ITEMID: 001-81323
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ASSOCIATION FOR EUROPEAN INTEGRATION AND HUMAN RIGHTS AND EKIMDZHIEV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Violation of Art. 13;No violation of Art. 6-1;Non-pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 5. One of the principal aims of the applicant association is the protection of human rights. The second applicant is a lawyer. His practice includes acting as counsel in civil and criminal cases in the courts in Plovdiv and representing applicants in proceedings before the European Court of Human Rights.
6. Their application is directed against the Special Surveillance Means Act of 1997, a piece of legislation which presently regulates the use of special means of surveillance in Bulgaria. The applicants do not aver that surveillance measures have in fact been ordered or implemented against them, nor that they have been indirectly involved in a surveillance measure directed against other persons. They contend that under the law as it stands they may be subjected to such measures at any point in time without any notification prior to, during, or after the said measures are applied.
7. The relevant provisions of the Constitution of 1991 are:
“1. The private life of citizens shall be inviolable. Everyone shall have the right to be protected against unlawful interferences with his private and family life and against encroachments on his honour, dignity and reputation.
2. No one may be spied on, photographed, filmed, recorded, or subjected to similar actions without his or her knowledge or despite his or her express disagreement, except in cases provided for by law.”
“The home shall be inviolable. No one may enter or remain in it without the consent of its inhabitant, except in the cases expressly specified by law.”
“1. The freedom and secret of correspondence and other communications shall be inviolable.
2. This rule may be subject to exceptions only with the permission of the judicial authorities when necessary for uncovering or preventing serious offences.”
“Citizens shall have the right to information from state bodies or agencies on any matter of legitimate interest to them, unless the information is a state secret or a secret protected by law, or affects the rights of others.”
“The judiciary shall be independent. In carrying out their duties the judges, the jurors, the prosecutors and the investigators shall have regard solely to the law.”
8. The Special Surveillance Means Act of 1997 („Закон за специалните разузнавателни средства“ – “the SSMA”), which presently is the principal legislative enactment regulating the use of special means of surveillance, was adopted in October 1997. It underwent minor amendments in August 1999 and June 2000, more extensive ones in February 2003, and some further minor changes in April 2006. Its essential provisions have however remained intact since its adoption and the account which follows is based on their present version.
9. The SSMA governs the conditions for and the manner of use of special means of surveillance, as well as the control of their use and of the results obtained thereby (section 1(1)). It defines special means of surveillance as technical devices which can be used for creating photographs, audio and video recordings and marked objects, as well as the methods for operating them (section 2(1)).
10. By section 3(1) of the SSMA, special means of surveillance may be used when necessary to prevent or uncover serious offences (Article 93 § 7 of the Criminal Code of 1968 defines a “serious” offence as one punishable by more than five years' imprisonment), if the requisite intelligence cannot be obtained through other means. Section 4 provides that special means of surveillance may also be used for activities relating to national security.
11. Special means of surveillance may be used against persons suspected, on the basis of the information available, of planning, committing, or having committed serious offences, or against persons who might be unwittingly involved in the above by the suspected perpetrators. Such means may also be used against persons and objects related with national security (section 12(1)). Such means may also be used in respect of persons who have agreed to that in writing, to protect their lives or property (section 12(2)).
12. Only the following bodies may request the use of special means of surveillance and draw on the intelligence obtained thereby, in the spheres of their respective competencies: (i) the central “Security” and “Police” services of the Ministry of Internal Affairs, as well as the national and territorial directorates of that Ministry; (ii) the “Military Information” and “Military Police and Military CounterIntelligence” services of the Ministry of Defence; (iii) the National Intelligence Service; (iv) the National Investigation Service, the Sofia Investigation Service and the regional investigation services; (v) the ProsecutorGeneral, the Supreme Cassation Prosecutor's Office, the Supreme Administrative Prosecutor's Office, the Military Appellate Prosecutor's Office, the appellate prosecutor's offices, the Sofia City Prosecutor's Office and the regional and regionalmilitary prosecutor's offices (section 13(1) and (2)).
13. The procedure for deploying special means of surveillance starts with a written application by the head of the respective service. The application must set out in detail the circumstances grounding the suspicion that a serious offence is being planned or committed or has been committed, so as to justify the use of surveillance. It must also fully describe the steps which have already been undertaken and the results of the hitherto inquiries or investigations. It has to contain information allowing the identification of the persons or objects to be subjected to surveillance, its duration, and the methods to be used. Finally, the application has to specify the name of the official to be informed of the results obtained (section 14(1)).
14. The application is made to the president of the Sofia City Court or of the respective regional court, or to a duly authorised deputy (for military personnel the application is made to the president of the deputypresident of the respective military regional court) who may issue a warrant (section 15(1)). If they refuse to issue a warrant, the application may be resubmitted to the president or a duly authorised deputy of the respective court of appeals (section 15(3)). The decision whether or not to issue a warrant must be taken immediately upon receipt of the application, and the originals of the application and of the warrant must be returned to the service which has made the application (section 15(2)).
15. After the warrant is issued, the Minister of Internal Affairs or a deputyminister designated in writing by the Minister makes a written order for the deployment of special means of surveillance (section 16). In urgent cases, this step of the procedure may be skipped and the deployment may start immediately upon the issue of the warrant (section 17). However, in that case the Minister or the deputyminister must be informed without delay (ibid.).
16. Section 18(1) of the SSMA provides for an exception to the procedure outlined above in cases where there is an immediate risk that a serious intentional offence may be committed or where there is an immediate threat to national security. In such cases, the Minister of Internal Affairs or a deputyminister designated by the Minister may order the deployment of special means of surveillance without a judicial warrant. The deployment of these means must be discontinued if the warrant is not issued within twentyfour hours (section 18(2)). In that case, the president or the vicepresident of the respective court decides whether the material obtained is to be kept or destroyed (ibid.). He or she may thus retrospectively validate the use of special means of surveillance (section 18(3)).
17. The Minister of Internal Affairs or a deputyminister authorised in writing may discontinue the use of special means of surveillance at any time before the planned end of the surveillance. In that case, the president or the vicepresident of the respective court must be informed in writing (section 19).
18. The only services which are authorised to deploy special means of surveillance are the “Operative and Technical Information”, the “Operative Tracking” and the “Protection of the Means of Communication” directorates of the Ministry of Internal Affairs (section 20(1)). However, the National Intelligence Service and the intelligence services of the Ministry of Defence may also deploy such means in the performance of their duties (section 20(2)).
19. Special means of surveillance may be used for a maximum of two months (section 21(1)). This time may, if necessary, be extended by the president or the vicepresident of the respective court for up to six months, by a fresh warrant (section 21(2)).
20. The use of special means of surveillance must be discontinued after the expiry of the timelimit set in the warrant, after the desired aims have been attained, or if the use of the means proves fruitless (section 22(1)).
21. The intelligence obtained by such means must be recorded (section 24). It must then, immediately after being obtained, be put down in writing by the service which has in fact deployed the means (section 25(1)). The resulting document, which must faithfully reflect the contents of the recordings, is sent to the body which has requested the use of such means, possibly along with photographs and recordings (section 25(2), (3) and (4)). While the special means of surveillance are still being used, the original recordings must be kept at the service which has deployed them (section 25(5)).
22. If at the end of the period of authorised surveillance the sought intelligence has been obtained, the service which has deployed the means of surveillance draws up a note of physical evidence (section 27). The same is done if the sought intelligence has been obtained before the end of the period, pursuant to the written request of the body which has requested the measures (section 26). Conversely, if the use of the means is fruitless, the body which has requested it advises in writing the service which deploys them that their use is to be discontinued. In that case no note of physical evidence is drawn up and the material obtained is destroyed (section 28(1) and (2)).
23. The note of physical evidence must conform to the requirements of the Code of Criminal Procedure (section 29(1)). It has to be signed by the head of the service which has deployed the means (section 29(2)) and refer to the application for their use, the order of the Minister or the deputyminister and the judicial warrant (section 29(3)). It has to specify the time and place of the use of the means, the types of devices and methods employed, the intelligence obtained, the textual reproduction of this intelligence, and the physical conditions under which the intelligence has been acquired (section 29(4)). The raw data is part of the record (section 29(5)). The evidence thus obtained is kept by the Ministry of Internal Affairs pending the opening of a criminal investigation. After the opening of an investigation the evidence is kept by the respective judicial authorities (section 31(1) and (2)). The intelligence which is not used as evidence has to be destroyed by the directorate which has deployed the means within ten days and the destruction has to be recorded in minutes (section 31(3)).
24. If the special means of surveillance have yielded results outside the scope of the initial application for their use and if these results come within the purview of other bodies allowed to request the use of such means (see paragraph 12 above), the Minister of Internal Affairs or the duly authorised deputyminister must be notified immediately. He or she then decides how this intelligence is to be used (section 30).
25. The information obtained by using special means of surveillance may not be used for ends other than the prevention and detection of offences, or the gathering of evidence for the perpetration of offences, in accordance with the conditions and the manner specified by the law (section 32).
26. All persons who come across information about the use of special means of surveillance under the conditions and according to the manner set out in the SSMA, or intelligence obtained thereby, are under a duty not to disclose it (section 33).
27. The overall control over the use of special means of surveillance and the intelligence obtained thereby is entrusted to the Minister of Internal Affairs, who may issue instructions for the application of the SSMA (section 34(1) and paragraph 2 of the concluding provisions of the Act). The directorates which deploy these means may also carry out inspections to check whether special means of surveillance have been unlawfully used (section 34(2)).
