ITEMID: 001-113928
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GHIŢĂ v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 6. The applicant was born in 1961 and lives in Bucharest.
7. At 1 a.m. on 3 May 2006 the applicant and Ms C.B. were sitting in his car, which was parked in a spot where the street lights were not working. A police patrol of two officers from the Public Order Unit of Bucharest Police Section No. 3 approached the car and asked for their identity papers.
8. The applicant presented his passport and driving licence for inspection. Police officer D.U. asked him, “Do you think you are at border control?” (“bă, ce te crezi, la vamă?”) and asked him to present his Romanian identity card (cartea de identitate). The police agents checked his identity but then refused to return his papers, claiming that he was drunk. The applicant denied being drunk and offered to go to the Forensic Medicine Institute to have his blood alcohol level tested. The police refused, saying that they were not traffic police.
9. Police officer A.H. took the identity papers and went to the police van. Meanwhile, officer D.U. invited the applicant to step out of his car and prove that he was not drunk. When the applicant got out, the police officer pushed him between his car and the wall of a building. The applicant said: “Poor old chap, you’re behaving like a militiaman” (“tataie, te porţi ca un miliţian”). D.U. immediately handcuffed the applicant with his hands in front. He then pulled the handcuffs down, causing the applicant to fall to the ground.
10. The two officers then kicked him several times, first in the stomach then in the kidneys. His glasses came off and his mobile phone fell to the ground. The applicant started shouting. The two officers pulled him to his feet and hustled him into their van.
11. During this time Ms. C.B. was still inside the applicant’s car and because it was dark she could not see outside. A.H. returned to the applicant’s car and invited Ms. C.B. to accompany them to the police station, which she did. A.H. drove the van and D.U. sat on the back seat with the applicant and continued to punch him in the head, eyes and temples all the way to the police station. The applicant protected his mouth and nose with his handcuffed hands.
12. At the police station the applicant was taken to a room in the basement. His glasses and mobile phone were returned to him. He immediately called M.N., a lawyer friend, and told him that he had been beaten up by police officers. The lawyer asked him to pass the phone to one of the police officers. After a phone conversation between the lawyer and agent A.H., the police took the handcuffs off the applicant and allowed him to leave the station, after asking him not to press charges.
13. The police agents drafted a report on the incident which they dated 3 May 2006. It was registered with Police Section No. 3 on 29 May 2006.
14. They stated that they had approached the applicant’s car as they had noticed that the occupants were having sexual intercourse; they had to insist that the applicant present his passport for identification; after obtaining the identity papers, they had asked Ms. C.B. to get into their van while they drafted the offence report (procesul verbal de contravenţie). At that moment, the applicant became aggressive, threw his glasses, mobile phone and then himself to the ground, shouting that he was being abused by police. Their description of the incident continued as follows:
“To defuse the situation we decided to handcuff [the applicant] and take him and [Ms C.B.] to the [police station]...
We had to use physical force to handcuff [the applicant] because he himself was using physical force against us, trying to push us away while threatening us. He deliberately hit his head on the ground and on the van doors. It was only with difficulty that we managed to protect him from his own violence and agitation.
After the discussions we had at the police station... he calmed down and apologised for his previous behaviour, claiming that he was drunk and got scared that his wife would find out about what had happened that night.
We took note of the change in his behaviour and decided to give him a verbal warning.”
15. Officer D.U. drafted a standard report on the use of force during the incident. He described the incident in a few lines and recorded that he had used physical force and handcuffs. He described the applicant as being under the influence of alcohol and aggressive, refusing to calm down and thus disturbing public order. He left blank the box on the report form concerning any visible injuries on the applicant. He reported that the applicant had been sanctioned with a verbal warning.
Lastly, the police agents wrote an offence report on Ms C.B., whom they fined 500 new Romanian lei (RON) for prostitution. She admitted the offence and signed the report.
16. The Government shared the point of view of the official reports on the incidents. They stated that the police officers had approached the applicant and Ms C.B. that night, informing them that they were about to be fined for engaging in sexual intercourse. Ms C.B. had previously been on trial for prostitution by this time.
The applicant was under the influence of alcohol, refused to present his identification papers and threatened the police officers with allegations that he had relatives in the police hierarchy. He got out of the car and handed his passport to officer D.U., but started shouting that he was being abused by police, then lost his balance, fell to the ground and injured himself. He became aggressive and police agent H.A. had to use handcuffs to restrain him.
17. At 11.35 a.m. on 3 May 2006 the applicant consulted a forensic doctor, who drafted a medical report, noting as follows:
“– tumefaction of the right temporal bone with inhomogeneous ecchymosis of approximately 4.4/4.5 cm;
– right upper eyelid showing inhomogeneous purple ecchymosis of approximately 1.5/1.5 cm;
– left lower eyelid showing inhomogeneous purple ecchymosis of approximately 3/1.5 cm; subconjunctival haematoma in the external quadrant of the left eye;
– inhomogeneous purple ecchymosis on the left temporal bone with a subjacent tumefaction of approximately 4.5/4.5 cm;
– red ecchymosis of approximately 3.5/1.5 cm (3.5 cm on the horizontal axis) on the cervical inferior median artery;
– bilateral, radial, red horizontal marks of approximately 3.5/0.5-0.8 cm each around the radio-carpal articulations;
– complaints of headaches, bilateral lumbar pains.”
18. At 12.33 p.m. the forensic doctor noted the existence of bruising and that the temporal bone had not been damaged. The X-ray and ultrasound scan revealed no damage to the lungs, internal organs or spine.
19. The applicant was hospitalised from 29 to 31 May 2006 for further investigation of his severe and persistent headaches. No cranial trauma was discovered.
20. On 6 June 2006 the Mina Minovici National Forensic Institute (“the Forensic Institute”) issued a report reiterating the findings above and concluding as follows:
“[The applicant] had, on the date of the examination by [the Forensic Institute] (3 May 2006) traumatic injuries that could have been produced on the same day by being repeatedly hit with a hard object and possibly through being handcuffed (lesions noted around the radio-carpal articulations bilaterally).
He needed eight to nine days of medical care.”
21. The applicant submitted pictures taken on 4 May 2006 which show bruises on his right temple, bruising around both his eyes and redness around his left eye. He also submitted several pictures of the place where the incident had occurred.
22. On 10 May 2006 the applicant lodged a criminal complaint against the two police officers. The Criminal Investigation Unit of Bucharest Police interviewed the applicant, the two police officers, Ms. C.B. and the applicant’s lawyer friend.
23. On 13 July 2006 the applicant was interviewed by the investigators. He presented his version of the events, claiming police brutality. He admitted to having drunk two spritzers and an espresso earlier in the evening of the incident. He said that he had shouted at the police that night, but that he had only been trying to protect himself from their aggressive behaviour.
24. The two officers denied inflicting any violence on the applicant. Their version of the events reiterated the statements made in the official police report of 3 May 2006. They claimed that they had informed the applicant that he and Ms. C.B. were committing an offence, for which they were going to be sanctioned. They stated that the applicant had started shouting and had become violent, thus disturbing public order. They had therefore been forced to take action, by handcuffing him and taking him to the police station.
