ITEMID: 001-61681
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF NURAY ŞEN v. TURKEY (No. 2)
IMPORTANCE: 3
CONCLUSION: No violation of Art. 2 with regard to death;Violation of Art. 2 with regard to lack of effective investigation;No violation of Art. 3;Violation of Art. 13;No violation of Art. 14;Not necessary to examine Art. 34 (former Art. 25);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Viera Strážnická
TEXT: 8. The applicant was born in 1951 and, at the time of lodging her application, lived in Nizip, Gaziantep, Turkey. She now lives in Paris, having apparently been granted asylum in France. The applicant stated that she made the application not only on her own behalf but also on behalf of her daughter and deceased husband. The case concerns the applicant’s allegations that her husband, Mehmet Şen, was abducted, tortured and killed by members of the security forces.
9. The facts surrounding the death of Mehmet Şen, are in dispute between the parties.
10. The facts as presented by the applicant are set out in Part A below. The facts presented by the Government are contained in Part B. The witness evidence taken by Delegates of the Commission at a hearing in Ankara is summarised in Part C. The summary of the other evidence submitted by the parties, in documentary form, which the Court considers relevant is to be found in Part D.
11. The applicant’s husband, Mehmet Şen, was a Turkish national of Kurdish origin. He was an active member of the Democracy Party (the “DEP” Party) in Turkey until it withdrew from local elections. He had been the Party’s candidate for the post of the Mayor of Ayran (Birecik, Şanlı Urfa) in the 1994 local elections.
12. Throughout his involvement with the DEP, Mehmet Şen was followed and threatened by plain-clothed police and this continued after the withdrawal of his candidacy. On 25 March 1994 Mehmet Şen informed the applicant that he was not being followed by the usual plain-clothed policemen but by other people whom he said might be “hit-men”.
13. On 26 March 1994 at approximately 5 p.m., two plain-clothed policemen had a drink at the Çağdaş café in Birecik, which was owned by Mehmet Şen and Rasim Ağpak. At approximately 7 p.m., a Doğan SLX car (registration number 34 PLT 30) blocked the door of the café. Three plain-clothed persons entered, leaving the car engine running with a fourth person remaining in the vehicle. One of the three persons asked Rasim Ağpak whether he was Mehmet Şen. When he answered negatively, the person approached Mehmet Şen, who confirmed his identity and showed his identity card. Before the nine people in the café, the abductors stated that they were plain-clothed police who were there to take Mehmet Şen to the Security Directorate. Mehmet Şen was grabbed by the arms and taken away in the waiting car. It was later ascertained that a second car with four persons inside had left with the Doğan SLX vehicle.
14. Upon hearing the news of the abduction, the applicant contacted, inter alia:
(a) the Nizip Anti-Terrorism Department, who denied holding Mehmet Şen or any knowledge of the abduction;
(b) the Gaziantep Security Directorate who also denied all knowledge; and
(c) the Gaziantep Branch of the Human Rights Association, with a request that they look into the matter.
15. Other persons also contacted the Gaziantep Security Directorate on the applicant’s behalf, but were told that Mehmet Şen was not in custody.
16. On 28 March 1994 the applicant applied to the Nizip Prosecution by way of petition, reporting that Mehmet Şen had been abducted.
17. On 30 March 1994 an unknown person telephoned the “Özgür Gündem” newspaper and the Gaziantep Branch of the DEP, saying that Mehmet Şen’s body was at the Gaziantep State Hospital. The applicant went to the hospital and, on examining the corpse, concluded that her husband had been killed under torture. She saw the body with the right eye gouged out, the right side of the head crushed to pieces, a broken right arm, broken fingers, marks of blows to the body, and a bullet wound to the head and one to the neck, with no traces of blood, implying that the shots had been fired after death.
18. An autopsy report concluded that there was a bullet wound to the left side of the chest, a bullet wound above the right eyebrow, fired at almost point blank range, exiting the body from the back of the head, a bullet wound to the left cheek, fired at a distance of 95 cm, which had travelled through the body and lodged in the rib cage, that there were no other wounds, blows to the body or head, and that death had been caused by the bullet to the head.
19. On 31 March 1994 the applicant and the DEP Member of Parliament for Siirt, Naif Güneş, met the representative of the Governor of Gaziantep. The Gaziantep Security Director and the Provincial Gendarmes Commander were also present. The Gendarmes Commander said that the body of Mehmet Şen had been found by a shepherd near the village of Karpuzkaya in the Şehit Kamil District of Gaziantep, and that the gendarmes had collected the body. The State Prosecutor, Naci Ayaz, gave the applicant the same information. He also stated that the body had had no identity card on it, and therefore the autopsy report was headed “unidentified body”.
20. However, the applicant was informed that a person at the hospital had witnessed four plain-clothed policemen take Mehmet Şen’s body to the hospital morgue on the night of 29 March 1994.
21. On 13 April 1994 the Gaziantep Branch of the Human Rights Association, on behalf of the applicant, made an application to the Governor of Gaziantep and the State Prosecution. On 22 April 1994, the Governor replied that it had not been possible to determine any suspect or suspects but that the inquiries were continuing. The State Prosecution also indicated that the inquiry into the death was continuing.
22. The applicant was not satisfied with the inquiries and the answers she had been given. The official information she had received was allegedly inconsistent with her own. She therefore continued contacting the State for answers. She was informed on 26 May 1994 by the State Prosecutor that there had been no developments.
23. According to the statements of Osman Özer, Durmuş Kaplan, Maksut Yıldırım, Rasim Ağpak and Abit Şahin, who had been present when Mr Şen was abducted on 26 March 1994, three people entered the café where Mehmet Şen was playing cards. One of them asked where he could find Mr Şen. When Mehmet Şen presented himself, he was asked to show his identity card. Then the person in question came closer to Mr Şen and showed him a card, the details of which the witnesses could not see. Osman Özer and Maksut Yıldırım also stated that the persons who came into the café had not openly presented themselves as plain-clothed policemen, so they could not say for certain that they were. Rasim Ağpak stated that Mehmet Şen had not asked any questions or resisted the abductors. It was as if he had known them.
24. On 29 March 1994 Mehmet Şen’s body was found near the quarry of Karpuzkaya on the Kahramanmaraş-Gaziantep highway construction site. On the same day an autopsy was carried out. The autopsy report concluded that death had resulted from a fractured skull, the destruction of the cellular tissues of the brain and an internal haemorrhage due to a bullet wound. There were no signs of assault or torture.
25. The Nizip Public Prosecutor started an investigation into the killing of Mehmet Şen. On 18 May 1994 a decision of non-jurisdiction was issued and the file was sent to the Gaziantep Public Prosecutor. According to the preliminary findings, Mehmet Şen had not been taken into custody by the security forces. The car in which he was driven away carried a false registration number. The investigation was still pending in June 1996.
26. The facts of the case being in dispute between the parties, three Delegates of the Commission took evidence in Ankara between 16 and 18 June 1998. The applicant appeared before the Delegates, as did ten other witnesses for one or other party. Certain other witnesses had been summoned but failed to appear. The evidence of those who attended the hearing may be summarised as follows:
27. Mrs Şen was born in 1951 and had been married to Mehmet Şen since 1971. She had been a teacher and he ran the Çağdaş coffee house in Nizip, owned by his brother. He had had no personal enemies or debts. Nor had he been involved in any vendetta.
28. Mr Şen became politically active around 1991, helping to create the HEP Party and the DEP Party in 1992. The DEP withdrew from the 1994 local elections due to the intimidation of its members (threats, detention and murders).
29. Her husband had been a leading member of DEP and, when he stood as a candidate for the post of the Mayor of Ayran in early 1994, he was threatened by the Gendarmes Station Commander of that constituency (who may have been called Sergeant-Major Orhan), and regularly picked up by the police for questioning. He was so intimidated that he resorted to carrying a licensed gun and rarely went out alone. He was taken to the police station many times and harassed. He sold the gun eventually as he was detained several times at night with a view to ascertaining whether the gun had been involved in incidents. However, this was just part of the harassment to which he was subjected.
30. Two days before he was abducted, Mr Şen told his wife that he was being followed by hit-men, men who were not his previous surveillance officers. He had been alerted to this possibility by an acquaintance who had been detained and interrogated about Mr Şen, and about whom the interrogators had said that Mr Şen would be “done away with”. Some seven people had been killed in the recent past by unknown perpetrators because of their DEP affiliation and/or membership of the Kurdistan National Assembly. These hit men were not recognised by Mr Şen, who had known most of the local policemen. They were of medium height and able-bodied, carrying radios and guns. Mrs Şen had understood her husband to mean that they were contra-guerrillas operating under State authority, as confirmed in the later Susurluk report.
31. On 16 March 1994 Mrs Şen was informed of her husband’s abduction 5 minutes after its occurrence by Osman Özer, one of the café’s employees. Mr Özer told her that two strangers had been in the café for tea. They seemed tense, made a telephone call and left. Then a Doğan SLX car (registration number 34 PLT 30) stopped in front of the café, blocking the door. Of the four unknown people in the vehicle, one stayed in the driver’s seat with the engine running, another, carrying a gun and a radio, waited at the door. That man was well dressed and middle-aged. Two others, casually dressed, strong looking and with apparent special training, walked towards Rasim Ağpak, who looked rather like Mr Şen, and then moved on to Mr Şen, who identified himself. The two flashed identity cards at the people in the café. The armed man at the door spoke into his radio, “OK, Sir, we’ve got him”, and then said to Mr Şen, “You’re coming with us to police headquarters. We have business with you.” Mr Şen tried to ask questions but was dragged towards the door by the two men, holding him under his armpits. He was put in the back of the car, which drove off immediately. Despite the shock and panic of the people in the café, they managed to note down the registration number of the car.
