data carriers related to the provision of legal services. The seizure had related to a criminal case in which a possible tax offence committed by H. Inc had been investigated. Therefore, it had been necessary to gather information on persons who had had business relations with this company. It had been necessary to verify the applicant’s assertion that certain sums he had received from H. Inc had not been his personal income but had belonged to his law firm. On the basis of the above, the Public Prosecutor’s Office rejected the complaint.
On 23 October 2003 the seized computer was examined on police premises in the applicant’s presence. The data on its hard disc were copied and the computer was returned to the applicant.
On 10 November 2003 the investigator interviewed the law firm’s chief accountant as a witness. After a list of the seized accounting documents had been presented to her, she stated that the ledger and file no. 60 had not been included in the list.
On 24 November 2003 the police investigator made two applications to the Tallinn City Court in which he requested, under Article 145-1 of the Code of Criminal Procedure, judicial authorisation for searches in the applicant’s law firm and at his home in Kuressaare in order to find the law firm’s ledger for 1999 and other important evidence in the criminal case.
On 24 November 2003 the Tallinn City Court granted the requests, referring to Article 145-1 of the Code of Criminal Procedure. It noted that in the criminal case at hand the applicant was not acting as a lawyer, neither did he represent other legal persons’ interests (he was not a contractual representative) but he was himself a tax evasion suspect. In the City Court’s decision it was noted that an appeal could be lodged with the Tallinn Court of Appeal within five days. The decision was presented to the applicant on 25 November 2003.
On the same date a search was conducted at the applicant’s home in Kuressaare. Two documents related to the criminal investigation were seized.
On 24 May 2004 the applicant was charged with tax offences committed by him as the sole member of the management board and sole shareholder of the Andres Tamm Law Firm. According to the charges he had presented incorrect information to the tax authorities in his law firm’s tax return for 1999 and in other documents, evading payment of about 565,000 kroons (EEK; corresponding approximately to 36,000 euros (EUR)) in taxes.
On 22 June 2004 the criminal case concerning the applicant was separated from the case concerning H. Inc.
On 23 August 2004 the Public Prosecutor’s Office discontinued the criminal investigation in respect of the applicant. It was noted that the applicant had paid most of the outstanding taxes on behalf of his law firm, his guilt was negligible and there was no public interest in pursuing the case. The applicant undertook to pay the remaining taxes plus a lump sum of EEK 150,000 (corresponding approximately to EUR 9,600) into the public revenues. The seized documents were to be returned to the applicant after he had fulfilled the obligations imposed on him.
On 28 April 2005 the accounting documents of the applicant’s law firm and the documents taken from Sakala Street were returned to the applicant.
Article 15 of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) reads as follows:
“Everyone whose rights and freedoms are violated has the right of recourse to the courts. Everyone has the right, while his or her case is before the court, to petition for any relevant law, other legislation or procedure to be declared unconstitutional.
The courts shall observe the Constitution and shall declare unconstitutional any law, other legislation or procedure which violates the rights and freedoms provided by the Constitution or which is otherwise in conflict with the Constitution.”
The relevant provisions of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), as in force at the material time, provided:
“(1) Documents of notarial acts and other documents which contain confidential information on notarial acts and data carriers (teabekandjad) related to the provision of legal services by lawyers (advokaadid) shall be inviolable (puutumatud).
(2) If the search of a notary’s office or law office or seizure therein concerns data carriers specified in paragraph 1 of this Article, the procedural act may be performed only on the basis of a ruling of a county or city court.
(3) A notary or lawyer who is in the possession of documents specified in paragraph 1 of this Article shall be present during the search or seizure, or if this is not possible, another notary or lawyer who acts in the same office or provides legal services through the office shall be present during the search or seizure.”
The relevant provisions of the Bar Association Act (Advokatuuriseadus), as in force at the material time, provided:
“...
(3) Data carriers (teabekandjad) related to the provision of legal services by a lawyer (advokaat) shall be inviolable (puutumatud).
...
(5) A lawyer shall not be detained, searched or taken into custody in circumstances arising from his or her professional activities, except on the basis of a ruling of a county or city court. A law office through which a lawyer provides legal services shall also not be searched in circumstances arising from his or her professional activities.”
“(1) A lawyer is required to:
...
3) maintain a list of matters in which the lawyer acts as a representative;
4) store data carriers related to the provision of legal services separately from other data carriers in his or her possession.
...
(2) In the provision of legal services, a lawyer shall not acquire the rights of his or her clients.”
“(1) A lawyer shall provide legal services through a law office.
...
(6) Another undertaking ... shall not operate in a law office...”
“(1) A company of lawyers (advokaadiühing) shall engage in no other area of activity than the provision of legal services.
...”
According to sections 12(7-1), 27(1)(4) and 36(1)(8) of the Bar Association Act, a lawyer may be a member of the management board of a company only when authorised by the Board of the Bar Association.
In a judgment of 22 December 2000 (case no. 3-3-1-38-00), the Supreme Court, sitting in plenary session in order to ensure the uniform application of the law, dealt with complaints lodged with an administrative court by two companies on whose premises search and seizure of documents had been carried out by police and tax officers with the approval of the Public Prosecutor’s Office. The first- and second-instance administrative courts had rejected the complaints, finding that they were not authorised to review the lawfulness of measures taken in the context of a criminal investigation. However, the Supreme Court found for the appellants, quashed the lower courts’ decisions and referred the case to the Tallinn Administrative Court for examination on the merits. It held:
“19. ...[T]he Supreme Court en banc finds it necessary to note, firstly, that Articles 13, 14 and 15 of the Constitution and Article 13 of the European Convention on Human Rights give rise to the right to an effective remedy. The European Court of Human Rights has observed that according to Article 13 an effective remedy means a remedy which is as effective as possible (see Klass and others v. Germany, judgment of 6 September 1978, Series A, No 28, p 31 § 69). The Court has also said that if a person alleges that his or her Convention rights have been violated, he or she should have a remedy before a national authority in order both to have his or her claim decided and, if appropriate, to obtain redress (see Klass and others, cited above, § 64; Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000XI; and Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 96, ECHR 2000XI). It cannot be a prerequisite for the application of Article 13 that the Convention be in fact violated. Effective remedy must be guaranteed to everyone who claims that his rights and freedoms under the Convention have been violated (see Klass and others, cited above, § 64).
