ITEMID: 001-107087
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SINGARTIYSKI AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 11
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 7. The applicants were born respectively in 1953, 1964, 1951, 1960 and 1956, and live in Musomishta, Koprivlen, Sandanski and Blagoevgrad.
8. All five of them are members and followers of the United Macedonian Organisation Ilinden – Party for Economic Development and Integration of the Population (“UMO Ilinden – PIRIN”), a political party founded in 1998 and based in southwestern Bulgaria (in an area known as the Pirin region or the geographic region of Pirin Macedonia). The party was declared unconstitutional by the Constitutional Court on 29 February 2000 and as a result dissolved. In a judgment of 20 October 2005 this Court found that the party’s dissolution had been in breach of its and its members’ right to freedom of association (see United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria, no. 59489/00, 20 October 2005). The party apparently has links with the United Macedonian Organisation Ilinden (“UMO Ilinden”), an association also based in southwestern Bulgaria and advocating similar ideas (ibid., §§ 912, and Ivanov and Others v. Bulgaria, no. 46336/99, § 10, 24 November 2005).
9. On 6 March 2007 the applicants notified the Mayor of Sandanski that UMO Ilinden – PIRIN intended to organise a rally on Sunday 22 April 2007, first at the grave of Yane Sandanski near the Rozhen Monastery and then in front of his monument in the town of Melnik. The programme of the event, which was to take place between 10 a.m. and 4 p.m., included the laying of wreaths on the grave between 10 and 11 a.m. and the singing of folk songs in front of the monument between 11 a.m. and 4 p.m.
10. In a letter to the applicants of 18 April 2007 the Mayor of Sandanski allowed the rally, specifying that the laying of wreaths had to take place between 10 and 11 a.m. and the musical programme between 11 a.m. and 12 noon.
11. On the same date the Regional Governor of Blagoevgrad, acting of his own motion and relying on section 32(2) of the Administration Act and Article 93 § 4 of the Code of Administrative Procedure (see paragraph 24 below), annulled the Mayor’s letter. He reasoned that it amounted to an administrative decision, creating legal rights for UMO Ilinden – PIRIN, and that it was unlawful. Firstly, the organisation was not registered; on the contrary, in February 2007 the Supreme Court of Cassation had upheld the Sofia City Court’s judgment turning down its request to be registered as a political party (see UMO Ilinden – PIRIN and Others v. Bulgaria (no. 2), no. 41561/07, §§ 819, 18 October 2011). Since it was accordingly unlawful under Bulgarian law, it had no standing to give notice of its intention to hold a rally. Secondly, the proposed rally would put public order at risk. Both the Rozhen Monastery and Melnik were places visited by many tourists, especially on Sundays. It was therefore inappropriate to allow the staging of rallies there. Moreover, rallies and meetings were being organised at those locations at the same time by the local authorities and non-governmental organisations. As clashes between supporters of UMO Ilinden – PIRIN and others had taken place in the past, it was necessary to ban its rally. Finally, the activities of the organisation were contrary to Bulgarian law, as they consisted in propaganda against the country’s sovereignty and territorial integrity and aroused national and ethnic hatred. The Governor specified that his decision was to be served on the Mayor of Sandanski for execution. It was not served on UMO Ilinden – PIRIN or on any of the applicants.
12. On 20 April 2007 the members of the managing board of UMO Ilinden – PIRIN, as well as the first and second applicants, Mr Singartiyski and Mr Bezev, were summoned by the police. They were issued orders under section 55 of the 2006 Ministry of Internal Affairs Act (see paragraph 27 below) not to organise or take part in the rally in front of Yane Sandanski’s grave near the Rozhen Monastery.
13. On the same day the third applicant, Mr Stoychev, was told by telephone by an employee of the local branch of the National Electricity Company that no electrical power would be provided for the rally in Melnik, as it had been banned by order of the regional governor.
14. On 21 April 2007 a number of drivers of buses hired to transport the participants to the rally in Melnik informed the fourth applicant, Mr Evtimov, that they could not provide the requested service. Mr Evtimov then approached a number of travel agencies in Blagoevgrad, all of which advised him that the police had apprised them of the regional governor’s decision and that they would not provide transportation for fear of suffering negative consequences. Mr Evtimov eventually managed to hire four buses in a nearby village.
15. Similar transportation problems were experienced by persons from the towns of Petrich and Razlog who wished to attend the rally.
16. The parties’ accounts of the events of 22 April 2007 differed somewhat.
17. According to the Government, on the morning of that day the transport police carried out routine checks of some of the motor vehicles transporting people to the rally. As the police found certain irregularities, they sanctioned individual drivers and then allowed the buses to proceed to Melnik. After that both UMO Ilinden – PIRIN and UMO Ilinden were able to go ahead with the events planned by them, respectively in Melnik and near the Rozhen Monastery. As required by law, the police dispatched forces to ensure public order during the events. At about 10.30 a.m. a group of about fifty supporters of UMO Ilinden laid a wreath and flowers at Yane Sandanski’s grave. UMO Ilinden’s chairman made a short speech, and then the rally continued with a musical programme. No breaches of public order were noted. UMO Ilinden – PIRIN was not allowed to hold a rally in front of the Rozhen Monastery. A compromise solution was reached with the organisation to hold the rally in Melnik. At about 12 noon approximately two hundred members and supporters of UMO Ilinden – PIRIN gathered in front of Yane Sandanski’s monument in Melnik. They laid a wreath and flowers. Then the organisation’s leaders made short speeches about his life and work; in the Government’s view, most of those speeches contained insults against the Bulgarian people and State. There were also a number of negative remarks against the police, threats of violence against the Regional Governor and insults against the chairperson of the National Assembly, the Prime Minister and other highranking politicians. The musical programme continued after the allotted time slot. The police did not allow drunk individuals to breach public order. Journalists from “the former Yugoslav Republic of Macedonia” interviewed the leaders of UMO Ilinden and UMO Ilinden – PIRIN and a number of supporters.
18. The applicants started by pointing out that two events took place on 22 April 2007. The first was the one which their organisation, UMO Ilinden – PIRIN, held in Melnik, in front of Yane Sandanski’s monument. The other was the one held by UMO Ilinden – a similar but separate organisation – at Yane Sandanski’s grave near the Rozhen Monastery. UMO Ilinden – PIRIN’s members and supporters, including the applicants, were not able to approach the Monastery as originally planned because they were stopped en route by the police. They were allowed to drive only to Melnik. They could not tell whether members and supporters of UMO Ilinden had been allowed to hold a rally near the Monastery.
19. The applicants further stressed the difference between the way in which UMO Ilinden – PIRIN intended to conduct the rally and the way in which it actually unfolded. The original plan was to proceed in the manner described in paragraph 9 above. As a result of the Regional Governor’s decision and the ensuing actions of the police, UMO Ilinden – PIRIN’s members and supporters were able to go only to Melnik. On their way there, four buses carrying participants in the rally from Blagoevgrad were stopped several times by the police, who carried out lengthy checks of the drivers’ and the vehicles’ papers and imposed penalties for purported violations of the traffic rules. Buses with participants travelling from Gotse Delchev to Melnik were also stopped by the police three times, for about one hour each time. The third applicant, Mr Stoychev, who was travelling by car, was also stopped by the police, told that the rally was unlawful, and forced to throw away a wreath which he was carrying.
20. Upon their arrival in Melnik the applicants saw that Yane Sandanski’s monument was surrounded by about fifty or sixty police officers, who prevented the participants in the rally from laying a wreath, only allowing them to lay flowers individually. The officers also forced the participants to take away ribbons with the inscription “For Yane – from grateful Macedonians” and did not let them make speeches in front of the monument. At about 2 p.m. the officers advised the bus drivers that if they did not leave Melnik in one hour they would be fined.
21. The applicants were adamant that no agreement on how to proceed with the rally was ever made between them and the authorities, and that, contrary to what was asserted by the Government, they did not agree to any changes to their original plan. They also pointed out that the Government’s allegations that participants in the rally had made offensive speeches and had acted in a disorderly manner were not supported by any evidence.
22. The relevant provisions of the 1991 Constitution and the 1990 Meetings and Marches Act are set out in paragraphs 4851 of the Court’s judgment in the case of Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (nos. 29221/95 and 29225/95, ECHR 2001IX), in paragraphs 7276 of the Court’s judgment in the case of United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (no. 44079/98, 20 October 2005) and in paragraphs 2428 of the Court’s judgment in the case of Ivanov and Others v. Bulgaria (cited above). For the purposes of the present case, particular mention needs to be made of section 12(6) of the 1990 Act, which provides for a possibility to seek judicial review of a mayoral ban of a rally, and directs the court hearing such an application to determine it by means of a final decision not later than five days after it has been referred to it.
23. Under section 31(1) of the 1998 Administration Act, regional governors (a) carry out governmental policy and coordinate the operations of the branches of central government in their respective regions; (b) seek to achieve a balance between national and local interests and interact with the local authorities; (c) are responsible for safeguarding State property in their respective regions; (d) uphold legality in their regions and supervise the enforcement of administrative decisions; (e) control the lawfulness of the decisions and the actions of local authorities; (f) coordinate and control the operations of the territorial branches of ministries and other central authorities, as well as the enforcement of their decisions; (g) organise civil defence; (h) preside the regional security councils; and (i) carry out the region’s international contacts.
24. Under Article 93 § 4 of the 2006 Code of Administrative Procedure, all mayoral decisions may be challenged before regional governors. Under section 32(2) of the 1998 Administration Act, regional governors may annul unlawful mayoral decisions. Their decisions to do so are subject to judicial review (section 32(3) of the Act).