32. These matters were discussed over and over again in the following days with Osman Özer, Rasim Ağpak, Maksut Yıldırım and Durmuş Kaplan because Mrs Şen wanted to learn as much as possible about the details of the incident. It was during such discussions with others that she learnt that another car, with four other plain-clothed people in it, drove off behind the first. She had not talked to Abit Şahin, who had also witnessed the events, as she did not know him.
33. The people in the café had said that the abductors had been policemen because of the gun, the radio, the identity cards they had shown everyone and what they had said. However, the café witnesses were taken from their homes in the ensuing days, at 2 o’clock in the morning, for interrogation, and statements were demanded of them. This had intimidated them.
34. Immediately after Mr Özer’s call, Mrs Şen called the Nizip Police Headquarters and the Anti-Terrorism Department. They said that they had not taken him into custody and had no information about him. They confirmed that they would investigate. She tried contacting the Mayor, a Member of Parliament, a delegation from Switzerland and DEP members, for them to make inquiries about her husband’s fate.
35. Mrs Şen’s inquiries with the Urfa, Gaziantep and Birecik Police proved fruitless. Travelling had been difficult at the time because of roadblocks and identity checks, through which only the security forces could pass easily. She nevertheless went to Adana after she had been told by a lawyer called Çağatay Özaslan that the car number plate was a forged one used by the Adana Police. The Public Prosecutor there was not helpful. He referred to a DEP Member of Parliament who had been killed and added, “What can I tell you? What can I do?” She was advised to go home and wait.
36. She then met a DEP member called Müskün Kurucu who told her that the Gaziantep branch of the DEP had telephoned to say that she should return home immediately. On her arrival, she was told that the body of her husband was in the morgue at the State hospital. The Gaziantep DEP and the newspaper “Özgür Gündem” had been telephoned by a well-spoken Turkish lady who had provided this information. Mr Şen’s relatives were called and Mrs Şen met her sister-in-law and father-in-law at the hospital, where a crowd had gathered, cordoned off by the police.
37. Mrs Şen was not informed of the circumstances surrounding the recovery of the body. Subsequently, the Public Prosecutor of Gaziantep, Mr Naci Ayaz, informed her that the body had been found by the gendarmerie in the rural area of Karpuzkaya, in the Şehit Kamil District of Gaziantep. The body was unidentifiable, as it had no personal belongings or identity card on it, until the inner pocket of the suit, which the corpse was wearing, was ripped open to disclose Mr Şen’s name, written by his tailor on the lining. However, Mrs Şen said that the suit had not been tailor-made, but had been a ready-to-wear purchase from a shop. She did not recall the gendarmes mentioning this matter to her. She therefore insisted on further information as to how her husband’s body had been identified. She was told that her husband’s belongings were to be kept for the investigation. A ring and watch were returned to her father-in-law in the autumn of that year.
38. The sight of her husband’s body was horrible: the right side of his head had been smashed; his right eye was not in place; his right hand fingers and arm appeared broken, and there was a hole through his throat with no blood around it. She saw only one bullet wound. She insisted on having a copy of the autopsy report, which she was not given until long after the burial, and which did not correspond to her observations (such as its description of two other bullet wounds to the face).
39. Mrs Şen told the Public Prosecutor that her husband had been tortured, and insisted that a murder investigation be conducted. However, the Public Prosecutor would not listen to her and no statement or information was sought from her. As she persisted in visiting the Prosecutor regularly, a statement was taken from her a month later on 26 April 1994. However, no progress whatsoever was made in the investigation, even years later.
40. After her husband had been killed, her house was put under constant surveillance, all visitors being recorded, and many asked by the policemen on duty why they were visiting such terrorists. Her 12-year-old daughter had been stopped as she was leaving school and asked by plain-clothed policemen whether her mother used her as a courier and what kind of papers she was carrying. She was so scared by this and the idea that she might be killed like her father, that she stopped attending school.
41. Mrs Şen received threatening telephone calls at that time. The caller said that he was a contra-guerrilla and that she would be killed too. She changed the locks on the doors to her home as her husband had had his house keys on him when he had been abducted. She and her daughter were away on 28 May 1994 when special policemen unsuccessfully tried to enter the house, according to the employees of the bakery situated on the ground floor of her building. The police then went to the house of Mrs Şen’s friends where her daughter was staying and asked why they had taken in a terrorist’s daughter. The father of that family was placed in custody for four or five days and interrogated about his relationship with the Şen family.
42. Mrs Şen was warned not to go home as there was a purple civilian car waiting at the corner of the street and that she would be taken away. Since then she has not returned home even to recuperate her belongings or souvenirs of her husband. Out of the same concerns, she was living separately from her daughter.
43. She was taken into custody on 10 November 1995 in Diyarbakır and interrogated for 11 days about her alleged membership of the PKK (the Kurdistan Workers’ Party) (see her other application to the Convention organs – Nuray Şen v. Turkey, no. 41478/98, judgment of 17 June 2003).
44. Mr Şen was an elderly gentleman, born in 1916. He was the father of the deceased Mehmet Şen. His son had not told him of his fears for his life prior to his abduction, nor of the difficulties he had faced as a politician. He had had no enemies whatsoever. Everyone liked him.
45. Mr Şen was informed the morning after the event that his son had been seized by policemen the evening before. He intuitively knew that he was dead. He went to Nizip. His daughter-in-law had gone to Adana in search of her husband. In Nizip he heard from Gaziantep that his son had been killed.
46. Mr Şen went to the Gaziantep Hospital to identify the body. He did not meet Nuray Şen there. He could not bear to look at his son’s tortured corpse, but noticed that an eye was missing, apparently caused by a bullet wound, and that he had a fractured finger. His son’s clothing was bloodstained. Apparently he had been killed by the police, perhaps because of his candidacy for Mayor.
47. The police ordered him to remove the body, but he did not do so until the following day. A great crowd gathered. They took the body back to the village and buried it. There were police and gendarmes everywhere on alert, who behaved disrespectfully. Nuray Şen was at the funeral.
48. One or two months later he was called to appear before the Prosecutor and Judge to receive his son’s personal possessions. He took the watch and ring but not the clothes which were soaked in blood. The only inquiry made later was by the Gendarmes Station Commander, Sergeant-Major Orhan, about Nuray Şen’s stay with him for 9 or 10 days, which dates the gendarmes deliberately recorded wrongly.
49. Mr Şen was born in 1970. He was no relation to the deceased Mehmet Şen and did not know him.
50. In May 1994 the witness was stopped at a police roadblock at the exit from Nizip, where everyone’s identity was checked. One could not leave Nizip without going through this checkpoint. He was also given a body search and asked why he was carrying a copy of the newspaper “Özgür Ülke”. He alleged that, because of his surname and the possession of the newspaper, he was taken into a field by three officers and tortured with beatings for two or three hours. In view of this experience, he could understand how Mehmet Şen had died.
51. Mr Aktaran was born in 1958 and was a Public Prosecutor at Gaziantep a year after the events, from February to August 1995.
52. The investigation into the death of Mehmet Şen was opened by the Gaziantep Chief Prosecutor, Naci Ayaz. The file was subsequently transferred to him. It contained witness statements taken by the police, Mrs Şen’s statement to the Prosecutor and the autopsy report, but provided no serious leads as to the perpetrator of the crime. There was no ballistic expertise of the bullet found in Mr Şen’s body or of the empty cartridge found near his corpse. No evidence had been taken from police witnesses because none had been identified as being implicated in the death. The suggestion that Mr Şen had been involved in vendettas was not taken up as it had no serious basis.
53. On receiving the file, the witness found lacking an inquiry into the registration number of the car in which Mr Şen had been abducted – a honey-coloured vehicle with a registration containing the letters PLT, PUC or PUD. This inquiry revealed that either the car had had false number plates or that the witnesses had been mistaken about the registration number. He did not seek other information following the evidence of the eyewitness Osman Özer as to a green car with the number 34 PVC 30 or 34 PVD 30. He was unaware of any significant discrepancies in the overall evidence on this or other points.
54. Mr Aktaran considered that he and his colleague had conducted a satisfactory investigation in the circumstances. Prosecutors do not need to take further evidence from people whose statements have already been taken by the police. At the outset he had been open-minded about the applicant’s allegation that the security forces might have been involved in the incident. However, there had been nothing in the various statements taken to suggest that an inquiry into any particular officers was required. He placed a permanent search warrant on the file, so that the investigation would remain open for another 20-25 years should new evidence appear.
55. Mr Kelleci was born in 1973 and at the material time was working as a reporter for the Gaziantep office of the “Özgür Gündem” newspaper. He had been acquainted with Mr Şen.
56. In a general operation against the “Özgür Gündem” newspaper on 11 December 1993, the witness was taken into custody and held for some six days. On the fourth day of his interrogation, the name of Mehmet Şen was mentioned with a threat “to finish him off” or “do him in” along with two other named persons. Mr Şen’s name was cursed. The witness thought that the remarks were intended to be passed on to Mr Şen. He later informed Mr Şen of this threat and advised him to take care.