20. Postponement of a review of the legality of an investigative activity infringing fundamental rights and freedoms of persons until the judicial hearing of a criminal matter cannot be regarded as an effective remedy, because the hearing may take place years after the investigative activity was conducted. The harm caused by the violation of fundamental rights and freedoms may essentially increase or redress may become impossible by that time. Furthermore, the court hearing a criminal case has no right to decide on compensating the damage caused by an investigative activity. The possibility cannot be excluded that a criminal matter never reaches a court, or that an investigative activity infringes the fundamental rights and freedoms of a person who is not a party to a proceeding and therefore cannot seek judicial protection from violation of his or her rights and freedoms.
...
24. Search of a dwelling, possession or place of work and seizure of documents are acts of public law, which infringe fundamental rights and freedoms of persons. According to Article 3 § 1 (1) of the Code of Administrative Court Procedure adjudication of disputes in public law falls within the jurisdiction of administrative courts. According to the special clause of paragraph 2 of the same Article adjudication of disputes in public law for which a different procedure is prescribed by law does not fall within the jurisdiction of administrative courts. As the Code of Criminal Procedure prescribes that appeal against the referred measures may be filed only with a prosecutor, then judicial review of such measures falls within the jurisdiction of administrative courts, pursuant to the general clause of Article 3 § 1 of the Code of Administrative Court Procedure; that is why the administrative court should not have refused to hear the complaints on the substance. Any person whose fundamental rights and freedoms are violated by a procedural act is entitled to file a complaint with a prosecutor or an administrative court. The Supreme Court en banc considers it necessary to note that the duty of an administrative court is not to review the necessity and expediency of an investigative activity or look into the question whether the information obtained can be used as evidence in criminal proceedings. The task of an administrative court is to review whether a person’s fundamental rights and freedoms were infringed by a procedural act.”
In a judgment of 6 January 2004, the Supreme Court sitting in plenary session (case no. 3-3-2-1-04) dealt with a request to reopen the domestic administrative court proceedings related to unlawfulness of search and seizure executed in respect of the applicant’s company after a finding of a violation by the Court in the case of Veeber v. Estonia (no. 1) (no. 37571/97, 7 November 2002). The Supreme Court noted, referring to its judgment of 22 December 2000, that it was within the administrative courts’ jurisdiction to examine on the merits complaints against the actions of the police. It held that the violation of Article 6 § 1 of the Convention on account of an administrative court’s failure to examine the complaint lodged with it also constituted a violation of Article 15 of the Constitution. In case the legislature had not provided for an effective and seamless mechanism for the protection of fundamental rights, the judicial power had to ensure, proceeding from Article 14 of the Constitution, the protection of fundamental rights. The Supreme Court referred the case to a first-instance administrative court for a new examination.
In subsequent proceedings the Tartu Administrative Court and the Tartu Court of Appeal delivered judgments on the merits of the case (judgments of the Tartu Administrative Court were delivered on 30 September 2004 (case no. 3-15/04) and 17 April 2006 (case no. 3-05-528) and those of the Tartu Court of Appeal on 30 December 2004 (case no. 2-3-326/2004) and 29 June 2006 (case no. 3-05-528)). The proceedings resulted in a declaration of unlawfulness of search and seizure measures taken by the police and an award of compensation.


ITEMID: 001-103605
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF KLIMENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 4. The applicant was born in 1951 and lives in Sevastopol.
5. On 25 March 1998 the applicant was dismissed from her position of Head of Department at the State-owned bank, O. (“the bank”).
6. On 21 April 1998 she lodged a claim against the bank seeking the reinstatement and compensation for pecuniary and non-pecuniary damage.
7. On 14 December 1998 Gagarinsky District Court of Sevastopol (“the District Court”) fined the bank following its three consecutive failures to appear before the court.
8. On 13 January 1999 the District Court partly allowed the applicant’s claim.
9. On 13 April 1999 the Sevastopol City Court (“the Court of Appeal”, since June 2001, the Sevastopol Court of Appeal) quashed that judgment and sent the case back to the District Court which, on 17 February 2000 dismissed the applicant’s claim. This judgment was upheld by the Court of Appeal on 21 March 2000.
10. On 20 November 2002 the Supreme Court, dealing with the applicant’s appeal in cassation lodged under the Code of Civil Procedure (as amended by the Law of 21 June 2001), quashed the lower court’s decisions and remitted the case to the District Court which, in a judgment of 24 May 2004 partly granted the applicant’s claim awarding her UAH 114,837 (EUR 17,226) and UAH 50,000 (EUR 7,500) in compensation for pecuniary and non-pecuniary damage respectively.
11. On 6 August 2004, the Court of Appeal amended that judgment reducing the compensation for non-pecuniary damage to UAH 5,000 (EUR 750). This ruling was executed in February 2005.
12. On 9 November 2005 the Supreme Court reversed the lower courts’ decisions in respect of the non-pecuniary damages upholding the remainder of their decisions.
13. On 26 June 2006 the District Court, being bound by the Supreme Court’s decision, ordered the applicant to reimburse the defendant UAH 5,000. On 31 August 2006 the Court of Appeal quashed this decision. The parties did not appeal.
14. In the course of the proceedings, the applicant modified her claims three times, filed one procedural request and five appeals or supplements to appeals, which all met procedural requirements.
15. According to the Government, of the 37 hearings scheduled during the periods from 22 April 1998 to 21 March 2000 and from 20 November 2002 to 31 August 2006, seven hearing were adjourned due to the defendant’s failure to attend, three were adjourned due to the applicant’s failure to attend, and one hearing was adjourned due to the both parties’ failure to attend.
16. On 12 January 1999 the Nakhimovsky District Prosecutor of Sevastopol opened a criminal investigation against the applicant on suspicion of abuse of authority. Until 28 December 2001, the investigation was terminated and reopened three times.
17. On 31 May 2008 the investigation was reopened for the fourth time. This decision was quashed on 15 July 2008 by the Nakhimovsk District Court of Sevastopol. On 31 July 2008 the Court of Appeal upheld the District Court’s decision. The investigation was pending for about two years and two months overall.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58277
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF OKÇUOGLU v. TURKEY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Violation of Art. 6-1;No separate issue under Art. 14+10;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: John Freeland;Luzius Wildhaber;Paul Mahoney
TEXT: 7. Mr Ahmet Zeki Okçuoğlu is a Turk of Kurdish origin and was born in 1950. He lives in Istanbul and works as a lawyer.
