Ministers’ Deputies

Annotated Agenda

CM/Del/OJ/DH(2008)1043 Section 4.2 PUBLIC       9 January 2009

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1043rd meeting (DH), 2-4 December 2008

- Annotated Agenda[1]

- Decisions

Section 4.2

Public information version

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SECTION 4 - CASES RAISING SPECIFIC QUESTION
(INDIVIDUAL MEASURES, MEASURES NOT YET DEFINED OR SPECIAL PROBLEMS)

(See Addendum 4 for part or all these cases)

Action

The Deputies are invited to supervise the progress made in the adoption of the implementing measures in the following cases raising several problems. Supplementary information on some or all the cases listed below will be issued in Addendum 4. The Deputies are invited to resume consideration of these items on a case-by-case basis.

                       SUB-SECTION 4.2 – INDIVIDUAL MEASURES AND/OR GENERAL PROBLEMS

- 5 cases against Albania

35853/04          Bajrami, judgment of 12/12/2006, final on 12/03/2007, revised on 18/12/2007, final on 18/03/2008

This case concerns the violation of the applicant's right to respect for family life due to the Albanian authorities' failure to take necessary measures to reunite him with his daughter (violation of Article 8).

In January 2004 the applicant's daughter was taken by her mother to Greece without his consent. On 4/02/2004 the Vlora District Court decreed the applicant's divorce and gave him custody of the child. Although the applicant repeatedly took steps to secure the return of his daughter, the judgment was never enforced. According to the bailiff's office, it was impossible to enforce it since the child was not in Albania.

The European Court noted that Albania had not ratified the relevant international instruments on securing the reunion of parents with their children, including The Hague Convention of 1980 on the Civil Aspects of International Child Abduction. However, irrespective of that, the Court found that the Albanian legal system, as it stood, provided no alternative framework affording the applicant the practical and effective protection required by the state's positive obligation enshrined in Article 8.

Individual measures: In June 2007 the Albanian authorities lodged a request for the revision of the European Court’s judgment, since the applicant had died on 10/11/2006, i.e. before the European Court delivered its judgment. Consequently, on 18/12/2007 the European Court revised its judgment and held that the just satisfaction (including sums due in respect of non-pecuniary damage and costs and expenses) should be paid to the heir or heirs of the applicant, to be identified according to his will or, if he died intestate, according to the domestic law on succession.

• Assessment: in these circumstances, no other individual measure appears to be necessary.

General measures: The European Court observed that, under Albanian law, there was no specific remedy to prevent or punish cases of abduction of children from the territory of Albania. In particular, it noted that Albania was not a State Party to The Hague Convention and it had not yet implemented the UN Convention on the Rights of the Child of 20/11/1989. In that respect, the Court recalled that the Convention, although not imposing on states the obligation to ratify international conventions, required them to take all necessary measures to secure the reunion of parents with their children in accordance with a final judgment of a domestic court.

• Information provided by the Albanian authorities: The European Court's judgment was translated into Albanian and published in the Official Gazette, No. Extra July 2007. The authorities of the Bailiff’s Office have been requested to treat with special attention cases concerning enforcement of court decisions on child custody.

Moreover, on 04/05/2007 Albania acceded to The Hague Convention, which entered into force in respect of Albania on 01/08/2007 (for more details see the website of The Hague Conference on Private International Law www.hcch.net).

• Information is awaited as to whether any other measure has been envisaged and/or taken to provide effective protection of parents' right to reunion with their children. Moreover, a written confirmation of the dissemination of the European Court’s judgment to the competent authorities (bailiffs, courts, police) is awaited.

7352/03            Beshiri and others, judgment of 22/08/2006, final on 12/02/2007

This case concerns the failure to enforce a final judicial decision of 11/04/2001 concerning the applicants' right to compensation in respect of plots of land which had been nationalised (violations of Article 6§1 and Article 1 of Protocol 1).

The European Court noted that the judgment in question remained unenforced for over five years, a situation for which the Albanian government had not provided any plausible justification. Citing a lack of state funds, as the government had done, did not justify the situation. Moreover, by failing to comply with the judgment of 11/04/2001 the national authorities left the applicants in a state of uncertainty with regard to the chances of reacquiring their property rights and, for a considerable period of time, prevented them from having their compensation paid and from enjoying the possession of their money.

Individual measures: The European Court awarded the applicants a lump sum as just satisfaction in respect of non-pecuniary and pecuniary damage, including an amount corresponding to the current value of the plots.

• Evaluation: in these circumstances, no additional measure seems to be required.

General measures:

1) Violation of Article 6§1: this case presents similarities to that of Qufaj (Section 4.2).

2) Violation of Article 1 of Protocol No 1: The European Court noted that the Albanian legislation at the material time left the determination of the appropriate form of compensation, when restitution of the original property was impossible, to the discretion of the administrative authorities. In the present case, the judgment of the Tirana Court of Appeal could be interpreted as ordering the authorities to offer the applicants a form of compensation which would indemnify them in lieu of restitution of their property rights (§ 62).

A new bill on the Property Restitution and Compensation Act (the “Property Act”) was pending before the Parliament at the date when this judgment was delivered (§ 29).

• Information provided by the Albanian authorities (letters of 08/06/2007 and 25/10/2007 and a document dated 05/06/2008):

a) Publication and dissemination of the judgment: The European Court’s judgment was translated into Albanian and published in the Official Gazette, No. Extra July 2007. The Government Agent also disseminated it to the relevant domestic judicial, legislative and executive authorities. Written confirmation of dissemination of the judgment was provided on 05/06/2008.

b) Legislative amendments: The government is assessing the amendments to the Property Act adopted during the last 12 months and should have prepared a document in this respect by the end of 2007.

On 05/06/2008 the Albanian authorities stated that there had been a number of changes to the Property Act following the judgment in this case, aimed at widening the application of the Act and improving enforcement proceedings.

These changes are set out in Law No. 9388 of 04/05/2005, Law No. 9583 of 17/07/2006 and Law No. 9684 of 06/02/2007. The changes affect the scope of the law; the definition of the right to property; the recognition of right to property and its restitution; the definition for plots of land; the definition of properties that are not used for public purposes; forms of compensation and provisions governing financial compensation.

In addition, the Council of Ministers has adopted a number of decisions to implement the Property Act. These include criteria and procedures for restitution (decision No.257 of 11/04/2004); model decisions to be issued by the Agency for Property Restitution ((AKKP) set up under Law No. 9583 of 17/07/2006) (decision No.51 of 07/02/2007); procedures for the administration of claims for compensation and their determination (decision No. 747 of 09/11/2006) and procedures for communication between The National Agency for Restitution and Compensation of Property and other state organs (decision No. 52 of 07/02/2007).

c) Other measures aimed at improving and accelerating the process of restitution or compensation for property: The Government Agent is co-ordinating a group of experts from different institutions involved in the process of restitution and compensation of properties, established to discuss the problems of co-ordination identified and make suggestions to the government on how to make this process easier and faster. It has prepared a working document, which will serve as a basis for proposals for the government in this respect. Proposals were to be submitted to the government by March 2008.

By an order of 18/03/2007, the Prime Minister appointed a senior decision-makers’ panel, mandated to discuss the government’s position in relation to property issues in cases pending before the European Court.

In information provided on 05/06/2008 the authorities confirmed that the Albanian Council of Ministers had agreed the National Strategy for Development and Integration (2007-2013) in May 2008 for improving the property restitution and compensation process. The main objectives of the strategy are:

- to finalise property registration by 2012

- to make an audit and transfer of public properties to central and local government bodies (70% completed)

- to implement a coherent methodology for the valuation of property

- to ensure compensation is paid where restitution in kind is not possible (by 2014)

- to have a fund in place for restitution in kind (by 2013)

- to modernise the Property Office (by 2013)

- to improve the regulatory framework (by 2013)

Following the establishment of this strategy, a number of measures have been taken and others are under way.

-  A ‘Land Value Map’ has been finalised for the country and approved in a series of Decisions taken by the Council of Ministers (No.555 of 29/07/2007, No. 653 of 29/08/2007 and No. 139 of 13/02/2008).

- An electronic database was finalised in April 2008 recording all decisions taken on property rights since 1993 by the former commissions for restitution and compensation of properties (as existed under the Property Law in force at the time of this judgment).

- Parliamentary Decision No.183 (28/04/2005) “on the Approval of a Valuation Methodology” has provided for different plots of land to be used as compensation. Following Council of Ministers Decision 567 of 05/09/2007 an inter-ministerial task-force has been charged with identifying plots of land that can be used for a compensation fund.

• Information is awaited:

- on the content and impact of the amendments to the Property Act and any follow up to those amendments 

- on the implementation of the National Strategy and any follow up

- on the results of the work of the group of experts and panel mentioned above,

- any other measure possibly envisaged or taken to prevent new, similar violations.

The Deputies, 1.             recalled that the non-enforcement of domestic judgments and administrative decisions concerning restitution and/or compensation to former owners in Albania is a systemic problem; 2.             noted with interest in this respect that the Property Act has been amended and a National Strategy for Development and Integration has been adopted to improve the property restitution and compensation process; 3.             encouraged the authorities to continue their efforts to take all the measures announced as promptly as possible; 4.             decided to resume consideration of these cases at the latest at their 1059th meeting (2‑4 June 2009) (DH), in light of the further information to be provided on the individual and general measures.

33771/02           Driza, judgment of 13/11/2007, final on 02/06/2008

This case concerns the quashing and lack of enforcement of final decisions in favour of the applicant. The decisions, delivered in 1996 by the Tirana Commission on restitution and compensation of properties and partially confirmed in 1998 and 2001 by the Supreme Court, concerned two plots of land awarded by way of compensation for the nationalisation of the applicant’s property in 1960. Separate appeal procedures relating to ownership disputes over each plot of land resulted in parallel proceedings before the Supreme Court and its judgments of 1998 and 2000. Further, in 2001, the Supreme Court quashed its 1998 judgment in supervisory review proceedings.

The European Court found that there had been a breach of the right to a fair trial due to the lack of legal certainty. It concluded that by granting the review of a final judgment and by allowing the introduction of parallel sets of proceedings, the Supreme Court had set at naught an entire judicial process which had ended in final and enforceable decisions (violation of Article 6§1). The case also concerns the lack of the impartiality of the Supreme Court. The Supreme Court lacked subjective impartiality, as its President who instigated the supervisory review proceedings, had already ruled against the applicant in 07/12/00, and also objective impartiality because of a number of judges who were on the review panel adopted the judgments of 17/12/1998 and 07/12/2000 (violation of Article 6§1).

The case further concerns the lack of enforcement of the final judgment given in 17/12/98 (because it was quashed in review proceedings) and the judgment of 17/12/00 (where no enforcement proceedings had been taken in respect of the compensation awarded when the European Court delivered its judgment, six years later) (violation of Article 6§1).

Finally, the case concerns the interference with the applicant’s right to peaceful enjoyment of his property that resulted from the lack of enforcement of the decision awarding him title to the property on 17/12/98 and compensation 07/12/00 and the lack of effective remedy in this respect (violation of Article 1 of Protocol No. 1 alone and in conjunction with Article 13).

Individual measures:  The European Court ordered the restitution of one of the plots of land and indicated that failing such restitution additional just satisfaction should be paid. It also awarded just satisfaction for pecuniary and non-pecuniary damages in respect of both plots of land.

• Information is awaited on the return of the contested land.

General measures:

1) Violation of Article 6§1 (the lack of legal certainty): In respect of the supervisory review procedure, the European Court noted that this procedure was provided for in paragraph 473 of the Code of Civil Procedure, in force until 17 May 2001 (§66 of the judgment) and is no longer available.

Concerning the introduction of parallel proceedings, the European Court noted that it is the State’s responsibility to organise the legal system in such a way as to identify related proceedings and where necessary to join them or prohibit further institution of new proceedings related to the same matter.

• Information is awaited on measures taken/envisaged to avoid similar violations.

2) Violation of Article 6§1 (lack of impartiality of the Supreme Court):

The supervisory procedure is no longer available (see above). The violation resulted from the composition of the Supreme Court deciding on the applicant’s case.

• Information is awaited on measures taken/envisaged to avoid similar violations, and in particular on the European Court’s judgment’s publication and dissemination to the Supreme Court.

3) Violations Article 1 Protocol 1, Article 13 alone or taken in conjunction with Article 1 of Protocol 1 and Article 6§1 (non-enforcement of domestic judgments): Under Article 46, the European Court noted that the violations in this case arose from shortcomings in the Albanian legal order, as a consequence of which, an entire category of individuals have been and are still being deprived of their right to the peaceful enjoyment of their property, stemming from the non-enforcement of court judgments that awarded compensation under the relevant Albanian law (the Property Act). There are currently dozens of similar cases pending.