25. In her statement of 7 July 2006, Ms. C.B. admitted that she and the applicant had been negotiating a price for sexual services when the police had arrived. She said that the applicant had been drunk, loud and abusive towards the police officers. She had seen the applicant fall to the ground and be helped up by the police officers, who had then handcuffed him with his hands behind his back and escorted him to the police station. She did not see the police officers being violent towards him during the incident or at the police station. According to her statement, the applicant hit his eye when he fell to the ground and banged himself on a step.
26. M.N. was interviewed on 18 July 2006. He stated that the applicant had called him that night, had sounded scared and had claimed to have been beaten up by police officers. M.N. stated that the officer had explained over the phone why the applicant had been taken to the police station and informed him that the applicant was not under arrest. Five minutes later he called the applicant again on his mobile phone, by which time the latter had already been released.
27. On 18 July 2006 the police sent the file to the Prosecutor’s Office of the Bucharest District Court for further investigation of the accusation of abusive behaviour, and to the District Court regarding the applicant’s allegations that he had been hit and had suffered other forms of violence.
28. On 25 August 2006, based on the evidence gathered by the police and without hearing fresh testimony from those involved in the incidents, the Prosecutor’s Office decided not to prosecute. On 10 October 2006 the head of the Prosecutor’s Office upheld that decision, despite the applicant’s complaint.
29. On 6 November 2006 the applicant complained to the Bucharest District Court about the prosecutor’s decisions, citing police brutality and the lack of an effective investigation.
30. On 12 December 2006 the District Court dismissed the complaint. On the basis of the documents in the file and after hearing pleas from the parties’ representatives and the prosecutor but not from the applicant or the police officers involved in the events, it established that the applicant had behaved aggressively that night, had been under the influence of alcohol, had disturbed public order and had deliberately tried to hurt himself. It found no evidence in the file that the reports made by the police officers were untrue, and noted that the applicant had not contested their veracity. It also noted that the applicant had been engaged in illegal activities, which gave the police permission to intervene, to check his identity and to prevent him from continuing. Lastly, it reiterated that according to the applicable law, the police were not to be held responsible for minor injuries caused to a person during the lawful exercise of their powers.
31. The applicant appealed, dissatisfied in particular with the interpretation given by the court of the evidence in the file, and pointing out that he had not complained about the reports made by the police on the incidents, but about the police officers’ brutality that night.
32. In a final decision of 26 April 2007 the Bucharest County Court reexamined the evidence in the file and upheld the District Court’s judgment. The decision became available to the parties on 8 June 2007.
VIOLATED_ARTICLES: 3


ITEMID: 001-85489
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PİROĞLU AND KARAKAYA v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 10;Violation of Art. 11;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - finding of a violation sufficient;Non-pecuniary damage - award
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 4. The applicants were born in 1974 and 1962, respectively, and live in Izmir. They were members of the executive board of the Izmir Branch of the Human Rights Association (“the Association”) at the time of lodging their applications to the Court. There were two different sets of criminal proceedings brought against the applicants; however, it should be noted that the first applicant's case concerned only the first set of proceedings, regarding the Association members with prior convictions.
5. On 10 July 2001 the Izmir Governor sent a letter to the Association requesting that the membership of thirteen persons, including the second applicant, be annulled as they were considered to be involved in illegal activities. In this letter it is said that, although the second applicant had been taken into police custody on 30 April 1999, she had subsequently been released as it had not been established that she had any connection with the illegal TKP/ML-TIKKO (the Turkish Communist Party / Marxist-Leninist–Turkish Workers' and Peasants' Liberation Army).
6. On 6 August 2001 the Association replied to the Governor that they would not comply with the request since none of these thirteen persons had prior convictions which would ban them from founding or becoming a member of an association, as provided by section 4 §§ 2 and 3 and section 16 of the Associations Act (Law no. 2908).
7. On 17 October and 31 October 2001 respectively, the Izmir Public Prosecutor informed the applicants that a prosecution had been initiated against them for non-compliance with section 4 of Law no. 2908, but that no court proceedings would be initiated if they paid a fine of 142,366,000 Turkish liras (TRL) per person within ten days. The applicants did not pay the fine within ten days as required by the payment order.
8. Subsequently, on 3 December 2001 the Izmir Public Prosecutor filed a bill of indictment against the applicants and the other members of the Board. The public prosecutor requested that the accused be fined under Section 75 of the Associations Act and Article 119 of the Criminal Code for their failure to comply with the Izmir Governor's request. The bill of indictment was not notified to the applicants.
9. On 26 December 2001 the Izmir Magistrates' Court, without holding a hearing, found the applicants and the other co-accused guilty as charged and, by a penal order (ceza kararnamesi), fined them TRL 213,548,400 per person. In doing so, the court relied on the “simplified procedure” stipulated in Article 386 of the Code of Criminal Procedure for relatively minor offences.
10. The applicants and the other co-accused lodged an objection with the Izmir Criminal Court against the decision of 26 December 2001.
11. On 6 February 2002 the Izmir Criminal Court dismissed the objection without a hearing.
12. The applicants paid the amounts due.
13. Subsequently, on 16 December 2002 one of the co-accused, Mr N.B., applied to the Ministry of Justice, requesting the Minister to refer the case to the Court of Cassation by way of a written order (yazılı emir).
14. On 29 January 2003 the Minister of Justice issued a written order and instructed the Chief Public Prosecutor at the Court of Cassation to ask the Court of Cassation to set aside the judgment concerned.
15. On 14 April 2003 the Court of Cassation quashed the judgment of the Izmir Criminal Court dated 6 February 2002 and the case file was remitted to the Izmir Magistrates' Court.
16. On 14 May 2003 the Izmir Magistrates' Court held a preparatory hearing and included the case in its list. It further decided to summon all of the defendants, including the applicants, to its next hearing.
17. On 14 July, 7 August and 22 October 2003 respectively, the court held three hearings.
18. At its last hearing, held on 22 October 2003, the Magistrates' Court held that it lacked jurisdiction to hear the case because, following the promulgation of Law no. 4854 on 24 April 2003, the sentence imposed on the applicants for not complying with the Izmir Governorship's order had been classified as an administrative fine. During the proceedings, none of the defendants made submissions to the court.
19. On 25 February 2004 the Court of Cassation upheld the decision of the Izmir Magistrates' Court. The case file was sent to the Governorship of Izmir.
20. On 9 October 2001 the Association, together with several local non-governmental organisations (NGOs), took part in a civil society movement called the “Platform of Conscientious Objectors to War” and made a collective press declaration in protest against the military operations of the United States of America (USA) in Afghanistan.
21. On an unspecified date, the prosecutor notified the second applicant that a prosecution had been initiated against her under Section 34 of the Associations Act for her involvement with the “Platform of Conscientious Objectors to War”, an organisation without any lawful status. The prosecutor also informed the applicant that no court proceedings would be initiated if she paid a fine of TRL 142,366,000 within ten days.