8. In May 1991, a magazine, “Demokrat” (Democrat), published in its issue no. 12 an article on a round-table debate it had organised under the chairmanship of Mr M.İ.S. in which the applicant had taken part. The applicant’s comments were recorded in the article, entitled “The past and present of the Kurdish problem” (Kürt Sorununun Dünü ve Bugünü), as follows:
“M.İ.S. – Leaving aside the humanitarian side to the current tragic plight of the Kurds in Iraq, there are important political aspects to the problem, the main one perhaps being the intensification, with the crisis in the Gulf, of relations at international level between the Kurdish movements. At this stage, one question needs to be asked: what did we hope to gain from the relations established with the United States and the European States and what have we in fact achieved? ... If you would allow me to, I should like to return to the question ... of the orchestrating of developments in the regional situation, mainly by the United States and the West,... Mr Okçuoğlu, could I ask you to frame your answer in the context of the unitary State?
A.Z. Okçuoğlu – Your question is badly put. It involves certain ideological considerations. Before answering, I think I should explain what the Kurdish question is about. It concerns a nation of some 40,000,000 people, one which has existed in the region since history began and one which has, in company with the other nations established here, played a major role historically; but it is also a nation which has, since the beginning of this century and under the influence of the international and regional powers, been deprived of its national rights, seen its territory divided up between the States in the region and been divested of its sovereign rights so as to be subjected instead to the hegemony of other States. If we are to make progress on this question, that must be the starting point. Admittedly, that does not mean to say that a radical solution to the problem will be found from one day to the next.
Coming back to your question ... the idea that the Kurdish problem has been fuelled by outside forces, by imperialist powers, is not new. For about a century some observers have seen the problem in those terms. The underlying reasons may be summarised as follows.
Firstly, there are the concerns of the nations which keep the Kurds under their domination. From the beginning, those powers have attempted to assert that the problem is that the Kurds are not a national entity, have no claims of their own and are manipulated by outside forces. Their aim, then, is to prevent international powers intervening in the problem and to cast doubt on its legitimacy and to distract attention from it. There is also the international socialist movement and the doctrine of imperialism which prevails in such circles. As you know, the Soviet Union was akin to an empire in the classic sense. The Soviet Government has always been against the Kurds as it considered that, if it the Kurds were given certain rights, the nations it controlled by force would inevitably also assert claims, and discussion of such issues at the international level would render its networks less inaccessible. That is why the Soviets have since the days of Lenin consistently sided with the powers who have kept the Kurds under their domination and why the local socialist satellite powers have invariably put forward similar arguments. Given the negative attitude of these socialist powers towards the Kurds, the relationship between the sovereign power of the former and the official ideology of the latter has also played a role. That attitude was reinforced by the Soviet position. Soviet ideology is in itself an ideology of the sovereign nation. In that regard, the ideology of Soviet sovereignty and the Turkish national ideology as applied in the region were at one. However, the said doctrine of imperialism does not end there. After the seventies, the Kurds, under the influence of Soviet and Chinese socialist propaganda, whether consciously or subconconsciously, adopted the same tack. That led the Kurdish movement into a series of dead ends.
The allegation that the Kurdish problem arose as a result of provocations from outside is ill-founded. If one has to speak of imperialist protectionism in the Middle East, it will be noted that it has been of no benefit to the Kurds, whereas, shielded by the imperialist powers concerned, the Turks, the Arabs and the Persians have done quite well. If the British had not intervened in favour of the Ottomans in the Crimean War, the Russian Tsar would have expurgated the Ottoman State from the history books and would have seized the Byzantine heritage. Contrary to what is suggested by some left-wing historians, the imperialists tried to save the ‘sick man’ rather than to kill him. That applies to the Arabs, too. Up till now, the only people in the Middle East – if you except the Palestinians – who have fought for their national rights are the Kurdish people. The Turks, Arabs and Persians have not fired a single bullet for their national rights. Not a shot was fired when the British invaded the Ottoman State in 1918. The so-called war of independence was merely a consequence of an historical conflict between the Greeks and the Turks. The question of who was right is a controversial one. The resistance against the French, launched at Antep and Urfa, was Kurdish. More precisely, it was Turco-Kurdish resistance that developed under the aegis of the local authorities. It was the spontaneous resistance of the people. Neither the Turkish army nor the political authorities played any part in it. The Kurds have fallen behind in obtaining their national rights not, as is suggested in certain quarters, because they are dependent on external powers, but, on the contrary, because they have failed to forge international relations and because the international powers have refused them admission.
While the Kurdish problem is the problem of the Kurds, its solution is also of concern to the regional and international powers as it directly affects their interests. The question cannot be dealt with using concepts, such as imperialism, anti-imperialism, socialism and anti-socialism, that bear scant resemblance to the true position. You cannot say: ‘It’s our problem. You, the United States, England, the Soviets, the Turks, don’t interfere; you, the Arabs, the Persians, stay out of this’. We must solve the problem with all those whose interests are at stake. With or without their help. There, too, it has to be said that of all the parties involved in the Kurdish problem, it is the Kurds who have taken the least initiative. So, the Kurds must be realistic. As the question concerns their existence and is posed at a time when their efforts have been minimal, it would be foolhardy to attempt to solve the problems by denying that initiatives have been taken or opposing them. In practice, the Kurds must on this point work out how and to what extent they can play a bigger role in finding a solution to the problem. That would be the practical approach.
...
M.İ.S. – I wouldn’t want you to take what I said the wrong way. I do not suggest that the Kurdish revolt is dependent on imperialist factors. All I say is that the countries in the region do not have the resources to solve the problems that exist here by themselves. Accordingly, the continued presence of the international powers seems likely. Under those circumstances, how can the Kurds play a greater role?
A.Z. Okçuoğlu – Firstly, when considering the Kurdish problem the international powers are mindful of their own interests. We have to be aware of that and determine where our common interest lies. There are a number of nations like the Kurds in the world. Although the United Nations Charter and the fundamental treaties refer to peoples’ right to self-determination, it is not in practice accepted that that right applies to the Kurds, any more than it is accepted that it applies to a series of other nations. Such nations only manage to obtain certain humanitarian and cultural rights that do not extend beyond the boundaries of the countries in which they live. None of them have been able to achieve more than that. The problems of peoples confined to minority status cannot readily be referred to and resolved without taking this factor into account. All the boundaries need changing, but that is very difficult to achieve. For that reason, I believe that the Kurds have committed an error of judgement. By that I do not mean that they must accept their present status right to the bitter end. If they wish to enter the history books, they have to be aware of the international implications their presence entails.