25. Regional governors’ decisions, like all administrative decisions, are subject to judicial review by the competent regional administrative courts (Article 132 §§ 1 and 2 of the 2006 Code of Administrative Procedure), whose judgments are appealable before the Supreme Administrative Court (Article 208 of the Code).
26. Article 127 § 1 of the Code provides that the administrative courts must rule on each application within a reasonable time. Article 172 § 1 of the Code requires the court to deliver its judgment not later than one month after the last hearing in the case.
27. Under section 55(1) of the 2006 Ministry of Internal Affairs Act, the police may, if necessary for the performance of their duties, issue orders to individuals or organisations. Those orders are binding unless they obviously impose the commission of an offence (section 55(4)). Section 55(5) provides that such orders, when issued in writing, are subject to judicial review in accordance with the provisions of the Code of Administrative Procedure.
28. Section 1(1) of the 1988 State Responsibility for Damage Caused to Citizens Act (on 12 July 2006 its name was changed to “State and Municipalities Responsibility for Damage Act” – hereinafter “the 1988 Act”) provides that the State is liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants committed in the course of or in connection with the performance of their duties.
29. The Committee of Ministers concluded the examination of application no. 44079/98 (United Macedonian Organisation Ilinden and Ivanov v. Bulgaria) and application no. 46336/99 (Ivanov and Others v. Bulgaria) on 8 June 2011, by adopting Resolution CM/ResDH(2011)46, which reads, in so far as relevant:
“The Committee of Ministers, ...
Recalling that the violations of the Convention found by the Court in these cases concern the infringement of the freedom of assembly of organisations which aim to achieve “the recognition of the Macedonian minority in Bulgaria” due to prohibitions of their meetings between 1998 and 2003 (violation of Article 11) and the lack of effective remedies to complain against these prohibitions (violation of Article 13) (see details in Appendix);
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of
– individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
– general measures preventing similar violations;
Having noted that two other applications presently pending before the European Court concern allegations relating to bans or to the holding of certain meetings of the applicants initially scheduled between March 2004 and September 2009;
Having considered, without prejudging the judgment the Court could deliver in respect of these applications, that in view of the positive trend observed concerning the holding of the applicants’ meetings in particular since 2008 and the absence of complaints from them as regards 2010, no further individual measure seemed required in these cases;
Having also examined the general measures and in particular the awarenessraising measures taken by the Bulgarian authorities to ensure that applicable domestic law is interpreted in conformity with the Convention and thus to prevent violations similar to that found by the European Court (see details in Appendix);
Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and
DECIDES to close the examination of these cases.”
VIOLATED_ARTICLES: 11


ITEMID: 001-90234
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KHURSHID MUSTAFA AND TARZIBACHI v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary and non-pecuniary damage - award
JUDGES: Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicants, a married couple of Iraqi origin, were born in 1957 and 1963 respectively and live in Västerås. They have three children, who are now eighteen, sixteen and eight years of age.
6. From 1 November 1999 they rented a flat in Rinkeby, a suburb of Stockholm. Rule 13 of the special provisions of the tenancy agreement stipulated the following:
“The tenant undertakes not to erect, without specific permission, placards, signs, sunblinds, outdoor aerials and such like on the house.”
The agreement further stipulated, as a general condition, that the tenants were obliged to take proper care of the flat and to maintain good sanitary conditions, order and good practice in the house.
7. It appears that when the applicants moved in, there was a satellite dish mounted on the façade, next to one of the windows of the flat. The applicants made use of this in order to receive television programmes in Arabic and Farsi.
8. In October 2003 the applicants' landlord changed. The new landlord, a real-estate company, demanded that the satellite dish be dismantled. The applicants did not comply and, by letter of 2 April 2004, the company gave the applicants notice of termination of the tenancy agreement with effect from 31 July 2004.
9. Further, in April 2004, the landlord initiated proceedings before the Rent Review Board (hyresnämnden) in Stockholm against the applicants and some other tenants who had installed satellite dishes in the same house. The landlord sought execution of the notice of termination, claiming that the applicants' satellite installation violated the express ban in Rule 13 of the tenancy agreement and that, by not complying with the instruction to dismantle the dish, they had failed to maintain good sanitary conditions, order and good practice. Stating that it objected only to satellite dishes mounted on or outside the façade of the house, while allowing, for instance, dishes placed on a balcony, the landlord claimed that the ban on such installations was of considerable importance as the installations a) risked causing injuries to persons and property for which the landlord would be held responsible, b) damaged the house physically and aesthetically and c) obstructed rescue workers' and the landlord's access to the flat.
10. Shortly after having received the notice of termination, the applicants dismantled the satellite dish. However, in its place they installed a new device by placing on the kitchen floor an iron stand from which an arm, on which the satellite dish was mounted, extended through a small open window. The installation could be pulled back into the kitchen when not being used. At the request of the Tenants' Association, an engineer, Mr S. Tornefelt, examined the installation on 26 August 2004. He found that it was very stable but recommended that, for safety reasons, a steel wire be fixed between the dish and the stand. The applicants made the recommended addition.
11. The applicants, as well as the other tenants summoned, contested the landlord's claims before the Rent Review Board. They stated that, by mounting satellite dishes for the reception of television programmes, some of which were broadcast in their mother tongues, they were exercising their freedom to receive information, as protected by the Swedish Constitution, Article 10 of the Convention and EC law. The landlord's interests, as provided for in Chapter 12, section 25 of the Land Code (Jordabalken), had to be balanced against this freedom. The applicants further claimed that they had now complied with the landlord's demand that the earlier satellite installation be dismantled. The new installation was, they claimed, in conformity with the rules of the tenancy agreement. Referring to Mr Tornefelt's opinion, they further maintained that it was safe and did not damage the house.
The landlord submitted, in addition to what it had previously stated, that it was working on the possibility of installing broadband and internet access in the house, which would allegedly give access to the desired television channels.
12. Following an inspection of the applicants' satellite installation, the Rent Review Board gave a decision on 21 October 2004 finding in their favour. The Board noted in general that the assessment of whether tenants had failed to comply with their obligations by mounting satellite dishes had to involve the balancing of the interests of the landlord – which could be more or less strong depending on how the actual installations had been made – and the interests of the tenants in using a satellite dish – which could also vary depending on whether there were alternative means of receiving the television channels in question. In the applicants' case, the Board found that the fact that the new satellite installation extended through a window did not involve a breach of Rule 13 of the tenancy agreement. With regard to the general obligation to maintain good sanitary conditions, order and good practice in the house, the Board considered that the actual installation did not and could not damage the house. Moreover, the landlord's liability for damage to persons and property could not reasonably be incurred unless it were able to prevent the mounting and use of the satellite dish, which was not the case if the Board found that the landlord had no right to such prevention. Moreover, having regard to Mr Tornefelt's opinion and its own inspection, the Board considered that the risk of damage caused by the installation was negligible. Nor could it not find any evidence that the installation would obstruct rescue workers' access to the flat. The only inconvenience for the landlord was the aesthetic aspect. However, the applicants' interest in being able to watch television programmes that were not accessible by other available means weighed more heavily, and the satellite installation could not therefore be considered as contrary to good sanitary conditions, order and good practice.
13. The landlord appealed to the Svea Court of Appeal (Svea hovrätt). The court held an oral hearing at which, inter alia, Mr Tornefelt gave evidence. It also made an inspection of the applicants' satellite installation. By a final decision of 20 December 2005, the court found that the applicants had disregarded their obligations as tenants, under the tenancy agreement and Chapter 12, section 25 of the Land Code, to such a degree that the agreement should not be extended, pursuant to Chapter 12, section 46, subsection 1(2) of the Code. They were given a respite until 31 March 2006 to move from the flat. The court found that the landlord had made a reasonable distinction between acceptable and unacceptable satellite installations and had submitted weighty reasons for prohibiting dishes mounted on the façade or otherwise extending outside of it. It noted that the evidence showed that the applicants' dish was virtually always positioned outside the kitchen window and thus constituted a permanent installation, and concluded, contrary to the findings of the Rent Review Board, that its placement breached Rule 13 of the tenancy agreement. In assessing the seriousness of this breach of contract, the court first concluded, with reference to Mr Tornefelt's testimony, that the satellite installation met the reasonable requirements of stability and safety. However, noting that the landlord's main reason for not allowing the installation was the safety aspect, the court considered that the landlord was entitled to make general risk assessments and should not have to determine whether an individual installation was unsafe or inconvenient. It went on to state that, while the applicants' interest in receiving the broadcasts of the television channels in question had to be taken into consideration and that it was desirable that technical solutions for such reception be found, the right to freedom of information relied on did not have such a bearing on the case that it could be considered to have any real importance. It noted, finally, that the applicants had been fully aware of the importance that the landlord attached to the issue of the placement of satellite dishes and of the consequences that could follow from a refusal to comply with the landlord's instructions in this respect. Although their satellite installation did not pose any real safety threat, their interests could not be allowed to override the weighty and reasonable interest of the landlord that order and good custom be upheld.
14. The landlord offered the applicants the option of staying in their flat if they agreed to remove the satellite dish. They did not agree to do this, however, and instead moved on 1 June 2006. They have stated that, largely because of the scarcity of flats for rent in the Stockholm area but also due to there being a court eviction order against them, they were forced to move to Västerås, approximately 110 km west of Stockholm. As a consequence, the first applicant now had much longer and costlier trips to and from work and the applicants' three children had had to change nursery and school and leave friends.