22. In the absence of payment, the prosecutor filed an indictment on 3 December 2001, charging the second applicant and five other board members of the Association with a violation of Section 34 of the Act. In the indictment, the prosecutor stated that the platform had no legal basis under Turkish law. The bill of indictment was not served on the second applicant.
23. On 31 December 2001 the Izmir Magistrates' Court, following the simplified procedure and thus without a hearing, convicted the second applicant as charged (case no. 2001/2160). By issuing a penal order, it sentenced her to an increased fine of TRL 213,548,400. However, the court suspended the sentence pursuant to section 6 of Law no. 647 on the execution of sentences.
24. On 18 February 2002 the second applicant lodged an objection with the İzmir Criminal Court against the penal order. She argued that her conviction infringed her right to freedom of expression and that “a collective press declaration” could not be classified as a contribution to the establishment of an unlawful organisation. She further complained that the indictment had not been communicated to her and that the court had not obtained statements or heard counter-evidence from her.
25. On 20 February 2002 the criminal court dismissed her objection, again without holding a hearing.
26. The relevant Articles of the Code of Criminal Procedure which was in force at the time of the events read as follows:
“Unless otherwise specifically provided by law, objection proceedings are conducted without a hearing. If necessary, the public prosecutor [may be] heard.”
“As regards infringements falling within its jurisdiction, the ... magistrates' court makes its ruling, without holding a hearing, through a penal order. The order can only be given in cases of simple or aggravated fines or in relation to offences carrying a maximum prison sentence of three months ...”
“The judge schedules a hearing if he sees an inconvenience in ruling in the absence of one.”
“A hearing shall be held if an objection is raised to a prison sentence imposed by a penal order. (...)
The suspect can be represented by defence counsel during the hearing. (...)
Objections to penal orders (...) are examined by a judge at the criminal court of first instance, in line with the procedure described under Articles 301, 302 and 303. The objection would suspend the execution of the penal order.”
27. In a judgment given on 30 June 2004, the Constitutional Court declared Article 390 § 3 of the Code of Criminal Procedure unconstitutional and a nullity. It held that the lack of a public hearing before the Criminal Court of First Instance which examines objections to penal orders would be a deprivation of the right guaranteed by Article 6 of the Convention, as well as Article 36 of the Constitution.
28. Article 343 § 1 of the Code of Criminal Procedure, concerning references to the Court of Cassation by written order of the Minister of Justice (Yazılı emir ile bozma – “ the reference by written order”) provides:
“Where the Minister of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, he may issue a formal order to the Chief Public Prosecutor requiring him to ask the Court of Cassation to set aside the judgment concerned ...”
29. The relevant provisions of the Associations Act (Law no. 2908), which was in force at the time provided as follows:
Section 4
“Everyone over the age of eighteen and qualified to exercise civil rights has the right to establish an association without prior notice.
However, the following persons, even if they have benefited from an amnesty, may not found an association:
...
2. a) Persons convicted of any of the following offences: shameful offences such as embezzlement, dishonesty, bribery, theft, fraud, forgery, abuse of religious belief, fraudulent bankruptcy, offences of smuggling other than for manufacturing, supply or consumption, [or] improper interference in official competitive tender procedures, procurements and sales.
b) Any person convicted of those offences appearing in the first chapter of Book Two of the Turkish Penal Code, or of open incitement to commit such offences.
c) Any person convicted of incitement to enmity and hatred on grounds of differences of class, race, language, religion or region under paragraph two of Article 312 of the Turkish Penal Code, or of counterfeiting under Articles 316, 317 or 318 of the same code.
d) Any person convicted of committing, for political and ideological purposes, those actions mentioned in the first, second or third paragraphs of Article 536 of the Turkish Penal Code, or those in the first, second, third, fourth or fifth paragraphs of Article 537 of the same Code ...”
Section 16
“Everyone over the age of eighteen and qualified to exercise civil rights has the right to become a member of an association. However, those indicated in the second paragraph of section 4 of this Law may not be members of associations.”
Section 34
“Associations may not form organisations other than federations or confederations.”
VIOLATED_ARTICLES: 10
11
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69754
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF P.M. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 14+P1-1;No violation of Art. 13;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 7. The applicant was born in 1956 and lives in Durham.
8. Between 1987 and 1997, the applicant lived in a stable relationship with Miss D. They never married.
9. On 18 June 1991, Miss D. had a daughter. The applicant was registered as father on the birth certificate.
10. In October 1997, the applicant and Miss D. separated. On 29 June 1998, they entered into a Deed of Separation by which the applicant undertook to pay weekly maintenance of 25 pounds sterling (GBP) for his daughter. In the 1998-1999 tax year, he paid GBP 1,300 under the Deed. The sum increased over time in accordance with the applicant’s increase in earnings. Since April 2002, the applicant has made weekly maintenance payments of GBP 35.
11. For the year of assessment 1997-1998, the applicant was granted relief on his self-assessment tax return for the maintenance payments made under the Deed. The Government state that this was an error by the Inland Revenue. In 1998-1999, the applicant put in a further claim to deduct these maintenance payments. This would have reduced his income tax liability by GBP 195.
12. By letter dated 21 December 2000, the Inland Revenue refused the claim for tax relief in respect of the maintenance payments: “because you were never married to your daughter’s mother.”
13. The applicant appealed against the refusal to a tax tribunal, namely the General Commissioners for the Division of Durham, invoking the provisions of the Convention.
14. A hearing took place on 11 July 2002. The applicant was unrepresented. On the morning of the hearing, counsel for the Inland Revenue presented him with a large file of the authorities on which the Inland Revenue sought to rely.
15. On 15 August 2002, the General Commissioners rejected his appeal, primarily on the ground that the Human Rights Act 1998 did not apply to the case as it had only come into force on 2 October 2000 after the tax year in question.
16. Miss D. married during the 1999-2000 tax year, on 24 July 1999.
17. Section 347B of the Income and Corporation Taxes Act 1988, as it applied in the year of assessment 1998-1999, provided for the deduction of “qualifying maintenance payments”. According to section 347B(1):
(1) In this section ‘qualifying maintenance payment’ means a periodical payment which -
(a) is made under an order made by a court in a member State or under a written agreement the law applicable to which is the law of a member State ...
(b) is made by one of the parties to a marriage (including a marriage which has been dissolved or annulled) either -
(i) to or for the benefit of the other party and for the maintenance of the other party, or
(ii) to the other party for the maintenance by the other party of any child of the family,
(c) is due at a time when -
(i) the two parties are not a married couple living together and
(ii) the party to whom or for whose benefit the payment is made has not remarried, and
(d) is not a payment in respect of which relief from tax is available to the person making the payment under any provision of the Income Tax Acts other than this section.”