57. The next time he saw Mr Şen was at the morgue. His newspaper had been telephoned with the news by a well-spoken Turkish lady. He had taken the call himself. When he saw the corpse, of which he took photographs, he remarked the strange position of the wrists, which looked fractured. He did not see the injured side of the face which was turned parallel to the table. No autopsy had been performed on the body at that stage.
58. On returning home from the morgue, he received an anonymous telephone call also threatening him with death.
59. Mr Kelleci accompanied Mrs Şen and a delegation to the Governor’s office on 31 March 1994. Afterwards, the witness saw the Gaziantep Gendarmes Commander, Chief of Police Hüseyin Çapkın and the Deputy Governor. They stated that Mr Şen’s death was possibly linked to gambling debts and had not been perpetrated by the State. He told them of the death threat he had personally received but it was not taken seriously. They persisted with the gambling debt theory and assured him that Mr Şen’s murderer would be found.
60. Mr Alan was born in 1958 and was a tailor by profession in Gaziantep, as well as the Chairman and District Leader of the DEP Party at the material time. He knew Mehmet Şen from their common political activities. In those days there had been many killings by unknown perpetrators which, together with the bombing of the Party’s headquarters in Ankara, led to their withdrawal from the imminent elections.
61. Mr Şen came to his shop four days before his abduction and offered to repair his car. When driving it away, the witness noticed that Mr Şen was being followed by a white police car, a Renault Toros. This had happened to him too. The occupants were obviously plain-clothed policemen, whom he could identify if he saw them again. All Party members were under great pressure at that time. Even after the Party’s withdrawal from the elections, it continued: he was taken into custody at midnight on 29 March 1994, four days after Mr Şen’s abduction, and challenged about disseminating propaganda for the Welfare Party instead.
62. On the drive into custody, he was told that Mr Şen had “changed worlds”, and that he would be “sent to the place where he is”. He had understood the remarks to mean that Mr Şen was dead and that he would be killed too. (He had not heard of the recovery of Mr Şen’s corpse at that stage, so he was not too sure.) Panicking, the witness claimed to have made certain telephone calls before he had been taken from his house, including a call to the normal police. He was then punched and, before the car left town, it turned round and deposited him at the police anti-terrorism department, some 220 meters from his house.
63. Mr Alan was held in police custody for 16 days. The custody records indicating a shorter period were incorrect. He was interrogated under torture. Mr Şen was not mentioned but Mr Alan was told that his Party was “finished in Nizip”. He was subsequently remanded in custody for three months, accused of being, inter alia, a member of, and aiding and abetting, the PKK. On release, these charges were dropped and a remaining charge of possessing a gun without a licence was still pending.
64. Dr Erkol was born in 1962. She had worked as an expert in forensic medicine and as a lecturer at the Medical Faculty of Gaziantep University since 1990.
65. Dr Erkol performed the autopsy on Mehmet Şen, whose identity was unknown at that time, as was that of his killer. Given the frequent blood feuds in the area, she suspected that the murder was another of that kind. She was struck by the fact that the victim had been blindfolded. Dr Ahmet Aslan, an unspecialised physician, assisted her at the autopsy. The Public Prosecutor, Naci Ayaz, whom the witness described as a meticulous and responsible professional, attended the procedure.
66. The body, fully clothed, was inspected on site and photographed by Dr Aslan and the Prosecutor. It was then taken to the hospital for examination. The bloodstains on the victim’s jacket indicated that he had been shot whilst clothed and still alive. The clothes were removed at the morgue. Dr Erkol had been told prior to the autopsy, and then saw herself, that the name of Mehmet Şen had been written in biro on the inside pocket of the jacket, but that was insufficient evidence of identity. She did not follow the local news, so had not heard about Mr Şen’s abduction. It was not her responsibility to identify the corpse.
67. The body was X-rayed to verify the placement of any bullets still lodged in it. The X-rays were not kept. There were two bullet wounds to the head, one bullet having remained lodged in the chest. They had caused extensive fracturing, brain damage and haemorrhaging, resulting in death, some 36 hours to four days before the autopsy. It would appear that Mr Şen had been killed two or three hours after his last meal. It was not possible to be more precise about the time of death given the limited facilities available in Gaziantep. The bullet which had entered and exited the skull had torn the victim’s eye out. Neither the arms nor fingers had been fractured, but their distorted position would have been due to the onset of rigor mortis.
68. The remaining bullet would have been kept. It was probably of a wide calibre – 9 mm – fired from a short-barrelled gun, within a 95 cm range of the body. A ballistic analysis could prove valuable only if linked to a suspect weapon and a comparative study.
69. The body showed no trace of ill-treatment. In the absence of any obvious external signs or allegations of torture, no examination of the internal organs was conducted. However, the body had begun to decompose, presenting signs of post-mortem discolouring, distortion through rigor mortis, and, with the bullet injuries and autopsy incisions, was a very ugly sight. An untrained person might understandably misconstrue these elements as evidence of ill-treatment. Moreover, the body was not washed down after the autopsy, so it may have looked even bloodier. Washing was for the hoca, a religious leader on duty at the morgue, or the family to perform. The hole in the throat seen by Mrs Şen would have been an autopsy incision.
70. People cannot enter the morgue without the Prosecutor’s authorisation, other than perhaps a very close relative who might be allowed to view the body by the hoca. She could not tell from the poor photocopy of the photograph taken by the journalist, Mr Kelleci, purportedly of Mr Şen’s corpse in the morgue, whether that photograph had been taken before or after the autopsy. However, judging by the position of one of the hands in the photograph, it was probable it had been taken before the autopsy had been conducted.
71. It transpired that the photographs provided by the Government at this point in the hearing, and in respect of which the witness noted several contradictions with the autopsy findings, were not of Mr Şen’s corpse.
72. Mr Güdül was born in 1947 and was the official chauffeur for the law courts. He also accompanied the Prosecutor at autopsies.
73. In the present case he had driven the Prosecutor to where the body had been found. It was on the road construction site but accessible by car, albeit very dusty because of the nearby sand quarries and frequent heavy lorry traffic. There were gendarmes at the scene, as well as a finger print expert, a clerk and a doctor. The Prosecutor made a record which included the position of the body. This procedure took about an hour. The body was lying on its back, clothed. There was a yellow, car-polishing cloth over its eyes. There was blood on the ground which had come from the back of the head. The body was transported by ambulance to the Gaziantep State Hospital morgue as an on-site autopsy was not possible. There had been no discussion as to its identity.
74. He was sure that no one saw the corpse at the morgue other than the officials concerned. He described the same X-ray, medical procedures and findings as Dr Erkol, having been present throughout. He did not recall the name of Mr Şen being inscribed inside his jacket. He had had no idea who the individual was. That was a police matter. For him it was just an ordinary incident. He did not recall being present when Mr Şen’s father arrived at the morgue to identify the corpse, although his signature had been on the relevant document. The circumstances had been very distressing at the time.
75. Mr Pekbalcı was born in 1956 and was a farmer by profession. He had been working on the road construction site, obtaining materials from the quarry using explosives. He had had a fright after one particular detonation when he spotted a corpse about 10 m away from him, which, without approaching it, he reported to the Gendarmes Station of Aktoprak. He signed a statement to that effect at the station. The place where the body was found was accessible by car but was frequented mostly by lorries. He had been working with İbrahim Kilit at the time.
76. Mr Sünbül was born in 1970 and was a Gendarmes Non-commissioned Officer. At the material time he was Station Commander at the Şehitarif Sub-station which was attached to the Central District Station in Gaziantep. His superior was Hüseyin Kanat, the District Gendarmes Commander.
77. Mr Sünbül had been at his station when MM Pekbalcı and Kilit reported the presence of a corpse on the Tekfen highway construction site. He took statements from them and then went with a unit of his men to the location. There they found the clothed body of a man, some 45-50 years old, lying on his back, with firearm wounds to his head and face. He checked the throat artery, confirming death, cordoned off the area and notified his superiors. Although there appeared to be two bullet wounds, only one cartridge was found, despite a thorough search of the immediate vicinity. He had no idea of the time of death or how long the body had been there. The person in charge of the criminal laboratory at the Provincial Gendarmes Headquarters took photographs. These would still be in the gendarmes’ files if they had not been sent to the Public Prosecutor.
78. The next day he typed up a report from his notes about the corpse, which had not been identified as no identity papers had been found, although Mr Şen’s name had been written on the jacket. The Prosecutor must have been shown that. He had not been aware of Mrs Şen’s missing person report the day before. His station had not been informed of that. The abduction had taken place in Nizip and his station would not have been informed unless directly asked to make inquiries. He presumed that his superiors had conducted the necessary inquiries after he had told them about the name in the jacket.
79. Mr Sünbül sent the empty cartridge case, together with the person’s ring and watch and the documents he had prepared, to the Public Prosecutor that day. The blindfold was also transmitted. It had the name and number of a petrol station on it, about which inquiries were made by his superior officer. No analysis was carried out of the soil near the corpse for the fibres of other clothes or the like. He could not recall whether casts were made of the footprints near the body.
80. The body’s location had been accessible by car. The area consisted of compacted earth on which there were footprints. Only the site workers frequented the area and the body had been well hidden from view. There were no vehicle tracks within an 8 to 10 m perimeter of the corpse.