The European Court considers that in order to address these violations, the state should remove all obstacles to the award of compensation under the Property Act by ensuring the appropriate statutory, administrative and budgetary measures. These measures should include the adoption of the maps for the property valuation in respect of those applicants that are entitled to receive compensation in kind and the designation of an adequate fund in respect of those applicants who are entitled to receive compensation in value. All claimants who have received successful judgments awarding them compensation under the Property act should be able to speedily obtain the sums or the land due.

The European Court noted that such measures should be undertaken as a matter of urgency.

• Measures taken and/or under way: As regards the violation of Article 1 Protocol 1 and 6(1), this case presents similarities to the case of Beshiri and others in which the Albanian authorities have recently provided information on measures taken and/or envisaged (Section 4.2).

• However, taking into account the findings of the European Court under Article 46 and the finding of violation of Article 13 in conjunction with Article 1 of Protocol 1 in this case, further information is expected on measures taken/envisaged in order to resolve the above systematic problem.

The Deputies, 1.             recalled that the non-enforcement of domestic judgments and administrative decisions concerning restitution and/or compensation to former owners in Albania is a systemic problem; 2.             noted with interest in this respect that the Property Act has been amended and a National Strategy for Development and Integration has been adopted to improve the property restitution and compensation process; 3.             encouraged the authorities to continue their efforts to take all the measures announced as promptly as possible; 4.             decided to resume consideration of these cases at the latest at their 1059th meeting (2‑4 June 2009) (DH), in light of the further information to be provided on the individual and general measures.

38222/02           Ramadhi and 5 others, judgment of 13/11/2007, final on 02/06/2008

This case concerns the failure to enforce final domestic decisions and judgments concerning the applicants' right to compensation in respect of plots of land which had been nationalised under the communist regime.

In relation to all of the applicants, the European Court found that there had been a violation of Article 6§1 following the failure to enforce the decisions of the Kavaja Property Restitution and Compensation Commission of 7/06/1995 and 20/09/1996, which confirm their property rights on a plot of land (the first plot of land), the authorities having only returned part of it and having failed to pay compensation corresponding to the remaining part. The European Court also found that there was no time-limit for appealing the Commission’s decisions before the national courts nor remedy for their enforcement (violation of Article 13 in conjunction with Article 6§1).

In relation to the first three applicants, the European Court also found a violation of Article 6§1 due to the failure to enforce the District Court’s judgment of 04/02/00 ordering the Commission to reexamine their claims on another plot of land (the second plot of land) which had already been confirmed by a decision of the Commission on 11/11/1998.

Finally, in relation to all of the applicants, the European Court found there had been unjustified interference with the applicants’ right to peaceful enjoyment of property on account of a failure to pay compensation in respect of the first plot of land and to restitute the second plot of land, which left the applicants in a state of uncertainty with regard to the realisation of their property rights (violation of Article 1 of Protocol 1).

Individual measures: All 6 of the applicants were awarded pecuniary and non-pecuniary damages in relation to the claims over the first plot of land.

In addition, the European Court ordered the restitution of the second plot of land to the 3 applicants to which it belonged and awarded joint pecuniary and non pecuniary damage. Failing such restitution, additional just satisfaction for pecuniary and non-pecuniary damage is to be paid jointly to those applicants.

• Information is awaited on the restitution of the second plot of land.

General measures: The European Court identified that the violation of Article 1 Protocol 1, Article 6(1) and 13 resulted from a widespread problem affecting a large number of people who were unable to exercise the peaceful enjoyment of their right to property following non-enforcement of the Commission’s decisions awarding them compensation under the Property Act. Under Article 46 of the Convention, the European Court stated that a remedy should be introduced at the national level which secures genuinely effective redress for the violations identified in this judgment and all similar applications pending.

The state should inter alia designate a competent body, set out the procedural rules, ensure compliance with such rules in practice and remove all obstacles to awarding compensation under the Property Act. The measures should include the adoption of maps for property valuation in respect of those applicants who are entitled to receive compensation in kind and the designation of an adequate fund in respect to those applicants who are entitled to receive compensation in value. The Court concluded that such measures should be made available as a matter of urgency.

This case presents similarities to the case of Beshiri and others in which the Albanian authorities have recently provided information on measures taken and/or envisaged (Section 4.2).

• However, taking into account the findings of the European Court under Article 46 in this case and the finding of violation of Article 13 in conjunction with Article 6§1, further information is expected on measures taken/envisaged in order to resolve the above systematic problem.

The Deputies, 1.             recalled that the non-enforcement of domestic judgments and administrative decisions concerning restitution and/or compensation to former owners in Albania is a systemic problem; 2.             noted with interest in this respect that the Property Act has been amended and a National Strategy for Development and Integration has been adopted to improve the property restitution and compensation process; 3.             encouraged the authorities to continue their efforts to take all the measures announced as promptly as possible; 4.             decided to resume consideration of these cases at the latest at their 1059th meeting (2‑4 June 2009) (DH), in light of the further information to be provided on the individual and general measures.

54268/00          Qufaj Co. Sh.p.k., judgment of 18/11/2005, final on 30/03/2005

This case concerns a violation of the applicant company's right to a fair trial due to the failure to enforce a final judicial decision (violation of Article 6§1).

By judgment of 23/02/1996, the Tirana Court of Appeal sentenced the Municipality of Tirana to pay compensation to the applicant company for losses resulting from the refusal to grant a building permit. However, this judgment was not executed on the grounds that the state allegedly lacked the necessary funds, despite various steps taken by the applicant company. The company therefore brought proceedings before the Constitutional Court, which declared that enforcement proceedings did not fall within its jurisdiction.

The European Court recalled that enforcement of judicial decisions is an integral part of the “trial” for the purposes of Article 6 and that a delay in enforcement may impair the essence of the right to a fair trial.

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary and pecuniary damage, including the sums at issue in the unenforced decision.

• Evaluation: no additional measure seems to be required.

General measures: On 02/06/2005, the Secretariat wrote to the Albanian delegation requesting a plan of action for the execution of this judgment. Clarification was requested concerning the origin of the violation the measures envisaged with a view to ensuring the enforcement of domestic decisions. The Secretariat also referred to the European Court's judgment, which indicates that the remedy before the Constitutional Court in case of non-enforcement of judicial decision was only theoretical: according to the Court, the provisions in Albanian law concerning the right to a fair trial had to be interpreted in such a way as to guarantee an effective remedy in case of alleged violation of Article 6§1 of the Convention (§§ 40-42).

At the 1007th meeting (October 2007) the Albanian authorities announced certain general measures that they had envisaged and/or taken. They also committed themselves to submit a time-table for the execution of this judgment.

• Information provided by the authorities (at the 1007th meeting and by letter of 25/10/2007):

            1) Cause of the violation: The violation found by the European Court in this case resulted mainly from the lack of funds in the Tirana Municipality. It was not due to the division of budgetary institutions’ competencies. According to the decision of Council of Ministers of 29/06/1998, State budgetary institutions are responsible for paying their financial obligations concerning enforcement of judicial decisions, by using their own budgetary funds.

            2) Publication and dissemination The European Court's judgment was translated into Albanian and published in the Official Gazette, No. Extra July 2007. By an official letter of 22/11/2004 it was also sent out to the Prime Minister, the President of the High Council of Justice, the President of the Constitutional Court, the Ministry of Justice, the Ministry of Finance, the Ministry of European Integration and the Tirana municipality.

Moreover, the Government Agent has translated and forwarded to the Ministry of Justice (General Department of Codification, Bailiffs Office, Commission of Legal Reforms), to the Parliament, the Bar and the civil society the conclusions of the Round Table, Strasbourg 21-22/06/2007, “Round table: on “Non-Enforcement of Domestic Judicial Decisions in Member States : General Measures to comply with of the judgments of the European Court” “ (CM/Inf/DH(200)733)).

3) Measures aimed at dealing with the problem of lack of funds: By an order of the Prime Minister of 14/07/2003 a working group was established to evidence the non-enforced financial judicial decisions. The implementation of its recommendations shall be accelerated.

Particular funds shall be also provided within the state budget and the budgetary institutions, with a view to paying financial debts related to the enforcement of final judicial decisions.

On 05/06/2008, the Albanian authorities stated that they have submitted a number of amendments to Law 8397 of 29/06/98 which will give individual institutions budgetary responsibility for complying with domestic judgments. These amendments were submitted to Parliament for approval in June 2008. On 08/10/2008 the Albanian authorities confirmed that these amendments have now been adopted by Parliament.

            4) Reform of the bailiffs’ system and other legislative reforms:

Certain measures have been foreseen in order to improve the bailiff’s office organisation and functioning, by improving domestic laws:

- amendment to the provisions of the Code of Civil Proceedings concerning enforcement of domestic judicial decisions,

- amendment to the Law on the Organisation and Functioning of the General Bailiffs Office,

- a draft version of the Order on the Application of Levelled Fares related to the Bailiffs Services,

- amendment to the Rule on the Functioning of the Bailiffs’ Council (internal rule of the bailiffs’ service).

The experts of the Ministry of Justice are working on a harmonisation of the existing enforcement procedures with the requirements of Article 6§1 of the Convention. The first draft amendments were to be ready at the beginning of 2008.

On 05/06/2008 the Albanian authorities confirmed that the bailiff service, up to now attached to the Ministry of Justice, will be transformed into an independent profession following a joint project between the Ministry of Justice and the EURALIS Mission (European Assistance Mission to the Albanian Justice System). This liberalisation is intended to ensure effective implementation of domestic court judgments by creating or contracting specialised bodies to deal with execution of judgments. In Order 2605 of 07/04/2008 the Minister of Justice established a working group to prepare a policy paper for the liberalisation project. It is intended that the working group will produce a draft law for liberalisation of the bailiff system by July 2008 and a draft amendment to the chapter on enforcement of final judgments in the Civil Procedure Code.

The Deputy Minister of Justice is supervising the process of amending the Codes of Civil and Criminal Procedure to make better provision for the enforcement of domestic decisions. The office of the Government Agent along with the Department of Codification in the Ministry of Justice is also working on this project. 

            5) Change of the Constitutional Court’s practice: In its decision No 6 of 31/03/2006 in the Memishaj case, the Constitutional Court found that the non-enforcement of domestic judicial decisions may constitute a violation of the right for a fair trial.

On 26-27/09/2007 a seminar on the improvement of the implementation of the European Court’s case-law through the enhancing of cooperation between the Agent of Government and the domestic authorities took place in Tirana. During this seminar, the President of the Constitutional Court held that the Constitutional Court’s practice had been changed in order to align it to the European Court’s judgment delivered in this case.

Consequently, the Constitutional court is empowered to examine requests concerning non-enforcement of domestic judicial decisions.

            6) Working group on the execution of the European Court’s judgments: In 2007 the authorities decided to conduct a study on the domestic legislation with the view to improving the execution procedure of the judgments of the European Court. In this framework a working group, including representatives of the Ministry of Justice, the Ministry of Finance and the Tirana Municipality, was to be establish in the view of clarifying the division of competencies in situations similar to the one of this case. The enforcement of domestic judicial decisions by state institutions when they are debtors has been fixed as a priority in the Government’s programme.

• On 23-25/01/2008, the Secretariat had bilateral consultations in Tirana with the Albanian authorities to discuss the measures envisaged and taken in order to avoid similar violations.

• Information is awaited on the follow-up given to the reforms announced by the authorities, in particular on measures mentioned in Sections 3, 4 and 6 above and the draft law for liberalisation of the bailiff system.

- 2 cases against Armenia

26986/03           Galstyan, judgment of 15/11/2007, final on 15/02/2008

The case concerns a breach of the applicant’s right of freedom of assembly due to his arrest and sentencing to three days’ detention for participating in a rally in April 2003 following the presidential elections (violation of Article 11).

The European Court observed in particular that the very essence of the right to freedom of peaceful assembly is impaired where a state, while not prohibiting a demonstration, imposes sanctions, especially such severe sanctions, on those participating who had done nothing reprehensible, as in the applicant’s case. The Court therefore concluded that the interference with the applicant’s right to freedom of peaceful assembly was not “necessary in a democratic society”.

The case also concerns an infringement of the applicant’s right to adequate time and facilities for the preparation of his defence (violation of Article 6§3b combined with of Article 6§1). Lastly, the case concerns a breach of the right of appeal in criminal matters (violation of Article 2 of Protocol No. 7).

Individual measures: The European Court awarded just satisfaction to the applicant in respect of non-pecuniary damage. The applicant is no longer detained.

• Information is awaited on any possible record of the applicant’s condemnation and on measures taken or envisaged in his favour.