18. Prior to amendment of the legislation in 1988, married couples who divorced or separated and unmarried couples who separated from one another were in the same position as regarded the deductibility of payments made under a Deed of Separation. The explanation for allowing the deduction to continue in respect of previously married couples as stated in a Press Release by Her Majesty’s Treasury was:
“A man maintaining his ex-wife (or vice versa) will get tax relief on the payments he makes, up to a limit equal to the difference between the married allowance and the single allowance ... This recognises the cost of helping to support an ex-wife and maintain a second household. On present experience, this limit will more than cover the majority of payments to ex-wives and ex-husbands.”
19. In the tax years after 1999-2000 the availability of this deduction has been withdrawn from all but those aged 67 years or more.
20. Since the Child Support Act 1991 (“the CSA”), it has been Government policy that parents (predominantly fathers) separated from their children should be responsible for their children’s maintenance, irrespective of their marital status. The CSA gives the Child Support Agency mandatory powers to compel an absent father to give information about his finances, to assess the amount of contribution and to compel enforcement of the contributions.
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-72118
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: MIKOLENKO v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Mr Nikolai Mikolenko, Ms Ljubov Mikolenko and their son Mr Oleg Mikolenko, are Russian nationals, who were born in 1954, 1955 and 1985, respectively, and live in Estonia. They are represented before the Court by Mr A. Arjupin, legal adviser of the Legal Information Centre for Human Rights in Tallinn, and Mr W. Bowring, barrister and professor of law at the London Metropolitan University. The respondent Government are represented by Mrs M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
Mr Nikolai Mikolenko, the first applicant, was born in Ukraine. At the time the application was lodged with the Court, he was married to Ms Ljubov Mikolenko, the second applicant, who was also born in Ukraine. Their son, Mr Oleg Mikolenko, the third applicant, was born in Estonia. The first and the second applicant have also another son, Bogdan, who was born in 1980. He has a permanent residence permit in Estonia.
The first applicant served in the Soviet and Russian armed forces from 1975 to 1994, when he retired as a warrant officer. From 1977 to 1983 he served in the territory of the German Democratic Republic. In 1983 he was transferred to military unit no. 12129 in the Baltic military district. The first and the second applicants have been living in Estonia since then.
Since 1989 the applicants have been registered as inhabitants in the apartment at Kolde puiestee 84-1 in Tallinn.
On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonian territory.
On 4 August 1994 the first applicant was assigned to the reserve forces by the decree of the commander of the military unit no. 12129. According to the transcript of the decree, he was discharged from the military unit and excluded from the provision of all types of supplies as of 18 October 1994.
As from 1994 the first applicant worked as a manager in a private company. The second applicant has been working as a nurse in a kindergarten since 1983.
On 31 March 1995 the first applicant submitted an application for a residence permit in Estonia. At that time his parents were living in Ukraine.
The first applicant applied for a flat in Russia within the framework of an aid programme provided by the United States of America (USA). On 9 April 1995 he signed a written commitment in this connection. The form of the commitment was in Russian. In the form, signed by the first applicant, it was stated that he wished to take part in the programme for providing housing for officers of the Russian armed forces. It was further stated that if he would receive housing in the context of the programme, he and his family would vacate the dwelling that was at their disposal in the Baltic country and that in the future he would be able to visit the Baltic countries only as a foreigner on general basis. Furthermore, it was stated that the applicant had no housing in Russia, that he had not paid anyone for the right to take part in the programme and that he was aware that the housing in the context of the programme would be provided free of charge. It was confirmed that the dwelling he possessed in the Baltic country had not been privatised or sold and that he had not received any payment for it.
On 10 April 1995 the second applicant privatised (purchased on favourable conditions from the municipality) the apartment at Kolde puiestee 84-1 in Tallinn. According to the data in the land register, as at 6 December 2004, this apartment was still in the ownership of the second applicant.
In the form filled out on the basis of the interview conducted with the first applicant by a staff of the aid programme on 18 April 1995 concerning the grounds of participation in the programme and the amount of financing by the bank, it was noted that the first applicant was entitled to enrol in the programme. According to the document, in reply to the question how he would describe his and his family’s feelings in connection with leaving the Baltic countries, he chose the following answer from among the multiple choices: “we are very happy about the departure”. In reply to the question why he had chosen St. Petersburg as the possible new residence, he answered: “relatives”. To the question what he would miss most when moving to the new place, he replied colleagues of his military unit.
On 14 June 1995 the first applicant, holder of the certificate SP-223, issued by the aid programme, concluded a purchase agreement for an apartment at Savushkin Street 134-3-5 with the St. Petersburg City Construction Authority. According to the agreement, the price of the apartment was 27,540 US dollars (USD), of which USD 25,000 was to be paid by the United States Agency for International Development and USD 2,540 by the first applicant.
On 15 June 1995 the apartment purchased by the first applicant was registered as his property by the relevant bureau of the St. Petersburg City Government. According to the information from the State Registry of the Russian Federation, submitted by the respondent Government in the context of the proceedings concerning the applicants’ legal aid request, as at 3 May 2005 the apartment was still in the ownership of the first applicant.
On 11 July 1996 the first and the second applicants were granted temporary residence permits in Estonia for two years. The third applicant received a temporary residence permit on 25 November 1996. The date of its expiry was the same as the expiry date of the residence permits of his parents, i.e. 11 July 1998.
On 12 July 1998 the temporary residence permits of the applicants were extended until 12 July 1999. In July 1999 their residence permits were further extended until 1 January 2000.
On 1 October 1999 an amendment to the Foreigners’ Act (Välismaalaste seadus) entered into force so as to exclude the possibility of issuing or extending residence permits for persons who had committed themselves to leaving Estonia or who had received an accommodation abroad within the framework of an international aid programme.
On 8 May and 14 June 2000 the Minister of the Interior issued orders by which the applicants were refused extensions of their residence permits. The refusals were based on two grounds. Firstly, the first applicant had served as a professional member of the armed forces of a foreign country and had retired from there. This ground applied also to the second and the third applicants as family members (spouse and minor child) of the first applicant. Secondly, the applicants had committed themselves to leaving Estonia and had received accommodation abroad within the framework of an international aid programme.
The applicants submitted a complaint to the Tallinn Administrative Court (Tallinna Halduskohus), which, by a judgment of 16 November 2001, dismissed the complaint. It observed that the applicants had committed themselves to leaving Estonia and had received accommodation abroad within the framework of an international aid programme. According to the Foreigners’ Act such persons could not be granted extensions of residence permits.
In an appeal to the Tallinn Court of Appeal (Tallinna Ringkonnakohus) the applicants contested the retroactive application of the provisions of the Foreigners’ Act so as to refuse extensions of residence permits of persons who had committed themselves to leaving Estonia and who had received an accommodation abroad within the framework of an international aid programme. The Foreigners’ Act did not contain the disputed provisions at the time when the applicants participated in the aid programme and received accommodation in Russia. They argued that their legitimate expectation rights and the principle of legal certainty had been violated. They claimed that they should have been exceptionally granted residence permits under section 12(5) of the Foreigners’ Act.