81. He did not recall whether there had been checkpoints in place on the day the body was found. Subsequently, he interviewed local villagers and site workers in an unsuccessful effort to gather information about the incident. It would have been possible to have transported Mr Şen to the site using secondary roads and thus avoiding the road-blocks on the main route. If he had been informed of Mr Şen’s abduction, he would have instructed the checkpoints under his control to look out for him. At the checkpoint, people’s identity cards would be checked manually against a list of wanted persons. The officers could also search vehicles and persons who were suspect.
82. Mr Kanat was born in 1969 and he was the Şehit Kamil District Gendarmes Commander at the material time, with six stations under his command, including a large central station. The workload was very heavy.
83. After being notified of the incident by the Station Commander, he in turn notified the Provincial Gendarmes Commander and the regiment’s operations centre. He accompanied the Public Prosecutor to the scene, which had already been secured on his instructions by the Station Commander. The regiment’s team of crime specialists arrived in separate vehicles and carried out a systematic and detailed investigation. The photographs which they had taken should have been retained at the Gaziantep Central Gendarmerie. They would have been sent to the Public Prosecutor if requested. They were kept principally to assist in identifying the body and showing them to people assisting with the inquiries.
84. Mr Kanat confirmed Mr Sünbül’s description of the corpse, the bullet wounds, the empty cartridge and the name written inside the jacket. The body seemed to have been in place for some time – perhaps 15 or 16 hours. He thought that a ballistic test had been made at a later date. The results would be in the Prosecutor’s file. The blindfold was marked with the name of a service station called Petrol Ofisi, from which it was thought that the victim could have been from Nizip. However, he had not heard of the abduction of Mr Şen beforehand. The area was searched for footprints or other leads. Footprints were found near the body which could have been those of the people who had discovered it. However, they were not recent enough for casts to be made.
85. On the instructions of the Prosecutor, they searched the body and found a small piece of paper in the inner pocket of the jacket with the name Mehmet Şen written on it. It could also have been the case that the name had been written in very small letters on the pocket lining. Perhaps a dry cleaner had done this. They took the blindfold and notified the regiment’s operations’ centre to confirm the person’s identity. This was not confirmed until the witness returned to the main station in Gaziantep. He was not present at the autopsy but did attend the funeral.
86. After establishing that the deceased person was Mehmet Şen, Mr Kanat went to Nizip where he started his inquiries. According to the statements of witnesses, the victim was last seen playing cards at the coffee shop. Three people entered the café and then left with him by car. The vehicle bore the registration number 35 PLT (or PLV) 30 which, following inquiries by the provincial police headquarters, proved to be false. Other similar numbers were searched unsuccessfully. He rejected any suggestion that the security forces in the area had been operating in vehicles with false number plates. All their vehicles had official plates. Inquiries were also made as to the identity of a woman who worked in a nightclub, and who was mentioned in the statements taken, but a check on all the nightclubs proved fruitless. Nothing suspicious was reported by the local stations or the check-points on the main road. In any event, it would not have been possible for them to check every passing vehicle as traffic was heavy. Besides, the killer could have taken the secondary roads with no roadblocks.
87. At first he did not consider the possibility that the death had been perpetrated by officials. He thought that this was a settling of scores within the “organisation”, particularly as the victim had been a candidate in local elections, and such unpleasant incidents frequently occurred at the time. Later however he did make unofficial background inquiries into Mrs Şen’s allegation of official involvement, particularly concerning police employees, but he found no evidence to support her claims. He thus rejected this theory. He made no contact himself with Mrs Şen, the café employees or any DEP Party members. Statements were taken by his subordinates about the murder. The police also took statements, possibly because of the abduction offence which had occurred within their jurisdiction. No records were drawn up of inquiries which proved fruitless. So, for example, if someone had gone to the aforementioned petrol station but inquiries there had revealed nothing pertinent, no record of that visit would have been made.
88. More than ten people had been murdered by firearms during the three years he was stationed in the area. Most of the perpetrators of those crimes had been found. The killer of an unknown person, whose head had been crushed beyond recognition, was not found, like the murderer of Mr Şen. These two incidents were unusual. He had heard that seven members of the DEP Party had been murdered, but did not know if it had occurred at the material time. He had not heard of groups of contra-guerrillas employed unofficially to eliminate political opponents or activists, other than what he had read in newspapers.
89. Certain key witnesses failed to appear before the Delegates of the Commission: the eyewitnesses to the abduction of Mr Şen from the coffee shop, namely Osman Özer, Rasim Ağpak, Maksut Yıldırım, Durmuş Kaplan and Abit Şahin, who were to have been summonsed through the applicant’s representatives, and the principal Public Prosecutor in the case, Naci Ayaz, summonsed through the Government Agent. Mr Ayaz refused to attend the hearing because of a heavy workload.
90. The applicant declared that her husband had been abducted from his place of work by plain-clothed policemen on 26 March 1993 around 7 p.m. and that she had had no news of him since. There had been seven eyewitnesses to the event. The applicant also lodged a formal criminal complaint. The Prosecutor immediately ordered the Nizip Security Directorate, urgently, to make the necessary inquiries and take the pertinent statements. On 30 March 1994 the Prosecutor issued a similar instruction to the Gaziantep Population Service. That day, he also issued the burial certificate and authorisation. On 18 April 1994, the Prosecutor requested an urgent reply to his instructions from the Nizip Security Directorate.
91. The Prosecutor, Naci Ayaz, instructed the Gaziantep Gendarmerie to make an in-depth, discreet investigation into the murder, to identify the assassins, and to respect their defence rights on arrest, to take the evidence of eyewitnesses and to transmit the results to him.
92. Mr Kilit described how his colleague, Selahattin Pekbalcı, had found the corpse of Mehmet Şen while working nearby on 29 March 1994, and he had driven over with his lorry to see it and immediately notified the gendarmes. He did not get out of the lorry to examine the corpse more closely. Mr Pekbalcı stated that he had been recuperating cables for explosives work and, while walking down the highway, he had spotted the corpse. He then informed Mr Kilit and accompanied him to the gendarmerie.
93. Mr Mehmet Sünbül, a Gendarmes Sergeant, recorded that Mr Pekbalcı had said to him that he had spotted the corpse on the highway construction site but had been too scared to go over to it. Mr Sünbül had made a sketch of the site and the placement of the corpse. That record also contained details of the few personal effects found on the deceased, which effects included a ring and watch.
94. Mr Sünbül had made a sketch of the site and the placement of the corpse. He recorded that the body of an unidentified person had been found. The deceased was Mehmet Şen, killed by a bullet to the head. The crime had probably been committed some 24 to 36 hours before the body was discovered. The identity and number of the assassins were unknown. The minutes described, inter alia, how the gendarmes had been informed of the incident and the state of the corpse (see also paragraph 95 below).
95. The Gendarmes Command had informed the Prosecutor’s Office by telephone that the body of an unidentified man had been found, shot, 2 km from the village of Karpuzkaya. Prosecutor Naci Ayaz and other officials went to the scene of the incident at the highway construction site. The area had been cordoned off. The state of the body was described and the evidence of Mehmet Sünbül was taken. He said that around 2 p.m. that day two construction workers had come to the Gendarmes Station and reported the body. He went with his team and the two workers to the scene. He found the body of a man of around 40 years of age, and gave other details about the corpse. An empty cartridge had been found a metre away. He noted that the name Mehmet Şen had been written in biro on the lining of the inside pocket of the deceased’s jacket. Photographs were taken of the body and the scene. The doctor present said that an autopsy could not be conducted there and then as night was falling, so the body was taken to the State Hospital.
96. The state of the corpse and its clothing were described. The cause of death was found to have been a bullet wound to the skull, causing major brain damage and haemorrhaging, some 36 hours to 4 days before the examination.
97. The report, written by Mr Hüseyin Kanat, described the finding of the body of an unknown person who had been murdered with a 9 mm calibre pistol. The deceased’s clothes and personal effects were depicted. On 29 March 1994 around 2 p.m. a telephone call was received at the gendarmerie from someone calling himself Mehmet Şen (sic), reporting the finding of a male corpse. The Chief Prosecutor was immediately informed. After an investigation, it was established that the person had been killed on 28 March 1994.
98. The report, also written by Mr Hüseyin Kanat, gave the identity of the victim, his wife and their address. It mentioned the abduction on 26 March 1994 and that inquiries were continuing.
99. The Prosecutor, Naci Ayaz, described the finding of an unidentified corpse near the Karpuzkaya village on 29 March 1994 and the subsequent identification of the body by Necip Şen, the father of the victim, the next day.
100. The property found on or near the deceased was listed. It included a 9 mm empty cartridge, cigarettes and a lighter, and a windscreen cloth from the Bucak petrol station.
101. Mr Kaplan stated that he had known Mehmet Şen for some 5 to 10 years. Mr Şen had been his associate in running the Çağdaş Café. On 26 March 1994 around 4 or 5 p.m., Mr Şen had been playing cards in the café with others. Mr Kaplan had been at another table. Three unknown men came into the café. Two stayed at the door and the third approached Mr Şen. While asking to see his identity, the man showed him his. The latter had had his back to Mr Kaplan and was carrying a walkie-talkie. One of the men at the door told him to hurry up, whereupon Mr Kaplan looked at him. He described that individual. Mr Şen left the café with them, quite normally, in a car with a registration number beginning with the numbers “34”. Before meeting Mr Şen, Mr Kaplan had known that he had been a heavily indebted gambler. Mr Şen’s brother in Germany paid his debts. Mr Şen knew a certain İnci Doğan, a hostess at the night club in Gaziantep. Mr Kaplan had previously discussed with Mr Şen the latter’s DEP Party candidature for the post of the Mayor of Ayran.