General measures: As regards the three violation found in this case (Article 11, 6§3b combined with article 6§1 and Article 2 of Protocol No 7), it appears from the judgment of the Court that the provisions applicable at the material time are no longer in force. The law on freedom of assembly is currently being amended.

At the 1028th meeting (June 2008), the Permanent Representative of Armenia indicated that amendments to the law on conducting meetings, assemblies, rallies and demonstrations, which had been the subject of expert examination by the Venice Commission, were currently being considered by the Armenian Parliament and should be adopted in the near future. The attention of the delegation was drawn to the fact that, as suggested by the Venice Commission, the setting up of an effective and independent system for monitoring the enforcement of the law would be very useful. Moreover, the European Court’s case-law according to which in no circumstances should penalties be applied for mere participation in a rally which has not been prohibited was recalled and the Armenian authorities were invited rapidly to provide the Committee of Ministers with information on penalties potentially applicable to participants in a rally.

No information has been received since that meeting.

• Information is awaited on the points raised above. Furthermore, references concerning the publication of the European Court’s judgment would be welcome as well as confirmation of its dissemination to administrative and criminal courts.

11724/04+         Nikoghosyan and Melkonyan, judgment of 06/12/2007, final on 06/03/2008

The case concerns an infringement of the applicants’ right to a fair trial in that they received the summons after the hearing, and thus could not take part in it (violation of Article 6§1). The proceedings, which took place in 2003, concerned the annulment of a property sale contract.

Individual measures: The applicants made no claim for non-pecuniary damage. The Court, holding that it could not speculate as to the outcome of proceedings had they been conducted in accordance with Article 6§1, rejected the applicants' claims for pecuniary damage. The Court noted that Article 241.1 of the Code of Civil Procedure allows reopening of the domestic proceedings if the Court has found a violation of the Convention or its Protocols and stated that the most appropriate form of redress in cases where it finds that a trial was held in the applicant's absence in breach of Article 6§1 would as a rule be to reopen the proceedings and re-examine the case in keeping with all the requirements of a fair trial

• Information is awaited on measures taken or envisaged in favour of the applicants.

General measures: Translation of the Court’s judgment is complete and it will be soon posted on the official website of the Ministry of Justice (www.moj.am), on the website of the “Panorama” news agency (www.panorama.am), as well as published in the Official Bulletin of the Republic of Armenia.

• Confirmation is awaited of publication of the judgment of the European Court and its dissemination to the Court of Cassation, civil courts of appeal and regional courts.

- 11 cases against Austria

74336/01           Wieser and Bicos Beteiligungen GmbH, judgment of 16/10/2007, final on 16/01/2008

The case concerns the violation of the right to respect for the correspondence of the applicants, an advocate who is proprietor and general manager of a limited-liability company (the first applicant) and the company itself (the second applicant), on account of a search and seizure of electronic data, carried out in October 2000 in the first applicant’s chambers (violation of Article 8).

The European Court noted that the procedural guarantees provided in the Code of Criminal Procedure had not been respected with regard to the search and seizure of electronic data: the Bar Association member present could not properly exercise his supervisory function as regards the electronic data, and the report on the search was not drawn up at the end of the search but only later the same day.

The European Court found that the police officers’ failure to comply with procedural safeguards designed to prevent abuse or arbitrariness and to protect the advocate’s duty of professional secrecy rendered the search and seizure of the electronic data disproportionate to the legitimate aim pursued.

Individual measures: The European Court awarded just satisfaction to the first applicant in respect of non-pecuniary damage sustained. The second applicant submitted no claim in respect of non-pecuniary damage.

• Information is awaited on the fate of the electronic data subject to professional secrecy, and especially on whether they have been destroyed.

General measures: Austrian law contains detailed provisions for the seizure of objects and, in addition, specific rules for the seizure of documents. It has been established in domestic courts’ case-law that these provisions also apply to the search and seizure of electronic data. It seems that this was an isolated violation resulting from the particular circumstances of the case.

The European Court’s judgment was published in German in the law journals (ÖJZ 2008/4; and Newsletter 2007, p. 258, available online at www.menschenrechte.ac.at/docs/07_5/07_5_09).

• Dissemination of the European Court’s judgment to relevant courts and authorities is expected, to raise their awareness of the Convention’s requirements as they result from this case.

12556/03           Pfeifer, judgment of 15/11/2007, final on 15/02/2008

This case concerns a breach of the applicant’s right to respect for his private life due to domestic courts’ failure to protect his reputation against defamatory statements in a newspaper (violation of Article 8).

In June 2000, the newspaper Zur Zeit published a letter by its chief editor alleging that the applicant had caused the suicide of a professor by criticising his anti-Semitic publications. In June 2000 and October 2001, two sets of defamation proceedings brought by the applicant against the chief editor and the publishing company owning Zur Zeit were dismissed (proceedings under Article 111 § 1 of the Criminal Code and under section 6 of the Media Act). The domestic courts held that the article at issue contained a value judgment which relied on a sufficient factual basis.

The European Court noted that, by alleging that the applicant’s commentary had caused the suicide of the professor, the chief editor’s letter overstepped acceptable limits, because it in fact accused the applicant of acts tantamount to criminal behaviour. Even if the statement were to be understood as a value judgment it lacked a sufficient factual basis and no proof had been offered for the alleged factual link.

Individual measures: The European Court awarded the applicant just satisfaction in respect of non‑pecuniary damage sustained.

• Information is awaited as to whether the applicant may request reopening of the defamation proceedings or start new proceedings.

General measures: A similar issue was raised in the Wirtschaftstrend No. 2 and 3 (Applications Nos. 58547/00 and 66298/01, both in section 6.2), concerning convictions of defamation for publications in magazines. In these cases the European Court noted that the right to freedom of expression had been interpreted too narrowly by the Austrian Courts and found violations of Article 10. Consequently between 1997 and 2005 the Austrian authorities provided regular training for judges on the Convention and especially the European Court’s case-law relating to Article 10.

The European Court’s judgment was published in German in various law journals (ÖJZ 2008/2; and Newsletter 2007, p.307, available online at www.menschenrechte.ac.at/docs/07_6/07_6_05.

• Taking into account the circumstances and the type of violation in this case, information is expected on further training and awareness-raising measures for judges on the interplay of Articles 8 and 10 as well as on dissemination of the European Court’s judgment

- Cases of length of proceedings concerning civil rights and obligations before administrative authorities courts

2884/04            Ortner, judgment of 31/05/2007, final on 31/08/2007

38032/05           Gierlinger, judgment of 29/11/2007, final on 29/02/2008

37040/02          Riepl, judgment of 03/02/2005, final on 03/05/2005

These cases concern the excessive length of certain proceedings in determination of civil rights and obligations before administrative authorities and courts (violations of Article 6§1).

The Ortner case concerns land consolidation proceedings. The period taken into consideration by the European Court began on 1/03/1999 and the proceedings before the administrative authorities were still pending at the date of the European Court’s judgment (having lasted for more than 12 years).

In the Gierlinger case, the period taken into consideration by the European Court began on 4/05/2000, when the applicant filed objections against the enlargement of the canalisation system and ended on 26/04/2005 (almost 5 years for three levels of jurisdiction, but was pending for 4 years before the Administrative Court).

In the Riepl case the period taken into consideration by the European Court began in August 1994 when the applicant’s neighbours appealed against a decision by the Mayor to grant the applicants a building permit and ended in April 2002 with the service of a new building permit (7 years and some 7 months for five levels of jurisdiction). The European Court noted in particular the following two lengthy periods attributable to the authorities: some ten months before the Municipal Council, and two years and eight months before the Constitutional Court, before which there was a period of inactivity of almost two years.

Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicants in all cases.

Except for the Ortner case, the domestic proceedings are closed.

• Information is expected on the state of the pending domestic proceedings and measures for acceleration, if needed.

General measures:

            1) Length of proceedings before administrative authorities:The cases present similarities to that of G. S. (Final Resolution CM/ResDH (2004)77) for which the Austrian Parliament adopted the Administrative Reform Act 2001, which entered into force on 20 April 2002 and aims at alleviating the case-load of the Administrative Court and accelerating administrative proceedings. They also present similarities to the Alge case (Final Resolution CM/ResDH(2007)110, which takes stock of further general measures taken after the Resolution CM/ResDH(2004)77 had been adopted, mainly measures aimed at reducing the case-load of the Administrative Court.

• Information on a positive trend concerning the number of lengthy procedures and on recent measures to further reduce the case-load at the Administrative Court was received in April 2008: for a detailed assessment see the group Jancikova (Section 4.2).

• However, due to the fact that the violation in these cases occurred after Resolution CM/ResDH (2004)77 was adopted, information is awaited on any other measure taken or envisaged to avoid excessive length of proceedings before the administrative authorities.

            2) Length of proceedings before the Constitutional Court: The Constitutional Court’s 2007 Activity Report (published on 09/04/2008, available online at http://www.vfgh.gv.at/cms/vfgh-site/attachments/8/0/9/CH0011/CMS1207730706100/taetigkeitsbericht_2007.pdf) provided statistics showing that the average length of proceedings between 1998 and 2007 was less than 9 months.

            3) Publication and dissemination: Judgments of the European Court are accessible to all judges and state attorneys through the internal database of the Austrian Ministry of Justice (RIS). The Riepl judgment was published in German in the Austrian law journal ÖJZ 2005/26. The Administrative and the Constitutional Court receive judgments via the Constitutional Law Service of the Austrian Federal Chancellery.

• Information is expected on the publication of the European Court'sjudgments in the Ortner and Gierlinger cases and their dissemination to relevant courts and authorities, to raise their awareness of the Convention's requirements as they result from these cases.

- Cases of length of judicial proceedings concerning the determination of criminal charges before administrative authorities and courts and of lack of an effective remedy

56483/00           Jancikova, judgment of 07/04/2005, final on 07/07/2005

32407/04           Donner, judgment of 22/02/2007, final on 22/05/2007

37301/03           Hauser-Sporn, judgment of 07/12/2006, final on 23/05/2007

18015/03           Schütte, judgment of 26/07/2007, final on 26/10/2007

18294/03           Stempfer, judgment of 26/07/2007, final on 26/10/2007

8140/04            Vitzthum, judgment of 26/07/2007, final on 26/10/2007

These cases concern the excessive length of certain proceedings in determination of a criminal charge before administrative authorities and courts (violations of Article 6§1) as well as the lack of an effective remedy (violations of Article 13).

In the Jancikova case, the proceedings began in February 1993 and ended in September 1999 (more than six years), during which period the authorities had been inactive for some two years and the Administrative Court for one year and almost four months.

Furthermore, the applicant had no effective remedy against the delays. In this context, Section 51§7 of the Code of Administrative Offences which guarantees a decision on appeals within 15 months, is not applicable in cases in which more than one party is entitled to appeal. Moreover Section 31§3 of the Code of Administrative Offences did not ensure written notification of the Independent Administrative Panel's decision within three years: under Austrian law only the public pronouncement has to be within that time-limit.

In the Hauser-Sporn case, the proceedings began in March 1995 in the district Court. The applicant appealed to the Constitutional Court and ultimately to the Administrative Court, which refused to deal with his complaint. That decision was served on the applicant’s counsel on 6/11/2003. The case has been pending before the two highest courts for more than five years.

In the Donner case, the proceedings began in autumn 1989 with an investigation of the Salzburg Tax office, followed by criminal investigations of the Public Prosecution Office. The case was altogether more than six years before the investigating administrative authorities. Furthermore, while pending before the court the case was not dealt with from the end of 2000 until 2002. Final judgment was given in 2004. The applicant could have made use of section 91 of the Austrian Courts Act during the proceedings before the Regional Court, which could be regarded as an effective remedy. However, the Court’s finding of a violation of Article 6 had in particular regard to the substantial delays occurred before the investigating authorities. A hierarchical complaint existing under Article 37 of the Public Prosecution Act, was not considered as an effective remedy by the Court.

The cases Schutte, Stempfer and Vitzthum concerned length of criminal proceedings for driving offences. In Schutte, the proceedings lasted five years; in Stempfer seven years and two and a half months; and in Vitzthum four years and two months.

Individual measures: The proceedings are closed in all 6 cases.

• Assessment: no further individual measure is required.