15. The renting of a flat is regulated primarily in Chapter 12 of the Land Code.
16. Section 2 provides that a tenancy agreement shall be in writing if the landlord or the tenant so request. In the event that a provision in the agreement is difficult to interpret, it is in practice ultimately interpreted to the disadvantage of the person who formulated the agreement. As it is almost always the landlord who draws up the tenancy agreement, the landlord has to take the responsibility for an agreement that is difficult to interpret. In most cases, landlords use standard agreements, the content of which is the result of negotiations between rental market organisations.
17. Section 3 contains provisions for the term and cancellation of tenancies. A tenancy agreement which is applicable for an indefinite period, as in the present case, must be cancelled for it to cease to apply. According to section 4, an indefinite tenancy agreement can be cancelled and thus cease to apply on the first day of the month following three months' notice. Section 8 provides that, in a case such as the present, a notice of cancellation shall be in writing and comply with certain rules governing service.
18. Section 23 provides, inter alia, that a tenant may not use the flat for a purpose other than that intended. Under section 24, the tenant is under an obligation to take good care of the flat. In general, he or she shall take care of it in a way that can be reasonably expected of an orderly person. Further, the tenant is liable to make good all damage caused by his or her carelessness or negligence.
19. Section 25 contains provisions on disturbances and demands on the tenant for keeping the flat sound, orderly and in good condition. Subsection 1 provides:
“When using the flat, the tenant shall ensure that persons living in the vicinity are not subjected to disturbances which may be harmful to their health or otherwise impair their dwelling environment to an extent not reasonably tolerable ... . In his use of the flat, the tenant shall also in other respects do all that is necessary to keep the property sound, orderly and in good condition. ...”
Disturbances and failure to meet those requirements may result in the tenancy agreement being forfeited under section 42.
Special provisions and regulations can be included in the tenancy agreement. A tenant's refusal to abide by such provisions and regulations may also constitute a failure to fulfil the requirements for keeping the flat sound, orderly and in good condition.
20. It follows from section 46 that if the landlord has given notice of cancellation of the tenancy agreement, the tenant may still be entitled to have the agreement extended. However, subsection 1 of section 46 lists a number of situations in which the tenant loses the right to renewal. The first situation, laid down in subsection 1(1), is the forfeiture of the tenancy. Section 42 stipulates the conditions in which a tenancy agreement is deemed to be forfeited, including residential disturbances and failure to keep the flat sound, orderly and in good condition. The second situation, regulated in subsection 1(2), was relied on by the landlord and applied by the Court of Appeal in the present case. It concerns the tenant's neglect of their obligations. If the obligations are neglected to such an extent that it is not reasonable for the tenancy agreement to be extended, the tenant may lose the right to such renewal.
The preparatory works to the latter provision state that the requirements of orderliness must be high in order to make it possible for the landlord to maintain the property in good order and condition (SOU 1961:47, pp. 84-85). The interests of the landlord shall be weighed against the reasonableness of the tenancy being terminated. Distressing personal circumstances may be taken into account. The possibility of another flat in the same area should also be considered (Government Bill 1968:91, Appendix A, p. 91).
Examples of negligence are, for example, failure to pay rent, subletting without permission, refusing to grant the landlord access to the flat, depositing rent without valid reasons, residential disturbances, a failure to keep the flat sound, orderly and in good condition, and a breach of clauses in the tenancy agreement.
21. A large number of tenancy disputes are examined by the eight regional rent review boards, whose task it is, under section 4 of the Lease Review Boards and Rent Review Boards Act (Lagen om arrendenämnder och hyresnämnder, 1973:1988), to examine disputes concerning, for example, the terms of a tenancy and disputes relating to the renewal of a tenancy agreement. A decision by a Rent Review Board in a renewal dispute, as in the present case, can be appealed to the Svea Court of Appeal, in accordance with the Land Code, Chapter 12, section 70 in conjunction with section 49. No appeal lies against the court's decision, as provided for in section 10 of the Svea Court of Appeal Rent Cases Judicial Procedure Act (Lagen om rättegången i vissa hyresmål i Svea hovrätt, 1994:831).
22. Chapter 1, section 3, subsection 3 of the Constitutional Law on Freedom of Expression (Yttrandefrihetsgrundlagen) states the following:
“Subject to any contrary provision of this Constitutional Law neither public authorities nor other public bodies shall prohibit or prevent the possession or employment of such technical aids as are necessary to receive radio programmes or to view or hear the content of technical recordings on grounds of the content of a radio programme or technical recording,.The same shall apply to any ban on the construction of landline networks for the transmission of radio programmes.”
23. Chapter 2, section 1, subsection 1 of the Instrument of Government (Regeringsformen) provides, inter alia, as follows:
“Every citizen shall be guaranteed the following rights and freedoms in his relations with the public institutions:
1. freedom of expression: that is, the freedom to communicate information and express thoughts, opinions and sentiments, whether orally, pictorially, in writing, or in any other way;
2. freedom of information: that is, the freedom to procure and receive information and otherwise acquaint oneself with the utterances of others;
...”
Section 12 provides that the enumerated rights and freedoms may be restricted only to satisfy a purpose acceptable in a democratic society. The restriction may never go beyond what is necessary having regard to the purpose which occasioned it, nor may it be carried so far as to constitute a threat to the free formation of opinion as one of the fundaments of democracy. Furthermore, no restriction may be imposed solely on grounds of a political, religious, cultural or other such opinion. Under section 13, freedom of expression and information can only be restricted on grounds of national security, national provision of supplies, public order and safety, the good name of an individual, the sanctity of private life, and the prevention and prosecution of crime. Freedom of expression may also be restricted in commercial activities.
24. The Constitutional Law on Freedom of Expression and the Instrument of Government apply to the relationship between individuals and public bodies. They do not apply to relationships between individuals.
VIOLATED_ARTICLES: 10


ITEMID: 001-22643
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: DAHLAB v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Lucia Dahlab], a Swiss national born in 1965, is a primary-school teacher and lives in Geneva (Switzerland). She was represented before the Court by Mr M. Lironi and Mr C. Aellen, both of the Geneva Bar.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was appointed as a primary-school teacher by the Geneva cantonal government (Conseil d’Etat) on 1 September 1990, having taught at Châtelaine Primary School in the Canton of Geneva since the 1989-90 school year.
After a period of spiritual soul-searching, the applicant abandoned the Catholic faith and converted to Islam in March 1991. On 19 October 1991 she married an Algerian national, Mr A. Dahlab. The marriage has produced three children, born in 1992, 1994 and 1998.
The applicant began wearing an Islamic headscarf in class towards the end of the 1990-91 school year, her intention being to observe a precept laid down in the Koran whereby women were enjoined to draw their veils over themselves in the presence of men and male adolescents.
The applicant went on maternity leave from 21 August 1992 to 7 January 1993 and from 12 January 1994 to 1 June 1994.
In May 1995 the schools inspector for the Vernier district informed the Canton of Geneva Directorate General for Primary Education that the applicant regularly wore an Islamic headscarf at school; the inspector added that she had never had any comments from parents on the subject.
On 27 June 1996 a meeting was held between the applicant, the Director General of Primary Education (“the Director General”) and the head of the teaching-personnel department concerning the fact that the applicant wore a headscarf. In a letter of 11 July 1996 the Director General confirmed the position she had adopted at the meeting, requesting the applicant to stop wearing the headscarf while carrying out her professional duties, as such conduct was incompatible with section 6 of the Public Education Act.
In a letter of 21 August 1996 the applicant requested the Director General to issue a formal ruling on the matter.
On 23 August 1996 the Directorate General for Primary Education confirmed its previous decision. It prohibited the applicant from wearing a headscarf in the performance of her professional duties on the grounds that such a practice contravened section 6 of the Public Education Act and constituted “an obvious means of identification imposed by a teacher on her pupils, especially in a public, secular education system”.
On 26 August 1996 the applicant appealed against that decision to the Geneva cantonal government.
The cantonal government dismissed the appeal in an order of 16 October 1996, on the following grounds:
“Teachers must ... endorse both the objectives of the State school system and the obligations incumbent on the education authorities, including the strict obligation of denominational neutrality...
The clothing in issue ... represents ..., regardless even of the appellant’s intention, a means of conveying a religious message in a manner which in her case is sufficiently strong ... to extend beyond her purely personal sphere and to have repercussions for the institution she represents, namely the State school system.”
On a public-law appeal lodged by the applicant on 25 November 1996, in which she had alleged a violation of Article 9 of the Convention and submitted that the prohibition on wearing a headscarf interfered with the “inviolable core of her freedom of religion”, the Federal Court upheld the Geneva cantonal government’s decision in a judgment of 12 November 1997, which was served on 18 November 1997.
It held, in particular:
“Firstly, it should be observed that the appellant’s main argument is that her clothing, consisting of items that may be purchased at the hypermarket, should be treated not as a religious symbol but in the same way as any other perfectly inoffensive garments that a teacher may decide to wear for his or her own reasons, notably for aesthetic reasons or in order to emphasise or conceal part of his or her anatomy (a scarf around the neck, a cardigan, a hat, etc.). She accordingly submits that the impugned decision is tantamount to prohibiting teachers, without sufficient justification, from dressing as they please.
However, there is no doubt that the appellant wears the headscarf and loose-fitting clothes not for aesthetic reasons but in order to obey a religious precept which she derives from the following passages of the Koran.
...
The wearing of a headscarf and loose-fitting clothes consequently indicates allegiance to a particular faith and a desire to behave in accordance with the precepts laid down by that faith. Such garments may even be said to constitute a ‘powerful’ religious symbol – that is to say, a sign that is immediately visible to others and provides a clear indication that the person concerned belongs to a particular religion.