28. To date, no instructions or regulations on the implementation of the SSMA have been published in the State Gazette.
29. In a judgment of 10 February 1998, published in the State Gazette on 17 February 1998 (реш. № 1 от 10 февруари 1998 г. по конституционно дело № 17 от 1997 г., обн., ДВ, бр. 19 от 17 февруари 1998 г.) the Constitutional Court rejected an application by the ProsecutorGeneral to declare sections 18(1), 19, 30 and 34(1) of the SSMA contrary to Articles 34 § 2 and 117 § 1 of the Constitution.
30. The court started by noting that the special means of surveillance regulated by the SSMA amounted to interferences with private life, home and correspondence, all of which were permissible under Articles 32 § 2, 33 and 34 § 2 of the Constitution (see paragraph 7 above).
31. The court then proceeded to examine section 18(1) of the SSMA, which allows, under certain conditions, the use of special means of surveillance before the issue of judicial warrant. It held that Article 34 § 2 of the Constitution could not be read as requiring the prior issue of warrant in every case. The risk of abuse by the executive was reduced by the facts that the possibility of dispensing with prior judicial control was narrowly circumscribed and that immediate subsequent control was mandatory. This state of affairs was also compatible with Article 8 of the Convention and Article 17 of the International Covenant on Civil and Political Rights. In the court's view, the SSMA provided an even higher level of protection than these instruments.
32. As regards section 19 of the SSMA, the court found that the possibility for the Minister of Internal Affairs to discontinue the use of special means of surveillance was not violative of Article 117 § 2 of the Constitution. While by Article 34 § 2 of the Constitution and section 15 of the SSMA the judiciary alone was empowered to authorise the use of such means, it was not the only branch of government which could order the termination of their use. The prerogative of the Minister did not therefore impinge on the independence of the judiciary.
33. With regard to section 30 of the SSMA, the court held that its true meaning, when read in the context of the Act as a whole, was not that the Minister of Internal Affairs could order the use of special means of surveillance anew if intelligence outside the scope of the initial request for their use was obtained. It was rather to be construed as allowing the Minister to decide to which authority to forward the intelligence already obtained. His powers in this respect were thus not in breach of Article 117 § 2 of the Constitution.
34. Concerning section 34(1) of the SSMA, which entrusts the overall control over the system to the Minister of Internal Affairs, the court noted that it was impossible to empower another minister, let alone a nonexecutive body, with such functions, because that would disrupt the equality between, and the independence of, the three branches of government. This followed also from paragraph 2 of the concluding provisions of the SSMA, which allowed the Minister to issue instructions for its application. Moreover, the logic of the system, which was apparent from the wording of section 31 of the Act, required that the Minister be made responsible for controlling the use of the special means of surveillance until the moment when the intelligence obtained thereby was given to the judicial authorities. Therefore, the judicial control over the intelligence thus gathered had not been infringed and the resulting situation was compatible with Article 117 § 2 of the Constitution.
35. Two judges dissented in part.
36. One of them was of the opinion that section 34(1) of the SSMA, which entrusts the control over the use of special means of surveillance to the Minister of Internal Affairs, was unconstitutional. In his view, this provision was not sufficiently precise and the powers it conferred to the Minster were not clearly delineated. It followed from the reading of the SSMA as a whole that the Minister had powers in respect of both the use and the control over the use of special means of surveillance, which was inadmissible. The resulting lack of external control meant that section 34(1) was unconstitutional. When the law spoke about control over the system, it meant control over both its functioning as a whole and control in specific cases. To bestow controlling functions to the Minister, who also played a key part in the operation of the system, did not provide sufficient safeguards against the unwarranted use of special means of surveillance.
37. The other dissenting judge considered that section 18(1) of the SSMA was unconstitutional, in that it allowed the Minister of Internal Affairs to order the use of special means of surveillance without the prior issue of judicial warrant, even in cases when their use would interfere with the freedom of correspondence or other communications. In his view, Article 34 § 2 of the Constitution, which protects those freedoms, required prior judicial authorisation in all cases.
38. Articles 11113a of Code of Criminal Procedure of 1974 (“the Code of 1974”) also regulated the use of special means of surveillance in the context of pending or impending criminal proceedings. They coincided almost verbatim with the provisions of the SSMA. One difference was that Article 111b § 6 provided that the judge who issued the warrant had to be informed in writing when the use of the means was discontinued. If their use had been fruitless, he or she was to order the destruction of the material obtained.
39. These provisions were superseded by Articles 17277 of the Code of Criminal Procedure of 2005 (“the Code of 2005”), which entered into force on 29 April 2006.
40. By Article 172 §§ 1 and 2 of the Code of 2005, the investigation authorities may use special means of surveillance for investigating certain serious offences, which are exhaustively listed, if the relevant facts cannot be established in another manner or if their establishment would be extremely difficult. Such means may be used for a maximum duration of two months (Article 175 § 3), which may, if needed, be extended by four months (Article 175 § 4).
41. The procedure starts with a reasoned application made by the prosecutor in charge of the case (Article 173 § 1). The application must contain information about the offence under investigation, a description of the hitherto investigative steps and their results, information about the persons or objects which will be subjected to surveillance, the methods which will be used and the duration of the surveillance (Article 173 § 2). The surveillance warrant is issued under the hand of the president of the respective regional court or of a specifically authorised deputy (Article 174 § 1). He or she must issue the warrant or refuse to do so immediately after receiving the application, and give reasons (Article 174 § 3). If he or she refuses, the application may be resubmitted to the president of the respective court of appeals or a specifically authorised deputy (Article 174 § 4). All applications and warrants are recorded in a special nonpublic register (Article 174 § 6). The Code of 2005 makes no provision for exceptions from this procedure save in the case of an undercover agent, who may, in urgent cases, start to operate pursuant to a prosecutor's order, which must be confirmed by the respective judge within twentyfour hours (Article 173 § 4).
42. After the issue of warrant the special means of surveillance are deployed in accordance with the provisions of the SSMA (Article 175 § 1). The judge who issued the warrant must be informed in writing when the use of the means is discontinued. If their use has been fruitless, the judge orders the destruction of the material obtained (Article 175 § 6).
43. The Protection of Classified Information Act of 2002 („Закон за защита на класифицираната информация“ – “the PCIA”), which was enacted in April 2002 and amended several times thereafter, provides a comprehensive framework for the creation, processing and storage of classified information, as well as the conditions and the procedure for providing access to such information (section 1(1)). “Classified information” includes information which is a state or an official secret (section 1(3)).
44. Section 25 defines a “state secret” as the “information set out in Schedule No. 1 [to the Act], the unregulated access to which could endanger or prejudice the interests of the Republic of Bulgaria and which relates to the national security, the defence, the foreign policy, or the protection of the constitutional order”. Schedule No. 1 to the Act sets out a list of the categories of information which are liable to be classified as being a state secret. Thus, the information about special means of surveillance (technical devices and/or the manner of their use) used pursuant to the law is a state secret (point 6 of part II of Schedule No. 1). So is the intelligence obtained as a result of the use of such means (point 8 of part II of Schedule No. 1).
45. Section 26(1) defines an “official secret” as the “information created or stored by state or local government authorities, which is not a state secret, but the unregulated access to which could have a negative impact on the interests of the State or on another legally protected interest”. By section 26(2), the information classified as an “official secret” must be set out in a statute.
46. Section 34(1) lays down timelimits for protecting classified information. They vary from thirty years for information marked as “highly secret” to two years for information graded as an “official secret”. These timelimits may be extended, but by not more than the double of their original length (section 34(2)). After the expiration of these timelimits the access to this information is effected in accordance with the Access to Public Information Act of 2000 (section 34(3)).
47. While the information is classified, it may be accessed only under certain conditions and by limited categories of persons, which must, in most cases, undergo a security check and obtain a security clearance (sections 3671).
48. Section 33(3) provides that classified information may not be destroyed earlier than one year after the expiration of the timelimit for its protection. The destruction of such information is possible only by virtue of a decision of the State Information Security Commission, made pursuant to the proposal of a special commission (section 33(4)). The Commission's decision is subject to review by the Supreme Administrative Court (section 34(5)).
49. In a final judgment of 12 February 2004 (реш. № 1195 от 12 февруари 2004 г. по адм. д. № 9881/2003 г.), given pursuant to an appeal by a person who had been refused information on whether the use of special means of surveillance had been authorised against him during the period 1 January 1996 – 1 November 2001, the Supreme Administrative Court held that while Article 41 of the Constitution enshrined the right to obtain information from a state body, that right was subject to limitations when, for instance, this information was a state or an official secret. It was apparent from section 33 of the SSMA that information about the use of special means of surveillance was not to be disclosed. The refusal to provide the requested information was thus compatible with Article 32 § 2 of the Constitution and Article 8 of the Convention. The appellant's argument that the refusal had been in breach of the Protection of the Personal Data Act of 2002 was inapposite, because the material gathered pursuant to the SSMA was outside the purview of the Protection of the Personal Data Act of 2002, as was the information whether the use of special means of surveillance had been authorised. The appellant's further arguments that the information requested was not a state or an official secret within the meaning of sections 25 and 26 of the PCIA and could moreover be divulged because of the expiry of the twoyear timelimit under section 34(1)(4) of that Act were likewise unavailing, because that Act did not apply retroactively.