General measures:

            1) Excessive length of proceedings before the Administrative Court: Legislative measures were adopted in 2002 (see case of G.S., judgment of 21/12/1999, Resolution ResDH(2004)77) and further general measures were adopted in the cases of Alge and Schluga (Resolution CM/ResDH (2007)110). The Annual Report 2007 (published in April 2008, available online at http://www.vwgh.gv.at/Content.Node/de/aktuelles/taetigkeitsbericht/taetigkeitsbericht2007.pdf) of the Administrative Court indicates a slight positive trend concerning the average length of proceedings. The absolute number of cases pending for an excessive time (more than 3 years) before the Administrative Court has significantly diminished over the last years. However the high number of recent complaints means that excessive length of proceedings remains an issue (ibidem, p. 11). To reduce the workload of the Administrative Court, a new Asylum Court has been set up which is dealing with asylum cases. Those cases accounted for a considerable part of the workload of the Administrative Court.

The judgments in the Jancikova, Hauser-Sporn, Schutte, Stempfer and Vitzthum cases were transmitted to the Presidency of the Administrative and Constitutional Court. Furthermore, the judgments have been forwarded to a range of federal and regional public authorities and published on the websites of the Constitutional Service of the Austrian Chancellery (http://bka.gv.at/DocView.axd?CobId=29401) and the Austrian Human Rights Institute (www.menschenrechte.ac.at).

• Information is awaited on the further development of the length of proceedings before the Administrative Court, in particular following the establishment of the new Asylum Court, which took up its work in July 2008.

            2) Violation of Article 13

• Written information is awaited on existing or envisaged measures to safeguard individuals effectively against lengthy criminal proceedings before administrative courts.

- 7 cases against Azerbaijan

24271/05           Abbasov, judgment of 17/01/2008, final on 17/04/2008

The case concerns a violation of the applicant’s right to a fair trial in that he had not been informed about the hearing of his cassation appeal before the Supreme Court and, therefore, could not be present at the hearing (violation of Article 6§1).

Individual measures: The applicant, who was included in the list of “alleged political prisoners” submitted by experts of the Secretary General upon Azerbaijan's accession to the Council of Europe, was sentenced to 13 years imprisonment and to the confiscation of properties in July 1996. His sentence was reduced by half pursuant to a presidential pardon decree of 18/10/2002 and he was finally released from serving the remainder of his sentence following another presidential pardon decree of 18 August 2003.

The European Court awarded just satisfaction to the applicant in respect of non-pecuniary damage.

Regarding the claim in respect of pecuniary damage, the Court held that it could not speculate as to what the outcome of the proceedings might have been if the violation of the Convention had not occurred. It therefore rejected this claim and considered that a retrial or the reopening of the case, if requested, represented, in principle, an appropriate way of redressing the violation in the present case.

• Information provided by the Azerbaijani authorities (letter of 14/10/2008): The European Court’s judgment has been forwarded to the Supreme Court and the examination of Mr Abbasov’s case was scheduled for 28/10/2008. Information on the results of this examination will be submitted in due course.

General measures:

• Information provided by the Azerbaijani authorities (letter of 14/10/2008): The European Court’s judgment has been translated into Azerbaijani and published in the Bulletin of the European Court of Human Rights No. 4/2008, it has been sent out to judges and other legal professionals and included in the curricula for the training of judges, prosecutors and candidates for the post of judge.

• Information is also awaited on other measures taken or envisaged to avoid similar violations.

34445/04           Mammadov (Jalaloglu), judgment of 11/01/2007, final on 11/04/2007

The case concerns torture inflicted on the applicant, Secretary General of the Democratic Party of Azerbaijan at the material time, while he was in police custody in October 2003 (violation of Article 3).

The case also concerns the absence of an effective investigation into the applicant's allegations of ill-treatment (violation of Article 3) in particular in that the authorities failed to secure the forensic evidence in a timely manner and the ensuing criminal investigation was not satisfactory (see § 74 to 79 of the Court's judgment).

Finally, the case concerns the right to an effective remedy (violation of Article 13), because the domestic courts simply endorsed the criminal investigation, without independently assessing the facts of the case.

Individual measures: The Court awarded the applicant just satisfaction in respect of non-pecuniary damage. The Committee's consistent position in this kind of cases is that there is a continuing obligation to conduct investigations where a (procedural) violation of Article 3 is found.

• Information provided by the Azerbaijani authorities (12/10/2007): “In accordance with the relevant remedial legislation of the Republic of Azerbaijan and on the basis of the applicant’s complaint, the judgment of the European Court of Human Rights was presented to the Supreme Court of the Republic of Azerbaijan to reverse a decision taken on 18 February 2004 by Nasimi District Court and on 17 March 2004 by the Court of appeal of Azerbaijan” (these decisions concern the  applicant's complaint regarding the unlawfulness of the Chief Prosecutor's Office's refusal to institute criminal proceedings on his allegations of ill treatment).

No further information has been sent to the Secretariat since 12/10/2007.

At the 1028th meeting (June 2008) the delegation of Azerbaijan informed the Committee of Ministers that previous decisions refusing to institute criminal proceedings had been quashed and that new investigations had been ordered. This was confirmed and detailed in a letter of the Azerbaijani authorities of 15/10/2008: on 11/01/2008, the Plenum of the Supreme Court of the Republic of Azerbaijan quashed the decisions of the Nasimi District Court and the Court of appeal of Azerbaijan and sent the case for re-consideration to the Nasimi District Court which, by a judgment of 15 January 2008, forwarded the applicant’s case to the Investigation Department of the Prosecutor General’s Office for Serious Crimes. The decision to refuse to institute criminal proceedings on the basis of the applicant’s allegations of ill-treatment was quashed by decision of the First Deputy Prosecutor General. The Investigation Department is currently investigating the applicant’s complaint.

• Information is awaited on the development of this investigation. It is also recalled that detailed information would be welcome on proceedings before the Supreme Court to obtain reopening of proceedings following a European Court Judgment.

General measures

• Information provided by the Azerbaijani authorities (letters of 12/10/2007and 15/10/2008):

1) Publication and dissemination: The European Court’s judgment has been translated and published in Qanunçuluk, the official gazette of the Ministry of Justice (No.9, September 2007), in Azerbaycan Prokurorlugu, the official gazette of the Prosecutor General’s Office (No.3, 2007) and in the Bulletin of the European Court of Human Rights (No.4, 2008). The judgment has been sent out to the Ministry of Internal Affairs for distribution among its subordinate structures, to judges and other legal professionals and included in the curricula for the training of judges, prosecutors and candidates for the position of judge.

2) Training measures: More than twenty seminars and training sessions on the implementation of the European Convention on Human Rights and the Court’s case-law as well as on requirements of international conventions on prevention of torture and other inhuman or degrading treatment or punishment have been organised in the Training Centre of the Prosecutor General’s Office for prosecutors, investigators and police officers. Several seminars on the same topics have been organised for judges and candidates judges in the Judicial-Legal Council and Training Centre of the Prosecutor General’s Office.

3) Investigation of allegations of ill-treatment – statistics: During 2007 and the first quarter of 2008, a hundred police officers were subject to administrative proceedings;  ten police officers were prosecuted, convicted and dismissed from their position.

4) Other measures: The Ministry of Internal Affairs adopted the Action Plan on Human Rights on 5/02/2007. A decree of the Minister of Internal Affairs of 5/02/ 007established the Human Rights Commission, the aim of which is, among other things, to guarantee proper and prompt investigation of all allegations of torture and ill-treatment.

• Information is awaited on

- the legislative and regulatory framework applicable to police custody (such as access to a lawyer, medical supervision, contacts with family);

- the legislative and regulatory provisions applicable in case of allegations of torture and ill-treatment and concrete examples of application of these provisions; 

- concrete measures of the Action Plan on Human rights and concrete action undertaken by the Human Rights Commission to fight torture and to guarantee effective and prompt investigation.

9852/03            Hummatov, judgment of 29/11/2007, final on 29/02/2008

The case concerns degrading treatment suffered by the applicant due to the lack of appropriate medical treatment of the tuberculosis he had contracted in detention (violation of Article 3). The European Court considered that the inadequate medical treatment in Gobustan Prison must have caused the applicant considerable mental suffering, diminishing his human dignity and amounting to degrading treatment within the meaning of Article 3 of the Convention.

The case also concerns the absence of an effective remedy both in law and in practice, to complain of the lack of adequate medical treatment (violation of Article 13).

Lastly, the case concerns a violation of the right to a public hearing and therefore to a fair trial (violation of Article 6§1).

Individual measures: The European Court awarded just satisfaction to the applicant in respect of non-pecuniary damage.

At the 1028th meeting (June 2008), it was noted that the applicant had been given a presidential pardon in September 2004 and the issue was raised as to whether the Azerbaijani authorities envisaged any further  measure following the European Court’s Judgment.

• The Azerbaijani authorities’ assessment on this point is awaited.

General measures:

1) Violation of Article 3: The Court recalled that under Article 3 of the Convention, the state must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and wellbeing are adequately secured

At the 1028th meeting, the Representative of Azerbaijan stated that Gobustan prison was being demolished and rebuilt with all necessary medical services.

• Information provided by the Azerbaijani authorities (letter of 15/10/2008): The Azerbaijani Ministry of Justice and the ICRC are carrying out a special “Directly Observed Treatment, Short-course” (DOTS) Programme with the purpose of eradicating the propagation of tuberculosis in places of detention. According to the statistical data collected since beginning the implementation of the DOTS Programme (1995) 8 982 prisoners received medical treatment, 473 of them are still under medical treatment and 8 509 have already finished their treatment.

• Assessment: a regular update of this information is awaited.

2) Violation of Article 13: At the 1028th meeting, the Representative of Azerbaijan quoted Article 15.2 of the Code on  Execution of Punishments which lays down that it is prohibited and punishable to deprive a person of medical treatment, and Article 10 which provides that every convict is entitled to medical treatment, including both out-patient and in-patient hospital treatment.

• Information provided by the Azerbaijani authorities (letter of 15/10/2008): The Code on Execution of Punishments provides various forms of supervision of prisons: public supervision, supervision by the domestic courts, Ombudsman and prosecution authority. For example, any prisoner has a right to file a complaint with the Ombudsman which must be sent within 24 hours and not be subject to censure. Moreover, by an Order of the Minister of Justice from 15/12/2004, an Inspection Unit for the Supervision of Prisons was set up within Ministry of Justice. Moreover, a Human Rights and Public Relations Department was set up by a Decree of the President of the Republic of Azerbaijan within the Ministry of Justice.

A Medical Department was established within the structure of the Ministry of Justice. It is directly subordinate to the Minister of Justice and independent from the Prison Service. A Public Committee has been established to provide public supervision of prisons. It consists of representatives of local NGOs who have the right to visit and monitor any places of detention and draft special reports to be presented to the Minister of Justice. Moreover, in this regard the government co-operates with a number of international organisations such as the International Red Cross, the Council of Europe, the OSCE, etc. For example, according to a special agreement signed between the government and the International Red Cross, ICRC representatives have the right to monitor prisons and present special reports to the Minister of Justice.”

• Detailed information is awaited on remedies available to prisoners wishing to complain of the lack of adequate medical treatment and concrete examples of successful application such remedies.

3) Violation of Article 6§1: The Court noted that the main reason for reopening the applicant's case was to remedy the alleged lack of a fair hearing at first instance, as the applicant had been recognised as a “political prisoner” upon Azerbaijan's accession to the Council of Europe and Azerbaijan had committed itself to give a “re-trial” to all political prisoners including the applicant. The Court recalled that to hold a trial other than in an ordinary courtroom, in particular in a place like a prison to which the general public in principle has no access, presents a serious obstacle to its public character and that in such case, the state is under an obligation to take compensatory measures to ensure that the public and the media are duly informed of the venue of the hearing and are granted effective access. Finally, the European Court finds that the Court of Appeal failed to adopt adequate compensatory measures to counterbalance the detrimental effect which the holding of the applicant's trial in the closed area of Gobustan Prison had on its public character.

• Information provided by the Azerbaijani authorities (letter of 15/10/2008):

- Publication and dissemination: The European Court’s judgment was published in the Bulletin of the European Court of Human Rights (4/2008) and sent to the Ministry of Justice for distribution prisons and courts.

- Training measures: More than twenty seminars and training courses on the implementation of the European Convention on Human Rights and the Court’s case-law as well as on requirements of international conventions on prevention of torture and other inhuman or degrading treatment or punishment were organised in the Training Centre of the Prosecutor General’s Office for prosecutors, investigators and police officers. Several seminars on the same topics have been organised for judges and candidates for the position of judge in the Judicial-Legal Council and Training Centre of the Prosecutor General’s Office.

- Legal framework regarding public hearings: Article 127 of the Constitution and Article 27 of the Code of Criminal Procedure provide that all court hearings shall be public, with the participation of press but in order not to disclose state, public, private and family secrets, the press and public may be excluded from all or part of the trial. Moreover, according to Article 14 of the Judges’ Code of Ethical Conduct, adopted on 22/06/2007, judges shall provide participation of the public and press during court hearings; this principle may be restricted on the base of circumstances stipulated by law.