What is in issue, therefore, is the wearing of a powerful religious symbol by a teacher at a State school in the performance of her professional duties. No restrictions have been imposed on the appellant as regards her clothing when she is not teaching. Nor does the case concern the wearing of a religious attribute by a pupil or the wearing of outlandish or unusual clothing with no religious connotations by a teacher at school.
...
Similarly, by Article 9 § 2 of the European Convention on Human Rights, freedom to manifest one’s religion or beliefs may be subject to restrictions (see the European Court of Human Rights’ judgment of 25 May 1993 in the case of Kokkinakis v. Greece, Series A no. 260-A, § 33, and Frowein and Peukert, Europäische Menschenrechtskonvention, 2nd ed., 1996, note 1 on Article 9, p. 368). Conversely, freedom of thought is absolute; since it cannot by nature give rise to any interference with public order, it is not subject to any restrictions (see Velu and Ergec, La Convention européenne des droits de l’homme, Brussels, 1990, note 714, p. 584).
In the instant case, even if it is particularly important to the appellant and does not merely represent an expression of a particular religious belief but complies with an imperative requirement of that belief, the wearing of a headscarf and loose-fitting clothes remains an outward manifestation which, as such, is not part of the inviolable core of freedom of religion.
...
3. The appellant maintains that the impugned order does not have a sufficient basis in law.
...
Serious interferences with constitutional freedoms must be clearly and unequivocally provided for, as to their substance, by a law in the strict sense (ATF [Arrêts du Tribunal fédéral suisse], vol. 122 I, p. 360, ground 5(b)(bb), at p. 363, and vol. 118 Ia, p. 305, ground 2(a), at pp. 309-10). However, where interference with freedom of conscience and belief results from a rule of conduct that is very specific or would be regarded by the average citizen as being of minor importance (in this case, prohibiting a teacher from wearing a headscarf at school), the requisite basis in law cannot be too precise. In such circumstances it is sufficient for the rule of conduct to derive from a more general obligation laid down by the law in the strict sense.
Furthermore, the decision appealed against concerns the appellant in her capacity as a civil servant of the Canton of Geneva. Civil servants are bound by a special relationship of subordination to the public authorities, a relationship which they have freely accepted and from which they benefit; it is therefore justifiable that they should enjoy public freedoms to a limited extent only. In particular, the legal basis for restrictions on such freedoms does not have to be especially precise. The manifold, varying nature of daily relations between a civil servant and the authority to which he or she is answerable means that it is impossible to lay down an exhaustive list of types of conduct to be restricted or prohibited. It is therefore sufficient for the law to give a general indication, by means of indeterminate legal concepts, of the values which must be adhered to and which may subsequently be made explicit in an order or in an individual decision. However, as to their substance, any restrictions on public freedoms must be justified by the aim pursued and by the proper functioning of the institution. Lastly, observance of the principles of public interest and proportionality is to be monitored all the more rigorously where the interference with the civil servant’s interests is serious and the basis in law imprecise (ATF, vol. 120 Ia, p. 203, ground 3(a), at p. 205; vol. 119 Ia, p. 178, ground 6(b), at p. 188; vol. 101 I a, p. 172, ground 6, at p. 181; SJ [La Semaine Judiciaire], 1995, p. 681, ground 3; ZBl [Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht] 85/1984, p. 308, ground 2(b); Pierre Moor, Droit administratif, Berne, vol. III, 1992, note 5.1.2.3., pp. 213-14, and note 5.3.1.2., pp. 223-24; vol. I, 1994, note 4.2.4.5., pp. 362 et seq.; Thomas Wyss, Die dienstrechtliche Stellung des Volksschullehrers im Kanton Zürich, thesis, Zürich, 1986, pp. 224 et seq.; Paul Richli, ‘Grundrechtliche Aspekte der Tätigkeit von Lehrkräften’, in PJA [Pratique juridique actuelle] 6/93, pp. 673 et seq., in particular p. 677).
In Geneva, section 6 of the cantonal Public Education Act of 6 November 1940 provides: ‘The public education system shall ensure that the political and religious beliefs of pupils and parents are respected’. It also follows from Articles 164 et seq. of the cantonal Constitution that there is a clear separation between Church and State in the canton, the State being secular (Ueli Friederich, Kirchen und Glaubensgemeinschaften im pluralistischen Staat, thesis, Berne, 1993, p. 239, and Häfelin, op. cit. [Commentaire de la Constitution fédérale], notes 26-27 on Article 49). In the education system, this separation is given practical effect by section 120(2) of the Public Education Act, which provides: ‘Civil servants must be lay persons; derogations from this provision shall be permitted only in respect of university teaching staff’.
In the instant case the measure prohibiting the appellant from wearing a headscarf that clearly identified her as a member of a particular faith reflects an increasing desire on the part of the Geneva legislature, as expressed in the provisions cited above, to ensure that the education system observes the principles of denominational neutrality (cf. Article 27 § 3 of the Constitution) and of separation between Church and State. Accordingly, even if the impugned order entailed serious interference with the appellant’s freedom of religion, it had a sufficient basis in law.
...
4. (a) The appellant further submits that there were no public-interest grounds for the impugned decision.
In displaying a powerful religious attribute on the school premises – indeed, in the classroom – the appellant may have interfered with the religious beliefs of her pupils, other pupils at the school and the pupils’ parents. Admittedly, there have been no complaints from parents or pupils to date. But that does not mean that none of them has been affected. Some may well have decided not to take any direct action so as not to aggravate the situation, in the hope that the education authorities will react of their own motion. Moreover, the matter has caused a stir among the public, the appellant has given numerous interviews and the Grand Council [cantonal parliament] has passed a resolution along the same lines as the decision taken by the cantonal government. In addition, while it is true that the education authorities did not intervene by taking a decision immediately after the inspector had informed them of the appellant’s clothing, that attitude should not be construed as implicit approval. It is understandable that the authorities should first have attempted to settle the matter without resorting to confrontation.
The impugned decision is fully in accordance with the principle of denominational neutrality in schools, a principle that seeks both to protect the religious beliefs of pupils and parents and to ensure religious harmony, which in some respects is still fragile. In this connection, it should be noted that schools would be in danger of becoming places of religious conflict if teachers were allowed to manifest their religious beliefs through their conduct and, in particular, their clothing.
There are therefore significant public-interest grounds for prohibiting the appellant from wearing an Islamic headscarf.
(b) It remains to be determined whether the impugned order observes the principle of proportionality; the interests at stake must be weighed up with the utmost care (Häfelin, op. cit., note 139 on Article 49).
Here, the appellant’s freedom of conscience and belief should be weighed against the public interest in ensuring the denominational neutrality of the school system; in other words, the appellant’s interest in obeying a precept laid down by her faith should be set against the interest of pupils and their parents in not being influenced or offended in their own beliefs, and the concern to maintain religious harmony in schools. Lastly, regard must also be had to the need for tolerance – a further element of the principle of denominational neutrality – between members of different religious faiths...
It should, however, be emphasised at the outset that religious freedom cannot automatically absolve a person of his or her civic duties – or, as in this case, of the duties attaching to his or her post (ATF, vol. 119 Ia, p. 178, ground 7(a), at p. 190). Teachers must tolerate proportionate restrictions on their freedom of religion (Hafner, La liberta religiosa chiede la tolleranza per i simboli religiosi, J+P Text 2/95, note III/D4, p. 9; Thomas Wyss, op. cit., p. 232).
(aa) Before the points in issue are examined in greater detail, it may be helpful to consider the solutions adopted by other countries in identical cases or by the Federal Court in similar cases.
...
Freedom of conscience and belief requires the State to observe denominational and religious neutrality; citizens may assert individual rights in this domain (ATF, vol. 118 Ia, p. 46, ground 3(b) at p. 53, and ground 4(e)(aa) at p. 58; vol. 113 Ia, p. 304, ground 4c at p. 307). There may be an infringement of freedom of religion where the State unlawfully takes sides in religious or metaphysical disputes, in particular by offering financial support to one of the protagonists (ATF, vol. 118 Ia, p. 46, ground 4(e)(aa) at p. 58). However, the neutrality requirement is not absolute, as is illustrated by the fact that national churches recognised by public law are allowed to exist (ATF, vol. 118 Ia, p. 46, ground 4(e)(aa) at p. 58; vol. 116 Ia, p. 252, ground 5(d) at pp. 258-59). Neutrality does not mean that all religious or metaphysical aspects are to be excluded from the State’s activities; however, an attitude that is anti-religious, such as militant secularism, or irreligious does not qualify as neutral. The principle of neutrality seeks to ensure that consideration is given, without any bias, to all conceptions existing in a pluralistic society. The principle that the State may not discriminate in favour of or against anybody on religious grounds is general in scope and results directly from Articles 49 and 50 of the Constitution (ATF, vol. 118 Ia, p. 46, ground 4(e)(aa) at p. 58; Karlen, ‘Umstrittene Religionsfreiheit’, op. cit. [in Revue du droit suisse (‘RDS’) 1997 I, p. 193] at pp. 199-200; idem, Das Grundrecht [der Religionsfreiheit in der Schweiz], op. cit. [Zürich, 1988], p. 188). Lastly, the secular nature of the State entails an obligation to remain neutral, which means that in all official dealings it must refrain from any denominational or religious considerations that might jeopardise the freedom of citizens in a pluralistic society (ATF, vol. 116 Ia, p. 252, ground 5(e) at p. 260, and the references cited). In that respect, the principle of secularism seeks both to preserve individual freedom of religion and to maintain religious harmony in a spirit of tolerance (see Gut, op. cit. [‘Kreuz und Kruzifix in öffentlichen Räumen im säkularen Staat’, in RDS 1997 I, p. 63], note 11 at p. 76; and Martin Philipp Wyss, op. cit. [‘Glaubens- und Religionsfreiheit zwischen Integration und Isolation’, in ZBl 95/1994, p. 385], at pp. 400-01).