50. In a final judgment of 15 May 2004 (реш. № 4408 от 15 май 2004 г. по адм. д. № 996/2004 г.), given pursuant to an appeal by the same person as in case no. 9881/2003 (see paragraph 49 above), concerning a further refusal to inform him of measures of covert surveillance against him, the Supreme Administrative Court held that his request for such information had properly been denied, because the information relating to special means of surveillance and the intelligence obtained by using them was a state secret within the meaning of section 25 of the PCIA and points 6 and 8 of part II of Schedule No. 1 to the PCIA (see paragraphs 4345 above). On the other hand, the eventual intelligence obtained pursuant to a warrant to use special means of surveillance, as well as the warrant itself, were an official secret within the meaning of section 26(1) of the PCIA. This followed also from the prohibition to divulge information about special means of surveillance laid down in section 33 of the SSMA. The court went on to hold that the fact that the use of special means of surveillance could only be authorised by the presidents of the regional courts was sufficient to ensure independent judicial review of the activities of the executive and provided sufficient safeguards against unwarranted restriction on the citizens' rights.
51. Article 145a § 1 of the Criminal Code of 1968 criminalises the use of information obtained through special means of surveillance for ends other than protecting national security or combating crime. The offence is aggravated if it has been committed by officials who have acquired or have come across this information in connection with the performance of their duties (paragraph 2 of that Article). It is furthermore an offence to unlawfully use information obtained through such means with a view to misleading a judicial authority (Article 287a § 1 (4) of the Code). There is no reported caselaw on the application of these texts.
52. In the end of 2000 the Supreme Cassation Prosecutor's Office carried out a special inquiry on the use of special means of surveillance by the Ministry of Internal Affairs during the period 1 January 1999 – 1 January 2001. While the inquiry was pending, the prosecutor in charge gave an interview, published in the daily Trud on 24 November 2000, in which he said that the Ministry of Internal Affairs was obstructing the inquiry. The report of the inquiry, which was finalised in January 2001, was presented to the National Assembly, the Council of Ministers, the Supreme Judicial Council and the Ministry of Internal Affairs, but was apparently not made available to the general public. Nevertheless, some of the report's findings were leaked to and reported by several daily newspapers. The report stated that the overall number of warrants for the use of special means of surveillance during the period 1 January 1999 – 1 January 2001 was just over 10,000, and that not including tapping of mobile phones. Out of these, only 267 or 269 had subsequently supplied evidence for use in criminal proceedings. In 243 cases special means of surveillance had been used against persons in respect of whom there had been no grounds for suspecting that they had committed a serious intentional offence. In a number of cases the orders for the deployment of such means had not been signed by the Minister of Internal Affairs himself, but by unknown persons on his behalf. In 36 cases the dates of the applications for warrants and of the warrants themselves had been modified. In 28 cases the warrants had not been assigned a number. In some cases the warrants had authorised measures implemented more than twentyfour hours before their issue. In two cases the persons in respect of whom the warrants had been issued were not the persons under investigation.
53. In an interview published by the daily Trud on 26 January 2001 the Minster of Internal Affairs said that during his thirteen months in office he had signed 4,000 orders for the use of special means of surveillance.
54. During the period December 2002 – February 2003 various newspaper publications reported a number of cases where it was alleged that the services of the Ministry of Internal Affairs had unlawfully used special means of surveillance. The allegations included illegal tapping of the telephones of opposition leaders, journalists, a former constitutional court judge, and other judges. In an interview published on 11 December 2002 the Minister of Justice stated that “a tremendously high number of wiretappings take place in Bulgaria, but apparently for aims different from those of the criminal process”.
VIOLATED_ARTICLES: 13
8
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-89713
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TĂNASE AND CHIRTOACĂ v. MOLDOVA
IMPORTANCE: 2
CONCLUSION: Violation of P1-3;Remainder inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 6. The applicants were born in 1971 and 1978 respectively and live in Chişinău. They are both Romanian ethnics and Moldovan politicians.
7. The Republic of Moldova is situated on a territory which used to be part of Romania before World War II. Its population had Romanian citizenship but lost it after the annexation of the territory by the Soviet Union in 1940.
8. In the Declaration of Independence of 27 August 1991, the Parliament of the Republic of Moldova condemned, inter alia, the Soviet annexation of the territory from Romania in 1940 and proclaimed the independence of the country within the boundaries of the former Moldavian Soviet Socialist Republic.
9. In 1991 the Parliament of the Republic of Moldova adopted a Law on Moldovan nationality and proclaimed as its citizens, inter alios, all persons who had lived in the territory of the former Moldavian Soviet Socialist Republic before the Soviet annexation and their descendants.
10. Both applicants obtained Moldovan nationality as descendants of persons living on the territory of the Republic of Moldova before 28 June 1940.
11. Also in 1991 the Romanian Parliament adopted a new law on citizenship making it possible for former Romanian nationals and their descendants who had lost their nationality before 1989, for reasons notimputable to them, to re-acquire their lost Romanian nationality.
12. Initially Moldova did not allow its nationals to possess other nationalities other than in exceptional cases. However, the prohibition remained inoperative as very many Moldovans, especially of Romanian descent, used the provisions of Romanian law to re-acquire their lost Romanian nationality. At the same time, many Moldovans, usually of other ethnic backgrounds, acquired other nationalities such as Russian, Ukrainian, Bulgarian, Turkish and others.
13. In 2002 the constitutional provisions prohibiting multiple nationality were repealed. On 5 June 2003 the Moldovan Parliament amended the Law on Citizenship and repealed the restriction preventing Moldovan nationals from holding other nationalities (see paragraph 43 below). According to the amendments, the holders of multiple nationality have equal rights to those holding only Moldovan nationality, without exception.
14. On unspecified dates the applicants obtained Romanian nationality. Their current Romanian passports were issued in December 2005 and October 2006. Subsequently, they made public their holding of Romanian nationality.
15. The total number of Moldovans who have obtained Romanian citizenship since 1991 is unknown as the Romanian Government have never made it public. It has been estimated that between 95,000 and 300,000 Moldovans obtained Romanian nationality between 1991 and 2001.
16. On 4 February 2007 the President of Romania stated in an interview that there were some eight hundred thousand Moldovans with pending applications for Romanian nationality and that his Government expected the number to reach 1.5 million, of the total of 3.8 million Moldovans, before the end of 2007.
17. As to the number of Moldovans holding as a second nationality other nationalities than Romanian, this figure is equally unknown. However, it appears to be considerable and it appears that Russian nationality is the second most popular after Romanian. On 16 September 2008 the Russian Ambassador to Moldova stated in a televised interview that there were approximately one hundred and twenty thousand Moldovans with Russian passports on both banks of the Dniester river. The Moldovan Government indicated in their observations that one third of the population of Transdniestria had dual nationality while a Communist MP, Mr V. Mişin, advanced during the Parliament's debates concerning Law No. 273 (see paragraph 30 below) the number of five hundred thousand as an approximate total number of Moldovans with dual nationality.
18. During the last decade the Communist Party of Moldova was the dominant political party in the country with the largest representation in Parliament.
19. Beside the Communist Party, there are over twenty-five other political parties with considerably less influence. Their exact number is difficult to tell because of continuous fluctuation. Because of their weaker position, very few of them managed to clear the six per cent electoral threshold in the past legislative elections and to enter Parliament.
20. In the 2001 elections the Christian Democratic People's Party was the only party, besides the Communist Party, from the twenty-seven participants in the elections, which succeeded in clearing alone the electoral threshold by obtaining some eight per cent of the votes. Six other parties which merged into an electoral block (a common list) were able to obtain some thirteen per cent of the votes. The Communist Party obtained some fifty per cent of the votes and after the proportional distribution of the wasted votes it obtained seventy-one of the one hundred and one seats.
21. In 2002 the electoral legislation was amended. The six per cent electoral threshold was kept while a new nine per cent threshold was provided for electoral blocks composed of two parties and twelve per cent for those composed of three or more parties.
22. In the 2005 elections out of twenty-three participants, the Christian Democratic People's Party was again the only party, besides the Communist Party, which managed to clear the electoral threshold by itself with some nine per cent of the votes. Three other parties, united into an electoral block, obtained some twenty-eight per cent of the votes while the Communist Party obtained almost forty-six per cent of the votes. After the proportional distribution of the wasted votes, the Communist Party obtained fifty-six of the one hundred and one seats in the Parliament.
23. In July 2005, following persistent criticism by international observers and the Council of Europe, the Parliament amended the Electoral Code, setting the electoral threshold for parties at four per cent and for electoral blocks at eight per cent. The Commission for Democracy through Law of the Council of Europe (“the Venice Commission”) and the Organisation for Security and Cooperation in Europe (“OSCE”) praised the lowering of the electoral threshold and suggested a similar threshold for electoral blocks, which, in their view, were to be encouraged in order to provide more cooperation and stable government.
24. In the local elections of June 2007, the Communist Party obtained some forty per cent of the votes in the local legislative bodies. Since there is no electoral threshold in local elections, it became an opposition party in the majority of the local councils.
25. The mandate of the current Parliament expires on 5 March 2009. According to the Electoral Code the next general elections are to take place within three months from the expiry of the mandate of the current Parliament; however, the exact date of the next elections is unknown on the date of this judgment.
26. In 2005 Mr Chirtoacă became the Vice-President of the Liberal Party, an opposition party, and in June 2007, in a confrontation with a candidate of the Communist Party, won the local elections in the capital city of Chişinău with a majority of 61.17% and became mayor.