102. Mr Kaplan confirmed his statement above (paragraph 101) and added that he had not seen whether an actual identity card had been shown to Mr Şen by the stranger who had approached him; nor did he hear the reason why Mr Şen was being taken away. Mr Şen had not seemed perturbed, however. Because of gambling debts amounting to 50-100 million Turkish lira, Mr Şen had sold two bakeries which he had owned, and his home and café were mortgaged.
103. Mr Özer declared that he had known Mehmet Şen for 2 or 3 years. He was one of his associates in the running of the Çağdaş Café. On 26 March 1994 around 4 or 5 p.m., they had been playing cards with two others when three unknown men came into the café. Mr Özer described two of them. One man came over to the card table and asked for Mehmet Şen, who identified himself. On request, Mr Şen showed his identity card, which the man kept, and then showed his, asking Mr Şen to follow him, which he did without protest. The man said to them, “It’s not serious.” The four left in a metal green coloured Doğan SLX, registration number 34 PVC (or PVD) 30. He immediately notified Mrs Şen, but was unable to tell her who the men were. He added that he had read in the newspapers that Mr Şen had been a DEP Party candidate for the post of the Mayor of Ayran.
104. Mr Özer essentially confirmed his statement of 1 April 1994 (paragraph 103 above), whilst amending the car registration number to 34 PLT (or PVT) 30, and adding that Mr Şen had had gambling debts and had been involved in a long-standing vendetta.
105. Mr Şahin said that he had been a waiter at the Çağdaş Café. On 26 March 1994 Mehmet Şen had been playing cards with others there. All Mr Şahin had seen, around 7 p.m., was Mr Şen leaving with two other people, whose backs were turned to him and whom he was incapable of recognising or identifying. He had heard it said that these people had presented themselves as policemen.
106. Mr Yıldırım had been playing cards with Mehmet Şen at the Çağdaş Café on 26 March 1994 when, around 5.15 p.m., a man had entered the café and asked Rasim Ağpak if he were Mr Şen, whereupon the latter identified himself. The individual showed Mr Şen a document enclosed in an identity wallet, and told him that he had to accompany him, which he did. Mr Yıldırım had not taken note of the individual or his appearance as he had had his back half-turned away from the man. Before leaving, Mr Şen asked Mr Özer for some money, but Mr Yıldırım had not looked at him at that point in order to avoid any embarassment. He had not been worried by any of this as he had been absorbed by the excitement of the card game. After drinking some tea, Mr Yıldırım went home. He knew that Mr Şen had been involved in a vendetta for years and that he liked going to nightclubs and gambling, thereby spending the money he made from the bakery which his brother had given him.
107. Mr Ağpak said that on 26 March 1994, around 5.15 p.m., someone came up behind him while he was playing cards at the Çağdaş Café, asking whether he was Mehmet Şen. Before Mr Ağpak could turn round to see who was speaking to him, Mr Şen identified himself. Within a few seconds, Mr Şen had left the café. Mr Ağpak could not remember what the stranger had looked like or whether he had shown an identity card. He had continued playing cards as the matter did not concern him.
108. On the basis of the statements made by the eyewitnesses, MM Kaplan, Özer, Yıldırım and Ağpak, a sketch was made of the inside of the Çağdaş Café where they had all been sitting when Mr Şen was taken away, the streets outside and the placement of the abduction vehicle, registration number 34 PLT 320 or 34 PVT 30.
109. It was recorded that the investigations, including a car registration check, had so far not disclosed the identity of the killers of Mehmet Şen, but that inquiries were continuing.
110. The report recounted that on 29 March 1994 the body of an unknown man was found 2 km from the village of Karpuzkaya. The autopsy revealed that he had been killed on 28 March 1994 by a gunshot wound to the head. Investigations discovered that the victim had been Mehmet Şen who, on 26 March 1994, had been abducted from a night club by three people in a car bearing the false registation number 34 PLT 30. Since then there had been no news of him.
111. It was noted that the gold wedding ring and wristwatch belonging to Mehmet Şen were to be handed to his heirs.
a) on 4 April 1994 to the Gaziantep Human Rights Association
112. The applicant stated that her husband had been abducted from his café on 26 March 1994 around 7 p.m. by three people claiming to be plain- clothed policemen, in a honey-coloured Doğan SL car, registration number 34 PTL 30. Her enquiries of the local authorities revealed nothing. She later learnt of and saw his tortured body at the morgue of the Gaziantep State Hospital. The applicant recounted her husband’s fears on 25 March 1994 about two men who had been following him, and the eyewitness accounts of two strangers being in the café drinking coffee on the afternoon of the abduction. She suspected that her husband had been abducted, tortured and killed by contra-guerillas.
113. This statement essentially contained the applicant’s original allegations described above (see paragraphs 11-22 and 27-39). She added that she was now convinced that her husband had been abducted, tortured and killed by contra-guerillas because of his political beliefs and activities for the DEP Party.
114. This statement essentially contained the applicant’s original allegations described above (see paragraphs 11-22 and 27-39). She claimed that four people had abducted her husband (rather than the three previously mentioned, paragraph 112 above). She could conceive that her husband had been murdered because of his political affiliations and ambitions, but was now of the view that it had been the work of contra-guerrillas. Seven DEP Party members had been abducted and murdered to date. She confirmed her criminal complaint and asked that her husband’s killers be brought to justice.
115. The applicant recounted how her father-in-law, Necip Şen, had been called to the office of the Birecik State Prosecutor and handed his son’s ring and watch. He was informed that no progress had been made in the identification of his son’s murderers. However, on the many occasions on which the applicant had gone to the Gaziantep Prosecutor’s Office for a progress report, she had been told that no personal possessions had been found on her husband’s corpse. She therefore deduced that the Turkish State knew of her husband’s murder / murderers, and demanded to be told, inter alia, how the State had obtained the ring and watch, from whom, and for how long they had kept them, as well as the identity of the murderers and her husband’s last words.
116. Mrs Şen alleged that her father-in-law had been mentally tortured by the Urfa Anti-terrorist Department in January 1995 to give information about her current whereabouts and activities. Her relatives in Nizip and Gaziantep were being put under similar pressure. So she could no longer go home or work. Since giving an interview to Amnesty International, she had been denounced as a PKK member at a press conference given by a Turkish Government spokesman, relayed in the press and on television. Her death warrant had thereby been signed by the State and she requested international support. (The applicant later made other statements to the Convention organs, alleging her ill-treatment, which statements were dealt with separately in application no. 41478/98, decision of 30 April 2002.)
117. Mr Dirik was recorded as saying that people had knocked on his door at 3.30 a.m. on the same day as Mehmet Şen’s abduction, 26 March 1994. İsmail Kelleci, a journalist at the “Özgür Gündem” newspaper, had been told by the Gaziantep Security Directorate in December 1993 that they knew what Arif Dirik and Mr Şen had been doing, that their patience had run out and that they were going to kill the two of them. Mr Dirik declared that he could no longer go home and that, if any action was taken against him, it would be the responsibilty of Hüseyin Çapkın and the Gaziantep Security Directorate.
118. In response to their inquiries, the Association was informed that it had not been possible to determine the identity of the offenders, but that the investigation was being pursued in many directions in order to cast light on the incident.
119. The letter enclosed the latest statements (three), records (four) and a rough sketch that had been drawn up for the investigation file.
120. The Nizip Prosecutor stated that he had no geographical jurisdiction in the matter of the murder of Mehmet Şen. Accordingly, he referred the file to the Gaziantep Prosecution.
121. In response to a request for information, the Governor explained that Mrs Şen had filed a petition with the Nizip Prosecutor on 28 March 1994 concerning the abduction of her husband. A body was found on 29 March 1994. The autopsy established that the victim had been shot, and inquiries revealed that the deceased was Mehmet Şen. The security forces denied any involvement in the matter. Any allegation to the contrary was an absolute, slanderous lie. Allegations by Mrs Şen that she had been ill-treated were also untrue. An investigation into the registration number, 34 PLT 30, of the car in which Mr Şen had been taken away, revealed false plates.
122. The Prosecutor, Zekâi Aktaran, instructed the gendarmerie to make an in-depth, discreet investigation into the murder, to identify the assassins, and to respect their defence rights on arrest, to take the evidence of eyewitnesses and to transmit the results to him.
123. The gendarmes recorded that little progress had been made in the investigation concerning the murder of Mehmet Şen. No new clues had been revealed by their inquiries, which were continuing.
124. Lieutenant Hüseyin Kanat reported to the Gaziantep Prosecutor that no progress had been made in the identification of the corpse found shot on 29 March 1994. Moreover, no information had been gleaned concerning the murderer(s). The gendarmes had no clues or evidence which could throw any light on the case. The investigation would continue.
125. Prosecutor Zekâi Aktaran requested the directorate to run a search on a metallic green Doğan SLX car, registration number 34 PUC (PUD) 30, or a honey-coloured Doğan SLX car, registration number 34 PTL 30. The directorate replied on 18 April 1995 that these registration numbers belonged to other vehicles of different makes and colours.