I would add that I attach no credit to the idea that the Kurds have been ‘deceived or sold’. Recently, the United States cautioned them to act with restraint; they broke off their relations with Talabani and turned down all his requests for arms. In my view, the Kurds have committed an error of judgement. They have adopted a quite radical approach, one for which the organisations of Iraqi Kurdistan cannot be held responsible. The Kurds, believing Saddam to be finished, attempted to rise up spontaneously in reaction to the oppression to which they have been subjected for years. Barzani and Talabani, in company with the other Kurdish leaders, were forced to accept that process. We are not strong enough to face the likes of America, France, the Soviets or a Saddam exhausted to the point where he is no longer able to stay on his feet. We have to examine the problem in the light of these realities. The urgent need is to ensure the democratic unity of the Kurds. We must abandon the notion of hostility. No side is strong enough to destroy the other and in any event there is no reason to come to that. Our relations should be friendly, not hostile. Similarly, when we forge relations with the western powers, it is necessary and even essential to afford preference to national values.
...
For my part, I am opposed to the definition of primitive nationalism that has often been asserted in recent times. The use of such terminology sometimes reveals a lack of discernment. Nationalism takes two known forms. The first is that of the oppressor nation, the second that of the nation that is oppressed. Beyond that, scientific research into nationalism has not come up with any other definition. It is difficult to know what the notion of ‘primitive nationalism’ covers: does it dismiss nationalism wholesale or does it suggest another form of nationalism? It is unclear. Besides, this terminology is unscientific, of no value and merely serves to reflect certain absurd political preoccupations.
I do not subscribe to the theory that the Kurds’ lack of success is due to primitive nationalism. In fact, it is not the Kurds who are responsible for their lack of success. The reasons for it are to be found in the international status of the Kurds. A number of nations in the world are in the same position as the Kurds. None of them has had, up till now, an opportunity to draw its own frontiers, whether by force of arms or otherwise. How can we expect the Kurds to be given an opportunity that has been offered to no other nation? Let us take the example of Lithuania. The Lithuanians had organised a referendum on the question of their independence and had subsequently declared themselves independent by an overwhelming majority. Yet when the United States gave their approval, the Soviets invaded with tanks. Lithuania was isolated. We have to speak therefore with the benefit of hindsight. Since the beginning of the century the struggle has continued in Iraqi Kurdistan. The only people engaged in combat in the Middle East are the Kurdish people. Despite that, their position has not improved at all. The Kurds will certainly find a solution to their problem, but one must be aware that the factors coming into play do not depend solely on the Kurds.
I should now like to clarify the notion of nationalism about which so much has been said. As you know, nationalist movements began in the west with the French Revolution and subsequently spread to Asia and Africa. The colonies were freed as a result of nationalism. However, the issue of nationality remains alive. There continue to be peoples who have been deprived of their national rights. If they are to be freed they must show nationalist sentiment. The fact that nationalist movements attract an imprecatory reaction from those whom they cause to suffer is understandable. Conversely, it is impossible to comprehend why people who claim to be on the side of the oppressed, who call themselves revolutionaries or innovators, should react in a similar fashion.
The nationalism of the oppressed nation cannot be considered to be a usurpation of the rights of another nation. On the contrary, I believe that internationalism in the modern sense is inherent in nationalism. I do not approve of lumping together all kinds of nationalism, without being aware of the difference between the nationalism of the oppressor nation and the nationalism of the nation that is oppressed. If you ignore that difference, then you are serving the cause of the oppressor nation.
Why do Turkish socialists, who outlaw Kurdish nationalism, not take a look at themselves? They defend the staunchest nationalism of all time, namely Kemalism, yet they ban Kurdish nationalism. Prohibiting an oppressed nation from being nationalistic is to condemn it to slavery.
My friend S. consistently holds the same line. His politics are always reactionary. The Kurds may react, but building a policy on the back of that reaction will not achieve much. In politics, one doesn’t have friends or enemies, one has interests. Furthermore, politics is the art of seeking the feasible. Is the position of people who criticise advocates of autonomy and of Kurdish independence any different from that reached by the Kurdish national movement in Iraq? Not at all. In Turkey, too, some benefit has been gained, but not from policies geared towards independence. Those in favour of independence may on occasion agree voluntarily to limit their demands saying: ‘Decree a general amnesty, allow us to get organised’. They even add: ‘We don’t want a separation’. Such policies cannot be brought to fruition with plays on words. Today, the Kurds must come up with medium-term policies that are adapted to the international context.”
9. On 10 June 1991 the Public Prosecutor of the Istanbul National Security Court no. 2 (“National Security Court”) accused the applicant of disseminating propaganda against the “indivisibility of the State”. Relying on the comments set out above (see paragraph 8 above), he requested the application of section 8(1) of the Prevention of Terrorism Act (Law no. 3713 – see paragraph 17 below) and confiscation of the copies of the relevant issue of the aforementioned magazine (see paragraph 16 below).
10. The applicant denied the charges before the National Security Court, arguing, in particular, that he had never intended to promote separatism.
11. On 11 March 1993 the National Security Court, composed of three judges, including a military judge, found the applicant guilty of the offence charged and sentenced him under section 8(1) of Law no. 3713 to one year, eight months’ imprisonment and a fine of 41,666,666 Turkish liras (“TRL”), to be paid in twenty monthly instalments. It also ordered confiscation of the publications concerned.
After verifying that the document in issue was an accurate transcription of what had been said at the round-table debate in which the applicant had taken part, the National Security Court found, inter alia, that in his comments, the applicant had asserted that some Turkish nationals had been deprived of their “national rights” as a result of their Kurdish origin and that their territory had been divided up between the States in the region concerned. According to the applicant, the Kurdish population – dominated by these States – was fighting to acquire its national rights.
The National Security Court held that those comments, taken as a whole, amounted to separatist propaganda that was detrimental to the unity of the Turkish nation and the territorial integrity of the Turkish State and justified Mr Okçuoğlu’s conviction.
12. In a judgment of 24 September 1993, the Court of Cassation dismissed an appeal by the applicant.
13. On 20 February 1995, at the applicant’s request, the National Security Court agreed to deduct from the applicant’s sentence the period from 28 October to 18 November 1990 which he had spent in pre-trial detention in connection with earlier criminal proceedings. Consequently, he was granted automatic parole.
The applicant paid the fine that had been imposed on him that same day.
14. On 30 October 1995 Law no. 4126 of 27 October 1995 came into force. Inter alia, it reduced the length of prison sentences that could be imosed under section 8 of Law no. 3713 while increasing the level of fines (see paragraph 17 below). In a transitional provision relating to section 2, Law no. 4126 provided that sentences imposed pursuant to section 8 of Law no. 3713 would be automatically reviewed (see paragraph 18 below).
15. Consequently, the National Security Court reviewed the applicant’s case on the merits. In its judgment of 8 March 1996 it reduced Mr Okçuoğlu’s prison sentence to one year, one month and ten days but increased the fine to TRL 111,111,110.