27. On 18 June 2008 Mr Chirtoacă declared in an interview that he would actively participate in the legislative elections of spring 2009 but that he would not give up his position of mayor of Chişinău even if he was elected. He made it clear that his sole intention was to help his party gather more votes in the elections and remain mayor afterwards. The holding of a dual mandate is prohibited in the electoral law of Moldova. On 1 September 2008 Mr Chirtoacă reiterated in an interview his intention to participate in the legislative elections without repeating that he would keep his position of mayor after the elections. However, on 13 October 2008 he made a statement similar to that of 18 June.
28. Mr Tănase is a lawyer who entered politics recently. In June 2007 he became member of the Chişinău Municipal Council and subsequently was elected Vice-President of the Liberal Democratic Party, an opposition party created in January 2008.
29. On 10 April 2008 the Moldovan Parliament carried out a reform consisting of three major amendments to the electoral legislation: an increase of the electoral threshold from four per cent back to six per cent, a ban on all forms of electoral blocks and coalitions and a ban on persons with dual or multiple nationality becoming members of Parliament.
30. The latter amendment to the electoral legislation (Law no. 273) was adopted in its first reading by Parliament long before that date, on 11 October 2007. According to the draft law prepared by the Ministry of Justice, only persons having exclusively Moldovan citizenship were entitled to work in senior positions in the government and in several public services and be candidates in legislative elections. This provision was not applicable to persons living in Transdniestria. In an explanatory note to the draft the Vice-Minister of Justice stated:
“Having analysed the current situation in the country in the field of citizenship, we observe that the tendency of Moldovans to obtain citizenships of other countries is explained by their desire to obtain privileges consisting of unrestrained travel in the European Union, social privileges, family reunion, employment and studies.
At the same time, persons holding other nationalities have political and legal obligations towards those states. This fact could generate a conflict of interest in cases in which there are obligations both towards the Republic of Moldova and towards other states, whose national a particular person is.
In view of the above, and with a view to solving the situation created, we consider it reasonable to amend the legislation in force so as to ban holders of multiple nationalities from public functions...
This will not mean, however, that those persons will not be able to work in the Republic of Moldova. They will be able to exercise their professional activities in fields which do not involve the exercise of state authority...”
31. During the debates in Parliament numerous opposition members requested that the draft be sent to the Council of Europe for a preliminary expertise. However, the majority voted against this proposal. In exchange, the opposition was invited to challenge the new law before the Constitutional Court of Moldova. No such challenge was made. Numerous MPs from the opposition argued that the proposed amendment was contrary to Article 17 of the European Convention on Nationality but the Vice-Minister of Justice expressed a contrary view and argued that, in any event, it was open to Parliament to denounce that Convention if there were any incompatibility.
32. On 7 December 2007 the draft law in question was adopted by Parliament in a final reading (see paragraph 44 below); however, later the President of the country refused to promulgate it and returned it to Parliament for re-examination.
33. The draft law was further amended and the list of positions in the government and in the public service closed to holders of multiple nationality was reduced. The provisions concerning legislative elections were also amended in the sense that persons with dual or multiple nationality are allowed to be candidates in legislative elections; however, they are obliged to inform the Central Electoral Commission about their other citizenships before registering as candidates and give them up before the validation of their MP mandates by the Constitutional Court (see paragraph 45 below).
34. On 10 April 2008 the new draft law was again put before Parliament by the Law Commission of Parliament and adopted. On 29 April 2008 the President promulgated it and on 13 May 2008 it was published in the Official Gazette, thus entering into force. The other two amendments to the electoral legislation were also enacted and entered into force in May 2008.
35. On 29 April 2008 the Council of Europe's Commission against Racism and Intolerance (“ECRI”) made public a report dated 14 December 2007 in which it expressed concern in respect of the amendments concerning dual and multiple nationalities:
“16. ECRI notes with interest that Article 25 of the Law on Citizenship, in full accordance with Article 17 of the European Convention on Nationality, which has been ratified by Moldova, provides that Moldovan citizens who are also citizens of another State and who have their lawful and habitual residence in Moldova enjoy the same rights and duties as other Moldovan citizens. In this respect, ECRI would like to express its concern about a draft law on the modification and completion of certain legislative acts adopted in its first reading by Parliament on 11 October 2007. According to this draft law, only persons having exclusively Moldovan citizenship are entitled to work in senior positions in the government and in several public services. From the information it has received, ECRI understands that if this draft law enters into force as it stands, Moldovan citizens with multiple citizenship would be seriously disadvantaged compared with other Moldovan citizens in access to public functions. It thus appears that, if the law enters into force as such, this could lead to discrimination, i.e. unjustified differential treatment on the grounds of citizenship. ECRI understands that a wide-ranging debate is occurring within Moldova at the time of writing this report as far as this draft law is concerned and that many sources both at the national and international level have stressed the need to revise the text thoroughly before its final adoption in order to ensure its compatibility with national and international standards.
...
18. ECRI strongly recommends that the Moldovan authorities revise the draft law of 11 October 2007 ... in order to ensure that it neither infringes the principle of non-discrimination on the grounds of citizenship nor undermines all benefits of the recent changes made to the law on citizenship and allowing for multiple citizenship.”
36. On 27 May 2008 the head of the EU-Moldova Cooperation Council, Slovenian Foreign Minister, Dr Rupel, stated that it was important that Moldova should conduct its parliamentary elections in 2009 in line with international standards and expressed concern at the latest amendments to the electoral law, which increased the electoral threshold to six per cent.
37. In a report dated 9 June 2008, the Parliamentary Assembly's Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe stated, inter alia, that:
“20. The Assembly appreciates the efforts made by the Moldovan authorities in order to assess the degree of implementation of the recommendations made by Council of Europe experts. However, all new draft legislation in areas relating to the commitments to the Council of Europe must be submitted to expertise and discussed with Council of Europe experts prior to adoption.
...
80. In their 2007 report on the honouring of obligations and commitments by Moldova (Doc. 11374), the co-rapporteurs of the Committee on Moldova welcomed the changes made to the Electoral Code in 2005. In particular, the threshold for party lists was lowered to 4% for lists presented by individual political parties and 8% for coalitions of political parties...
82. The Monitoring Committee was ... alarmed by the recent legislative developments with regard to the Electoral Code. In April 2008, the Moldovan Parliament amended the Electoral Code again to raise the threshold for party lists up to 6%. Moreover, the establishment of “electoral blocs” – joint lists submitted by a coalition of political parties - was prohibited. These measures have raised concern and the committee decided at short notice to hold an exchange of views with the Moldovan delegation on 15 April. The electoral legislation should not be changed every two or three years according to political imperatives. It should allow a wide spectrum of political forces to participate in the political process to help build genuinely pluralistic democratic institutions. The co-rapporteurs will closely examine the recent amendments as well as the reasons behind the recent legislative developments during the observation of the preparation of the forthcoming parliamentary election to be held in spring 2009.”
38. Concern was also expressed in the Parliamentary Assembly's Resolution No. 1619 adopted on 25 June 2008:
“The Assembly ... regrets the recent decision of the Moldovan Parliament to raise this threshold for party lists to 6%”.
39. The problem of the electoral reform was also raised on 9 July 2008 by the President of the Parliamentary Assembly of the Council of Europe, Mr Lluís Maria de Puig, in a speech to the Moldovan Parliament:
“...I strongly encourage you to obtain the approval by the Venice Commission in respect of the recent amendments to the legislation which will apply in the next elections, namely in what concerns the electoral threshold, the electoral blocks and the dual nationality. These are delicate problems and it is necessary to find the right balance between the preoccupations which guided you to make these amendments and the concern of the international community that these amendments are compatible with the principles of the Council of Europe.”
40. On 23 October 2008 the Venice Commission made public a report concerning the amendments to the Electoral Code made in April 2008. The report expressed critical views in respect of all the aspects of the reform. As to the amendments concerning holders of multiple nationality it stated the following:
“30. A new paragraph to article 13(2) denies the right to “be elected” in parliamentary elections to “persons who have, beside the Republic of Moldova nationality, another nationality for the position of deputy in the conditions of Art. 75”. Article 75(3) states that a person may stand as a candidate with multiple citizenship, provided he/she upon election denounces other citizenships than the Moldovan. This must be considered as an incompatibility.
31. Beyond the mere question of the wording, restrictions of citizens' rights should not be based on multiple citizenship. The Code of Good Practice in Electoral Matters quotes the European Convention on Nationality, ratified by Moldova in November 1999, which unequivocally provides that 'Nationals of a State Party in possession of another nationality shall have, in the territory of that State Party in which they reside, the same rights and duties as other nationals of that State Party.'
32. Moreover, this restriction could be a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, articles 3 of the first Protocol and 14 of the Convention.”
41. The relevant provisions of the Constitution of the Republic of Moldova read:
Article 8. Compliance with international treaties
(1) The Republic of Moldova is obliged to respect the United Nations Charter and the treaties to which it is a party...
Article 38. The right to vote and to be elected
(3) The right to be elected is guaranteed to Moldovan citizens who enjoy the right to vote, within the conditions of the law.
Article 39. The right to participate in the administration
(1) The citizens of Moldova shall have the right to participate in the administration of public affairs in person or through their representatives.
(2) Every citizen shall have access, in accordance with the law, to public functions.