This neutrality assumes particular importance in State schools, because education is compulsory for all, without any distinction being made between different faiths. In this respect, Article 27 § 3 of the Federal Constitution, according to which ’it shall be possible for members of all faiths to attend State schools without being affected in any way in their freedom of conscience or belief’, is the corollary of freedom of conscience and belief.
...
Accordingly, the attitude of teachers plays an important role. Their mere conduct may have a considerable influence on their pupils; they set an example to which pupils are particularly receptive on account of their tender age, their daily contact with them – which, in principle, is inescapable – and the hierarchical nature of this relationship. Teachers are both participants in the exercise of educational authority and representatives of the State, which assumes responsibility for their conduct. It is therefore especially important that they should discharge their duties – that is to say, imparting knowledge and developing skills – while remaining denominationally neutral.”
After a lengthy discussion of the scope of the neutrality requirement, the Federal Court concluded as follows:
“(cc) In the instant case, on the one hand, as was outlined above, prohibiting the appellant from wearing a headscarf forces her to make a difficult choice between disregarding what she considers to be an important precept laid down by her religion and running the risk of no longer being able to teach in State schools.
On the other hand, however, the headscarf is a manifest religious attribute in this case. Furthermore, the appellant teaches in a primary school; her pupils are therefore young children who are particularly impressionable. Admittedly, she is not accused of proselytising or even of talking to her pupils about her beliefs. However, the appellant can scarcely avoid the questions which her pupils have not missed the opportunity to ask. It would seem somewhat awkward for her to reply by citing aesthetic considerations or sensitivity to the cold – the approach she claims to have adopted to date, according to the file – because the children will realise that she is evading the issue. It is therefore difficult for her to reply without stating her beliefs. However, the appellant participates in the exercise of educational authority and personifies school in the eyes of her pupils; as a result, even if other teachers from the same school display different religious views, the manifestation of such an image of oneself appears hard to reconcile with the principle of non-identification with a particular faith in so far as her status as a civil servant means that the State must assume responsibility for her conduct. Lastly, it should be emphasised that the Canton of Geneva has opted for a clear separation between Church and State, reflected in particular by the distinctly secular nature of the State education system.
It must also be acknowledged that it is difficult to reconcile the wearing of a headscarf with the principle of gender equality (see Sami Aldeeb, ‘Musulmans en terre européenne’, in PJA 1/96, pp. 42 et seq., in particular section (d) at p. 49), which is a fundamental value of our society enshrined in a specific provision of the Federal Constitution (Article 4 § 2) and must be taken into account by schools.
Furthermore, religious harmony ultimately remains fragile in spite of everything, and the appellant’s attitude is likely to provoke reactions, or even conflict, which are to be avoided. When the various interests at stake are weighed up, regard must also be had to the fact that allowing headscarves to be worn would result in the acceptance of garments that are powerful symbols of other faiths, such as soutanes or kippas (in this connection, the principle of proportionality has led the cantonal government to allow teachers to wear discreet religious symbols at school, such as small pieces of jewellery – an issue that does not require further discussion here). Such a consequence might undermine the principle of denominational neutrality in schools. Lastly, it may be observed that it is scarcely conceivable to prohibit crucifixes from being displayed in State schools and yet to allow the teachers themselves to wear powerful religious symbols of whatever denomination.”
Section 6 of the Canton of Geneva Public Education Act of 6 November 1940 provides:
“The public education system shall ensure that the political and religious beliefs of pupils and parents are respected.”
Section 120(2) of the Public Education Act provides:
“Civil servants must be lay persons; derogations from this provision shall be permitted only in respect of university teaching staff.”
Article 27 § 3 of the Federal Constitution of 29 May 1874 reads:
“It shall be possible for members of all faiths to attend State schools without being affected in any way in their freedom of conscience or belief.”


ITEMID: 001-118722
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF MEHMET ŞENTÜRK AND BEKİR ŞENTÜRK v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
TEXT: I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1966 and 1993 respectively, and live in Bayraklı/İzmir.
A. The circumstances surrounding the death of Mrs Menekşe Şentürk
6. On Saturday 11 March 2000, at about 10.30 a.m., Mrs Menekşe Şentürk, wife of Mehmet Şentürk (“the first applicant”) and mother of Bekir Şentürk, who was then thirty-four weeks pregnant, went to the Karşıyaka Public Hospital with her husband because she was experiencing pain. She was examined by a midwife, G.E., who decided that Mrs Şentürk was not yet at the end of her term and that there was no point calling a duty doctor to examine her.
7. The first applicant then drove his wife to the İzmir Public Hospital Nevval Salih Alsancak İşgören (“Alsancak Public Hospital”), where they arrived between 11 and 11.30 a.m. Mrs Şentürk was examined by a midwife, A.Y., who, noting that the applicant’s wife was not yet at the end of her term and that there were no complications, did not call the duty gynaecologist for an examination.
8. In view of his wife’s continued pain, the first applicant drove her to the Atatürk Research and Teaching Hospital, where they arrived at about 2 p.m. Mrs Şentürk was examined by Dr F.B., an assistant doctor in the emergency department, then transferred to the urology department, where she was examined by Dr Ö.Ç., a urologist. He diagnosed renal colic, prescribed medication, decided to administer an analgesic and advised her to come back for a consultation after she had given birth.
9. As his wife’s pain did not lessen on returning home, the first applicant drove her that evening to the Ege University Medical Faculty Hospital. There, she was initially examined by Dr S.A.A., an emergency doctor, then transferred to the gynaecology and obstetrics department, where she was placed in the care of a team of doctors. After conducting an ultrasound scan, they established that the child she was carrying had died and that immediate surgery was necessary to remove the child. She was then informed that hospitalisation and surgery had to be paid for, and that a deposit of 600 or 700 million Turkish lira was to be paid into the hospital’s operating fund. As the first applicant stated that he did not have the requested sum, his wife could not be hospitalised.
The emergency doctor, Dr S.A.A., arranged for the first applicant’s wife to be transferred to the İzmir (Konak) Gynaecology and Obstetrics Hospital in a private ambulance in which no medical staff were present.
10. Mrs Şentürk died at about 11 p.m. while being transferred by ambulance.
B. The investigation by the Ministry of Health
11. Between 26 October and 23 November 2000, the investigation committee at the Ministry of Health conducted an investigation into the circumstances of Mrs Şentürk’s death, in the course of which the following persons were questioned: the first applicant, the individuals who had accompanied Mrs Şentürk to the hospitals, the members of the medical teams (midwives and doctors) in the various hospitals to which the deceased woman had been taken, and the ambulance driver who had driven her to the İzmir (Konak) Gynaecology and Obstetrics Hospital.
12. On 30 October 2000 statements were taken, inter alia, from two midwives working at the Karşıyaka district medical centre where Mrs Şentürk was monitored throughout her pregnancy. Their witness statements indicated that Mrs Şentürk had gone to the centre on 3 March 2000 for a check-up; the child’s heartbeat had not been heard, as a result of which the midwives advised her to go to a hospital as soon as possible for an ultrasound scan.
13. On 31 October 2000 a statement was taken from G.E., the midwife at Karşıyaka Public Hospital who had examined Mrs Şentürk. Evidence taken on that occasion indicates that she had heard the child’s heartbeat and that the child was alive when she examined the mother. In this connection, she specified that she had listened to the child’s heartbeat with a Doppler foetal monitor, so that it would have been impossible to miss the sound, as this machine provided information on the number of heartbeats per minute. Having decided that Mrs Şentürk’s condition was normal, she had not seen the point of carrying out an ultrasound or having her examined by the duty doctor.
14. On 1 November 2000 a statement was taken from A.Y., midwife at the Alsancak Public Hospital, who stated that she had heard the child’s heartbeat when examining the mother, that the child had been alive at that point and that, having found no complications, she had not requested the on-call duty gynaecologist.
15. On 9 November 2000 statements were taken from T.K., S.A. and Ö.Ö., doctors in the gynaecology and obstetrics department at the Ege University Medical Faculty Hospital, who stated that they had informed the first applicant of the need to remove the child by Caesarean section. They denied having told the patient or her husband that they had to pay 600 or 700 million Turkish lira into the operating fund and said that they did not know who could have done so. They also claimed that they had explained the patient’s situation to the duty specialist, S.Ö., who had not examined her but had seen her, and who had available to him all of the information on her case. Each of them also stated, in particular, that:
“... it was explained to the patient’s husband that the baby was dead and that it was necessary to remove him or her by Caesarean section ... I never said to the patient that she had to pay 600-700 million Turkish lira into the operating fund for this surgery ... I don’t know who said that ... The signature under the note [stating that] hospitalisation was not accepted is that of the patient Menekşe Şentürk ... I never said to the patient and her relative that if they did not pay into the operating fund ... we could not operate on her ... It was the patient herself who refused to be hospitalised, who said that she could not pay this sum and who signed the papers. Her husband took the patient away, saying that he could not accept this cost, that he refused hospitalisation and that he was going to take her to the Konak maternity unit ... My colleagues and I, as a team, explained ... to the husband that it was absolutely essential to remove the baby and that he should not take the patient away, but we were unable to persuade him ...”