16. Article 36 § 1 of the Criminal Code reads as follows:
“In the event of conviction, the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence...”
17. The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), has been amended by Law no 4126 of 27 October 1995, which came into force on 30 October 1995 (see paragraph 18 below). Sections 8 and 13 read as follows:
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.”
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.
...
Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras...
...”
“The penalties for the offences contemplated in the present law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.”
“The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.
However, the provisions of this section shall not apply to convictions pursuant to section 8.”
18. The Law of 27 October 1995 contains a “transitional provision relating to section 2” that applies to the amendments which that law makes to the sentencing provisions of section 8 of Law no. 3713. That transitional provision provides:
“In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment... to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4 and 6 of Law no. 647 of 13 July 1965.”
19. The relevant provisions of the Code of Criminal Procedure concerning the grounds on which defendants may appeal on points of law against judgments of courts of first instance read as follows:
“An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment.
Non-application or erroneous application of a legal rule shall constitute unlawfulness.”
“Unlawfulness is deemed to be manifest in the following cases:
1- where the court is not established in accordance with the law;
2- where one of the judges who have taken the decision was barred by statute from participating;
...”
20. The Government supplied copies of several decisions given by the prosecutor attached to the Istanbul National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 17 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decision included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence. Other grounds included the fact that the publications in issue had not been distributed, that there had been no unlawful intent, that no offence had been committed or that those responsible could not be identified.
Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty. These were the judgments of 19 November (no. 1996/428) and 27 December 1996 (no. 1996/519); 6 March (no. 1997/33), 3 June (no. 1997/102), 17 October (no. 1997/527), 24 October (no. 1997/541) and 23 December 1997 (no. 1997/606); 21 January (no. 1998/8), 3 February (no. 1998/14), 19 March (no. 1998/56), 21 April 1998 (no. 1998/ 87) and 17 June 1998 (no. 1998/133).
As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases reached their decisions on the ground that there had been no dissemination of “propaganda”, one of the constituent elements of the offence, or on account of the objective nature of the words used.
21. The National Security Courts were created by Law no. 1773 of 11 July 1973, in accordance with Article 136 of the 1961 Constitution. That law was annulled by the Constitutional Court on 15 June 1976. The courts in question were later reintroduced into the Turkish judicial system by the 1982 Constitution. The relevant part of the statement of reasons contains the following passage:
“There may be acts affecting the existence and stability of a State such that when they are committed special jurisdiction is required in order to give judgment expeditiously and appropriately. For such cases it is necessary to set up National Security Courts. According to a principle inherent in our Constitution, it is forbidden to create a special court to give judgment on a specific act after it has been committed. For that reason the National Security Courts have been provided for in our Constitution to try cases involving the above-mentioned offences. Given that the special provisions laying down their powers have been enacted in advance and that the courts have been created before the commission of any offence , they may not be described as courts set up to deal with this or that offence after the commission of such an offence.”
The composition and functioning of the National Security Courts are subject to the following rules.
22. The constitutional provisions governing judicial organisation are worded as follows:
“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.
No organ, authority, ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.”
“Judges shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution”
“National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.
National Security Courts shall be composed of a president, two other regular members, two substitute members, a prosecutor and a sufficient number of assistant prosecutors.
The president, one of the regular members, one of the substitutes and the prosecutor, shall be appointed from among judges and public prosecutors of the first rank, according to procedures laid down in special legislation; one regular member and one substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges.
Presidents, regular members and substitute members ... of National Security Courts shall be appointed for a renewable period of four years.
Appeal against decisions of National Security Courts shall lie to the Court of Cassation.
...”
“Military legal proceedings
The personal rights and obligations of military judges ... shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve in the performance of their non-judicial duties shall also be regulated by law...”
23. Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide:
“In the capitals of the provinces of ... National Security Courts shall be established to try persons accused of offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free, democratic system of government and offences directly affecting the State’s internal or external security.”
“The National Security Courts shall be composed of a president, two other regular members and two substitute members.”
“The president of a National Security Court, one of the [two] regular members and one of the [two] substitutes ... shall be civilian ... judges, the other members, whether regular or substitute, military judges of the first rank...”
“The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the Military Legal Service Act.
Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts ... may not be appointed to another post or place, without their consent, within four years...
...
If, after an investigation concerning the president or a regular or substitute member of a National Security Court conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of the person concerned, the duty station of that judge or the duties themselves ... may be changed in accordance with the procedure laid down in that legislation.”
“National Security Courts shall have jurisdiction to try persons charged with
...
(d) offences having a connection with the events which made it necessary to declare a state of emergency, in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution,
(e) offences committed against the Republic, whose constituent qualities are enunciated in the Constitution, against the indivisible unity of the State – meaning both the national territory and its people – or against the free, democratic system of government and offences directly affecting the State’s internal or external security.
...”
“The Court of Cassation shall hear appeals against the judgments of the National Security Courts.”
“The rules governing the rights and obligations of ... military judges appointed to the National Security Courts and their supervision ..., the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession...
The observations of the Court of Cassation on military judges, the assessment reports on them drawn up by Ministry of Justice assessors ... and the files on any investigations conducted in respect of them ... shall be transmitted to the Ministry of Justice.”
“A National Security Court may be transformed into a Martial Law Court, under the conditions set forth below, when a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court”
24. The relevant provisions of the Military Legal Service Act are worded as follows:
“The aptitude of military judges ... appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Law and the Turkish Armed Forces Personnel Act (Law no. 926).
(a) The first superior competent to carry out assessment and draw up assessment reports for military judges, whether regular or substitute members ... shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence.
...”
“Members ... of the National Security Courts belonging to the Military Legal Service ... shall be appointed by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence...”
“Military judges ... shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces...
...
The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the superiors...”
“The rules governing the salary scales, salary increases and various personal rights of military judges ... shall be as laid down in the provisions relating to officers.”
“The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions:
A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties.
...
B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy.
...
The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file...”
“When military judges ... sit in court they shall wear the special dress of their civilian counterparts...”
25. Article 112 of the Military Criminal Code of 22 May 1930 provides:
“It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a civil servant in order to influence the military courts.”
26. Under section 22 of Law no. 1602 the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their professional advancement.
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79480
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF DANILCHENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Loukis Loucaides
TEXT: 6. The applicant was born in 1961 and lives in the town of Bataysk of the Rostov Region.