• Assessment: the Secretariat is currently studying this information.

19853/03          Akimova, judgment of 27/09/2007, final on 27/12/2007 and of 09/10/2008 – Friendly settlement

The case concerns an interference with the applicant’s peaceful enjoyment of her possessions on account of a decision taken by a Court of appeal in which, while recognising that the applicant was the lawful tenant of a flat, it decided, not relying on any domestic legislation, to postpone the execution of an eviction order until the occupants can go back to their region of origin, Nagorno-Karabakh (violation of Article 1 of Protocol n° 1).

Individual measures: On 9/10/2008, the European Court gave its judgment on application of Article 41. The Court took note of a friendly settlement reached by the parties according to which the government first undertook to pay 10 000 AZN to the applicant for pecuniary and non-pecuniary damage and secondly took note of the fact that, in a decision of 21/01/2008, the Supreme Court quashed the above-mentioned judgment of the Court of Appeal. Later, on 14/03/2008, the applicant’s possession of her apartment was restored.

General measures:

• Confirmation is awaited of the translation and publication of the European Court judgment as well as its dissemination to the Court of Appeals.

                        - Cases concerning the right of freedom of association

44363/02           Ramazanova and others, judgment of 01/02/2007, final on 01/05/2007

4439/04            Ismayilov, judgment of 17/01/2008, final on 17/04/2008

4307/04            Nasibova, judgment of 18/10/2007, final on 18/01/2008

The cases concern a violation of the applicants’ right of freedom of association (violations of Article 11) due to the repeated failure of the Ministry of Justice to decide definitively, or to respond within the statutory time-limits, on the applicants' requests for registration of their associations.

The Court found, in particular in the case of Ramazanova, that there had been no basis in domestic law for such significant delays and did not accept as reasonable the government’s excuse that the delays were caused by the alleged heavy workload of the Ministry. The Court considered that it was the duty of a contracting state to organise its own national system of registration and take the measures needed to ensure that the relevant authorities might comply with the time-limits imposed by its own law. Furthermore, as the domestic law in force at the material time did not provide automatic registration in the event that the Ministry failed to take timely action nor specify a limit on the number of times the Ministry could return documents without issuing a final decision, the Court considered that domestic law did not afford the applicants sufficient legal protection against the arbitrary actions of the Ministry.

Individual measures: In all these cases, the Court awarded the applicants just satisfaction in respect of non-pecuniary damage sustained. In the case of Ramazanova, the association “Assistance to the Human Rights protection of the Homeless and Vunerable Residents of Baku” was finally registered on 18/02/2005.

• Information provided by the Azerbaïjani authorities (letter of 15/10/2008): Mr. Ismayilov’s association « Humanité et environnement », was finally registered on 3/09/2008 and Mrs Nasibova’s association, « TheJournalist Inquiry Center» could not be registered because the applicant had not lodge any application for state registration with the Ministry of Justice.

• Evaluation : It is recalled that it appears from the judgment of the European Court of Human Rights (§11) that when replying to the applicant’s most recent request for registration, the Ministry of Justice did not take into account the revised charter submitted by the applicant and refused the registration of the Association. In this context, the issue of the procedure which should be followed for registration of the applicant association is raised; information on this issue is awaited.

General measures: The judgment of the European Court in the case of Ramazanova has been translated into Azerbaïdjani, sent out to judges and other legal professionals, and included in the curricula for the training of judges and candidates for the position of judge.

• Information provided by the Azerbaïjani authorities (letter of 15/10/2008): The judgments of the European Court in the cases of Ismayilov and Nasibova have been translated and published in the « Bulletin of the European Court of Human Rights» n° 4/2008. They have also been sent out to judges and other legal professionals.

New provisions regarding “state registration and state register of legal entities” are currently being examined by the Secretariat; remaining technical issues, mainly regarding calculation of time-limits for registration, will be dealt with in bilateral contacts.

- 2 cases against Belgium

20656/03           Loncke, judgment of 25/09/2007, final on 25/12/2007

This case concerns an infringement of the applicant's right of access to a court, in the context of tax proceedings constituting a “criminal charge” against him (violation of Article 6§1). In 1999, the Ghent Court of Appeal declared the applicant’s appeal inadmissible on the basis of Article 92, paragraph 2 of the, VAT Code, as he had not paid the sums he had been ordered to pay at first instance, i.e. more than 3,7 million euros.

In view of the specific circumstances of the case, including the obvious disproportion between the very large amounts the applicant had been expected to pay and his financial situation, the European Court held that that the inadmissibility decision had been a disproportionate measure with respect to the protection of the Tax administration’s interests and that the applicant’s effective access to the Court of Appeal had been hindered on that account.

Individual measures: in its examination of the just satisfaction to be granted to the applicant, the European Court held that it could not speculate on the possible outcome of the proceedings in the absence of the violation of the Convention.

• Information appears necessary as to whether it is possible for the applicant to have his case re-examined in the light of the violation of the Convention.

General measures: the European Court did not call Article 92, paragraph 2 of the VAT Code into question, but its implementation by the judge in the specific circumstances of the case. According to this provision, modified in 1999 (the modifications being inapplicable to the facts of this case), if an appeal is lodged against a judgment rejecting the legal action brought by the debtor, the tax administration (The receiver of VAT) may request the debtor to pay all or part of the sums due, or to provide surety. The administration shall take account of the information in the file, in particular the debtor’s financial situation. The Court seised of an appeal may declare it inadmissible if the sums requested have not been paid or if surety has not been given, within a two month delay, except where the Court holds that the request made by the administration is not well founded.

• Information is awaited on measures taken or envisaged to ensure that Article 92, paragraph 2, of the VAT Code is applied in accordance with the Convention as interpreted in this judgment. In any event, it appears necessary to publish the judgment and disseminate it to the courts and tax administrations concerned, possibly with a circular letter.

48386/99          Cottin, judgment of 02/06/2005, final on 02/09/2005[2]

- 3 cases against Bosnia and Herzegovina

39462/03           Karanović, judgment of 20/11/2007, final on 20/02/2008

The case concerns the violation of the applicant’s right to access to a court due to the failure, since 2003 to enforce a final, binding decision of the Human Rights Chamber for Bosnia and Herzegovina (“HRC”) given in his favour (violation of Article 6§1).

The applicant was in receipt of an old-age pension from the pension fund of the former Socialist Republic of Bosnia and Herzegovina. When he had to move from Sarajevo to Republika Srpska (“RS”) as an internally displaced person in 1992 due to the armed conflict at the time, he began to receive a pension from the RS Pension Fund. Upon his return to Sarajevo in 2000, the applicant unsuccessfully sought to receive his pension from the Federation of Bosnia and Herzegovina Pension Fund (hereinafter “the Federation Fund”), which provided a higher pension than that paid in RS. At the same time, pensioners who have moved to other countries during the armed conflict have continued to enjoy their full pension rights under the Federation Fund.

The applicant applied to the HRC, which held in a decision of 10/01/2003 that he had been discriminated against in his enjoyment of the right to social security. The HRC ordered the Federation of Bosnia and Herzegovina (the “Federation”) to take all necessary legislative and administrative action to remedy such discrimination in general as well as to pay to the applicant the difference in the pension paid to him as compared to the more favourable pension amounts payable by the Federation Fund, as from the moment he seised the HRC.

Individual measures: The European Court ordered the enforcement of the decision of the HRC in respect of the applicant not least by transferring him to the Federation Fund (§24 of the judgment).

• Information provided by the authorities of Bosnia and Herzegovina (letter of 28/07/2008): On 21/02/2008 the applicant’s pension was transferred to the Federation Pension Fund as from 21/02/2008. The difference between the amounts he had received and those payable under more favourable regime of the Federation Fund has been paid to the applicant, as ordered by the European Court’s judgment.

• Assessment: In view of this information, no further individual measure appears necessary.

General measures:

1) Background information: The European Court noted that the violation of the applicant’s right of access to a court “concerns the failure of the authorities to eliminate discrimination from the pension legislation regardless of the order of the Human Rights Chamber in that direction”. It further noted that the “facts of the case […] disclose the existence, within the national legal order, of a shortcoming affecting a whole class of citizens (namely, pensioners living in the Federation of Bosnia and Herzegovina who were internally displaced in the Republika Srpska during the armed conflict)” and stressed that “the fact that they are all potential applicants represents a threat to the future effectiveness of the Convention machinery” (§27 of the judgment).

In 2003-2004, around 15 000 applications were filed with the Federation Fund for payment of pensions paid at the time by the RS Fund (see §38, HRC decision Anica Bosiljčić and others, application No. CH/02/12527*). There is currently one similar case pending before the European Court (Šekerović, application No. 5920/04), while in two other pending cases the applicants request the transfer to the Federation Pension Fund although they have not obtained a decision from the HRC (Spasojević, Application No. 4273/97 and Grujić, Application No. 28260/08).

There is no social policy legislation at the level of Bosnia and Herzegovina: pensions are calculated by different methods in various entities. This has been perceived by many international organisations, such as UNHCR, as a root cause of the problems encountered by displaced pensioners and by those who have returned (see §§ 19, 24, 44-45, 98, 100 HRC decision Vidosava Mičić, appl.no. CH/03/12994).

2) Measures taken and under way: The Bosnian authorities provided information on 06/06/2008, 28/07/2008 and 15/10/2008.

A. Action plan: The authorities report that on 16/07/2008 the Federation government adopted an action plan to deal with cases similar. The Action Plan sets out certain measures concerning enforcement of domestic court decisions in other similar existing cases. It also envisages certain measures concerning the collection and analysis of data on the number of pensioners, who earned their pension before 30/04/1992 and have since returned to the Federation, as well as on the amount of their pensions. Based on this analysis, the Federation government will define additional measures by December 2008. However, the Action Plan provides no particular legislative measures with a view to eliminating the discriminatory nature of the pension legislation.

B. Ongoing negotiations between the entities: In the explanations attached to the Action Plan it is mentioned that the Federation Ministry of Labour and Social Policy and the Federation Fund sent an initiative to their counterparts in RS in January 2008 for amending the Pension and Disability Security Agreement so as to ensure that beneficiaries enjoy higher pension amounts in similar situations to that in the present case. RS resigned from that Agreement although it continued to pay out pensions in compliance with its provisions.

The Ministry of Civil Affairs of Bosnia and Herzegovina established a task group charged with resolving the problem of payment of pensions between the entities. It was proposed that either the Agreement should be amended or the issue should be regulated by a law to be adopted at the state level. RS proposed to transfer around 38 000 pensioners, who received their pension in the Federation before the war, to the Federation Fund. No agreement has been reached so far.

C. Enforcement in other similar cases: According to the Federation authorities there were 14 similar decisions issued by the Human Rights Chamber, and by the Constitutional Court of Bosnia and Herzegovina, which had not been completely enforced by the Federation. Those decisions were subject to enforcement procedure, while in 3 similar cases the pension difference was paid to pensioners in situations similar to the applicant's.

Furthermore, the authorities stated that the recent statistical data showed an increase in pension amounts in RS and the levelling of costs of living in both entities. According to the authorities, the transfer of those pensioners would not be appropriate under such circumstances. In addition, decisions issued by the Human Rights Chamber in those cases did not order the transfer of pensioners to the Federation Fund, as was the case in the present case.

• Information is thus awaited on further progress in implementation of the measures taken or envisaged to eliminate discrimination from the pension legislation as ordered by the decision of the Human Rights Chamber, in particular with regard to implementation of the action plan and results of the task group on inter-entity payment of pensions.

• Information is also awaited on measures taken or envisaged to ensure that the decisions of the Human Right Chamber are enforced.

In this respect, it is noted that according to 2003 Criminal Code of Bosnia and Herzegovina (Article 239), failure to enforce a final and enforceable decision of the Human Rights Chamber amounts to a criminal offence.

3) Publication and dissemination: The judgment has been translated into the official languages of Bosnia-Herzegovina and published in the Official Gazette. It was also posted on the website of the Office of the Government Agent (www.mhrr.gov.ba/UredZastupnika). The judgment was forwarded to all administrative and judicial bodies involved in the present case, including to the Federation Pension Fund and RS Pension Fund.

- Cases concerning the failure or substantial delay by the administration in abiding by final domestic judgments concerning old savings denominated in foreign currency

41183/02           Jeličić, judgment of 31/10/2006, final on 31/01/2007

337/04+            Pejaković and others, judgment of 18/12/2007, final on 18/03/2008

The cases concern the violation of the applicants’ right of access to a court due to the administration's failure to enforce final court decisions. The judicial decisions rendered in 1998 in the Jeličić case and 2001 in the Pejaković case in the applicants' favour ordered their banks to release all sums of “old savings” (foreign currency savings deposited prior to the dissolution of the Socialist Federative Republic of Yugoslavia) plus default interest and legal costs, which were not enforced (violations of Article 6§1).