On 10 October 2002 the appeal was heard at the Tallinn Court of Appeal. The applicants did not appear at the hearing. On the day before the hearing the first applicant had submitted to the Court of Appeal a request to adjourn the hearing due to his deteriorated health condition. The Court of Appeal, nevertheless, held the hearing. It found that the first applicant had not provided a medical certificate and that he had failed to specify the reasons why he had been hindered from taking part in the hearing. The second and third applicants had not requested that the hearing be adjourned.
By a judgment of 25 October 2002 the Tallinn Court of Appeal upheld the judgment of the Administrative Court. It noted that the first applicant had served in the Russian army at the time the treaty concerning withdrawal of the Russian armed forces from Estonia had been concluded (26 July 1994). Accordingly, he was subject to removal, together with his family members, under the treaty. The Court of Appeal also found that it was established that the applicants had received accommodation abroad within the framework of an international aid programme and that they had committed themselves to leaving Estonia.
In an appeal to the Supreme Court (Riigikohus) the applicants complained that their right to take part in the hearing at the Court of Appeal had been violated. They maintained that their commitment to leave the country had not been made to the Estonian authorities. They also complained about the retroactive application of the Foreigners’ Act and that they had been discriminated against, since several persons who had taken part in the aid programme had, in fact, been granted extensions of residence permits.
On 17 April 2003 the Supreme Court upheld the judgments in substance, with modifications to their reasoning. The Supreme Court rejected the complaint concerning the inability of the applicants to take part in the hearing at the Court of Appeal. It noted that the applicants’ requests to adjourn the hearing had been granted repeatedly and found that, according to the Code of Administrative Court Procedure (Halduskohtumenetluse seadustik), the Court of Appeal could have rejected the appeal on the grounds of their failure to appear.
With respect to the substance of the appeal, the Supreme Court found that the interference with the applicants’ right to family life had been proportionate to the aim pursued by the State – to ensure that the professional servicemen of the former Soviet army be withdrawn from Estonia. The Supreme Court deemed the fact that Estonia had not been a party of the international aid programme irrelevant to the legitimacy of the legislation prohibiting the extension of residence permits for persons who had benefited from the programme.
On 6 June 2003 the third applicant was granted a temporary residence permit in Estonia with validity until 5 June 2008, since he had attained the age of majority and thus could no longer be considered as a family member of a retired officer of the armed forces.
On 18 June 2003 the first and the second applicants dissolved their marriage.
On 21 July 2003 the Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet – hereinafter “the Board”) ordered the first applicant to leave the country on 17 September 2003 at the latest. On 29 July 2003 the first applicant lodged a complaint with the Tallinn Administrative Court requesting that the order be invalidated.
On 11 August 2003 the Board refused to consider the second applicant’s request for a residence permit on an exceptional basis. The Board noted that, according to the applicable legislation, a request for a residence permit had to be submitted, as a rule, to an Estonian foreign representation. It established no circumstances which prevented the second applicant from doing so.
On an unspecified date in 2003 the first applicant submitted to the Supreme Court a request to reopen the proceedings (teistmisavaldus) and to quash the previous administrative court judgments. He claimed that he was a subject of the Estonian-Russian agreement concerning the social guarantees to retired military personnel of the Russian armed forces in Estonia and, therefore, he and his family members could have lawfully been refused an extension of the residence permit only in the event that it had been established that he posed a threat to the national security of Estonia. On 10 September 2003 the Supreme Court refused the request.
On 24 October 2003 the Tallinn Administrative Court dismissed the first applicant’s request to invalidate the 21 July 2003 order of the Board. He appealed against the judgment to the Tallinn Court of Appeal. The Court has not been furnished with information concerning the outcome of the appeal.
On 29 October 2003 the police arrested the first applicant for illegally residing in Estonia. On 30 October 2003 the Tallinn City Court (Tallinna Linnakohus) imposed on him a fine of 1200 kroons (77 euros). Apparently he was released after the hearing, having been kept in detention for about 24 hours.
On 31 October 2003 the Tallinn Administrative Court decided, upon a request by the police, that the first applicant had to be taken to a deportation centre for execution of the deportation order. The Administrative Court authorised his detention for up to two months starting from 3 November 2003, his immediate deportation being impossible, since he had not presented a valid identification document (the applicant could not remember where his valid passport was).
According to a medical certificate submitted to the Court, the first applicant was hospitalised between 2 and 4 November 2003. He has been detained in the deportation centre since November 2003. His detention has been extended by the Tallinn Administrative Court once every two months. The Board has been, unsuccessfully, attempting to expel him to Russia. On 3 March 2005 the first and second applicants lodged new complaints to the Court, concerning the first applicant’s prolonged detention and the conditions of detention in the deportation centre. These complaints have been registered as a separate application (no. 10664/05).
In the meantime, on 9 March 2004 the Board refused the first applicant’s request for a residence permit. He challenged the refusal in the Tallinn Administrative Court, which on 19 May 2004 dismissed the complaint. The judgment was upheld by the Tallinn Court of Appeal.
On 20 April 2004 the second applicant was served by the Board with an order to leave the country. On 28 June 2004 she was refused a residence permit.
On 26 April 2005 the Board again refused the first applicant’s request for a residence permit.
Section 12(4) of the Foreigners’ Act (Välismaalaste seadus) listed the instances in which a residence permit could not be issued or extended. Section 12(4)(7) provided that a permit could not be issued or extended, if the foreigner applying for it had served as a professional member of the armed forces of a foreign state or had been assigned to the reserve forces thereof or had retired therefrom. Section 12(4)(14) provided that a residence permit could also not be issued or extended for the spouse and minor children of a person referred to in section 12(4)(7). Section 12(5), however, provided that, as an exception, a temporary residence permit could be issued or extended for the foreigner concerned if this was not excluded on some other grounds listed in the same provision.
Section 12(9)(4) of the Foreigners’ Act provided that a residence permit could not in any case be issued or extended, if the person concerned had, inter alia, committed himself or herself to leaving Estonia or had received accommodation abroad within the framework of an international aid programme. This provision was adopted on 21 September 1999 and entered into force on 1 October 1999. It was subject to an amendment in 2001, which does not appear to have relevance to the present case.
According to the Government of Estonia, in April and July 1993 the President of the United States of America and the President of the Russian Federation agreed to undertake a project for providing up to 5,000 units of housing for Russian military officers demobilized from the Baltic countries or elsewhere outside Russia.
The Government submitted to the Court a copy of “Russian Military Officer Resettlement Program. Housing Certificate Program” and “Russian Military Officer Resettlement Program. Housing Construction Program. Information Digest”. These information materials appear to have been handed out by the American side in the Aid Programme to the participating Russian officers.
According to the information materials, the Russian Military Officer Resettlement Programme had been set up in order to provide up to 5,000 units of housing for Russian military officers demobilised mainly from the Baltic countries. About a half of the units of housing had to be constructed, whereas the rest of the housing units had to be provided through a housing certificate programme.