7. In 1986 the applicant took part in the emergency operation at the Chernobyl nuclear plant. As a result he suffered from extensive exposure to radioactive emissions. The applicant underwent medical examinations which established the link between his poor health and his involvement in the Chernobyl events. He was consequently granted status of a disabled person and awarded a monthly pension and a special allowance from the State, to be adjusted once a year in line with the minimum subsistence amount (величина прожиточного минимума).
8. At a certain moment in 2001 the social security authorities ceased to increase regularly the amounts of pension and allowance, paid to the applicant in connection with his disability. Instead, he started to receive his pension in a fixed amount (2,800 Roubles), which was less than he expected. Presuming that this practice was illegal, the applicant brought proceedings against the regional social security office (“the defendant”) claiming the increase of the monthly allowance and pension in line with the increase of the minimum subsistence amount during the relevant period.
9. On 21 January 2003 the Bataysk Town Court of the Rostov Region (“the Town Court”) rendered a judgment ordering the increase of the monthly allowance due to the applicant in line with the increase of the minimal subsistence amount in the Rostov region. In re-calculating the amount of the applicant's pension the court applied the multiplier of 1.92 based on the data provided by the regional committee on statistics. As a result, the monthly pension of the applicant increased to 5,376 Roubles. The court ordered the defendant to pay the applicant the recalculated amount as from 1 January 2002 less the sums already paid.
10. The defendant appealed challenging, among other things, the multiplier of 1.92 applied by the first-instance court.
11. On 16 April 2003 the Rostov Regional Court (“the Regional Court”) upheld the judgment of 21 January 2003 in full. The enforcement proceedings were opened.
12. On 13 May 2003 the defendant appealed to the Regional Court by way of supervisory review seeking to quash the judgment of 21 January 2003, as upheld on 16 Aril 2003.
13. On 30 June 2003 the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the Presidium of the Rostov Regional Court (“the Presidium”).
14. On 14 July 2003 the defendant complained to the President of the Regional Court about the judgment of 21 January 2003, as upheld on appeal, and the judge rapporteur's decision of 30 June 2003 rejecting their previous application for supervisory review. They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal.
15. On 6 August 2003 a judge of the Regional Court requested the case-file from the court of first instance. On 24 October 2003 judge B. of the Regional Court initiated the review of the judgment of 21 January 2003, as upheld on 16 April 2003. The decision of 24 October 2003 referred in detail to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur's decision of 30 June 2003. The case was transferred to the Presidium for the examination on the merits.
16. On 4 November 2003 the applicant was informed about the date and venue of the hearing of his case by the Presidium.
17. On 4 December 2003 the Presidium quashed the judgment of 21 January 2003, as upheld on appeal, stating that the first instance court's calculation of the minimum subsistence amount, based on the multiplier of 1.92, had been insufficiently supported by evidence. The Presidium also noted that the first instance court had misinterpreted the domestic law. The case was remitted to the first instance court for a fresh examination.
18. On 22 April 2004 the Town Court examined the case anew. In the course of the proceedings the court established that the allowance should have been multiplied by 1.25 in 2002 and by 1.26 for 2003. The applicant maintained that he accepted the multiplier.
19. As a result, the court held that the amount of pension due to the applicant for 2002 was 3,125 Roubles per month. In 2003 the pension of the applicant should have amounted to 3,937.5 Roubles per month. The court ordered the social security authorities to compensate the applicant for previous underpayments and, starting from 2004, pay him 4,567.5 Roubles monthly, with subsequent readjustment.
20. The judgment of the Town Court was not appealed against and became final.
21. On 1 February 2003 the Code of Civil Procedure of the Russian Federation (“the CCivP”) entered into force introducing, in particular, an amended system of supervisory review.
22. The CCivP, in the relevant part, provides as follows:
“1. Judicial decisions that have become legally binding ... may be appealed against... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions.
2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...”
“A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination.”
“2. Having examined an application for supervisory review, the judge issues an interim decision on –
(1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision;
(2) refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision.
...
6. The President of the...regional...court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.”
“2. Having examined the case file obtained by the supervisory review court, the judge issues an interim decision on –
– refusing to remit the case for examination on the merits by the supervisory review court;
– remitting the case for examination of the application for supervisory review on the merits by the supervisory review court.”
“2. The President of the...regional...court... may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court.”
“The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-112444
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF TOZICZKA v. POLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1943 and lives in Opole.
6. “Zgoda” Housing Cooperative in Brzeg brought a civil case against the applicant before the Opole Regional Court. It sought a judgment obliging her to sell to the co-operative a number of plots of land which had been de facto occupied by the co-operative for a long period of time.
7. By a judgment of 16 June 2003 the Opole Regional Court dismissed the claim. It held that the applicable provisions of the Housing Cooperatives Act provided for an obligatory sale of land occupied de facto by housing co-operatives only where a co-operative had erected buildings thereon. In the present case, the plaintiff co-operative had built roads and parking areas on the land concerned.
8. The plaintiff cooperative appealed.
9. By a judgment of 26 November 2003 the Wrocław Court of Appeal allowed the appeal, quashed the first-instance judgment and remitted the case. It was of the view that the first-instance court had erred in the application of section 35 of the Co-operatives Act. It had wrongly held that an obligatory sale could be ordered to the benefit of a housing co-operative only with respect to land owned by third parties on which a co-operative had had houses built. The court was of the opinion that such a sale could also be ordered when a co-operative had built infrastructures other than houses.
10. Judge D.Z. sat on the bench of the Supreme Court as judge rapporteur.
11. The applicant’s case was subsequently examined again. The Opole Regional Court allowed the plaintiff’s claim and ordered the applicant to sell 2,000 sq. metres of land to the co-operative. It found that the plaintiff co-operative had built a housing estate in the vicinity of the applicant’s land and also partly on her land. Parking areas and roads had been built on the land belonging to the applicant. Section 35 of the Housing Co-operatives Act provided for the compulsory sale of privately owned land occupied de facto by co-operatives.
12. The applicant appealed. She argued that the court had erred in applying the substantive law in her case. Section 35 of the Housing Cooperatives Act provided for a claim for compulsory sale only where cooperatives had built houses on privately owned land. The legal interpretation of this provision by the court breached the principle that exceptions had to be interpreted narrowly. She further argued that the judgment ordering her to sell her land was in breach of Article 1 of Protocol No. 1 to the Convention.
13. On 14 March 2007 the Wrocław Court of Appeal dismissed the appeal, endorsing the legal view expressed in the judgment of 26 November 2003.