42. According to Article 38 of the Code of Constitutional Jurisdiction of the Republic of Moldova the Constitutional Court may be seized only by the President of the country, the Government, the Minister of Justice, the Supreme Court of Justice, the Economic Court, the Prosecutor General, the MPs, the parliamentary factions and the ombudsman.
43. According to section 24 (1 and 3) of the Law on Moldovan Citizenship, as amended on 5 June 2003, multiple nationality is permitted in Moldova and the obtaining by a Moldovan national of another nationality does not entail loss of the Moldovan nationality.
44. The relevant provisions of Law no. 273 adopted by Parliament on 7 December 2007, but not promulgated by the President, read:
Section X
“Candidates for the office of MP shall be at least eighteen years old on the day of the elections, shall have exclusively Moldovan citizenship, shall live in the country and shall fulfil the conditions provided for in the present code.”
45. The relevant provisions of Law no. 273, which entered in force on 13 May 2008, provide as follows:
Section IX
“(1) Candidates for the office of MP shall be at least eighteen years old on the day of the elections, shall have Moldovan citizenship, shall live in the country and shall fulfil the conditions provided for in the present code.
(2) At the moment of registering as a candidate, any person holding the citizenship of another country shall declare that he or she holds another citizenship or that he or she has applied for another citizenship.
(3) At the time of validation of the MP mandate, the person indicated in paragraph (2) shall prove with documents that he or she has renounced or initiated the procedure of renunciation of the citizenship of other States or that he or she has withdrawn an application to obtain another citizenship.
(4) A failure to declare the fact of holding another citizenship at the moment of registering as a candidate for the office of MP or the fact of obtaining another citizenship during the exercise of a MP mandate, shall be sufficient grounds for the Constitutional Court to annul the MP mandate at the request of the Central Electoral Commission.”
Section XXI
(3) The incompatibilities provided for in the present law shall apply to persons living in Transdniestria only in so far as they are stipulated in the legislation concerning the special legal status of Transdniestria.
46. The relevant provisions of Law No. 595 concerning the International Treaties of the Republic of Moldova, in so far as relevant read:
Section 19. Compliance with international treaties
“International treaties shall be complied with in good faith, in accordance with the principle pacta sunt servanda. The Republic of Moldova cannot invoke the provisions of its internal legislation as a justification for non-compliance with an international treaty to which it is a party.
Section 20. The application of international treaties
The provisions of the international treaties which, according to their wording, are susceptible to be applicable without there being need for enactment of special legislative acts, shall have an enforceable character and shall be directly applied in the Moldovan law system. For the realisation of other provisions of the treaties, special normative acts shall be adopted.”
47. The relevant provisions of the European Convention on Nationality, which entered into force in general and in respect of Moldova on 1 March 2000, provide:
Preamble
“Recognising that, in matters concerning nationality, account should be taken both of the legitimate interests of States and those of individuals;
...
Noting the varied approach of States to the question of multiple nationality and recognising that each State is free to decide which consequences it attaches in its internal law to the fact that a national acquires or possesses another nationality;”
Article 15 – Other possible cases of multiple nationality
The provisions of this Convention shall not limit the right of a State Party to determine in its internal law whether:
a. its nationals who acquire or possess the nationality of another State retain its nationality or lose it;
b. the acquisition or retention of its nationality is subject to the renunciation or loss of another nationality.
Article 17 – Rights and duties related to multiple nationality
“Nationals of a State Party in possession of another nationality shall have, in the territory of that State Party in which they reside, the same rights and duties as other nationals of that State Party.
The provisions of this chapter do not affect:
the rules of international law concerning diplomatic or consular protection by a State Party in favour of one of its nationals who simultaneously possesses another nationality;
the application of the rules of private international law of each State Party in cases of multiple nationality.”
48. The Explanatory Report to the Code of Good Practice in Electoral Matters of the Venice Commission of the Council of Europe (CDL-AD (2002) 23 rev), in so far as relevant, reads:
“63. Stability of the law is crucial to credibility of the electoral process, which is itself vital to consolidating democracy. Rules which change frequently – and especially rules which are complicated – may confuse voters. Above all, voters may conclude, rightly or wrongly, that electoral law is simply a tool in the hands of the powerful, and that their own votes have little weight in deciding the results of elections.
64. In practice, however, it is not so much stability of the basic principles which needs protecting (they are not likely to be seriously challenged) as stability of some of the more specific rules of electoral law, especially those covering the electoral system per se, the composition of electoral commissions and the drawing of constituency boundaries. These three elements are often, rightly or wrongly, regarded as decisive factors in the election results, and care must be taken to avoid not only manipulation to the advantage of the party in power, but even the mere semblance of manipulation.
65. It is not so much changing voting systems which is a bad thing – they can always be changed for the better – as changing them frequently or just before (within one year of) elections. Even when no manipulation is intended, changes will seem to be dictated by immediate party political interests.
...under the European Convention on Nationality persons holding dual nationality must have the same electoral rights as other nationals.”
49. The Court, having conducted a comparative review of the legislations of forty-two countries, members of the Council of Europe, noted that the majority of them permit dual or multiple nationalities. In some of the countries which ban double nationality, in practice the provisions aimed at preventing multiple nationalities have remained a dead letter (for instance Estonia). There are four countries in which beside a ban on dual nationality, there is a supplementary provision in the electoral laws or Constitutions banning persons with other nationalities from being elected to Parliament. Those countries are Azerbaijan, Bulgaria, Lithuania and Malta. There are two countries in which dual nationals are ineligible for election to Parliament only in certain circumstances: as Monaco and Portugal. In Monaco persons who possess dual nationality and occupy in a foreign country a public or elected office are ineligible to stand as a candidate. In Portugal, beside the main territory of the country there are two constituencies, one covering the territory of the European countries, and the other covering all other countries and the territory of Macao. A Portuguese national holding, for instance, the nationality of France, will not be able to stand for Parliament in the constituency covering the territory of the European countries. However, he will be able to stand in the other two constituencies.


ITEMID: 001-119265
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: UNION EUROPEENNE DES DROITS DE L'HOMME AND JOSEPHIDES v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney
TEXT: 1. The applicants are the UEDH (“Union Europeenne Des Droits de L’Homme”) a non-profit making association based in Nicosia and Christos Josephides, a Cypriot and French citizen, born in 1944 and resident in Cyprus. The second applicant is the President and legal representative of the first applicant.
2.
3. On 9 November 2010, with the intention of celebrating of the 20th anniversary of the fall of the Berlin Wall, a group of people, including the second applicant and, it appears, other members of the first applicant association, set out with the intention of demonstrating before the “Attila Wall” which was in the buffer zone between the Republic of Cyprus and the area occupied by Turkish forces known as the “Turkish Republic of Northern Cyprus” (“TRNC”), and thus showing their solidarity with the German people and seeking their help and support in obtaining the fall of the wall separating the Cypriot people. They had given notice of their peaceful demonstration to the press and the German embassy.
4. The second applicant and another member of the association carried a large European flag and four placards bearing slogans; leaflets were being handed out as they proceeded down Ledra Road. The demonstrators stopped 50 metres before the Cyprus checkpoint, which was 100 metres from the “TRNC” checkpoint. The applicant and the other member of the association continued past the checkpoint into the buffer zone, with the intention of placing the flag and placards on the walls within the zone. When they were some ten to fifteen metres from the “TRNC” checkpoint, security forces rushed out and seized them by force. They were taken into the security post and searched. Their mobile phones and identity documents were removed, their flag, placards and leaflets confiscated. After 45 minutes, the two men were released.


ITEMID: 001-77559
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ABDULLAH ALTUN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1972 and lives in Diyarbakır.
5. The applicant was a student in the Medical Faculty of the Diyarbakır Dicle University at the time of the events giving rise to the present application.
6. On 23 March 1995 the applicant was notified by an arrest warrant, which he signed, about the basis and the reasons for his arrest. On the same day he was taken into custody by the police officers from the Anti-Terror Branch of the Diyarbakır Security Directorate (Terörle Mücadele Şubesi) on suspicion of his involvement in the PKK.
7. On 5 April 1995 the police officers drafted a report of the reconstruction of events, which was signed by the applicant.
8. On 9 April 1995 the applicant gave a statement to the police, where he confessed that he had been involved in certain activities for the PKK.
9. On 10 April 1995 he was brought before the judge who ordered his detention on remand.
10. On 13 April 1995 the chief public prosecutor at the Diyarbakır State Security Court filed a bill of indictment with the latter charging the applicant under Article 125 of the Criminal Code with carrying out activities for the purpose of bringing about the secession of part of the national territory.
11. On 3 June 1999 the Diyarbakır State Security Court composed of two civilian judges and a military judge, convicted the applicant of the charges against him and sentenced him to death under Article 125 of the Criminal Code. Taking into account the applicant's behaviour during the trial, the death penalty was commuted to a life sentence. It is to be noted that the Diyarbakır State Security Court held thirty hearings and heard nineteen witnesses.
12. On 21 February 2000 the Court of Cassation upheld the judgment of the Diyarbakır Security Court.
13. On 1 March 2000 the decision of the Court of Cassation was pronounced in the presence of the applicant's lawyer.
14. On 25 April 2000, the Court of Cassation dismissed the applicant's request for rectification of decision.
15. A full description of the domestic law may be found in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71527
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: HAAS v. GERMANY
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Mark Villiger
TEXT: The applicant, Monika Haas, is a German national, who was born in 1948 and lives in Frankfurt/Main, Germany. She is represented before the Court by Mr Gerhard Strate and Mr Klaus-Ulrich Ventzke, two lawyers practising in Hamburg.