In a statement taken on the same date, S.Ö., a gynaecology and obstetrics specialist at the Ege University Medical Faculty Hospital, who had been the duty doctor on the evening in question, said that he had been informed by T.K. about the patient’s situation and had recommended that she be admitted to hospital. He also claimed not to have spoken with the patient’s husband, not to have instructed him to make a contribution to the operating fund, and to have been informed by the team which had examined the patient that hospitalisation had been recommended but refused by her husband.
16. On 23 November 2000 a committee of medical experts issued a report with the following conclusions:
“1. Nurse G.E. examined Menekşe Şentürk and stated that her condition did not necessitate calling the duty doctor. Although this should have been done, the nurse did not feel the need to do so. In such a case, the principle is that patients are to be examined by a specialist doctor, since a nurse does not have a [sufficient] level of knowledge to assess the seriousness of the situation. The nurse should call the specialist for every patient [who comes to the hospital].
2. The midwife and nurse A.Y. did not have sufficient knowledge to make a diagnosis as to the patient’s [condition]. She should have been examined by a specialist. In fact, for a correct diagnosis to be made, all patients who come to a polyclinic should be examined by a specialist.
The duty doctor in the emergency department, F.B., ought to have asked for a KHD [Kadın Hastalıkları ve Doğum – gynaecology and obstetrics] consultation. Only a doctor who examined the patient in this way would have been able to determine whether her symptoms at that time indicated a complication of pregnancy.
The duty urologist, Ö.Ç., examined the patient from a purely urological perspective. However ... he ought to have conducted a general examination and asked for a KHD consultation. Only a doctor who examined the patient in this way would have been able to determine whether her symptoms at that time indicated a complication of pregnancy.
3. In the light of the patient’s clinical symptoms, the specialist duty doctors at the Ege University Medical Faculty Hospital ought to have insisted that she be hospitalised.
4. The presence of medical staff in the ambulance would have made no difference to the outcome.
In the light of the information available to date, the causes of death cannot be truly determined. [This will be possible] in a definite manner after the autopsy, the results of which will enable the [possible] liabilities for negligence of the above-mentioned members of staff to be established with certitude ...
Causes of death: 1. Rupture of the uterus. 2. Embolism of the mesoderm. 3. Detached placenta. 4. Low probability of aggravated pre-eclampsia.”
17. On 24 November 2000, in the light of this expert report and the statements given by the various parties involved, the head inspector of the Ministry of Health drew up a report concluding that the midwives G.E. and A.Y., employed in the Karşıyaka Public Hospital and the Alsancak Public Hospital respectively, had failed in the duties attached to their functions, in that they had sent the patient home in spite of her continuing pain and without having had her examined by a duty doctor. He also considered that doctors F.B. and Ö.Ç., employed at the Atatürk Teaching and Research Hospital, had failed in the duties attached to their functions, in that they had not requested a consultation with a gynaecology and obstetrics specialist, nor indicated to the patient that she should seek such a consultation. Furthermore, the investigation concluded that a complaint report had been drawn up concerning the issue of the liability of T.K., H.V., S.A. and Ö.Ö., doctors in the gynaecology and obstetrics department at the Ege University Medical Faculty Hospital, so that it was not necessary to rule again in their respect. The head inspector reached the same conclusion as to the liability of the impugned ambulance company, and a separate report had been transmitted on this matter to the İzmir Directorate of Health.
The investigation report noted, however, that doctors T.K., H.V., S.A., and Ö.Ö. had failed in their obligations and thus caused, by their negligence, imprudence and lack of experience, the death of Mrs Şentürk. Finally, the committee considered that Dr S.A.A. from the Ege University Medical Faculty Hospital had committed no error in transferring Mrs Şentürk to the gynaecology and obstetrics department.
The report on the findings of the investigation into the events which occurred at the Ege University Medical Faculty Hospital include the following points:
“After her examination in the emergency department ..., Menekşe Şentürk was transferred to the obstetrics department ... Menekşe Şentürk, who was 34 weeks pregnant, was examined by the duty team at the obstetrics department. During the ultrasound carried out by the duty team ..., the child’s heartbeat was not heard and it was ascertained that he or she was dead ... The patient’s relatives [were informed] that it was necessary to remove the child, for the sake of the mother’s health ... However, as the patient’s relatives had stated that they did not have the resources to pay hospital fees ... the duty team did not admit the patient to hospital and transferred her to the İzmir gynaecology and obstetrics hospital in this condition, after obtaining her signature attesting that she was refusing hospitalisation ... Although by law they ought to have dealt with the procedures concerning costs [only] after admitting the patient to hospital, examining her, reaching a diagnosis and providing care [to the patient], it is understood that the doctors failed in their duty by transferring her without treatment, [although she] was in an emergency situation and suffering persistent pain, and thus caused her death.”
Various witness statements were cited in this investigation report. In particular, some of them read as follows:
“Statement by Mehmet Şentürk: ... on Saturday 11 March 2000, at about 10 a.m., I drove my wife ..., who was eight months pregnant, to the emergency department at the Karşıyaka Public Hospital because of the violent pain she was feeling. Our neighbour N.S. was with us ... My wife was examined at the Karşıyaka Public Hospital ... they told me that they could not do anything, that the ultrasound machine was turned off ... [and] that it would be preferable that I drive [her] to the Alsancak Public Hospital ... I drove my wife to the emergency department at the Alsancak Public Hospital at about 11.15 a.m. There, the people in charge of the emergency department ... told me that they were short of staff and that the ultrasound machine was turned off ... the staff on duty then told me to take [her] to another hospital. On hearing that, I took my wife to the Atatürk Yeşilyurt Teaching and Research Hospital ... It was about midday when I accompanied her to the obstetrics department ... The doctor told me to take her to the urology department ... I took her to the urology department. They asked for urological examinations and a renal USG test ... [My wife] waited three or four hours on a stretcher in the emergency department at Atatürk Teaching and Research Hospital. Her pains had become even stronger. On seeing this, I went to see the head of the emergency department. I told him that my wife was feeling very unwell and I asked that she be examined by a doctor from the urology department ... the urologist examined her ... After examining her, he said: “there is still time before the birth, at the moment there is nothing we can do, tell the emergency department to give her painkillers and take her home”, and he issued a prescription ... I said to the doctor that my wife was eight months pregnant and asked him whether the medicines were harmful. He said that it was not necessary to take them all the time, but only if the pain got worse ... Painkillers were administered, but I don’t know what type ... the pain did not go away ... I took [my wife] back home ... it was about 6.30 p.m. when I took her home ... In the evening, at about 8.30 p.m., I saw that my wife’s condition had worsened and, accompanied by Ö.A.G. ..., I drove her to the Ege University Hospital ... The doctor who examined my wife ... told me that the baby had died ... I told him to save my wife ... The doctor told me that I had to pay 600-700 million lira into the operating fund to have the baby removed from the mother by surgery ... I replied that I did not have that amount at that time, but to operate [on my wife] and I would sign a paper [undertaking] to pay. The doctor told me that I had to pay the money ... I asked him to tell me what to do ... They then told me to take her immediately to the Konak maternity hospital ... We called an ambulance ... I asked a woman who was present whether a nurse should accompany [my wife]. She replied “they haven’t sent a nurse” ... We started driving ... We arrived at the Konak Hospital ... the duty staff told me that my wife was dead ... My wife was not cared for with diligence in the hospitals I took her to. If at least an ultrasound had been carried out at the Karşıyaka Public Hospital, the Alsancak Public Hospital or the Atatürk Teaching and Research Hospital, and had I been told that the child was dead, then, given that it was still daytime, I could have got the money together for the operation and saved my wife. I was not informed that my wife had been examined on 3 March 2000 at the Bayraklı medical clinic and that the child’s heartbeat had not been heard ... A day or two before 3 March 2000, she told me that she had twisted her ankle on the last two steps of the staircase and had hit the banister ... but that she was not in pain and did not need to go to the doctor ...
Statement by Ö.A.G.: ... we drove the patient to the emergency department at the Ege Hospital ... One of the doctors told me that her condition was serious. He said to go and pay 700 million lira into the operating fund ... I don’t know the name of that doctor. It was about 10 p.m. at that stage. I had 150 million lira with me. I told the doctor that I had that amount, that I [could] pay it and [could] sign a paper for the remainder ... He said that this would not do, that he could not operate. I insisted that he operate. He refused again. I then asked what [we] should do ... He told us to take her to the Konak maternity hospital. At the same time, he asked us, under duress, to sign a document certifying that we were taking the patient out of hospital of our own free will ...
Statement by Ahmet Y.: ... We took Menekşe Şentürk to the Ege University Hospital at about 9 p.m. They admitted us immediately to the emergency department. A woman doctor examined her ... she told us that the baby was dead ... The doctor told us that the baby had to be removed by emergency surgery ... The doctor said that we had to pay the hospital about 700 million [lira] for the operation. The patient’s husband said that he could not pay the entire amount immediately, that he could pay some of it but would sign a paper and pay later. The doctor said to talk to the cashier’s desk [vezne]. The people at the cashier’s desk told us that we had to pay the entire amount. We then spoke again with the doctor who had examined the patient. We told her that we had not been able to pay all of the money and asked her what we should do. She told us to take the patient immediately to the Konak maternity hospital ...