In particular, since 1996 there have been various statutory provisions in domestic law, preventing the enforcement of judgments ordering the release of “old savings”, the latest being Section 27 of the 2006 Old Foreign-Currency Savings Act (hereinafter: the Act) ordering that final judicial decisions concerning “old savings” are subject to verification by administrative authorities. Further, it is noted that “old savings” in 2002 were converted into the public debt of the Republika Srpska (RS) and in 2006 Bosnia and Herzegovina took over the debt arising from “old savings” from its constituent units, including that of the RS.

The European Court also found that the impossibility of obtaining the execution of the final judgment in the applicants’ favour constituted an interference with their right to the peaceful enjoyment of possessions (violations of Article 1 of Protocol No. 1). The Court noted that it is not open to a state authority to cite lack of funds as an excuse for not honouring a judgment debt (see §§39 and 42 of the Jeličić and §27 of the Pejaković judgment).

Individual measures: The European Court awarded the applicants just satisfaction in respect of the pecuniary and non-pecuniary damage sustained.

• Assessment: No further individual measure appears necessary.

General measures:

            1) Background information: About 1 100 cases are currently pending before the European Court (submitted on behalf of around 11 000 applicants) concerning “old savings”. In 10 of these cases applicants have obtained a final and enforceable judgment ordering the release of their savings (see §43 of the Jeličić judgment). The Constitutional Court of Bosnia and Herzegovina and its Human Rights Commission have determined more than 1 000 such cases and enforceable judgments have been made in only five of these (see §43 of the Jeličić judgment).

However, on 10/07/2007 the authorities advised the Committee that no accurate and complete data are available on judgments rendered against commercial banks in which “old savings” had been deposited before 1992. According to the data as of 31/12/2006, the provisional figures for the Federation of Bosnia and Herzegovina (the Federation) are as follows: 139 binding domestic court decisions with a total of 102 million “Convertible Markas” (BAM) of principal debt. Likewise, in RS there are about 70 binding court decisions with approximately 2.5 million BAM of principal debt. As of 01/03/2007, there were in all 83 domestic court proceedings pending against commercial banks related to the “old savings”. The Government Agent provided similar statistics on existing final court decisions concerning “old savings” in the case of Pejaković (see §26 of the judgment).

            2) Measures adopted and under way:

A. Legislative measures: The Act provided in Section 27 that final judicial decisions concerning “old savings” shall be subject to verification by a government authority (see §27 of the Jeličić judgment). Following to the judgment in Jeličić, Section 27 of the Act has been amended (see §17 of the Pejaković judgment). According to the adopted amendments in force since 27/09/2007, there shall be no verification of binding court decisions, which shall be instead forwarded to regional ministries of finance for payment.

B. Recording of final judgments: All three entities have been ordered to adopt bylaws detailing the procedure in respect of registration of the relevant final judgments. However, only the RS has adopted a recording regulation, on 15/02/2008, while other entities failed to comply.

Following the introduction of obligations on all courts to forward judgments concerning “old savings” to regional ministries of finance, the courts also failed to comply with this provision.

On 19/02/2008 the Federation Ministry of Finance stated that no single judgment had been forwarded to it under this provision. This information is apparently incompatible with previously supplied provisional data on the number of relevant judgments in the Federation. However, through the Federation Banking Agency, the authorities identified a total of 6 relevant judgments there. The District of Brčko reported only one such judgment, which was confirmed by a judgment of the European Court in the case of Pejaković. The RS Ministry of Finance confirmed 70 such judgments, of which 3, including the present judgments, have been paid.

Due to the problems encountered in recording final judgments, the Council of Ministers of Bosnia and Herzegovina proposed and the Parliament adopted at first reading on 08/10/2008 amendments to Section 27 of the Act. Pursuant to the amendments, creditors who have obtained final judgments concerning their “old” foreign savings deposits, shall be entitled to forward their judgments to the appropriate ministries of finance for enforcement. Such measures should expedite the recordation of the relevant final judgments.

• Detailed information is awaited on deadlines envisaged or set for registration of all final judgments concerning “old savings” as well as the final number of such judgments and aggregate debt represented.

C. Budgetary planning:  The 2008 regional budgets provided under the relevant headings the following funds earmarked for discharging obligations under final judgments: in the RS: 5 million BAM in aggregate and in the Federation: 2 million BAM. The authorities further stated on 14/04/2008 that the relevant judgments would be enforced within two years. This assessment was based on the then available information that there are 67 non-enforced judgments totalling around 2 million BAM in RS and 6 judgments totalling 1 million BAM in the Federation. Finally, the authorities reported on 15/10/2008 that in 2008 a total of 6 final judgments concerning “old” foreign savings deposits have been enforced, including 3 pursuant to the European Court’s judgment in the case of Pejaković.

• Detailed information is awaited on further payments made or envisaged with regard to the binding judgments concerning “old savings” and appropriations in the 2009 budgets for that purpose.

D. Enhancing compliance with domestic judgments: According to the 2003 Criminal Code, non-enforcement of a final and enforceable decision of the Constitutional Court, Court of Bosnia and Herzegovina or of the Human Rights Chamber of Bosnia and Herzegovina amounts to a criminal offence (§ 30 of the Jeličić judgment). In the past five years, the State Public Prosecution has had 64 cases concerning violation of this provision of the Criminal Code against unknown perpetrators; eight of them have been closed, while the other cases are pending. There have also been four other cases against identified perpetrators, while an indictment against two individuals resulted in convictions. One conviction has been set aside on appeal, while the appeal for another conviction is still pending.  

• Information is awaited on further developments in prosecuting failure to abide by final judgments and possibly on other measures taken or envisaged to enhance compliance with such judgments.

E. Task force and action plan: The authorities advised the Committee of Ministers that on 20/09/2007 the government set up a task force comprising of representatives of the Ministry of Finance and Treasury, Ministry of Justice as well as Ministry of Human Rights and Refugees to draft an action plan concerning the problem of non-enforcement of domestic judgments ordering release of “old savings”. Adoption of the action plan was expected by December 2007 but no such plan has been produced so far. In relation to that, the authorities advised on 15/10/2008 that the Council of Ministers of Bosnia-Herzegovina made decision on 03/07/2008 to appoint a new inter-agency task force in charge for developing an action plan. The task force is obliged to forward the draft action plan within 90 days to the Council of Ministers for adoption. The action plan should include, inter alia, measures to record unenforced domestic judgments concerning “old” foreign savings and appropriate budget planning in this regard as well as other measures to avoid similar violations in the future.

• Information is urgently awaited on this action plan which is expected to include effective measures to prevent similar violations.

F. Publication and dissemination: The European Court's judgments in the cases of Jeličić and Pejaković were published in the Official Gazette, No. 20/07 of 20/03/2007 and No. 31/08 of 15/04/2008 respectively. Both judgments have been forwarded to the courts involved as well as to other authorities, such as Court of Bosnia and Herzegovina, Constitutional Court, Supreme Courts and governments in both entities and Council of Ministers of Bosnia and Herzegovina.  In June 2008, the Government Agent delivered a presentation concerning the implementation of general measures in the case of Jeličić at a nation-wide conference attended by judges.

- 88 cases against Bulgaria

50963/99           Al-Nashif and others, judgment of 20/06/02, final on 20/09/02

65028/01           Bashir and others, judgment of 14/06/2007, final on 14/09/2007

54323/00           Hasan, judgment of 14/06/2007, final on 14/09/2007

61259/00           Musa and others, judgment of 11/01/2007, final on 09/07/2007

The cases concern violations of the applicants’ right to respect for their family life due to their expulsion (Al‑Nashif, Bashir and others) or the withdrawal of residence permits as a consequence of an obligation to leave the territory (Musa and Hasan) (violations of Article 8). The Court further found that none of the applicants had had access to an independent supervision of the measures imposed on them, since at the material time such measures taken on grounds of national security were excluded from judicial review (violations of Article 13).

In addition, the Al-Nashif and Bashir and others cases concern the fact that the applicants had, under the applicable law, been given no opportunity to challenge the lawfulness of their detention while awaiting deportation or expulsion (violations of Article 5§4).

Finally, the case of Bashir and others also concerns the failure to inform the applicants promptly of the reasons for arrest (violation of Article 5§2).

Individual measures:

1) Case of Al-Nashif: The measures taken against Mr Al-Nashif originated in three different orders: revoking his residence permit, ordering his detention and deportation, and banning his re-entry on Bulgarian territory for a period of 10 years. At the material time the applicant appealed without success two of these orders. Following the judgment of the European Court, the Supreme Administrative Court reopened these proceedings and, in 2004 and 2006, the orders revoking the residence permit and ordering the detention and deportation were quashed by final judgments of the competent courts. The ban on entering the territory was lifted in October 2007.

• Information provided by the applicant’s lawyer (letters of May and September 2008): Having learned that the ban on entering the territory had been lifted, Mr Al-Nashif applied to the Bulgarian Consulate in Damascus for a Bulgarian visa. His request was rejected on 09/09/2008. The applicant’s lawyer subsequently sought information from the Director of Migration as to steps to take to allow Mr Al-Nashif to return to Bulgaria, in the light of the fact that he still has a valid permanent residence permit and that the ban on entering the territory had been lifted.

• The comments of the authorities on the question of Mr AL-Nashif’s situation would be useful.

2) Case of Musa: Mr Musa was obliged to leave Bulgaria in 2000 as a result of the measures imposed on him and was banned from re-entry for a period of 10 years.

• Information provided by the applicant’s lawyer (letter of May 2008): Following the judgment of the European Court, Mr Musa made three appeals: against the order prohibiting him from entering the territory of Bulgaria (which expires in May 2010), against the withdrawal of his residence permit, and against the obligation to leave the territory. The order banning entry was kept in force by the Supreme Administrative Court. The proceedings against the withdrawal of Mr Musa’s residence permit are currently pending. As regards the appeal against the obligation to leave the territory, a hearing was scheduled ex officio for 16/10/2008 by the Supreme Administrative Court.

• Additional information is awaited on the outcome of the pending proceedings. A copy of the decision rejecting the request of the applicant to lift the ban on entry in the territory would be useful.

3) Cases of Hasan and Bashir and others: As a result of the measures undertaken by the authorities, Mr Hasan left Bulgaria in October 1999, Mr Bashir was expelled from Bulgaria in 2000.

As of 20/03/2008 the applicants in the Bashir case have lodged no application with the Supreme Administrative Court to have the exclusion order revoked.

• Information provided by the Bulgarian authorities (letter of 16/10/2008): The ban on entering the territory has been lifted only in respect of Mr Hasan.

• Information is expected on the withdrawal of the measures taken in respect of the applicants in the Bashir and others case, as well as on the question of the withdrawal of the residence permit of Mr Hasan.

General measures: Information was provided by the Bulgarian authorities on 16/10/2008 and is currently being examined.

            1) Violations of Articles 8 and 13:  The attention of the Bulgarian authorities was drawn to a number of problems in the legislation and regulations which were the basis for the violations found by the European Court in the present case. Indeed, Bulgarian law did not provide at the relevant time for judicial review of the lawfulness of aliens' detention in case of their expulsion on the grounds of national security, nor of the decision on expulsion itself, when such reasons are evoked (cf. Article 47 of the Aliens Act, in force at the material time).

The Bulgarian authorities have thus been invited to take measures in this respect possibly in the light of the experience of other countries in this matter (e.g. Chahal against the United Kingdom, judgment of 15/11/1996, Resolution ResDH(2001)119).

- Development of the Supreme Administrative Court's case-law:

It has been noted that in its well-established practice since the Al-Nashif judgment, the Supreme Administrative Court indicates to the competent courts that they must apply the Convention directly, as interpreted by the European Court and, consequently, must examine complaints against expulsion on the grounds of national security (see, for example, the decisions Nos. 706 of 29/01/2004, 4883 of 28/05/2004, 8910 of 01/11/2004, 3146 of 11/04/2005 and 4675 of 25/05/2005).

- Legislative reform:

During 2005 and 2006 several draft amendments of the Aliens Act have been prepared by the Ministry of Justice and the Ministry of the Interior without achieving the necessary legislative reform.

On 23/03/2007 a draft law amending the Aliens Act was adopted. This amendment introduced judicial control by the Supreme Administrative Court of the expulsion, the revocation of residence permits and of bans on entry into the territory ordered on national security grounds. However, it was noted that the amended law excludes the suspensive effect of an appeal against such measures, when they are based on national security grounds.