The respondent Government are represented by Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In the early seventies, the Red Army Fraction (Rote Armee Fraktion - “RAF”), a left-wing extremist terrorist movement, was founded in Germany. Its members intended to destroy the public order of the Federal Republic of Germany by terrorist action, in particular murder, attacks with explosives and the taking of hostages, in order to bring about a radical change of German society. Following a series of attacks in 1972, several “RAF” members were arrested. Three founding members, Andreas Baader, Gudrun Ensslin and Jan-Carl Raspe, were sentenced to life imprisonment in April 1977.
As early as 1975, the “RAF” had launched terrorist attacks for the liberation of detained members. In April 1975, hostages were taken at the German Embassy in Stockholm. In April 1977, the Federal Public Prosecutor (Generalbundesanwalt) Siegfried Buback was shot. In July 1977, an attempt to kidnap a member of the management of the Dresdener Bank, Jürgen Ponto, failed and he was shot. In August 1977, “RAF” members tried to attack the building of the Federal Public Prosecutor’s Office.
On 5 September 1977 members of the “RAF” kidnapped Dr HannsMartin Schleyer, a German industrialist and President of the German Employers’ Association, in Cologne; his driver and three policemen were killed immediately.
On 13 October 1977 four members of a “Special Command” (“PFLPSC”) of the Popular Front for the Liberation of Palestine (“PFLP”) with headquarters first in Damascus and later in Lebanon, hijacked the Lufthansa aircraft Landshut on a flight from Palma de Mallorca to Frankfurt/Main. The hijackers threatened to kill their 82 hostages and to blow up the aircraft if their demands for the liberation of eleven “RAF” members detained in Germany and two “PFLP” members imprisoned in Turkey were not met. They forced the pilot to change destination and the plane subsequently landed in Rome, Cyprus, Bahrain, Dubai and Aden, where the leader of the hijackers shot the captain of the aircraft for alleged disobedience. The aircraft then left for Mogadishu, Somalia, on 17 October 1977. On 18 October 1977, shortly after midnight, the hostages were liberated by members of a special unit (“GSG 9”) of the German Federal Border Police. Three of the hijackers were killed and the fourth, a woman, was seriously injured. The terrorists shot at two members of the “GSG 9” and seriously injured them. Two hostages were injured by a hijacker. All remaining hostages, who had been subjected to continued threats to their lives throughout the kidnapping, survived.
Following the failure of the hijacking, Mr Schleyer was killed by “RAF” members. The three “RAF” founding members detained in StuttgartStammheim prison committed suicide in the morning of 18 October 1977.
In April 1992 the “RAF” announced in a written declaration that they would suspend the attacks on representatives of the State and the economy.
In 1996 the surviving fourth hijacker was convicted of, inter alia, murder, the taking of hostages, kidnapping, attack on air traffic and attempted murder. She was sentenced to twelve years’ imprisonment.
On 20 March 1992, the applicant was arrested by the German police following an arrest warrant issued by the Investigating Judge of the Federal Court of Justice on that same day. She was suspected, in connection with the 1977 hijacking of the Lufthansa aircraft Landshut, of having acted as an accomplice to an attack on air traffic and the taking of hostages. Furthermore, she was suspected of having aided and abetted the kidnapping of Mr Schleyer. The applicant was taken into detention on remand. She was released on 5 May 1992, when the arrest warrant was quashed. Following further investigations, the applicant was again arrested on 7 November 1994.
In the criminal proceedings against her, the applicant was assisted by several defence counsel.
On 16 May 1995, the General Public Prosecutor at the Federal Court of Justice preferred the indictment against the applicant, charging her, in connection with the Landshut hijacking, of having acted as an accomplice of acts of kidnapping, attack on air traffic, extortion, murder and attempted murder, and, in connection with the kidnapping of Mr Schleyer, of having aided and abetted kidnapping, extortion and homicide.
On 16 November 1998, the Frankfurt/Main Court of Appeal, following numerous hearings between 9 May 1996 and 16 November 1998, convicted the applicant of having aided and abetted an attack on air traffic, the taking of hostages, extortionate kidnapping and attempted murder on two counts in connection with the Landshut hijacking. As regards the kidnapping of Mr Schleyer, the Court of Appeal found that the applicant’s intent to aid and abet this offence had not been proved. She was sentenced to five years’ imprisonment.
In its long and detailed decision, the Court of Appeal, having regard to the applicant’s personal background, noted in particular that the applicant had sympathised with the “RAF” and had participated in shooting trainings in one of the military training camps of the “PFLP” in Aden, South Yemen. The applicant had confirmed that she was known as “Amal” there, had married a leading “PFLP” member under Yemenite law and had lived there between 1976 and 1980, together with their son, born in 1967, and their daughter, born on 17 July 1977.
The Court of Appeal found that on 25 September 1977 two “RAF” members, witnesses Mr B. and Ms M., had taken a flight to Baghdad to meet members of the “PFLP-SC” in order to prepare the Landshut hijacking. They had accepted the offer of the “PFLP-SC” to support their terrorist activities for the liberation of “RAF” members by hijacking a German aircraft. The leader of the “PFLP-SC” had then instructed the applicant and Said S., a “PFLP” member, to bring the weapons and the explosives needed for the hijacking to Palma de Mallorca. The applicant had received the weapons and the explosives in Algiers on 7 October 1977 or shortly before. On 7 October 1977, she had taken a plane, together with Said S. and her daughter, to Palma de Mallorca, transporting the weapons and the explosives in her cabin baggage. She had then handed over the material to a Palestinian called Jamal.
The Court of Appeal based its findings as to the applicant’s participation in the offences essentially on the evidence given by Said S.
The court observed that Said S. could not be questioned at the trial, as he was serving a prison sentence in Beirut. The Lebanese authorities had refused to transfer him to Germany for the purposes of the proceedings, even though the Investigating Judge at the Federal Court of Justice had given the assurance of safe conduct (sicheres Geleit).
The Court of Appeal therefore relied on the depositions of the witnesses Mr W. and Mr S., officers of the Federal Office of Criminal Investigations. They had been present together with an interpreter when Said S. had been questioned by the Lebanese police on 5, 6 and 10 March 1997 in the course of preliminary investigations of the German prosecution authorities against himself and the applicant’s husband.
According to Mr W. and Mr S., Said S. had initially denied having participated in the Landshut hijacking or having any knowledge thereof, as well as having been engaged in any other terrorist acts of the “PFLP”. On his first day of questioning, Said S. had been very nervous and had given the impression that he was not telling the truth. During the second questioning, he had asked for some days of reflection. At his third interrogation, Said S., who had appeared relieved and calm, had announced that he would tell the full truth. He had admitted that he had been a member of the “PFLP” since 1975. Furthermore, he had stated that in 1977, two weeks before the Landshut hijacking, the leader of the “PFLP-SC” had instructed him to travel to Algeria together with a West German woman called “Amal” in order to transport weapons from Algiers to Palma de Mallorca. In Algiers, “Amal” had received weapons and explosives, hidden in a radio and in candy boxes. These weapons had been destined for hijacking an aircraft. About one week before the Landshut hijacking, he had travelled with “Amal”, accompanied by her daughter, from Algiers to Palma de Mallorca with an Iranian passport issued to “Kamal Sarvati”. “Amal” had transported the weapons in her cabin baggage. In Mallorca she had handed this material over to a Palestinian called “Jamal”. They returned by plane to Baghdad via Paris the following day.
Regarding the use in evidence of Said S.’s statements, the Court of Appeal considered that, on the basis of the clear and concurring statements of witnesses W. and S. and the letters rogatory issued by the General Public Prosecutor, it was established that Said S. had been informed by the Lebanese police officers about his rights as an accused under German law, namely to remain silent and to request the taking of specific evidence for his defence. The Court of Appeal further found that no unlawful means had been used to obtain Said S.’s statements. According to witnesses W. and S., the Lebanese authorities had no interest of their own in these investigations, and there had been nothing to suggest that Said S. had been ill-treated or threatened or that promises had been made. Moreover, there was no indication that the statements made by Said S. had been the result of leading questions.
Recalling that a cautious approach was required in assessing statements of a witness who had not been heard at the trial and to whom the parties to the proceedings could not put any questions, the Court of Appeal found that Said S.’s statements as to “Amal’s”, i.e. the applicant’s, participation in the hijacking were credible. In this respect, the Court of Appeal took into account that the witnesses W. and S. had given an account of Said. S.’s demeanour during the interrogations under letters rogatory and had been able to put questions to him, and that Said S. was not an anonymous witness.
Furthermore, the Court of Appeal found that witness Said S., when heard again under letters rogatory by the Beirut Regional Court in the course of this trial on 27 October 1997, had confirmed having travelled from Algier to Palma de Mallorca in October 1977 together with a German woman. He had, however, denied that they had transported any weapons. The court considered that the records of his questioning could be read out at the trial as the witness, who was still serving a prison sentence in Lebanon, was out of reach. The fact that the public prosecutor, the applicant and her defence counsel had had no opportunity to attend the questioning did not exclude the use in evidence of Said S.’s statements. According to the Court of Appeal, the foreign procedural rules had to be observed in the first place, which in the instant case did not require the presence of the parties to the present proceedings at the questioning. In its letters rogatory, the Court of Appeal had informed the Beirut Regional Court that under German law, the parties to the proceedings were entitled to attend such a questioning and had invited it to notify it of the date of the questioning, should such presence be possible under Lebanese law. Nevertheless, bearing in mind the limitations on the rights of the defence, the Court of Appeal decided not to consider these statements as evidence which could stand on its own. It noted, however, that Said S. had no reason wrongfully to incriminate both himself and the applicant.