Statement by S.A.A.: ... Menekşe Şentürk came to the emergency department on 11 March 2000, complaining about stomach pains ... I met the patient ..., [and] carried out an examination ... I sent her to the gynaecology and obstetrics department. About half an hour after being examined in the obstetrics department, the patient came back to the emergency department ... The patient’s husband told me that the obstetrics doctors had informed him that the baby was dead ... and that she had to be hospitalised. I asked why they had not hospitalised her instead of taking her back to the emergency department. The patient’s husband told me that they had been asked to pay fees ... and as he could not pay that amount he wanted to take his wife to the Konak maternity hospital. At this point he was in a state of panic and emotional. I told him calmly that the baby had to be removed immediately from the mother’s stomach, [that he had] to take her back and have the patient hospitalised immediately ... [so that] the child could be removed, otherwise the mother’s life could be in danger ... In spite of what I said, the patient’s husband wrote on the patient’s examination form: “In spite of the doctor’s advice, we have refused hospitalisation” and signed it. I exerted no pressure ... to have this statement written ... The patient’s husband told me that the doctors in the [gynaecology and obstetrics department] had told him that he had to pay a deposit, if my memory serves me correctly, of 400 million lira ...
Statement by M.D., driver from the private ambulance company: ... at about 10.30 p.m. on 11 March 2000 I collected the patient from the obstetrics department and drove her to the emergency department. There, I told the head nurse, S.T., to assign a nurse for the ambulance. She said that that was impossible. Later, I asked the doctor in the emergency department which was transferring the patient if I could have a nurse for the ambulance. But she too said that it was impossible, that the baby was dead in the mother’s stomach and that I had to drive her immediately to the Konak Hospital ... I put the patient in the ambulance ... The patient’s husband got in beside her ... There was no nursing staff in the ambulance ... Before we put her in the ambulance, in front of the Ege Hospital emergency department ..., the patient told me not to take her away ... That must have been about 10.40 p.m. When we arrived at Konak ... I saw that the patient had died ... As I had explained [to her] ..., the reason that there was no nursing staff in our ambulance ... was because our duty nurse was occupied with the transfer of another patient ... The doctors and a nurse at the hospital told me that the patient had been dead on arrival. They told me that they had no morgue and that we ought to take her back to the Ege University morgue ...”
According to the statements as recorded, four doctors from the Ege University Medical Faculty Hospital, namely T.K., S.A., Ö.Ö. and S.Ö., denied having told the applicant or the deceased woman that they would have to pay a sum of money in order for the surgical procedure in question to be carried out.
C. The criminal proceedings brought against the medical staff
1. The proceedings against doctors T.K., H.V., S.A. and Ö.Ö.
18. On 26 February 2001 the management of the Ege University medical faculty opened an investigation in respect of the doctors T.K., H.V., S.A. and Ö.Ö.
19. On 10 September 2001 it decided that there were no grounds for bringing proceedings against those doctors.
20. On 26 August 2002 a committee of investigation, composed of doctors, issued a report concluding that the doctors in question had not committed any error and that, accordingly, there were no grounds for bringing proceedings against them.
21. On 24 October 2002, on the basis of Article 2 of the Convention, Article 3 of the Universal Declaration of Human Rights and Article 17 of the Turkish Constitution, provisions which concern the right to life, the first applicant lodged an objection against that decision. He alleged, inter alia, that the committee ought to have verified the legislation in force and Ege University’s practice in cases requiring emergency hospitalisation where hospital fees could not be paid.
22. On 22 January 2003 the Supreme Administrative Court set aside the conclusions contained in the investigation report. It noted that the committee had not examined which criteria had to be met in hospitals in order to begin treating a patient whose life was in danger and whose condition required urgent medical intervention. It also noted that the committee had not asked for the investigation to be widened to include Dr S.Ö., gynaecology and obstetrics specialist at the Ege University Medical Faculty Hospital, who had been on duty on the night in question, in order to determine his responsibility with regard to the disputed events. It considered that those shortcomings should be addressed.
23. On 23 January 2004, considering that there had been neither negligence nor carelessness on the part of the doctors in question, the investigation committee adopted a new report, concluding that there was no case to answer. It specified that the case file did not make it possible to determine what should be done in medical emergencies requiring hospitalisation where the corresponding fees were not paid.
24. On 25 February 2004, relying on Article 2 of the Convention, Article 3 of the Universal Declaration of Human Rights and Article 17 of the Constitution, provisions concerning the right to life, the first applicant again lodged an objection against those conclusions. He alleged, in particular, that the fact of not including S.Ö. in the investigation proceedings amounted to a failing in that investigation, and asked that Dr S.Ö. be included in the proceedings.
25. On 14 April 2004 the Supreme Administrative Court sent the case back to the Ege University Rector’s Office.
26. On 16 May 2005 the investigation committee adopted a new report, which again concluded that there was no case to answer, in the absence of negligence or carelessness that was imputable to the doctors T.K., H.V., S.A., Ö.Ö. and S.Ö.
27. On 13 June 2005 the first applicant submitted an appeal against those conclusions to the Supreme Administrative Court.
28. On 27 September 2005 the Supreme Administrative Court upheld that appeal, considering that there was sufficient evidence that the accused doctors had committed the acts for which they were criticised. It based this finding on the report drawn up on 20 and 21 May 2004 by the General Medical Council (Yüksek Sağlık Şurası, see paragraph 45 below), stating that the named doctors were four-eighths liable for Mrs Şentürk’s death. It therefore held that they should be subjected to criminal proceedings and transmitted the file to the prosecution service.
29. On 17 November 2005 the İzmir Criminal Court noted that the Supreme Administrative Court had transmitted the case to it directly in the absence of an indictment from the prosecution service, and consequently decided to discontinue the proceedings brought against T.K., H.V., S.A., Ö.Ö. and S.Ö., since the opening of proceedings was subject to the issue of an indictment.
30. On 21 April 2006 the İzmir public prosecutor issued an indictment against doctors T.K., H.V., S.A. and Ö.Ö., calling for their conviction for unintentional homicide (Article 455 § 1 of the Criminal Code).
31. On 11 September 2006 the first applicant applied to intervene in the proceedings, a request which the İzmir Criminal Court granted on the same date.
2. The proceedings against the midwife G.E.
32. By a decision of 1 March 2001, the Karşıyaka District Governor authorised the opening of criminal proceedings against the midwife G.E. for breach of her professional duties.
33. On 25 April 2001 the Karşıyaka public prosecutor indicted the defendant for breach of her professional duties (Article 230 § 1 of the Criminal Code) and called for her conviction.
34. On 23 October 2001 the Karşıyaka Criminal Court acquitted the defendant on the ground that another midwife had also been on duty on the day of the events, and that it had not been established that it was the defendant who had examined the deceased and had sent her home without first calling for a specialist to examine her. The court added that, moreover, even supposing that the defendant was the midwife who had examined Mrs Şentürk and sent her home, the breach in her duties had not been intentional, so that the constituent elements of the offence had not been made out.
35. This judgment became final on 31 October 2001.
36. On 14 June 2005, on the basis of the conclusions in the report by the General Medical Council finding that G.E. was two-eighths liable for his wife’s death (see paragraph 45 below), the first applicant asked that the criminal proceedings against that midwife be reopened.
37. On 12 October 2005 the first applicant applied to join the proceedings against G.E. as a civil party.
38. On 9 March 2006 the Karşıyaka Criminal Court granted the request for reopening of the proceedings and announced the joinder of this case and the proceedings pending before the İzmir Criminal Court (see paragraphs 51 et seq. below). It also decided to submit to the Criminal Division of the Court of Cassation the dispute as to jurisdiction between those two courts.
39. On 12 June 2006 the Court of Cassation decided to join the criminal proceedings in question and named the Karşıyaka Criminal Court as the court with jurisdiction for examining the remainder of the proceedings.
3. The criminal proceedings against A.Y., F.B. and Ö.Ç.
40. On 14 March 2001 the Governor of Konak authorised the opening of proceedings against the midwife A.Y. and the doctors F.B and Ö.Ç.
41. On 12 October 2001 the İzmir public prosecutor charged those individuals with breach of duty (Article 230 § 1 of the Criminal Code) and called for their conviction.
42. On 12 April 2002 the first applicant asked to join the criminal proceedings before the İzmir Criminal Court as a civil party. The court granted that request at the close of a hearing on the same date.
43. On 13 November 2002 the first applicant called for the ambit of the proceedings to be widened, asking in particular for a forensic examination to determine how much time had elapsed between the deaths of the child and of his wife.
44. On 24 February 2003 the İzmir Criminal Court transferred the case file to the General Medical Council, for a decision by it on the defendants’ liability and its extent.
45. On 20 and 21 May 2004 the General Medical Council (Yüksek Sağlık Şurası) adopted a decision, the relevant extracts of which read as follows:
“After examining the case file, documents and evidence, the commission has concluded:
– that midwives G.E. and A.Y., who failed to evaluate correctly the situation after examining the patient and did not call the duty gynaecologist in spite of the patient’s complaints, are two-eighths liable;
– that doctors Ö.Ç. and F.B., who examined the patient solely from the perspective of their area of expertise, although she was 34 weeks pregnant on arrival at the hospital, hypertensive and complaining of severe pain, and who failed to have her examined by an obstetrician, are three-eighths liable;
– that the duty doctors T.K., H.V., S.A. and Ö.Ö., from the Ege University Medical Faculty Hospital, are four-eighths liable for the patient’s death, by having had her transferred, without assistance, to the centre for persons insured with the social security system, on the ground that she had no money, although her condition was not compatible with such a transfer.”
46. On 1 February 2005 the court received the report by the General Medical Council and noted that the defendants’ liability had been established, but not to the extent of eight-eighths.
47. On 14 March 2005 the first applicant referred to the report by the General Medical Council, which had concluded that, in addition to the persons accused in the context of the ongoing proceedings, other doctors working in the Ege University Medical Faculty Hospital had been found to be liable, and asked, in consequence, that indictments be issued in respect of those persons.