In order to take part in the Programme, the officers had to present a discharge order, passport, official verification of the family size and composition, official verification of current residence in the Baltics and a signed application for participation in the programme containing declarations that upon obtaining housing under this programme, the officer and his family would vacate their present dwelling(s) in the Baltic countries and would not seek permanent residency in any of the Baltic Republics, and from then on would enter the Baltic Republics only as foreign guests. The officers had to declare that they and their families did not own housing in Russia nor would they own, privatise or sell any dwellings in the Baltics and would not receive any payments in connection with vacating any dwelling. The officers declared their understanding that if they were found to be eligible to participate in the Programme and if all Programme’s terms and conditions were met, they would receive appropriate apartments (in the framework of the housing construction programme) or financial assistance for the purchase of housing units (in the framework of the housing certificate programme).
In order to obtain a registration of residence (propiska) in the Passport Desk for their new apartment, the officers had to present their Russian Passport and the Russian passports for all family members along with proof of cancellation of their registration of residency (vypiska) for all members of the family in the Baltics. Officers had to move in within 45 days after notification by the Russian Offices of Social Assistance or by the local administration, otherwise their apartments could be reassigned.
Participation in the Programme was voluntary; no enrolment fee was required.
After the independence of the Republic of Estonia was restored on 20 August 1991, the Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over its armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of the Russian troops from the Estonian territory and on the conditions of their temporary stay in Estonia. On the same day, Estonia and Russia concluded an agreement concerning the social guarantees to the retired military personnel of the armed forces of the Russian Federation on the territory of Estonia. The Treaty and the Agreement entered into force on 2 February 1996, having been subject to temporary application from the day of signing, that is, from 26 July 1994.
According to the Treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in the active service of the Russian armed forces. Family members of the military personnel in active service who did not have a dwelling in Russia were allowed to remain in Estonia for up to one year.
The Agreement provided that retired military personnel, i.e. persons discharged from the army service and receiving pension, and their family members could apply for residence permit in Estonia. The Estonian Government could deny a residence permit due to a threat to national security.


ITEMID: 001-101915
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KOVALEVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1967 and lives in Taganrog, in the Rostov Region.
6. On 15 June 1998 a prosecutor opened a criminal investigation against the applicant.
7. On 18 December 1998 the applicant was arrested and allegedly beaten up by police officers. On 19 December 2002 the prosecutor refused to institute criminal proceedings against the police officers.
8. On 15 December 1999 she was released on bail.
9. On 14 March 2000 the Rostov Regional Court received the case file and commenced the trial against the applicant and four other persons.
10. On 13 June 2000 the Rostov Regional Court found the applicant guilty of fraud and extortion and conditionally sentenced her to five years' imprisonment. However, on 2 November 2000 the Supreme Court of the Russian Federation quashed the judgment on appeal and remitted the case for a retrial.
11. On 14 May 2001 the Rostov Regional Court found the applicant guilty of fraud, extortion, robbery, kidnapping, and theft and sentenced her to seven and a half years' imprisonment. She was taken into custody from the courtroom.
12. On 16 January 2002 the Supreme Court quashed the judgment of 14 May 2001 on appeal and remitted the case for a retrial. The applicant was remanded in custody pending the determination of the criminal charges against her.
13. On 1 July 2002 the Rostov Regional Court extended the applicant's detention until 1 October 2002. It found as follows:
“The defendants [the applicant and four other persons] are charged with kidnapping, illegal deprivation of liberty, burglary and other crimes.
They have been in custody: ..., [the applicant] – since 18 December 1998, ...
The Prosecutor requested that the defendants' detention be extended by 3 months.
Having examined the Prosecutor's request, and having heard the parties to the proceedings, the court considers it necessary to extend the defendants' detention by 3 months, that is, until 1 October 2002 inclusive, because they are charged with serious and particularly serious criminal offences.
Under Articles 255 and 256 of the Russian Code of Criminal Procedure, the defendants' detention on remand is extended by 3 (three) months, that is, from 1 July 2002 to 1 October 2002.”
14. On 6 November 2002 the Supreme Court of Russia upheld the extension order, finding that it was sufficiently justified.
15. On 1 October and 31 December 2002 and 31 March, 26 June, 25 September and 15 December 2003 the Rostov Regional Court extended the applicant's detention until 1 January, 31 March, 30 June, 26 September, 25 December 2003 and 15 March 2004 respectively. The wording of the decisions was identical to that applied in the decision of 1 July 2002.
16. The applicant appealed against each of the above-mentioned extension orders to the Supreme Court, arguing that they were not sufficiently reasoned and that the court had not taken into consideration her individual situation. On 12 February, 14 May, 16 July, 16 October and 24 December 2003 and 31 March 2004 respectively, the Supreme Court of Russia upheld the above-mentioned decisions on appeal.
17. In the meantime, on 19 February 2004 the Rostov Regional Court extended the defendants' pre-trial detention until 19 May 2004, citing the gravity of the charges against them. The applicant appealed against the extension to the Supreme Court.
18. On 10 March 2005, that is, after the applicant's conviction by the Regional Court (see paragraph 20 below), the Supreme Court of Russia discontinued the examination of the applicant's appeal because she had been convicted by the Regional Court in the interim.
19. As regards the trial proceedings in the period from 27 February 2002 to 25 February 2004, the case was adjourned on over forty-two occasions: at the request of the applicant and her co-defendants, who wished to study the case file or the records of the hearings; at the requests of the applicant and her co-defendants for the replacement of their representatives and the need for their newly appointed representatives to study the case file; due to the illness of the defendants' representatives and their failure to appear before the court; and due to the illness of the applicant and co-defendants or following complaints made by them concerning their health. On one occasion the hearing was adjourned due to the failure of the authorities to transport the defendants to the courtroom.
20. On 17 May 2004 the Regional Court found the applicant guilty of multiple counts of fraud, multiple counts of kidnapping, extortion, theft and robbery and sentenced her to five years' imprisonment.
21. The applicant lodged an appeal. She claimed, in particular, that lay judges had sat on the bench unlawfully. The law had been changed and after 1 January 2004 lay judges were no longer permitted to take part in the administration of justice.
22. On 10 March 2005 the Supreme Court of the Russian Federation held an appeal hearing. The Supreme Court dismissed her appeal as unsubstantiated. As to her allegations about the allegedly unlawful composition of the tribunal, the court found that the trial had begun before 1 January 2004 and that the participation of two lay judges in the determination of the criminal charges against her had been in accordance with the principle of continuity of the trial.
23. From 14 May 2001 to 17 May 2005 the applicant had been held in detention facility IZ-61/1 of Rostov-on-Don (Следственный Изолятор ИЗ-61/1 Главного управления Федеральной службы исполнения наказаний по Ростовской области). Throughout this period the applicant had been held in the following cells:
(a) cell no. 181 measuring 25.5 square metres and designed to accommodate 7 detainees;
(b) cell no. 184 measuring 36.8 square metres and designed to accommodate 10 detainees;
(c) cell no. 186 measuring 24.8 square metres and designed to accommodate 7 detainees;
(d) cell no. 191 measuring 34.6 square metres and designed to accommodate 9 detainees; and
(e) cell no. 84 (punishment cell) measuring 6.5 square metres and designed for one person.