126. The warrant stated that the search for the guilty person(s) had continued but their identity had not been established. The search would be kept open until time-barred on 30 March 2014, in accordance with Article 102 (1) of the Criminal Code. A letter of inquiry would be addressed to the gendarmerie every three months in the meantime.
127. The reports recorded that on-site inspections of the scene of the crime had been made but no new elements had been discovered. The local villagers had been unable to shed light on the facts of the case and inquiries would continue.
128. The destruction of the respective 1995 and 1997 monthly progress reports concerning attempts to identify the perpetrators of the murder on 28 March 1994, in the region of the Karpuzkaya village, was noted.
129. The reports recorded that the investigation into the murder of Mehmet Şen had been concluded without the perpetrators being found, but that efforts to do so would continue. Some of these reports mentioned the patrol visits to the village of Karpuzkaya, 2.5 km from where the body of Mr Şen had been found. The villagers recalled the incident, but had not known the deceased and could not provide any further information, other than the idea that the incident could have been caused by passers-by on the inter-city road.
130. The reports repeated the preceding gendarmes progress reports.
131. Mr Oruç submitted a similar statement to that of Mr Yusuf Şen (paragraph 50 above) and Halil Alan (paragraphs 60-63 above): He had been taken into custody (authority unspecified) on 30 March 1995, on suspicion of being active for the PKK. He alleged that he was asked whether he knew Mehmet Şen who, because of his illegal activities, they had killed. He was then warned that, if he failed to confess, he would suffer the same fate. (He had not appeared before the Delegates to testify to this, as had been proposed at one stage by the applicant’s representatives.)
132. Mrs Dirik said that Mehmet Şen had been a family friend. He had telephoned her one or two days before his kidnapping in an anxious state. He had wished to speak to her husband who was not in. After his abduction, her husband went with Nuray Şen to Adana to inquire whether Mehmet Şen was in police custody there. While he was away, around 2 to 3 a.m. at night, her doorbell rang and there was a loud banging on her door. Peering through the curtains, she saw two men and a taxi. She made a couple of telephone calls and was advised not to open the door. She thought it could have been the police, as her husband would have used his key and he had previously been threatened and taken into custody because of his political and trade union activities. Eventually the strangers left. The next morning she saw that the doorbell had been broken. At the Human Rights Association the following day, she heard that the tortured corpse of Mehmet Şen had been found. On being informed of this, her husband never returned to Gaziantep.
133. Mr Dirik confirmed his wife’s statement above (paragraph 132 above). Prior to the events in question, on 10 December 1993 İsmail Kelleci had been detained in an operation against the “Özgür Gündem” newspaper. Mr Kelleci had told Mr Dirik that the police had asked whether he knew him and Mehmet Şen, to which Mr Kelleci replied that he knew the latter. The police allegedly stated that Mr Dirik would soon be killed. Mr Dirik had been taken into custody several times, fortunately with others; otherwise he feared he might have disappeared too. He had been a refugee in Germany since Mr Şen’s death.
134. The Amnesty Report alleged gross violations of human rights being inflicted on civilians in south-east Turkey in the context of the 10 year old conflict between Turkish Government forces and the PKK. It reported disappearances, extrajudicial executions and torture in police and gendarmes stations.
135. The Government informed the Commission that, on 10 November 1995, the applicant had been taken into custody on suspicion of being a member of the PKK, and was the subject of a criminal investigation by the Prosecution Service of the Diyarbakır State Security Court.
136. The Government informed the Commission, inter alia, that the investigation into the death of Mehmet Şen, under file no. 1994/3941, by the Gaziantep Prosecution Service was still pending, the perpetrators of the crime not yet having been identified.
137. The Government informed the Commission that an investigation had been carried out by the Public Prosecutor, under file no. 1996/4823, into the applicant’s allegations to the Commission on 25 April 1995 that she had been tortured during her detention between 10 and 21 November 1995. The medical examinations which had been conducted at the time, on her arrest and release, showed no evidence of any violence to her person and, therefore, the Prosecutor had closed the investigation.
138. The reports stated that the bullet examined was of the SPB make, 9x19 mm calibre, which could not be traced to any other previous incident involving unknown perpetrators. The report was accompanied by a covering letter dated November 1997 (actual day illegible), from the Gaziantep Central Gendarmes Command, explaining that an empty cartridge marked “Parabellum SPB”, found at the scene where the body of Mehmet Şen had been discovered, had been sent for an expert examination.
139. The relevant domestic law and practice are set out in the judgment of Tepe v. Turkey of 9 May 2003 (no. 27244/95, former Second Section).
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 14
2
3


ITEMID: 001-58915
LANGUAGEISOCODE: ENG
RESPONDENT: SMR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF BUSCARINI AND OTHERS v. SAN MARINO
IMPORTANCE: 1
CONCLUSION: Violation of Art. 9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed
JUDGES: Luzius Wildhaber
TEXT: 7. The applicants were elected to the General Grand Council (the parliament of the Republic of San Marino) in elections held on 30 May 1993.
8. Shortly afterwards, they requested permission from the Captains-Regent, who act as the heads of government in San Marino, to take the oath required by section 55 of the Elections Act (Law no. 36 of 1958) without making reference to any religious text. The Act in question referred to a decree of 27 June 1909, which laid down the wording of the oath to be taken by members of the Republic’s parliament as follows:
“I, …, swear on the Holy Gospels ever to be faithful to and obey the Constitution of the Republic, to uphold and defend freedom with all my might, ever to observe the Laws and Decrees, whether ancient, modern or yet to be enacted or issued and to nominate and vote for as candidates to the Judiciary and other Public Office only those whom I consider apt, loyal and fit to serve the Republic, without allowing myself to be swayed by any feelings of hatred or love or by any other consideration.”
9. In support of their request the applicants referred to Article 4 of the Declaration of Rights of 1974, which guarantees the right to freedom of religion, and Article 9 of the Convention.
10. At the General Grand Council session of 18 June 1993 the applicants took the oath in writing, in the form of words laid down in the decree of 27 June 1909 save for the reference to the Gospels, which they omitted. At the same time, the first applicant drew attention to the obligations undertaken by the Republic of San Marino when it became a party to the European Convention on Human Rights.
11. On 12 July 1993 the Secretariat of the General Grand Council gave an opinion, at the request of the Captains-Regent, on the form of the oath sworn by the applicants, to the effect that it was invalid, and referred the matter to the Council.
12. At its session of 26 July 1993 the General Grand Council adopted a resolution proposed by the Captains-Regent ordering the applicants to retake the oath, this time on the Gospels, on pain of forfeiting their parliamentary seats.
13. The applicants complied with the Council’s order and took the oath on the Gospels, albeit complaining that their right to freedom of religion and conscience had been infringed.
14. Subsequently – before ever the applicants applied to the Commission – Law no. 115 of 29 October 1993 (“Law no. 115/1993”) introduced a choice for newly elected members of the General Grand Council between the traditional oath and one in which the reference to the Gospels was replaced by the words “on my honour”. The traditional wording is still mandatory for other offices, such as that of Captain-Regent or of a member of the government.
VIOLATED_ARTICLES: 9


ITEMID: 001-59607
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF HIRST v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. On 11 February 1980, the applicant pleaded guilty to manslaughter on the ground of diminished responsibility in respect of the death of his 62year-old landlady whom he had battered with an axe. He was sentenced to life imprisonment. The court acted on medical evidence that the applicant had a gross personality disorder to such a degree that he was amoral. The consultant psychiatrist said in his report at the trial that:
“... although [the applicant’s] instability might get less over the years as he matured, should he be sent to prison, his eventual release should be approached with great caution.”
8. The applicant was initially sent to a Category A prison due to concerns about his dangerousness and risk of escape. He was involved in work to address his offending and other problems. He successfully completed an Anger Management and Skills Courts in the Hull Special Unit in or about 1989 and his conduct was noted as significantly improving from that point. In 1993, he was transferred to a Category B prison.
9. The applicant’s tariff period of 15 years expired on 25 June 1994 (this was the minimum period fixed by the Secretary of State concerning the requirements of retribution and deterrence). The Parole Board in that month agreed to the transfer of the applicant from a Category B to Category C prison. The Secretary of State deferred a decision until after the Discretionary Lifer Panel (DLP) of the Parole Board had conducted a hearing on the matter under the new provisions of the Criminal Justice Act 1991 (“the 1991 Act”).
10. On 13 December 1994, after a hearing held pursuant to section 34 of the 1991 Act, the DLP decided it would not be safe to release the applicant but recommended transfer to Category D (open prison), or Category C with a review after 12 months instead of the usual two year period. On 15 March 1995, the Secretary of State decided to transfer the applicant to Category C with a review after 12 months.
11. In November 1995, the applicant failed to obtain leave to apply for judicial review of the decision of the DLP and the decision of the Secretary of State. In April 1996, the Court of Appeal refused leave to apply for judicial review.
12. Following a positive drugs test, the applicant agreed to follow and successfully completed in July 1996 a drugs awareness course.