The Court of Appeal argued that the discrepancies between Said S.’s statements at this hearing as opposed to his submission at his hearing in March 1997 had occurred because the Lebanese court had not sufficiently confronted the applicant with his earlier statements. This was attributable to the fact that the parties to the proceedings had not been allowed to attend this questioning. However, a further hearing of Said S. under letters rogatory, as requested by the applicant, or further investigations to obtain evidence as to the circumstances in which Said S.’s statements had been made were not called for. Only Said S.’s hearing in person at the trial would have been suitable to rebut the evidence already obtained at that stage.
Furthermore, the Court of Appeal found that other important evidence confirmed Said S.’s statements.
Thus witness P., a high-ranking official of the German Intelligence Service, had indicated that already on 22 November 1977 the Intelligence Service had been notified by an informer that three persons using the names “Kamal Sarvati”, “Cornelia Christina Trubendorffer” and “Nicole”, born on 17 July 1977 (the date of birth of the applicant’s daughter), had travelled from Algiers to Palma de Mallorca on 7 October 1977. The two adults were associated with terrorist organisations. P. had refused to disclose the identity of the informer or the documents concerned. The Court of Appeal noted that its requests addressed to the Intelligence Service and the Federal Ministry for the Interior for disclosure of these sources and documents had been refused for good reasons, namely, the necessity to protect life and limb of persons who were not within German jurisdiction. It accepted the authorities’ argument that notably the applicant’s husband, a former leading member of the “PFLP” whom the applicant had kept informed about the proceedings against her, was still capable of organising assassinations of or acts of revenge against witnesses incriminating the applicant.
Moreover, witness G., a high-ranking official of the Federal Office for Criminal Investigations, had stated that in 1980 a reliable informer had identified the applicant as “Amal” on photographs. Another informer had notified the Federal Office for Criminal Investigations that a woman called “Amal” had travelled with a “PFLP” member and a baby from Algiers to Palma de Mallorca, and had also known the false names and the numbers and origin of the passports used by them. Subsequent investigations had shown that the passport carried by “Amal”, issued to “Cornelia Vermaesen, born Trubendorffer”, had been stolen in the Netherlands and that the passport used by Said S. was a fake of the same type as the passports later used by the hijackers. The informer in question had identified the applicant on photographs as “Amal” and as the person transporting the weapons and explosives. Witness G. had stated that he was not entitled to disclose the identity of the informers. The Court of Appeal’s requests to the Office for Criminal Investigations and the Federal Ministry for the Interior for disclosure of the identity of its informers equally remained unsuccessful. Both authorities invoked the need to protect live and limb of their informers for the same reasons as those given with respect to the informer whose statements were reported by witness P.
The Court of Appeal noted that the statements made by Said S. and the evidence supplied by anonymous informers were further corroborated by the results of investigations into the passenger lists of the flights from Algiers to Palma de Mallorca on 7 October and from Palma de Mallorca to Paris-Orly on 8 October 1977. These lists contained references to the false names used by Said S., the applicant and her daughter. The Court of Appeal equally took into account evidence of the applicant’s and Said S.’s stay at a hotel in Palma de Mallorca. It had regard to bills bearing the names “Vermaesen” and “Kamal”, and to explanations given by the managing director of the hotel who had indicated that one of his employees had remembered that a man with an Arab name accompanied by a European woman and a small child had stayed at the hotel at the relevant time.
As far as the number and types of weapons and explosives used were concerned, the Court of Appeal had heard several witnesses and had regard to photographs contained in the file, showing inter alia the radio serving as a hiding place for the weapons, which had been found in the aircraft.
Moreover, the Court of Appeal took into account the applicant’s own statement that Said S. had been a member of the “PFLP” and had been on Mallorca some days prior to the Landshut hijacking together with the surviving hijacker.
As to the applicant’s defence, the Court of Appeal found that there was nothing to show that she had not left Aden at the relevant time, in particular that her young child had been seriously ill. Furthermore, witness B., the “RAF” member who had met “PFLP” members in Baghdad at the end of September and in the beginning of October 1977, had stated that he had seen the applicant in Baghdad. The Court of Appeal, in concluding that B.’s depositions were credible, had notably regard to the consistency of his statements, the detailed account of his meeting with the applicant and the fact that as a former “RAF” member, he did not have reasons to incriminate the applicant wrongfully. The statements made by Ms S. and Ms M., two “RAF” members, and by the applicant’s son to the effect that they had not seen the applicant leaving Aden and being in Baghdad did not refute B.’s depositions.
In the Court of Appeal’s view, the applicant had strong motives to participate in the hijacking, especially since her husband had played a leading role in organising it. Moreover, since 1974 she had assisted, as a “RAF” sympathiser, the eleven “RAF” members detained in Germany.
On 11 February 2000, the Federal Court of Justice, following an oral hearing, dismissed the applicant’s appeal on points of law. It noted that the Court of Appeal had found the applicant’s participation in the offences in question to be established by the statements made by Said S. in the course of his interrogation by the Lebanese police in the presence of German police officers. Said S. had confirmed in substance these depositions when he was questioned under letters rogatory by the Beirut Regional Court. His statements had been confirmed by numerous other items of evidence, such as material obtained from informers, passenger lists and hotel bills, as well as statements made by the former “RAF” member B.
As regards the applicant’s complaint about the use in evidence of the oral testimony of witnesses P. and G., the Federal Court of Justice found that there was no breach of Article 6 §§ 1 and 3 (d) of the Convention due to the fact that the informers themselves could not be questioned. It considered that the Court of Appeal had correctly taken a cautious approach in assessing this evidence and had merely considered it as corroborating the statements of witness Said S. and other items of evidence.
Moreover, referring to the case-law of the European Court of Human Rights (in particular van Mechelen v. the Netherlands, judgment of 23 April 1997), the Federal Court of Justice considered that, unlike the said case, the present case did not concern statements made by anonymous police officers. The informers who had remained anonymous were obviously persons operating abroad in cooperation with the German authorities to combat international terrorism. These persons and their families were particularly exposed to the risk of acts of revenge by terrorist organisations and would be generally endangered if identified. In any event, their depositions had not been the basis for the applicant’s conviction, but merely corroborating evidence. The Court of Appeal’s cautious approach in assessing the evidence obtained from anonymous informers had counterbalanced the limitations on the rights of the defence. In particular, the Court of Appeal had not only examined whether the authorities’ refusal to disclose the informers’ identities had been arbitrary or obviously erroneous, but had also reached the conclusion that in substance the authorities’ decisions had been reasonable and convincing.
According to the Federal Court of Justice, the applicant’s complaint that the Court of Appeal had examined witness B. on oath was well-founded. In this respect, it noted that there was no indication in the trial record or in the reasoning of the judgment that the Court of Appeal had considered that, on account of his possible participation in the offences concerned, Mr B. should not have been administered an oath (Section 60 no. 2 of the Code of Criminal Procedure; see ‘Relevant domestic law and practice’ below). However, this procedural flaw was irrelevant for the outcome of the proceedings. In its detailed assessment of the evidence, in particular of B.’s credibility, the Court of Appeal had not mentioned that B. had been administered an oath. Therefore, it could be excluded that the Court of Appeal had found the witness more credible due to the fact that he had made his statements on oath.
On 3 April 2000, the applicant lodged a complaint with the Federal Constitutional Court, alleging that the criminal proceedings against her, in particular the taking and assessment of the key evidence for the prosecution, had been unfair.
On 25 July 2000, the Frankfurt/Main Court of Appeal ordered that the remainder of the applicant’s prison sentence be suspended on probation. It found that the applicant, having regard to the length of her detention on remand, had already served half of her prison sentence. It fixed a probationary period of three years.
On 20 December 2000, a panel of three judges of the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.
The Federal Constitutional Court found that the examination of the complaint was not necessary for the protection of the applicant’s constitutional rights. The impugned decisions could not be objected to from a constitutional point of view, although the application of the procedural rules resulting in the applicant’s conviction might be seen as close to the borderline of what could be accepted under the Constitution. There was no indication of arbitrariness.
Referring to its own case-law, to the case-law of the European Court of Human Rights and to decisions of the Federal Court of Justice, the Federal Constitutional Court recalled that statements obtained from informers who had not been heard at the trial were, as a rule, not sufficient for a judge to reach a final conclusion as to the truth of this information. That information had to be corroborated by other important aspects and indices. The trial court had to be particularly cautious where, as in the present case, informers of police authorities or intelligence services could not be heard in court for the sole reason that the authorities concerned had refused to disclose their identity or to authorize their officers testifying in court to give evidence in this respect.
The Federal Constitutional Court found that in the present case there was an accumulation of hearsay evidence which did not directly relate to the facts to be established, but consisted of circumstantial evidence pointing to such facts. However, the trial court’s assessment and evaluation of evidence had not been confined to the depositions of the police officers W. and S. concerning the highly incriminating statements made by the accomplice Said S. and to information obtained from police and intelligence service informers operating abroad, as presented by the witnesses P. and G. Further important circumstantial evidence was the testimony of witness B. His statements showed that the applicant’s assertion that she had not been in Baghdad at the relevant time was wrong, thereby confirming the depositions made by Said S.