48. At the close of the hearing on 17 March 2005, the İzmir Criminal Court transferred the case file to the public prosecutor with a view to the adoption of a supplementary indictment against the defendants on the basis of Article 455 of the Criminal Code.
49. On 25 March 2005 the İzmir public prosecutor issued a supplementary indictment with a view to charging the defendants with unintentional homicide (Article 455 § 1 of the Criminal Code), and called for their conviction in that respect.
50. On 4 July 2006 the first applicant asked the İzmir Criminal Court to complete the proceedings as soon as possible. Relying on Article 6 of the Convention, he emphasised that the length of the proceedings breached his right to a fair hearing within a reasonable time. He also stressed that their continued duration raised the risk of statutory limitation and infringement of his right of property, given that he might find himself deprived of any possibility of obtaining compensation for pecuniary and non-pecuniary damage.
51. On 30 January 2007 the İzmir Criminal Court decided to join the proceedings before it to those being conducted against the doctors T.K., H.V., S.A. and Ö.Ö. for unintentional homicide.
4. The criminal proceedings subsequent to the joinder of the cases
52. On 7 May 2007 the first applicant’s lawyer, on behalf of the first applicant’s under-age son, submitted a request to join the proceedings as a civil party. He also complained about the length of the proceedings, emphasising the risk that they would become time-barred. He further submitted a claim for compensation in respect of the damage caused to his client on account of his wife’s death and claimed 60,000 Turkish lira (TRY) in respect of the non-pecuniary damage sustained by the first applicant and TRY 50,000 for the non-pecuniary damage sustained by the latter’s son, together with a claim for TRY 30,000, jointly, in respect of pecuniary damage.
53. At the close of the hearing of 8 May 2007 the Karşıyaka Criminal Court noted that the indictment contained no mention of Dr S.Ö., although the latter’s name had appeared alongside those of the defendants in the proceedings before the İzmir Criminal Court. Consequently, it asked for clarification as to whether, after the decision terminating the proceedings (see paragraph 29 above), charges had been dropped against S.Ö. or whether there had been an error. It added that, in the latter case, the omission ought to be rectified.
54. At the hearing of 27 November 2007, the Karşıyaka Criminal Court noted that the prosecutor had replied that charges had not been dropped against S.Ö. and that there may have been an error. The court asked that measures be taken in this regard.
55. On 11 February and 18 March 2008 the applicant’s lawyer lodged a memorial with the court, complaining about the length of the proceedings.
56. At the hearing of 12 February 2008, the court noted that the opening of proceedings against S.Ö. had not been such as to influence the ongoing proceedings but could protract the case. Consequently, it decided not to wait for those proceedings to be opened.
57. On 18 March 2008 the criminal court found A.Y., Ö.Ç., F.B., T.K., H.V., Ö.Ö. and S.A. guilty of unintentional homicide and sentenced them to two years’ imprisonment and a fine of TRY 91. In application of the provisions of the Criminal Code on the remission of sentences, it commuted A.Y.’s sentence to a fine of TRY 468; that of Ö.Ç. and F.B. to a fine of TRY 703; and that of T.K., H.V., S.A. and Ö.Ö. to a fine of TRY 937. In addition, all of the sentences were suspended. The court dismissed the request for conviction of defendant G.E., noting that, although the report by the General Medical Council had established that she was two-eighths liable, that circumstance did not amount to a ground for reopening the criminal proceedings against her under Article 314 of the Code of Criminal Procedure. In consequence, it upheld her acquittal as pronounced at the close of the first criminal proceedings.
The relevant part of the criminal court’s reasoning reads as follows:
“... [I]t emerges from the case file as a whole that: – Menekşe Şentürk, who was eight months pregnant, was driven to the Karşıyaka Public Hospital in İzmir by her husband on Saturday 11 March 2000 on account of severe pain; – she was examined there by midwife G.E. ..., the doctor was not informed, no measure was taken and, since labour had not begun, the patient was sent home; – she was then driven to the emergency department at the Alsancak Public Hospital, where she was examined by midwife A.Y., and she was sent home because labour had not begun; – towards 2 p.m., she was taken to the emergency department at the Yeşilyurt Atatürk Hospital, where she was examined by doctor F.B.; on account of pain on her left side she was sent to the urology department, where she was examined by doctor Ö.Ç. who diagnosed renal colic, administered painkillers and sent her home; – as the pain persisted after the patient’s [husband] had taken her home, ... she was taken to the Ege University Medical Faculty Hospital; she was transferred by the emergency doctor ... to the maternity unit; there, it was established that the patient was eight months pregnant but that the [child’s] heartbeat could not be heard; although the doctor advised that the baby be removed, hospitalisation was not accepted, in the absence of financial resources; – the patient was then transferred to the İzmir gynaecology and obstetrics hospital, but died during the journey; – on account of this event [and] as was established by the General Medical Council, midwives G.E. and A.Y. were two-eighths liable, doctors Ö.Ç. and F.B. were three-eighths liable, doctors T.K., H.V., S.A. and Ö.Ö. were four-eighths liable; – in those circumstances, the defendants [ought] to be punished for the offences with which they are charged ...”
58. On 21 May 2008 the applicants lodged an appeal on points of law. In their pleadings they emphasised that the criminal court had not responded to the request, submitted on behalf of the applicant’s son, to join the proceedings as a civil party, nor to the claim for compensation submitted by them. They also challenged G.E.’s acquittal, given that her liability in the death had been established, and the fact that the prison terms imposed on the defendants had been suspended and commuted to fines. Furthermore, relying on Article 2 of the Convention, they alleged that there had been a breach of the right to life and that the State had failed in its positive obligations in this respect; they considered that the fact that the first applicant and his wife had been obliged to go from one hospital to another amounted to treatment contrary to Article 3. Relying on Articles 6 and 13, they complained about the length of the proceedings and the lack of any remedy to end the related damage. Finally, they submitted that the judgment had breached their right of property.
59. On 21 January 2009 the Principal Public Prosecutor at the Court of Cassation submitted his observations and asked that court to uphold the first-instance judgment in so far as it concerned G.E., to set it aside in respect of the other defendants on the ground that the offence was time-barred, and to end the proceedings.
60. On 7 October 2010 the Court of Cassation upheld the first-instance judgment in so far as it concerned G.E. It set aside the part of the judgment concerning the other defendants on the ground that the offence provided for in sections 102(4) and 104(2) of Law no. 765 had become time-barred. It thus terminated the proceedings on the ground that they were time-barred, in accordance with Article 322 of the Code of Criminal Procedure.
5. Proceedings brought against S.Ö.
61. On 4 January 2008 the İzmir public prosecutor dropped the charges against S.Ö. noting, in particular, that in its report of 20 and 21 May 2004 the health committee had not identified responsibilities attributable to him, that there was insufficient evidence against him and that the events for which he was criticised were now time-barred.
62. The first applicant lodged an objection against that decision.
63. On 14 January 2009 his objection was dismissed by the Karşıyaka Assize Court.
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-81976
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KASUMAJ v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Loukis Loucaides
TEXT: The applicant, Mr Ilaz Kasumaj, is of Albanian origin living in Kosovo, Republic of Serbia. He is represented before the Court by Mr A. Vula, a lawyer practising in Pristina, Kosovo. The Greek Government (“the Government”) were represented by the delegates of their Agent, Mr K. Georgiadis, Adviser at the State Legal Council and Mrs Z. Hatzipavlou, Legal Assistant at the State Legal Council. The Government of Serbia did not make use of their right to intervene (Article 36 § 1 of the Convention).
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of two plots of land situated in Varosh in the municipality of Ferijah, which cover a total of 2.69 hectares. In June 1999 this land, which was used for agricultural purposes, was occupied by Greek KFOR (NATO-led peacekeeping forces) soldiers and became the main national base in Kosovo for the Greek KFOR contingent. Since then the applicant was denied access to and use of his land.


ITEMID: 001-111850
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PRAZNIK v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1970 and lives in Ljubljana.
6. The applicant served his prison sentence in the closed section of Ljubljana prison in the period between 3 April 2009 and 3 March 2010. From 3 to 11 April 2009 he was held in cell 123 (second floor) measuring 16.28 square metres. The cell, apart from the furniture, contained six sleeping places (three bunk beds). According to the applicant, six prisoners were being held in the cell during his detention. The Government, however, submitted that the number varied between five and six. He was subsequently moved to cell. 1 on the third floor, where he stayed until the end of his sentence on 3 March 2010. The cell measured 16.68 square metres. The cell contained, apart from the furniture, five sleeping places (two bunk beds and a single bed). According to the Government the number of prisoners varied between four and five.
7. During his detention the applicant received six visits from a friend. Between 28 April and 1 June 2009 the applicant’s visits took place through a glass partition, as he had been suspected of receiving drugs from his visitor. The same decision was made with regard to the period between 27 August 2009 and 3 March 2010. The applicant received ninety-four letters and sent out eighty-nine. Envelopes were opened on fourteen occasions to check on enclosed items. The applicant did not appeal against this measure.
8. According to the prison records, the applicant was receiving methadone maintenance treatment during his imprisonment. In addition, he had ten consultations with a general practitioner and five dental appointments.
9. As regards the general characteristics of the cells, material conditions inside the cells, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011. As to the out-of-cell time, the Court found in the aforementioned judgment that the sentenced prisoners held in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (ibdi., § 86). As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5-5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.
10. For the relevant domestic law and practice as well as relevant international documents see Štrucl and Others, cited above, §§ 33-56.
VIOLATED_ARTICLES: 13
3