13. On 9 October 1996, the applicant’s case came before another DLP. Reports noted that he had made considerable progress over the preceding six years but would need phased re-introduction into society. A psychiatric report dated 24 June 1996 stated that the applicant had much greater control over his behaviour, that personal and maturational developments had taken place and that he was not the same person that he was when he entered prison. It was concluded that the applicant, who had shown a reclusiveness and narrowness of interests, needed however to test and increase his social interaction in order to be able to cope with living outside prison. A psychiatric report issued about the same time stated that the applicant’s personality, described as psychopathic, had shown some capacity for change and that, although he was not considered a serious risk to the public, any release on licence would have to be carefully planned, as problems were likely to arise following a long period of institutionalisation and a lack of family support. The DLP did not recommend release but transfer to a Category D prison. In paragraph 5 of the decision letter the DLP said:
“The panel were satisfied that what was advanced at the hearing as ‘exceptional circumstances’, namely a good release plan, the fact that [the applicant is] four years beyond tariff, the fact that [the applicant has] completed a pre-release course in Category C, the fact that [the applicant had] previously been recommended for Category D status and the prospect of employment, did not amount to exceptional circumstances and that [the applicant’s] release without progress through open conditions posed an unacceptable risk.”
14. On 20 November 1996, the Secretary of State rejected the recommendation of transfer to an open prison, but directed an early review of the applicant’s case, namely after 18 months had expired from 9 October 1996. The Secretary of State was not persuaded that the applicant’s behavioural problems had been satisfactorily addressed while in closed conditions, nor that the benefits of open conditions were sufficiently worthwhile at that stage when balanced against the scale of the outstanding offence, related work needed in the applicant’s case and his potential risk to the public.
15. The applicant applied for leave to apply for judicial review of both decisions, alleging inter alia that the DLP had wrongly applied an “exceptional circumstances” test. Leave was refused on 11 April 1997.
16. On 21 October 1997, the applicant re-applied for leave for judicial review. Mr Justice Potts refused leave against the DLP’s recommendation. He found that the DLP had correctly applied the statutory test concerning a risk to the public. He granted leave to apply in respect of the decision of the Secretary of State. Mr Justice Potts stated:
“... a prisoner who has spent a long period in custody should be tested in open conditions before being released into the community: satisfactory completion of such testing is an indication that a prisoner is able to cope with the stresses of life outside prison and is therefore a cogent factor to take into account against all the other available material in deciding whether or not a prisoner can safely be released. Such an approach is undoubtedly sensible …
I think it is arguable that the Secretary of State’s decision not to recategorise this applicant as a Category D prisoner was irrational and one that no reasonable Home Secretary could reasonably have reached.”
17. In the light of this grant of leave, at the end of the hearing, the Secretary of State indicated that he would reconsider his decision of 20 November 1997.
18. On 13 March 1998, the Secretary of State informed the applicant that he had reconsidered the case but decided not to change his conclusion that the applicant should not be transferred to open conditions.
19. On 15 July 1998, the DLP again considered the applicant’s case. Reports continued to note his progress, including the expression of genuine remorse for his offending. It was considered in a case officer report dated 31 October 1997 that he had taken advantage of treatment programmes and that all offending work had been completed. He had a “settled and fulfilling release plan” which involved him continuing the legal studies that he had commenced in prison and receiving support from a circle of friends that he had built up through contacts outside prison. Conversely, a psychiatric report dated 18 December 1997 considered inter alia that the applicant might benefit from further work on developing methods of dealing with interpersonal difficulties and increasing relationship skills.
20. By letter dated 16 July 1998, the DLP declined to recommend release but did recommend transfer to a Category D (open) prison.
“3. In reaching the decision that you are not yet suitable for release, the panel took into account the nature of the index offence, your violent disruptive early prison career (while recognising also the absence of any violence since 1989), the fact that you are still seen as having a psychopathic personality … and the remaining areas of concern identified by [Mrs B, a higher psychologist]… These areas of concern are egocentricity, a disregard for the points of view of other people and a limited ability to solve interpersonal frustrations and problems. The panel also considered that the sexual ambivalence referred to by [Dr G] merited further investigation, particularly in light of evidence that emerged at the panel hearing that you had been sexually abused in your youth. The panel also accepted [Mrs B’s] evidence that a personality assessment was necessary to identify the manner in which the outstanding offence-related work should be carried out; and that the reasons underlying the index offence still require further investigation. In all these circumstances, the panel considered that you still presented too great a risk to the public to justify your release.
4. Moreover, you have been in custody for 19 years and although your release plan is being developed, it is not complete. At present you would have no fixed accommodation. Based on these factors and the impression the panel formed of you at the hearing, the panel considered that you would be unable to cope in the community, were you to be released directly or via a pre-release employment scheme.
5. The panel did recommend that you be transferred to open conditions. In coming to this conclusion, the panel took into account the length of time you have spent in custody, the opinion of the majority of the report writers and witnesses that the risk you present to the public could be safely managed in open conditions and the fact that the assessment and further work referred to above can be done in open conditions. The panel also took into account that [Mrs B] could not say within what period the assessment could be carried out, and the danger of counter-productive stagnation and frustration on your part should you have to spend a further protracted period in category ‘C’ conditions.
6. To allow time for assessment and the necessary offence-related work and for your gradual reintegration into the community, the panel considered that your next review should begin in 2 years time.”
21. By letter dated 7 October 1998, the Secretary of State rejected the DLP’s recommendation. He stated that he accepted the psychologist’s view that further work needed to be done in respect of the applicant’s attitude to his original offence, his egocentricity, his intolerance of others, his inability to deal adequately with problems and his lack of responsibility for his actions. He agreed that a full personality assessment was required of the applicant who was still seen as having a psychopathic personality. The Secretary of State did not agree that these matters could be safely addressed in open prison conditions. He noted that the applicant had failed to attend further courses in anger management, social skills and communications, as arranged after the Secretary of State’s decision of 20 November 1996. He also had regard to an intervening incident which had occurred on 31 July 1998 when the applicant was being escorted to court by a female officer. After she had refused to allow him to smoke in the vehicle, he had slammed the van door against her, causing her to fall and hurt her arm. He had sworn at her, threatening to kill her, adding that he had already killed one woman. The applicant was found guilty under the Prison Rules of assault and using threatening, abusive or insulting words. The Secretary of State considered that this disclosed impulsive violent behaviour towards a woman over a trivial incident, which had clear similarities with his original offence. He remained an unacceptable risk and was advised that until he co-operated with staff in addressing the areas of concern, the Secretary of State saw no justification in allowing him to progress further towards release. It was however agreed that his next review should take place in July 2000.
22. On 2 February 2000, the applicant’s renewed application for leave to judicially review the DLP’s decision of October 1996, which had been dormant since 21 October 1997, was listed for hearing before the Court of Appeal. The applicant’s request to amend his grounds of application to add complaints about a lack of independence was refused. The Court of Appeal rejected his application for leave to apply for judicial review.
23. Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty’s pleasure have a ‘tariff’ set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change, most notably, following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 (“the 1991 Act”), which was in force at the relevant time. The provisions of the 1991 Act were replaced by the Crime (Sentences) Act 1997 (“the 1997 Act”) from 1 October 1997.
24. Pursuant to section 32 (2) of the 1991 Act, the Parole Board had a duty to advise the Secretary of State with respect to any matter referred to it by him which was connected with the early release or recall of prisoners.
25. The Parole Board’s Chairman appointed three members of the Parole Board to consider discretionary life cases. They comprised the DLP. Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a discretionary life prisoner was entitled to, amongst other things, an oral hearing, disclosure of evidence before the Parole Board and legal representation. He was also entitled to call witnesses on his behalf and to cross-examine those who had written reports about him. A reasoned decision by the DLP was delivered within seven days of the hearing. Prior to 1 October 1997, the duty to release discretionary life prisoners was dealt with by section 34 of the 1991 Act, which provided that where a discretionary life prisoner had served his tariff and the Board had directed his release, it was the duty of the Secretary of State to release him on licence.
26. Section 34(4) of the 1991 Act provided:
“The Board shall not give a direction ... unless –
(a) the Secretary of State has referred the prisoner’s case to the Board;
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”
27. When deciding on release or recall of prisoners, the DLP often gave guidance as to the timing of the next review. It normally recommended a further review in two years but an earlier date could be given in an appropriate case, with reasons. Where no guidance was given, the Secretary of State decided the date of the next review. Where it became clear that the prisoner had made unexpectedly rapid progress prior to the set review date, the date of the review could be brought forward.
28. A discretionary life prisoner may require the Secretary of State to refer his case to the Parole Board, after the end of the period of two years beginning with the disposal of a previous reference to the Board (section 34 (5) (b) of the 1991 Act, now section 28 (7) (b) of the 1997 Act). The Government stated that in practice it is not necessary to invoke this provision since, as a matter of policy, the Secretary of State refers each case back to the DLP for the second anniversary of the previous reference.
29. Section 34 of the 1991 Act has now been replaced, and largely reproduced, by section 28 of the 1997 Act.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-60839
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF GUIDI AND OTHERS v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicants are the owners of a flat in S. Agnello, which they had let to A.M.
9. In a writ served on the tenant on 30 January 1984, the applicants communicated their intention to terminate the lease and summoned the tenant to appear before the Sorrento Magistrate.
10. By a decision of 15 March 1984, the Magistrate refused to uphold the validity of the notice to quit, declined jurisdiction on account of the value of the case and indicated that the Naples District Court had jurisdiction to hear it.
11. On 26 March 1984, the applicants resumed the proceedings before the Naples District Court.
12. In a judgment of 22 June 1988, which was filed with the registry on 19 October 1988, the court allowed the applicants' claim and ordered that the premises be vacated by 15 December 1989.
13. On 16 December 1988, the tenant appealed to the Naples Court of appeal.
14. In a judgment of 17 October 1991, which was filed with the registry on 9 November 1991, the court rejected the appeal.