In addition, it should be noted that a new Law on the entry into, presence on and departure from Bulgarian territory by citizens of the European Union and their families entered into force on 01/01/2007. According to Article 28 of this law, expulsion orders, revocation of residence permits and exclusion orders adopted on the basis of considerations of national security may be challenged according to the procedure provided in the Code of Administrative Procedure, which implies judicial control. Furthermore, according to Article 30 of this law, the person concerned by such a measure may also apply for its revocation after the expiry of three years after it has been adopted. At the same time this law also excludes the suspensive effect of the appeal against such measure, when they are based on national security grounds.

• The authorities were invited to consider the issue of the efficacy of the remedies provided in these laws, given that they cannot stay execution of expulsion measures based on considerations of national security, which is in contradiction with the Convention requirements in this area. In response, the authorities indicated that Article 1§2 of Protocol No. 7 to the Convention provides the possibility to expel a person before the exercise of her or his rights under §1 (namely the right to put forward reasons against her or his expulsion, to obtain an examination of the case and to be represented before the competent authority) when the expulsion is based on grounds of national security.

• Bilateral contacts are under way on this issue.

            2) Violation of Article 5§4: Clarifications have been requested concerning whether Bulgarian law at present provides for judicial review of the lawfulness of detention in specialised centres in cases of expulsion on the grounds of national security (see Article 44§6 in conjunction with Article 46§1 of the Aliens Act). The Bulgarian authorities indicated that the lawfulness of the detention imposed under the Aliens Act may be reviewed by the competent administrative organs and courts in accordance with the provisions of the Code of Administrative Procedure. In addition, the authorities consider that following the judgment in the Al-Nashif case the domestic courts are already obliged to provide the guarantees provided for in Article 5§4.

• Bilateral contacts are under way on this issue.

            3) Violation of Article 5§2 (Bashir case):

• Information has been requested on the measures envisaged or already adopted.

            4) Publication: The judgments of the European Court in the cases of Al-Nashif, Musa and Hasan were published on the internet site of the Ministry of Justice http://www.mjeli.government.bg.

- Cases principally concerning deaths or ill-treatment which took place under the responsibility of the forces of order

Interim Resolution CM/Res/DH(2007)107

41488/98           Velikova, judgment of 18/05/00, final on 04/10/00

38361/97           Anguelova, judgment of 13/06/02, final on 13/09/02

53121/99           Iliev Stefan, judgment of 10/05/2007, final on 10/08/2007

55061/00           Kazakova, judgment of 22/06/2006, final on 22/09/2006

50222/99           Krastanov, judgment of 30/09/2004, final on 30/12/2004

7888/03            Nikolova and Velichkova, judgment of 20/12/2007, final on 20/03/2008

46317/99           Ognyanova and Choban, judgment of 23/02/2006, final on 23/05/2006

43233/98           Osman, judgment of 16/02/2006, final on 16/05/2006

47905/99           Rashid, judgment of 18/01/2006, final on 18/04/2006

42027/98           Toteva, judgment of 19/05/2004, final on 19/08/2004

48130/99           Vasilev Ivan, judgment of 12/04/2007, final on 12/07/2007

The Ognyanova and Choban, Velikova and Anguelova cases concern breaches of the right to life and of the prohibition of ill-treatment, since the authorities failed to account fully either for the deaths of relatives of the applicants between 1993 and 1996, while they were detained in police custody, or for the injuries they received during detention (violations of Articles 2 and/or 3).

The rest of the cases, except the Kazakova and the Stefan Iliev cases, concern the ill-treatment inflicted on the applicants by police officers in 1995 and 1996, in the course of different police operations and during police custody (violations of Article 3).

All these cases also concern the lack of effective investigation by the Bulgarian authorities into these deaths and into the applicants' arguable claim to have suffered ill-treatment at the hands of the police (violations of Articles 2 and 13 or 3).

The Anguelova and Ognyanova and Choban cases also concern the unlawfulness of the detention of the applicants' relatives, as it was not in conformity with domestic law (violations of Article 5§1).

The Anguelova case concerns in addition the failure by the police to provide timely medical care during the detention of the applicant's son (violation of Article 2).

The Krastanov case also relates to the excessive length of civil proceedings for damages brought by the applicant in 1995 (violation of Article 6§1).

The Osman case also concerns the illegal destruction of certain property of the applicants during the police operation to evict them from their house (violation of Article 1 of Protocol No. 1).

Finally the Rashid case also relates to the violation of the applicant's right to be brought before a judge promptly after his arrest (violation of Article 5§3) and to the unlawfulness of the applicants' continued detention pending trial following the domestic court's decision ordering his release (violation of Article 5§1).

Individual measures: In the Interim Resolution adopted in these cases in October 2007, the Committee has called upon the Bulgarian government to rapidly adopt all required individual measures (see CM/ResDH(2007)107). Information was sought in particular on the follow-up given to the judgments of the European Court by the General Prosecutor (competent to ask for the reopening of the unsatisfactory criminal investigations in these cases).

According to the information provided by the Bulgarian authorities an examination of the possibility of new investigation was carried out or was underway in the majority of these cases.

• Information was submitted on the 16/10/2008 concerning the cases Velikova, Toteva, Anguelova and Ognyanova and Choban and is currently being assessed.  

1) Velikova case: a prosecutor from the Supreme Prosecutor’s Office of Cassation orally informed the authorities that an enquiry had been opened in 2007 into the circumstances surrounding the death of Mr Tsonchev.

• Information is awaited on the outcome of this enquiry.

2) Anguelova case: The criminal investigation into the death of the applicants’ relative was discontinued in 2004 (following the judgment of the European Court in this case). The Supreme Prosecutor’s Office of Cassation expressed the opinion that the investigation could not be reopened, as the decision to discontinue it had been taken by a prosecutor and not by a court. At the same time, the decision to discontinue the proceedings was examined ex officio by the competent appellate prosecutor, who concluded in 2008 that the initial decision had been lawful and justified.

• Assessment: under way. It would be useful to have 1) information as to whether new investigative acts have been carried out between 1997, when the initial investigation was suspended, and 2004, when a decision was taken for its discontinuation; and 2) a copy of the 2004 prosecutor’s decision discontinuing the investigation.

3) Kazakova case: The Supreme Prosecutor’s Office of Cassation ordered an examination into the circumstances of the case and pointed to specific actions to be taken in that respect, in particular the questioning of the police officers involved in the facts and of the applicant (copy of the European Court’s decision was enclosed with this order). As a result of this examination, in 2007, the competent military prosecutor refused to open criminal investigation into the relevant facts. His decision was upheld by the Appellate Military Prosecutor in 2008. The latter pointed out in particular that the limitations period had expired about 9 years ago, and consequently it was not possible to initiate proceedings anew.

• Assessment: in these circumstances, no further individual measure appears necessary.

4) Ognyanova and Choban case: The Supreme Prosecutor’s Office of Cassation considered that no reopening of the criminal investigation into the death of the applicants’ relative was needed (letter of 16/01/08). This finding was made on the basis of a decision of the Appellate Military Prosecutor of 2008 upholding the initial prosecutorial decision not to prosecute. The Appellate Military Prosecutor considered in particular that the analysis of the evidence gathered in the case demonstrated that the initial prosecutorial decision not to prosecute was lawful and justified. Further he found that the investigating authorities had taken all measures to establish the truth, the prosecutor in particular having discontinued proceedings only after an objective, all-inclusive and thorough examination of all circumstances of the case.

• Assessment: It should be noted that this consideration and analysis refer to the same investigation acts declared by the European Court to have been insufficient, giving rise to a violation of the procedural aspect of Article 2.

• Additional information is awaited as to how the authorities are engaging with pursuing an effective investigation in line with the requirements stated by the European Court.

5) Osman case: A copy was provided of the 1997 refusal to open criminal proceedings on the grounds that the act at issue did not constitute a criminal offence. The authorities indicated that they have no information as to whether the applicants appealed against this decision. 

• Information is awaited about an examination by the competent authorities of the possibility for new investigation into the relevant facts. In addition, it should be noted that according to the information contained in the judgment of the European Court, the applicants appealed against the refusal of 1997 to open criminal investigation (see §41 of the judgment). .

6) Toteva case: the Supreme Prosecutor’s Office of Cassation considered that there was no criminal investigation to be reopened in this case since no formal refusal to open a criminal investigation into the relevant facts had been issued at the relevant time. 

• Information is awaited about the possibility of opening criminal investigation in respect of the acts of the police officers who allegedly ill-treated the applicant.

• Information is also awaited on the situation concerning in particular the newer cases (Iliev Stefan, Rashid, Vasilev Ivan and Krastanov).

General measures:

1) Adopted measures: The measures adopted by the Bulgarian authorities were summarised in the Interim Resolution adopted in these cases in October 2007 (see CM/ResDH(2007)107). The most important of them are presented below:

a) Violations of the right to life and of the prohibition of ill-treatment, including as a result of lack of medical care: The main information provided by the authorities concerns awareness-raising measures and training of the police on the requirements of the Convention: compulsory training on the subject has been introduced and in 2000 a specialised Human Rights Committee was set up at the National Police Directorate. In addition, in 2002, a new form was introduced, to be signed by all detained persons, containing information on their basic rights. Furthermore, in October 2003 a Code of Police Ethics, drawn up in cooperation with the Council of Europe, was introduced by order of the Minister of the Interior.

The special issue of the insufficiency of the legal framework for the use of firearms by police officers is being examined within the framework of the cases of Nachova and others (Section 4.2).

b) Violations related to the lack of effective investigation: A judicial review of prosecutors’ decisions not to prosecute was introduced in 2001 as well as the power for courts to remit files to the prosecutor for specific investigations. The effectiveness of this judicial review is steadily enhanced as the direct effect of the Convention and the European Court’s case law is improving.

c) Violations related to unlawful detention: It has been noted that already at the time of the events, a written order had to be issued before police detention and this detention had to be recorded in a special register. In a circular letter of 13/03/2002 the Director of the National Police Directorate reminded all the chiefs of Regional Police Directorates of their obligation to take all necessary measures to ensure strict compliance with these rules. In addition, Article 12 of the 2006 Instruction on detention by police specifies that the period of detention runs from the moment a person has been apprehended; the time must be recorded in the detention order, irrespective of when the actual order for detention is issued.

d) Violation of the right of property: In the light of the particular circumstances of this violation, the publication and the dissemination of the Osman case appear appropriate measures for execution. 

e) Other violations: The measures required by the violation related to the excessive length of the civil proceedings for damages against the state, is examined in the context of the Djangozov case (1051st meeting, March 2009).

The measures required by the violation of the right to be brought promptly before a judge after arrest were adopted in the case of Assenov, closed by Resolution ResDH(2000)109, following a legislative reform of criminal procedure which took effect from 01/01/2000.

The issue concerning continuing detention pending trial following the domestic court's decision ordering release is examined in the framework of the Bojilov group (Section 4.2).

f) Publication and dissemination: the most important judgments of the European Court were translated, published on the internet site of the Ministry of Justice and sent out to the relevant authorities, in some cases together with an accompanying letter from the Ministry of Justice.

2) Outstanding issues: Whilst noting with interest the information provided by the government in respect of general measures, the Committee has, however, noted in the above mentioned Interim Resolution that certain general measures remain to be taken, in particular measures aimed at:

- improving the initial and ongoing training of all members of police forces, in particular as regards the widespread inclusion of the feature “human rights” in the training;

- improving procedural safeguards during detention on remand, in particular through the effective implementation of the new regulations concerning the obligation to inform detained persons of their rights and the formalities to be followed concerning the recording of arrests;

- guaranteeing the independence of investigations regarding allegations of ill-treatment inflicted by the police, and in particular ensuring the impartiality of the investigation organs in charge with this kind of cases.

In the light hereof the Committee called upon the Government of Bulgaria to rapidly adopt all outstanding measures and to regularly inform the Committee on the practical impact of the adopted measures, in particular by submitting statistical data on the investigations carried out in respect of allegations of ill-treatment by the police. The Committee decided to pursue the supervision of execution until all general measures necessary for the prevention of new, similar violations of the Convention are adopted and their effectiveness does not raise any doubt.

• Information is still awaited on the above mentioned outstanding issues. Confirmation is awaited of the dissemination of the judgments of the European Court in the Ognyanova and Choban and Osman cases to the competent investigation organs in order to draw their attention to the deficiencies of the enquiries conducted in these cases. 