14. The applicant lodged a cassation appeal against this judgment with the Supreme Court. She reiterated the same argument which she had already raised in her appeal and emphasised that the courts had erroneously interpreted substantive law in her case. She submitted that section 35 of the Housing Co-operatives Act allowed for a compulsory sale of privately owned land only where a co-operative had built houses on it. The court had erred in that it held that this provision should, by analogy, also be applied to roads, parking areas and similar infrastructure. This interpretation resulted from the functional interpretation of this provision according to which its purpose was to make it possible for housing co-operatives to acquire ownership of land owned by third parties. Thus, the courts had held that it would be inconsistent with that object and purpose to allow a claim for a compulsory sale order against the owner only with respect to the land on which houses had been built. The applicant argued that this approach, which disregarded the literal and clear text of the provision concerned and resorted instead to a functional interpretation, was unlawful.
15. She also invoked Article 1 of Protocol No. 1 to the Convention and submitted that her property rights had been excessively and unlawfully restricted by the compulsory sale order.
16. The cassation appeal was examined by the Supreme Court sitting in camera on 18 January 2008. Judge D.Z. (see paragraph 10 above), who had in the meantime been promoted to the Supreme Court, sat on the bench. The court was of the view that the gist of the cassation appeal concerned the interpretation of section 35 of the Housing Co-operatives Act and that the case turned on the interpretation to be given to this provision. It agreed with the legal view expressed on both occasions by the Wrocław Court of Appeal and dismissed the applicant’s cassation appeal.
17. By a judgment of 1 February 2007 the Opole Regional Court awarded the applicant compensation in the amount of PLN 388,000 for the use of her land by the local energy company which had in the past built installations (a pipeline) on her land. The company appealed.
18. By a judgment of 25 April 2007 the Wrocław Court of Appeal quashed the first-instance judgment and dismissed the applicant’s claim.
19. The applicant lodged a cassation appeal with the Supreme Court, complaining that the electricity company had been using her property for years without paying any compensation.
20. By a decision of 14 December 2007, served on the applicant’s lawyer on 14 March 2008, the Supreme Court refused to accept her cassation appeal for examination.
21. Article 3983 of the Code of Civil Procedure lists the grounds on which a cassation appeal (skarga kasacyjna) can be lodged. It reads, in so far as relevant, as follows:
“1. The cassation appeal may be based on the following grounds:
1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
22. Article 401 of the Code of Civil Procedure provides that a request for re-opening of civil proceedings can be based on invalidity of proceedings caused, inter alia, by an improper composition of the court or on the participation of a judge who was disqualified by law from sitting on the bench.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5535
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: K.H.S. v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Baka
TEXT: The applicant is a Danish citizen of Lebanese origin, born in 1936. He resides at Frederiksberg, Denmark. Before the Court he is represented by Lars Henriksen, a lawyer practising in Århus. The respondent Government are represented by Mrs Nina HolstChristensen of the Ministry of Justice as Agent.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the majority shareholder of two limited companies in Denmark, both trading with various forms of clothing. In the beginning of 1990 the police investigated certain economic transactions between companies in Denmark and Lebanon and it appeared that the applicant was involved in those transactions. As the applicant was suspected of having violated i.a. the tax legislation, it was decided to carry out a search. The search took place on 1 March 1990 in the premises of one of the companies and the applicant’s home. After the search the applicant was questioned by the police and provisionally charged (sigtet) with aggravated tax evasion under Section 289 of the Penal Code (straffeloven) and Section 13, subsection 1, of the Tax Control Act (skattekontrolloven) in an amount exceeding one million Danish kroner (DKK).
In the following months the police carried out an investigation of the applicant’s economic transactions and questioned a number of persons. At the same time the tax authorities carried out an investigation of the tax assessments for the last three fiscal years concerning the applicant and one of his companies. An extensive auditor’s report was issued on 14 November 1991 by Frederiksberg Tax Authority (Frederiksberg Skattedirektorat). On 16 December 1991 a meeting was held between the Tax Authority and the applicant assisted by his lawyer and accountant. The applicant largely disagreed with the findings in the report. Decisions on tax increases concerning the applicant personally and the company were made in accordance with the report, and in January 1992 they appealed to the Taxation Appeals Boards (skatteankenævnet) of respectively Frederiksberg and Copenhagen.
On 20 January 1993 the Frederiksberg Tax Authority requested the National Customs and Tax Agency (Told- og Skattestyrelsen) to have criminal charges brought against the applicant for aggravated tax evasion.
On 31 March 1993 the Frederiksberg Taxation Appeals Board informed the applicant that the consideration of his appeal would await the outcome of the appeal made by the company to the Copenhagen Taxation Appeals Board.
In a letter of 2 February 1994 the Copenhagen Police, Prosecution Division B, (Københavns Politi, Politiadvokatur B) informed the National Customs and Tax Agency that further investigations concerning the criminal charge against the applicant would await the decision of the Copenhagen Taxation Appeals Board. On 9 May 1994 the Agency requested the police to advance the criminal charge against the applicant as the tax assessment to a large extent depended on questions of evidence. On 30 May 1994 the police insisted, however, that the tax appeal case be decided first. The applicant was informed of this decision on 6 June 1994.
On 17 February 1995 the Copenhagen Taxation Appeals Board decided the appeal made by the applicant’s company. The Board found that during three fiscal years the company had evaded 2,208,587 DKK. The Board considered that the outcome of the case to a large extent depended on questions of evidence.
On 16 May 1995 the company appealed against the decision to the National Taxation Board (Landsskatteretten).
On 14 November 1995 the Frederiksberg Taxation Appeals Board informed the applicant that the consideration of his appeal would await the outcome of the company’s appeal to the National Taxation Board, but that he was entitled to bring the complaint about the tax increases concerning him before the National Taxation Board without awaiting the decision of the Appeals Board. The applicant apparently did not make use of this possibility.
In letters of 11 May 1998 to the Copenhagen Police and the National Customs and Tax Agency the applicant’s present lawyer complained about the length of the criminal proceedings against the applicant and requested that they be speeded up and the case pending before the National Taxation Board be suspended awaiting the outcome of the criminal charge. The request was, however, rejected by the authorities. A similar request in a letter of 4 June 1998 to the National Taxation Board was likewise rejected.
On 22 September 1998 the National Taxation Board upheld the decision of 17 February 1995 by the Copenhagen Taxation Appeals Board. At that time the applicant’s complaint against his personal tax increase was still pending and the criminal charge against him was still under investigation by the police.
On 14 June 1999 the applicant was informed that the criminal charges against him were dropped. The reason therefor was that a continuation of the case appeared to involve difficulties, costs or processing time which would not be proportionate to the importance of the case and the sentence which could be imposed in case of conviction.