24. The design capacity of the cells had not been exceeded.
25. In each cell the applicant had an individual bed and had been provided with bedding (a mattress, a pillow, a blanket, two bed sheets and a pillowcase), personal hygiene items, tableware, potable water and cleaning supplies.
26. Each cell had two windows measuring 1.14 by 1.32 meters, which allowed sufficient access of daylight. The cells had been equipped with filament lamps (four lamps per regular cell, one lamp per punishment cell) and security lights. The level of artificial lighting had corresponded to established sanitary norms and had allowed the inmates to read and write.
27. All cells had been ventilated by a system of extractor fans. Natural ventilation through windows had also been available.
28. The applicant had received food of adequate quality and quantity in accordance with established legal norms.
29. In support of their observations the Government provided several certificates issued by the director of IZ-61/1 in November 2006 and photographs of the cells in which the applicant had been held.
30. The cells in which the applicant had been held had always been overcrowded. They had accommodated up to twenty inmates at any given time. The inmates had slept in shifts.
31. The cells had been dimly lit by two filament lamps. Access to natural light had been limited because the windows had been heavily barred from both the inside and outside. It had been impossible to read or write in such light. The outside grids on the windows had not been removed until April 2003.
32. There had been no vents in the windows, and therefore, no access to fresh air. The air in the cells had always been stiff and heavy with smoke. Starting from April 2003 the window panes had been taken out in spring until late autumn.
33. Food had been scarce and of poor quality. The complaints raised by the applicant and other inmates in this regard had been to no avail.
34. The applicant had never been provided with any personal hygiene items.
35. The applicant claimed that the photographs of the cells in question provided by the Government had been taken after her departure from IZ61/1 and apparently after emergency repairs.
36. The Government submitted that the holding cells (конвойное помещение) of the Rostov Regional Court had been situated in the semibasement of the premises. The holding cells area had contained eight individual cells measuring four square metres and three collective cells measuring twenty square metres. The holding cells area had been equipped with one lavatory pan shared by the detainees and the wardens. All cells had been equipped with extractor fans. They had been illuminated with filament lamps.
37. The detainees had been provided with dry rations (сухой паек) when taken to the courthouse. They had received hot food in accordance with a schedule before their departure from, and after their return to, the detention facility.
38. The Government supported their submissions with certificates issued by the director of IZ61/1 on 26 November and 30 November 2006 and photographs of the holding cells area of the Rostov Regional Court (showing the corridor passage with barred doors and the bathroom unit).
39. At the courthouse the applicant had been detained in a badly lit damp windowless cell measuring one square meter without ventilation or heating. The furnishing of the cell had consisted of a small bench. The walls in the cell had been coated with “shuba”, a sort of abrasive concrete lining. The cell had not been equipped with a lavatory or a wash basin. The applicant had been obliged to beg the wardens to take her to the lavatory.
40. On the days of court hearings, the applicant had been taken to the “assembly section” of the detention facility before breakfast, and on most occasions she had been taken back to the detention facility after dinnertime had already passed. She had never been given any dry rations to take with her to the courthouse, and she had never seen other detainees receive any. The applicant's relatives had not been allowed to supply her with food on the days of court hearings.
41. The applicant noted that the Government had not provided photographs of the cells of the court's holding cells area.
42. On 15 October 1998 the applicant authorised Mr A. to sell her flat. On 29 December 1998 Mr A. sold the applicant's flat. The transfer of title to the flat was subsequently registered by the regional registrar's office.
43. On 18 March 2003 the police refused to institute criminal proceedings against the registrar on suspicion of an allegedly fraudulent sale of the applicant's flat. The applicant was also informed of the right to contest the sale before a civil court.
44. For a summary of the relevant domestic law governing various aspects of detention, proceedings for the examination of its lawfulness, time-limits for a trial to take place and conditions of detention, see Gubkin v. Russia, no. 36941/02, §§ 56-80, 23 April 2009.
45. Relevant international documents concerning the general conditions in Russian penitentiary establishments and the conditions of detention of women can be found in the judgment of 1 June 2006 in the case of Mamedova v. Russia (no. 7064/05, §§ 51-53).
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1


ITEMID: 001-75327
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ERGIN v. TURKEY (NO. 6)
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Violation of Art. 6-1 (independence and impartiality of the General Staff Court);Not necessary to examine Art. 6 (another complaint);Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1973 and lives in Istanbul.
7. On 1 September 1997, as editor of the newspaper Günlük Emek (Everyday Work), the applicant published in issue number 297 an article entitled “Giving the conscripts a send-off, and collective memory” (Asker uğurlamalar ve toplumsal hafıza) signed by Barış Avşar.
8. On 4 December 1997 the public prosecutor at the Military Court of the General Staff (“the General Staff Court”), acting under Article 58 of the Military Penal Code and Article 155 of the Criminal Code, charged the applicant with incitement, by publication of the above article, to evade military service (askerlikten soğutma).
9. The applicant informed the General Staff Court that the article had been written by Mr Şevki Akbaba, who had signed it with a pseudonym.
10. In a judgment of 20 October 1998 the General Staff Court initially sentenced the applicant to two months’ imprisonment and a fine of 60,000 Turkish liras (TRL). By virtue of section 4 of the Execution of Sentence Act (Law no. 647), which provided for prison sentences imposed on editors to be commuted to fines, the applicant was ultimately ordered to pay a “heavy fine” of TRL 1,160,000.
11. In its judgment the General Staff Court referred to the following passage from the offending article:
“This last week in bus stations has been a time for sending the August conscripts on their way... The novice soldiers setting off – “but you’ll soon be back”, people tell them to console them – already seemed during these ritual send-offs to be plunging into war by donning “invisible khaki”. It was a time when war seemed rather attractive; the congratulations and praises made it seem like a warm nest, almost as warm as a mother’s arms, into whose embrace they would have liked to run. What we saw at each of these ceremonies shows that the thing has become a collective hysteria and that this hysteria has also spawned its own indispensable attributes: the traditional drum and clarinet, the famous three-crescented flag, sometimes accompanied by the corn-ear flag of the RP [Welfare Party] or the rose-bearing flag of the BBP [Great Union Party] ... Warm-up ceremonies are organised for those setting off for the war, the exaltation felt on killing a man is the exaltation of winning a match and, what is more, the killer justifies his act by speaking of the love he has for his fatherland and his nation. In short, it can’t be said that what we’re doing is right... Those verses, written by a fallen soldier, are carved on his own tombstone. He will no longer see those who gather to give the conscripts a send-off, no longer hear the drum, the clarinet or the gunfire, not be able to read the verses written on his tombstone, on seeing which he would perhaps have felt repelled by the determinism they convey. Because from now on he is reduced to a title: a martyr... It is because the State does not recognise as such the war which is etched deeply into the collective life and the collective memory that, apart from a small minority, those who return from it after losing an arm, a leg or an eye receive no allowance. These people who are no longer capable of meeting their own needs are being deceived by talk of fictitious jobs. ‘There is a war, but not officially; you are war-wounded, but you count for nothing.’”