Therefore, the Federal Court of Justice’s view that the criminal proceedings against the applicant, taken as a whole, had not been unfair within the meaning of Article 6 §§ 1 and 3 (d) of the Convention, was unobjectionable, at least from a constitutional point of view.
The decision was served on 22 February 2001.
Pursuant to the provisions of the Code of Criminal Procedure, a witness shall be examined in person at the main hearing if the proof of a fact in issue is based on that person’s observation. In principle, the witness’s examination may not be replaced by reading out the record of a previous examination or by reading out a written statement (Section 250 of the said Code). According to the constant case-law of the Federal Court of Justice, Section 250 permits the hearing of witnesses giving hearsay evidence. In particular, it is possible to hear a police officer on evidence obtained from an informer whose attendance at the hearing cannot be secured.
As an exception to the above-mentioned principle, the examination of a witness or co-accused may be replaced by reading out the written record of his previous examination by a judge. This is permitted if there are insurmountable impediments preventing the witness or co-accused from attending the main hearing for a long or indefinite period of time (Section 251 no. 2 of the said Code).
Pursuant to Section 60 no. 2 of the said Code, it is prohibited to administer an oath to a witness who is suspected of having participated in the offence which was the subject-matter of his hearing.
The public prosecutor, the defendant and defence counsel have the right to be present at the examination of a witness by a judge outside the main hearing (Section 168c § 2 of the Code of Criminal Procedure). A defendant who is detained and is represented by counsel is only entitled to be present at hearings of witnesses conducted at the court of the place where he is in custody (Section 168c § 4 of the said Code).


ITEMID: 001-60336
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF VASILOPOULOU v. GREECE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13;Violation of P1-1;No violation of Art. 14;Just satisfaction reserved
JUDGES: Françoise Tulkens
TEXT: 6. The applicant, a widow of an appeal-court judge, applied for a readjustment of her pension. On 4 December 1995 the State General Accounting Department turned her application down. In its decision the State General Accounting Department stated that any benefit paid to judges in service in any manner whatsoever, does not constitute an increase in their basic salary and cannot be taken into consideration for the calculation of the retirement pension or an adjustment of this pension. The applicant appealed to the Court of Audit.
7. On 9 September 1997 the Court of Audit upheld her appeal considering that she was entitled to an additional pension of 103,800 drachmas (GRD) per month for the period between 1 December 1991 and 31 December 1995 (judgment No. 1636/97). The court ordered the State to pay the applicant immediately the money owed for the period between 1 December 1991 and 30 June 1993. Moreover, the State was to pay the applicant on 1 April 1998 the money owed for the period between 1 July 1993 and 30 April 1994, on 1 April 1999 the money owed for the period between 1 May 1994 and 31 March 1995 and on 1 April 2000 the money owed for the period between 1 April 1995 and 31 December 1995.
8. The decision was served on the Minister of Finance on 9 October 1997. Because the State did not appeal within one year, the decision of the Court of Audit became final on 19 September 1998 as provided by domestic law.
9. In the meantime, on 27 June 1997 Law No. 2512/1997 was enacted. Section 3 of that statute interpreted Law No. 2320/1995 and provided that the scales established by various ministerial decisions could not be applied to the calculation of the judge’s retirement pensions. Furthermore, any claim based on that statute was statute-barred, any pending judicial proceedings set aside and any sum paid out, other than pursuant to a final judgment, had to be refunded.
10. In a judgment of 17 December 1997 the Court of Audit, sitting as a full court, held that Section 3 of the above-mentioned statute was unconstitutional and contrary to Article 6 of the Convention.
11. However, the authorities refused to pay the applicant the additional pension as specified in the above decision.
12. By a decision No. 71320 of 30 June 2000 the Minister of Finance ordered that all judgments of the Court of Audit whereby retirement pensions had been adjusted should be enforced. The decision provides for the payment of the additional pensions for the period 1 December 1991 to 31 December 1995 by way of seven six-monthly instalments without interest in the form of State bonds. The sums are to be paid to the interested parties upon submission of a declaration certifying that they have not already received any other payment in this respect and that they will not raise any other similar claim for the above-mentioned period.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 14


ITEMID: 001-76718
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MEHMET ALİ GÜNDÜZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 6. The applicant was born in 1931 and lives in İzmit.
7. On 18 November 1981 the General Directorate of National Water Board (Devlet Su İşleri Genel Müdürlüğü) seized and later expropriated three plots of land belonging to the applicant for the construction of a dam. A committee of experts assessed the value of the plots and the relevant amount was deposited with a bank in the name of the applicant on 23 June 1982. However, the expropriation order and the document containing the information about the compensation were not served on the applicant.
8. On 1 May 1998 the applicant filed an action with the Akyaka Civil Court requesting compensation for seizure without an official expropriation (kamulaştırmasız el koyma). The court established that although the applicant was not notified, a de facto expropriation had taken place.
9. After conducting two on-site visits and taking two separate sets of expert reports into consideration, the court established what the then-current value of land would have been had the expropriation not taken place. On 14 October 1999 it awarded the applicant a corresponding in additional compensation plus interest at the statutory rate running from 1 May 1998, the date of the applicant's filing of that case. As the compensation amount was based on the then-current value of the land, and not on its 1981 value, the court rejected the applicant's request to run the interest from the date of the seizure.
10. On 10 October 2000 the Court of Cassation upheld the judgment. On 8 February 2001 the same court rejected a request for rectification.
11. On 24 October 2001 the due amount was paid to the applicant.
12. The relevant domestic law and practice are set out in the case of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997IV, §§ 13-16).


ITEMID: 001-75837
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SKARE v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1939 and lives in Zagreb.
5. On 17 July 1991 the Government adopted a decree forbidding any transactions with the immovable property situated in Croatia and belonging to the former Yugoslavia’s federal institutions or legal entities having seat in one of its former federal units (Uredba o zabrani raspolaganja nekretninama na teritoriju Republike Hrvatske – “the Decree”, Official Gazette no. 36/1991). The Decree entered into force on 24 July 1991 and was to remain in force pending the process of succession of the former Yugoslavia.
6. In the period between 1993 and 1999 the Decree was challenged on five occasions by various petitioners in abstract constitutional review proceedings. The Constitutional Court refused all the petitions finding that the Decree had not been in breach of the Constitution.
7. In the period between July 1991 and April 1994, starting with the decree of 31 July 1991, the Government adopted several successive decrees forbidding transactions with other property that had remained in Croatia and belonging to the legal entities having seat in one of the former Yugoslavia’s federal units. Eventually, on 24 March 1994 Parliament passed an act of the same content (Zakon o zabrani raspolaganja i preuzimanju sredstava određenih pravnih osoba na teritoriju Republike Hrvatske – “the Act”, Official Gazette nos. 29 and 35/1994).
8. The applicant was working as a professor at the former Military Academy in Zagreb.
9. On 13 and 16 August 1991, the Zagreb Garrison of the Yugoslav People’s Army (“the YPA”), issued two decisions granting the applicant the right to occupy a flat in Zagreb of 99.35 square metres that was owned by the YPA. He was also obliged to give back a flat of 51.56 square metres that had previously been awarded to him by the YPA, in which he had been living with his wife and two children until then.
They still live in the last-mentioned flat.
10. On 11 September 1992 the applicant brought a civil action against the State in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking to use the flat granted to him by the above-mentioned YPA decisions.
11. On 5 October 1992 the Municipal Court dismissed the applicant’s claim. It found that the YPA decisions had no legal effect since they had been issued contrary to the peremptory rules of the Decree.
12. The applicant appealed to the Zagreb County Court (Okružni sud u Zagrebu), which on 2 March 1993 quashed the first-instance judgment for incomplete facts and remitted the case.
13. In the resumed proceedings, on 7 March 1995 the Zagreb Municipal Court again dismissed the applicant’s claim repeating its previous findings. The applicant again appealed.
14. On 30 December 1996 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the applicant’s appeal and upheld the first-instance judgment.
15. The applicant then lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske). On 18 May 2000 the Supreme Court dismissed the applicant’s appeal on points of law.
16. On 20 November 2000 the applicant lodged a constitutional complaint against the Supreme Court’s decision with the Constitutional Court (Ustavni sud Republike Hrvatske).
17. Before dealing with the applicant’s complaint, the Constitutional Court decided first to examine three petitions for constitutional review (prijedlog za ocjenu ustavnosti) directed against the Decree and the Act – which, in the Government’s view, constituted the relevant substantive law applicable to his case. The Constitutional Court dismissed the two petitions against the Decree on 18 July and 28 December 2001, respectively. On 12 April 2002 it dismissed the petition against the Act.
18. At the Constitutional Court’s panel meeting held on 30 June 2004 the rapporteur informed his colleagues that, meanwhile, a new case had been assigned to him raising apparently the same legal issues as that of the applicant. The rapporteur therefore withdrew the case from the agenda. Subsequently, it was established that no such similarity had existed as it initially appeared.
19. On 6 April 2005 the Constitutional Court dismissed the applicant’s constitutional complaint. It observed obiter dictum that it could not deal with the applicant’s argument that the Decree had been adopted ultra vires, since that issue could be examined only in abstract constitutional review proceedings, and not in those concerning a constitutional complaint.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1