On 26 November 1999 the applicant submitted a request for damages pursuant to chapter 93a of the Administration of Justice Act (retsplejeloven) to the District Public Prosecutor (Statsadvokaten). He referred, inter alia, to the length of the proceedings and to Article 6 § 1 of the Convention. On 8 February 2000 the District Public Prosecutor rejected the claim as it had been submitted out of time.
On 16 February 2000 the applicant appealed against this decision to the Prosecutor General (Rigsadvokaten) referring to Section 1018 a of the Administration of Justice Act and maintaining that the delays in submitting his claims were excusable. On 7 April 2000 the Prosecutor General agreed with the applicant and referred the case back to the District Public Prosecutor for a determination on its merits. The case is at present pending there.
B. Relevant domestic law
Section 1018 a § 1, first sentence, of the Administration of Justice Act provides that any person who has been arrested or remanded in custody as part of criminal prosecution is entitled to damages for the tort so inflicted if the charge is withdrawn or the accused is acquitted except where the acquittal is due to the fact that the person was not accountable for his/her actions.
Under the same rules as stated in section 1018 a, damages may be awarded to a provisionally charged (sigtet) person who has been subjected to other criminal procedural interventions as part of the criminal prosecution, cf. section 1018 b of the Administration of Justice Act.
The District Public Prosecutor decides claims for damages pursuant to sections 1018 a to d of the Administration of Justice Act, cf. section 1018 e § 1, first sentence, of the Act.
Claims from a person who has been provisionally charged must be made within two months of notice to the person so charged that the charge has been withdrawn or of pronouncement of a final judgment, cf. section 1018 e § 1, third sentence, of the Administration of Justice Act.
Where the claim is made after expiry of the deadline referred to in section 1018 e § 1, the claim can be considered provided that it is found excusable for the person to exceed the deadline, cf. section 1018 e § 2 of the Administration of Justice Act.
The Prosecutor General considers appeals against decisions made by the District Public Prosecutors concerning claims for damages, cf. section 1018 e § 3, first sentence.
Where the claim for damages is dismissed, the claimant may demand the claim brought before the courts, cf. section 1018 f of the Administration of Justice Act.
Claims for damages raised on the basis of the general rules on damages under Danish law by the person charged or convicted, or by others subject to criminal prosecution, are considered, upon request, in accordance with the rules in chapter 93 a, cf. section 1018 h of the Administration of Justice Act.


ITEMID: 001-68291
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: F.A. v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, who was born in 1971, is a Turkish national and lives in Diyarbakır.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 and 24 June 1996 the HADEP (Halkın Demokrasi Partisi – People's Democracy Party) held its annual congress in Ankara. The applicant participated in the congress as a delegate from Diyarbakır. During the congress, he was elected secretary of the board. While some of the delegates were reading their reports, a group of masked persons entered the congress building and chanted slogans in support of the PKK. They subsequently pulled down the Turkish flag and hung up a PKK banner and posters of Abdullah Öcalan.
On 24 June 1996, on the instructions of the Ankara State Security Court Chief Public Prosecutor, police officers surrounded the congress building. When the congress was over, the police arrested the applicant as he was leaving the building. The police also arrested the executive board members of HADEP, the chairman and deputy chairman of the congress, as well as those involved in the pro-PKK actions. The applicant was taken to the anti-terror branch of the Ankara Security Directorate, where he was allegedly kept in a cell with four other persons and subjected to verbal abuse.
On 4 July 1996 the applicant was brought before the Ankara State Security Court and subsequently placed in detention on remand.
On 23 August 1996 the public prosecutor at the Ankara State Security Court filed an indictment with the court. He accused the applicant of being a member of an illegal organisation, namely the PKK. He referred to the events that had taken place during the HADEP congress. The prosecutor considered that as the applicant had been acting as secretary of the board during the congress, he could have stopped the masked persons from pulling down the Turkish flag and from displaying the PKK banner and posters of Abdullah Öcalan. The prosecutor called for the applicant to be sentenced pursuant to Article 168 § 2 of the Criminal Code for aiding and abetting a terrorist organisation.
On 23 October 1996 the applicant was released pending trial.
During the trial, the applicant maintained that he was not a member of the group which had pulled down the Turkish flag. He denied any responsibility for the impugned acts and requested to be acquitted.
On 4 June 1997 the Ankara State Security Court delivered its decision. In the first place, the court found it necessary to distinguish the case from a simple case of insult to the Turkish flag. It took into consideration the statement of one of the accused persons who had pulled down the flag during the congress. In his statement, this accused person had explained that he had been acting on the instructions of HADEP officials. He stated that several university students had been brought to Ankara by bus to participate in the congress and had been instructed to shout slogans in support of the PKK and to hang posters of Öcalan and PKK banners on the walls. The court further noted that this was the first time that such a big Turkish flag had been hung in a congress building. According to the court, this act was planned by the HADEP officials in order to provoke a reaction.
The court further examined video footage taken during the congress and concluded that the applicant, who was acting as secretary of the board during the congress, could have stopped the masked individuals from carrying out their acts. The court stated, inter alia,
“...All the accused persons are competent and responsible persons in the HADEP. They had therefore the possibility of interrupting or even suspending the congress. By doing so, they could have helped the police force to capture the PKK militants who had taken down the Turkish flag and put up posters of Abdullah Öcalan instead... On the contrary the accused persons hid the PKK militants by forming groups and they assisted them in performing their activities...”
In delivering its decision, the State Security Court further referred to sections 2 and 3 of the United Kingdom Prevention of Terrorism Act 1989, which concerned the membership of, support for and meetings of proscribed organisations and display of support to such organisations in public.
The State Security Court convicted the applicant of aiding and abetting the members of a proscribed organisation and sentenced him to four years and six months' imprisonment pursuant to Article 169 of the Criminal Code and Article 5 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991).
The applicant appealed. The Court of Cassation quashed the judgment of the Ankara State Security Court on the ground that the case file lacked relevant information and documents. The case was sent back to the Ankara State Security Court.
While the proceedings were pending before the Ankara State Security Court, on 21 December 2000 new legislation (Law No. 4616), which governed the conditional release, suspension of proceedings or execution of sentences in respect of offences committed before 23 April 1999, came into force. The court accordingly suspended the proceedings against the applicant. According to Law No. 4616, these proceedings would be resumed only if the applicant were to commit an offence of the same or more serious kind within five years of the court's decision to suspend the proceedings.
Pursuant to Article 4 of Law No. 4758, it was open to the applicant to request the Ankara State Security Court to continue the proceedings against him. However, he did not make such a request.