In its considerations the General Staff Court pointed out that military service was a constitutional duty and that the applicant, by denigrating military service had also denigrated the struggle against the PKK, a terrorist organisation which killed soldiers, police officers, teachers and civil servants. It held that the offending article contained terms contrary to morality and public order.
12. Relying on Articles 6 and 10 of the Convention, the applicant appealed on points of law to the Military Court of Cassation. He argued that the General Staff Court had given its judgment without hearing his defence on the merits of the charge. He submitted that as a civilian he should not have been tried by that court, and alleged that it was not independent or impartial.
13. The applicant was allegedly not provided with a copy of the opinion of the Principal Public Prosecutor at the Military Court of Cassation.
14. In a final judgment of 10 February 1999 the Military Court of Cassation upheld the first-instance judgment. It observed that the applicant’s submissions on the merits had been filed by his lawyer, and that the fact that he had been tried by a military court was in accordance with the law.
15. The relevant provisions in force at the material time provided:
“Military justice shall be dispensed by military courts and military disciplinary organs. These courts and tribunals shall be responsible for conducting proceedings concerning offences committed by military personnel which are breaches of military law or are committed against other military personnel, on military premises or in connection with military service and the related duties.
Military courts shall also be responsible for dealing with offences committed by civilians where these are designated by special laws as breaches of military law, or have been committed against military personnel, either during their performance of duties designated by law or on military premises so designated.
The jurisdiction of the military courts as regards persons and offences in time of war or state of emergency, the composition of such courts and the secondment of civilian judges and prosecutors to them where necessary shall be regulated by law
The organisation and functions of military judicial organs, the personal status of military judges and the relations between judges acting as military prosecutors and the commanders under whom they serve shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of the judiciary and with the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law in accordance with the requirements of military service.”
16. Article 155 of the Criminal Code provides:
“It shall be an offence, punishable by two months’ to two years’ imprisonment and a fine ... to publish articles inciting the population to break the law or weakening national security, to issue publications intended to incite others to evade military service...”
17. Article 58 of the Military Penal Code provides:
“Undermining national resistance:
Any person who commits one of the offences defined in Articles ... and 155 of the Criminal Code ... shall be liable to the sentence laid down in the provision concerned, for undermining national resistance”.
18. At the material time section 11 of the Constitution of Military Courts Act read as follows:
“Trial of civilians by military courts:
... the offences referred to in Articles ... and 58 of the Military Penal Code [come within the jurisdiction of the military courts].”
19. Following the amendment introduced on 30 July 2003 by section 6 of Law no. 4963, section 11 of the Constitution of Military Courts Act now reads as follows:
“... Military courts shall not try civilians charged with committing the crimes and lesser offences referred to in Article 58 of the Military Penal Code in time of peace.”
20. At international level, the position regarding the jurisdiction of military courts to try civilian defendants is as follows.
21. Among the member States of the Council of Europe Turkey is at present the only country whose Constitution explicitly provides that military courts may try civilians in peacetime.
Although there is some diversity in legislation governing the jurisdiction of military courts to try civilians, in the great majority of legal systems that jurisdiction is either non-existent or limited to certain very precise situations, such as complicity between a member of the military and a civilian in the commission of an offence punishable under the ordinary criminal code or the military penal code.
22. In its 1984 General Comment on Article 14 of the International Covenant on Civil and Political Rights the UN’s Human Rights Committee issued the following warning to member States:
“The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14. The Committee has noted a serious lack of information in this regard in the reports of some States parties whose judicial institutions include such courts for the trying of civilians. In some countries such military and special courts do not afford the strict guarantees of the proper administration of justice in accordance with the requirements of article 14 which are essential for the effective protection of human rights.”
23. The country reports subsequently adopted enabled the Committee to clarify its position. It no longer hesitated to criticise States whose legislation still permitted military courts to try civilians. The Committee urged those countries to amend their legislation on the question while congratulating those among them who had implemented such a reform. In the final analysis, the Committee took the view that “military courts should not have the faculty to try cases which do not refer to offences committed by members of the armed forces in the course of their duties”. In its 1999 report on Poland the Committee expressed its views even more incisively, stating that it was “concerned at information about the extent to which military courts have jurisdiction to try civilians; despite recent limitations on this procedure, the Committee does not accept that this practice is justified by the convenience of the military court dealing with every person who may have taken some part in an offence primarily committed by a member of the armed forces” (Concluding Observations of the Human Rights Committee: Poland, Doc. CCPR/C/79/ Add. 110, 29 July 1999, § 21).
Similar criticisms were made of the Russian Federation and Slovakia, to mention only member States of the Council of Europe, with the Committee taking the line that civilians should not be tried by military courts in any circumstances (see, in particular, Concluding Observations of the Human Rights Committee: Slovakia, Doc. CCPR/C/79/Add. 79, 4 August 1997, § 20).
24. Lastly, mention should be made of the report on the issue of the administration of justice through military tribunals, submitted to the Commission on Human Rights, which is to debate it at its 62nd session in 2006 (Doc. E/CN.4/Sub.2/2005/9 of 16 June 2005).
The first of the Principles set out in the report reads:
“Military tribunals, when they exist, may be established only by the constitution or the law, respecting the principle of the separation of powers. They must be an integral part of the general judicial system.”
However, the rapporteur pointed out
“... the ‘constitutionalization’ of military tribunals that exists in a number of countries should not place them outside the scope of ordinary law or above the law but, on the contrary, should include them in the principles of the rule of law, beginning with those concerning the separation of powers and the hierarchy of norms.”
Principle No. 2 emphasises respect for the standards of international law in the following terms:
“Military tribunals must in all circumstances apply standards and procedures internationally recognized as guarantees of a fair trial, including the rules of international humanitarian law.”
Principle No. 5, which deals with the functional jurisdiction of military courts, states:
“Military courts should, in principle, have no jurisdiction to try civilians. In all circumstances, the State shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts.”
25. The settled case-law of the Inter-American Court of Human Rights excludes civilians from the jurisdiction of military courts in the following terms:
“In a democratic Government of Laws the penal military jurisdiction shall have a restrictive and exceptional scope and shall lead to the protection of special juridical interests, related to the functions assigned by law to the military forces. Consequently, civilians must be excluded from the military jurisdiction scope and only the military shall be judged by commission of crime or offenses that by its own nature attempt against legally protected interests of military order” (IACHR, Durand and Ugarte v. Peru, 16 August 2000, § 117).
That line of case-law, based on Article 8 of the American Convention on Human Rights, was followed in other cases decided by the Court, and the Inter-American Commission had also previously followed that approach (see International Commission of Jurists, Military Jurisdiction and International Law, (2004, pp. 118 et seq.).
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1