15. On 5 February 1992, the applicants served notice on the tenant requiring him to vacate the premises.
16. On 2 February 1993, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 15 March 1993.
17. As from 15 March 1993 until 16 October 1997, the bailiff made several attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicants were not entitled to police assistance in enforcing the order for possession.
18. On 16 October 1997, the tenant vacated the premises.
19. The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84287
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PIETRZAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Giovanni Bonello;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi
TEXT: 5. The first applicant, Mr Wiesław Pietrzak (“the first applicant”), was born in 1943. The second applicant, Mrs Halina Pietrzak (“the second applicant”), was born in 1951. They are married and live in Gdańsk.
6. The first applicant owns a plot of land and a house situated on it located in the suburbs of Gdańsk. The major part of his property is classified as agricultural land. There are some other houses in the area, but a significant part of it is used for allotments.
7. It appears that the first applicant’s father acquired the property in question in 1972. At that time, the property was classified as agricultural land and lay outside the perimeters of Gdańsk. Subsequently, with the enlargement of the city, the property became located in the vicinity of a residential and allotments area.
8. In 1973 and 1977 the first applicant’s father was twice refused planning permission on the ground that the plot had not been designated for construction of a house.
9. In April 1975 a local development plan for the area was adopted. The first applicant’s plot was designated for the construction of a road.
10. On an unspecified later date the first applicant acquired the property at issue.
11. On 28 May 1988 the Gdańsk Municipal Council adopted a local development plan which stipulated that a road was to be constructed on the first applicant’s plot.
12. On 24 December 1987 and 15 November 1991 the Gdańsk Municipality informed the first applicant that his property was designated in the relevant local development plan for the building of a new road. Accordingly, the property could not be used for the purposes of constructing a new house or planting an orchard.
13. On 12 February 1992 the first applicant requested the Mayor of Gdańsk to acquire his property as it had been designated for the building of a road. On 22 June 1992 the Mayor transmitted that request to the Head of the Gdańsk District Office (Kierownik Urzędu Rejonowego) which was competent to decide on it. It appears that the request was never examined.
14. On an unspecified date in 1992 the first applicant petitioned the Ombudsman. On 14 July 1992 the Ombudsman informed him that, following a number of similar complaints concerning the legal status of so-called “frozen properties” (i.e. properties which were designated in a local development plan for public use at an undetermined future date), he had requested the Minister of Local Planning and Construction to adopt a general solution to the problem. In particular, the Ombudsman called for a provision in the local planning bill which would impose an obligation on the local authorities to acquire “frozen properties” or offer an alternative plot to the owners concerned.
15. On 29 June 1993 the Gdańsk Municipal Council adopted a general local development plan. The plan maintained the provision that a road was to be constructed on the applicant’s plot. Prior to the adoption of the new plan, the Minister of Agriculture and the Gdańsk Governor had authorised the change of use of agricultural land for non-agricultural purposes.
16. On 20 August 1993 the applicant inquired with the Gdańsk Municipality about the conditions for construction of a temporary building (zabudowa tymczasowa) on his property. On 6 October 1993 he was informed about the relevant conditions for properties designated in local development plans for future public use. He was also informed that he could continue using the property for agricultural purposes or, alternatively, he could construct a temporary storehouse. The municipality further explained that the planned road would not be constructed in the foreseeable future. The applicant was invited to submit concrete proposals for consideration by the municipality and informed that any temporary buildings would have to be removed at his own expense when the planned road was constructed. It appears that the first applicant did not submit any proposals to the municipality.
17. On 1 January 1995 the Law of 7 July 1994 on Local Planning (“the 1994 Act”) entered into force.
18. On 11 February 2000 the first applicant’s lawyer sent a letter to the Mayor of Gdańsk, inquiring about his unanswered request of 1992 for the acquisition of the property.
19. On 30 March 2000 the first applicant was informed that due to the dissolution of the district offices it was not possible to establish the reasons as to why the Gdańsk District Office had not taken any decision on his request. He was further informed that the local development plan of 28 May 1988, which had specified that a new road would pass through the first applicant’s property, was still in force. Furthermore, the municipality’s investment plan for the years 2000-2003 did not foresee the construction of the road in question. Accordingly, the first applicant could use his land as previously. In addition, the first applicant was informed that according to the 1994 Act the municipality could not acquire his property since the relevant local development plan had been adopted prior to 1995 and that his use of the property had not become unfeasible. Consequently, his request could not be granted.
20. The applicants appealed against that decision to the Gdańsk Local Government Board of Appeal. On 14 September 2000 the Board of Appeal ruled that the appeal was inadmissible in law. It observed that in accordance with the Code of Administrative Procedure an appeal could be lodged only against an administrative decision. However, the Board of Appeal noted that the provisions of the 1994 Act (section 36) excluded the possibility of adopting an administrative decision in respect of the applicants’ request for the acquisition of their property by the municipality. Thus, the letter of the Mayor of Gdańsk of 30 March 2000 could not be considered as an administrative decision.
21. The applicants appealed against that decision to the Supreme Administrative Court, relying, inter alia, on Article 1 of Protocol No. 1 to the Convention.
22. On 8 May 2002 the Supreme Administrative Court dismissed their appeal.
23. On 25 February 2003 the Gdańsk Municipality informed the first applicant that according to the local development plan which would remain valid until 31 December 2003 his property had been designated for a future thoroughfare.
24. On 5 August 2003 the Gdańsk Municipality informed the first applicant that the old local development plan designating his property for the construction of a road would remain valid until the end of 2003. In addition, he was informed that the municipal investment plan for the years 2004-2008 did not foresee the construction of the road in question. He was also informed that a new local development plan was being drafted and that he was entitled to lodge his objections in that respect.
25. On 11 July 2003 the Law of 27 March 2003 on Local Planning (“the 2003 Act”) entered into force on 11 July 2003. It repealed the 1994 Act.
26. On 31 December 2003 the old local development plan expired.
27. On 31 May 2005 the first applicant requested the municipality to provide him with information as to the future development of his land.
28. On 8 June 2005 he was informed that pursuant to the 2003 Act until the adoption of the new local development plan the manner of development of a particular property was to be determined by means of planning permission. However, such permission could only be granted if a number of conditions specified in section 61 of the 2003 Act were met, including that the property at issue did not have to be reclassified from agricultural to non-agricultural land. In connection with the last requirement, the first applicant submitted that he was prevented from developing his property until such time as the new local development plan had been adopted.
29. It appears that as of December 2005 the Municipality of Gdańsk had not yet adopted a new local development plan in respect of the first applicant’s land. According to the preliminary draft plan, the applicants’ property will be designated in the major part for housing purposes and in the remaining part for housing and services purposes. The property will adjoin the planned road, but the road will not pass through the applicants’ property.
30. As of 11 September 2006 the applicant had not yet applied for planning permission.
31. From 1 January 1985 to 31 December 1994 questions of land development were governed by the Law of 12 July 1984 on Local Planning. Under this law owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date.
32. On 7 July 1994 a new Law on Local Planning Act was enacted (“the 1994 Act”). It entered into force on 1 January 1995.
33. Section 36 of the 1994 Act created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities. The municipalities were obliged to buy such property, replace it with other land within six months of an owner’s request, or provide compensation for the damage caused by the designation.
34. However, pursuant to section 68 § 1 of the 1994 Act, these obligations and the corresponding claims of the owners applied only to plans adopted after the 1994 Act had entered into force, i.e. to plans adopted by local authorities after 1 January 1995.
35. Pursuant to the 1994 Act, plans adopted before its entry into force were to expire on 31 December 1999. In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years until 31 December 2001. Again, on 21 December 2001, Parliament passed a law amending the 1994 Act which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995.
36. On 27 March 2003 a new Law on Local Planning was enacted (“the 2003 Act”). It entered into force on 11 July 2003 and repealed the 1994 Act. Under section 87 of the 2003 Act, all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003.
37. Compensation entitlements for owners, provided for by the 1994 Act, were in essence maintained by the 2003 Act. Pursuant to section 36 of the latter Act, when, following the adoption of a new local land development plan, the use of property in the manner provided for by a previous plan had become impossible or had been restricted, it was open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which might arise in this respect between local authorities and owners could be pursued before the civil courts. It would appear that the operation of section 36 is not retroactive, thus limiting the scope of any such claims to the period after the adoption of the 2003 Act.
38. Section 59 of the 2003 Act provides, subject to certain conditions, for a possibility of developing a plot of land by way of planning permission in the absence of a local development plan.
39. Other relevant legislative provisions are extensively set out in the Court’s judgment of 14 November 2006 in the case of Skibińscy v. Poland (no. 52589/99, §§ 28 – 53, 14 November 2006).
40. In its judgment of 5 December 1995, the Constitutional Court examined the Ombudsman’s request to determine the compatibility with the Constitution of section 68 § 1 of the 1994 Act insofar as it excluded the application of section 36 of that Act to land development plans adopted before 31 December 1994. The Constitutional Court referred to its established case-law to the effect that the right to property could not be regarded as ius infinitivum. Consequently, its exercise was restrained by many legal and practical considerations, including the necessity of balancing the owners’ interests against those of other persons. Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of property rights. In particular, owners of properties “frozen” for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans. This did not amount to such an interference with property rights that it could be regarded as being incompatible with their constitutional protection.