43577/98+        Nachova and others, judgment of 06/07/2005 - Grand Chamber

45500/99           Tzekov, judgment of 23/02/2006, final on 23/05/2006

The Nachova and others case concerns the killing of the applicants’ relatives, Mr Angelov and Mr Petkov, by a military policeman who was trying to arrest them. The two men were conscripts in the Bulgarian army, both aged 21 and of Roma origin, who were wanted by the military police following their escape from the place where they were serving short terms of imprisonment for repeated absence without leave. Neither man was armed. The European Court considered that Mr Angelov and Mr Petkov were killed in circumstances in which the use of firearms was not justified and that the relevant law and practice on the use of force during arrest, falls well short of the level of protection of the right to life required by the Convention (violation of Article 2). The case also concerns the lack of effective investigation by the Bulgarian authorities into the deaths of the two men (violation of Article 2) and finally to the authorities’ failure to fulfil their procedural obligation to investigate whether or not possible racist motives may have played a role in the events (violation of Article 14 taken in conjunction with Article 2). 

The Tzekov case concerns ill-treatment inflicted on the applicant by police officers in 1996, when they shot him in the course of a police operation aiming at stopping his vehicle to check his identity. It also concerns the lack of an effective investigation by the Bulgarian authorities of this ill-treatment caused by the police officers’ actions (procedural and substantive violations of Article 3). The European Court noted in particular that the National Police Act permitted the use of firearms by police officers in order to arrest an individual, even in circumstances where such a measure is not strictly necessary and proportionate.

Individual measures:

            1) Nachova case: The investigations into the killings had been closed by the prosecutor in 1997. Following the European Court’s judgment, the Prosecutor General’s Office indicated that a judgment of the European Court should be considered a new fact and should be taken into account in the evaluation of the possibility of cancelling the decision to close the criminal proceedings in the applicants’ case. In accordance with these conclusions the criminal file, together with a copy of the judgment of the European Court, were sent to the Prosecutor’s Office in Pleven, competent in this situation.

• Information provided by the Bulgarian authorities (letter of 20/03/2008): A new investigation has been opened into the killing of the applicants. Most of the concrete investigative steps omitted during the initial investigation, but pointed out by the European Court in its judgment as having been necessary, have been taken. More concretely, these comprise: a) additional questioning of the witnesses in this case, as well as questioning of two additional eye-witnesses; b) investigative experiments on the scene of the events, including reconstituting the facts and examining the shot trajectory, the possibility to see and hear, the exact placement of the bodies of the victims and of the officer who shot during the shooting; and c) new forensic and ballistic reports, which have confirmed the findings of the previous ones. Further, special attention has been paid during the additional investigation on whether the officer who shot had acted in compliance with the regulations governing the use of firearms. The competent prosecutor concluded in a decision of 30/11/2007 confirmed by the appellate prosecutor in a decision of 23/01/2008 that the officer had acted in accordance with the rules applicable at the time governing the use of firearms (Unpublished Regulations on the functioning of military police issued in 1994).

The authorities indicated that they have contacted the Prosecutor General’s Office and are in the process of clarifying whether the decision of the appellate prosecutor is definitive.

• Information is urgently awaited about this question.

• Assessment: underway

            2) Tzekov case: The Supreme Prosecutor’s Office of Cassation expressed the view that the criminal investigation could not be reopened as the decision to discontinue it had been taken by a prosecutor and not by a court. At the same time, the decision to discontinue the proceedings was examined ex officio by the competent appellate prosecutor. In 2007 the appellate prosecutor upheld this decision as lawful and justified. Furthermore, the expiry of the limitation period was emphasised. 

• Assessment: in these circumstances, no further individual measure appears necessary in the Tzekov case.

General measures:

            1) Publication and dissemination: The judgments of the European Court in both cases have been published on the website of the Ministry of Justice www.mjeli.government.bg .

The Nachova judgment has been also published in the new quarterly journal European Law and Integration, which is published by the Ministry of Justice in 1000 copies and distributed to magistrates and academics. It has been sent to the military courts and prosecuting organs, as well as to the Ministry of the Interior and to the Ministry of Defence, with a circular letter explaining the most important conclusions of the European Court, and in particular the fact that the Convention prohibits the use of fire-arms during arrest of fugitives who are not dangerous (a copy of this letter was provided).

• Confirmation is urgently awaited of the dissemination of the Tzekov judgment to the competent investigation organs in order to draw their attention to the deficiencies of the initial enquiry conducted in this case. 

2) Training on the Convention’s requirements in respect of use of force and firearms: The authorities consider that the seminars on the Convention and the European Court's case-law organised by the National Institute of Justice are relevant measures for the execution of these cases (more that 23 seminars for more than 798 participants - judges, prosecutors and national experts - took place in the period 2001-2006, of which 4 seminars on Articles 2, 3, 13 and 14).

In June 2006, the Ministry of Justice asked Prosecutor General’s offices in courts of appeal for information on complaints concerning allegations of ill-treatment inflicted during arrest lodged between 2002 and 2004, and on their outcome. A report drawn up by military prosecutors was provided concerning the results of the investigations of cases of allegations of police violence for 1999-2005 (see the cases of the Velikova group, Section 4.2).

            3) Use of force and firearms by the military police during arrest (violation of the material aspect of Articles 2 and 3): Following the European Court’s judgment, the Ministry of Defence adopted a regulation defining the circumstances in which military police may use force and firearms. This regulation provides an obligation of a careful assessment of the nature of the offence committed by an individual and the threat that he or she poses.

• Are expected: A copy of this regulation and the translated summary of the relevant provisions in order to assess the necessity of adopting further measures as regards regulations concerning military police.

            4) Use of force and firearms by the police during arrest (violation of the material aspect of Articles 2 and 3): In October 2007, the Directorate for Legislation within the Ministry of Justice expressed the view that an appropriate legal framework on the use of force during arrest by ordinary police already existed and that the violations found by the European Court were due to the incorrect application of this legal framework.

• Assessment: In this context it should be noted that the European Court clearly stated in the Tzekov case that the legal framework governing the use of force during arrest by ordinary police falls short of the level of protection of the right to life and the prohibition of ill-treatment required by the Convention.

• Information is requested in particular about what measures the Bulgarian authorities envisage taking to bring the National Police Act in line with the requirements of the European Court in the area of use of fire-arms.

            5) Violation of Article 2 (procedural aspect): As regards the improvement of investigations carried out when individuals have been killed as a result of the use of force, a great part of the general measures adopted or under way within the framework of the Velikova case (Section 4.2) are also relevant to the present case.

            6) Violation of Article 14 taken in conjunction with Article 2: The authorities are of the opinion that no amendment of the Criminal Code is needed to guarantee fulfilment of prosecutors’ obligation to determine whether or not possible racist motives played a role in an excessive use of force during arrest.

The Ministry of Justice indicated in the circular letter, sent to the military authorities and to the Ministry of Defence for the dissemination of the judgment (see above), that Bulgaria’s obligations under the Convention can be fulfilled in an appropriate manner by drawing up instructions for the attention of prosecution authorities indicating their obligation to investigate possible racist motives in similar cases. Subsequently, the Ministry of Defence, in particular its service responsible for the military police, brought the judgment to the attention of the competent authorities. Concrete instructions were given to the military police in order to prevent similar violations in the future. The Government Agent asked the Military Prosecutor of Appeal whether his office has drawn up instructions for the attention of investigating bodies in line with the judgment of the European Court.

• Copies of those instructions are awaited.

- Cases concerning the poor conditions of the applicants’ detention and / or the lack of an effective investigation in this respect

41035/98          Kehayov, judgment of 18/01/2005, final on 18/04/2005

55389/00          Dobrev, judgment of 10/08/2006, final on 10/11/2006

54659/00           Gavazov, judgment of 06/03/2008, final on 06/06/2008

61507/00          Georgiev Andrei, judgment of 26/07/2007, final on 26/10/2007

44082/98          I.I., judgment of 09/06/2005, final on 09/09/2005

41211/98          Iovchev, judgment of 02/02/2006, final on 02/05/2006

55712/00           Kostadinov, judgment of 07/02/2008, final on 07/05/2008

57830/00          Malechkov, judgment of 28/06/2007, final on 28/09/2007

49438/99          Staykov, judgment of 12/10/2006, final on 12/01/2007

50765/99          Todorov Todor, judgment of 05/04/2007, final on 05/07/2007

56856/00          Yordanov, judgment of 10/08/2006, final on 10/11/2006

These cases concern the poor conditions of the applicants' detention between 1996 and 2000, amounting to degrading treatment, in different detention facilities of the Investigation Service (Plovdiv, Shoumen, Pazardjik and Varna) and prisons (Pazardzhik and Varna) (violations of Article 3). The Iovchev, Georgiev Andrei and Gavazov cases also concern the lack of an effective remedy in this respect (violations of Article 13 in conjunction with Article 3). 

The cases also concern different violations of the Convention related to the pre-trial detention (violations of Article 5§§1, 3, 4 and 5).

The Dobrev and Yordanov cases relate to breaches of the right to respect for the applicants' home life in that their homes were searched in 1999, in violation of domestic law (violations of Article 8).

Finally, the Iovchev and Gavazov cases also concern the excessive length of the criminal proceedings instituted against the applicants in 1996 and 1998 respectively (violations of Article 6§1).

The Gavazov case also concerns the lack of an effective remedy to challenge the excessive length of criminal proceedings (violation of Article 13 in conjunction with Article 6).

Individual measures: Mr Kehayov is no longer detained under the conditions criticised in this judgment. The other applicants have been released. Subsequently to his release in 1999, the applicant in the Todorov Todor case has been convicted to a term of imprisonment. However, it should be noted that the European Court examined the applicant’s conditions of detention only with respect to the period until 1999. The criminal proceedings in the Iovchev case were closed in 2003.

The European Court granted just satisfaction to all applicants in respect of the non-pecuniary damage they suffered on account of the violations.

• Information is awaited on the state of the criminal proceedings in the Gavazov case and, if appropriate, on their acceleration.

• Clarification would be appreciated about the items seized when the apartments of the applicants were searched in the Dobrev and Yordanov cases.

General measures:

            1) Inadequate detention conditions (violations of Article 3):

•Information provided by the Bulgarian authorities (up until June 2007): Action plans concerning the execution of the cases of Kehayov and I.I. were provided in February 2006. They provide for the publication and the dissemination of the European Court’s judgments in these cases and indicate that the Committee of Ministers will be informed of any modification or good practice adopted in the investigation services in order to guarantee the detainees' rights.

The Kehayov, I.I., Dobrev and Yordanov judgments were published on the Internet site of the Ministry of Justice www.mjeli.government.bg. Furthermore, the authorities consider that the seminars on the Convention and the European Court‘s case-law organised by the National Institute of Justice are also relevant measures for the execution of these judgments (more that 23 seminars for more than 798 participants - judges, prosecutors and national experts - took place in 2001-2006, of which 2 seminars on Article 3). Seminars were also carried out in 2007, focusing on the provisions of the Convention violated by Bulgaria in recent judgments of the European Court.

The Bulgarian authorities have also provided information about certain measures to improve detention conditions in the Pazardjik prison in 1999-2002. As regards improving detention conditions in investigation services, the General Directorate “Execution of Sentences” within the Ministry of Justice has drawn up and is successfully implementing a long-term investment programme for carrying out works, reconstruction and building of new investigation centres for detention. The programme aims at improving the material conditions in Investigation Centres by bringing them in line with international standards. Such measures were taken in particular in respect of the conditions of detention in the Plovdiv Investigation Detention Centre. While these improvements bring the conditions in the Plovdiv centre closer to the Council of Europe’s requirements, more is needed to make them fully compliant. To this end, a proposal was sent in March 2007 to the Ministry of Justice concerning the reconstruction of the prison building in Plovdiv with a view to making conditions of detention there compatible with the Council of Europe’s human rights norms.

• Information is awaited on the follow-up given to these measures aimed at improving detention conditions in the investigation services. Information would be useful on the situation concerning the detention conditions in the prisons. In the framework of the adoption of additional measures relating to these cases, attention should be drawn to the recommendations made by the Committee for the Prevention of Torture in respect of these issues, in particular in the most recent report CPT/Inf(2008)11.

            2) Lack of effective remedy with respect to detention conditions (violation of Article 13 in conjunction with 3): given that this violation was mainly due to the authorities' unduly formalistic approach to applying the State Responsibility for Damage Act (according to this approach non-pecuniary damage could only be proved through formal evidence, such as witness testimony) and to the excessive length of the proceedings in application of this Act in the applicant's case, the publication and the dissemination of the European Court’s judgment in the Iovchev case to the competent courts appear to be sufficient for execution.

• Information was requested concerning measures related to the violation of Article 13, in particular examples showing a change in case law concerning this legislation.

• Information provided: The Bulgarian authorities provided, in June 2007, copies of 5 domestic court decisions taken between 2004 and 2006 which ordered compensation for inadequate conditions of detention by applying the State Responsibility for Damage Act.

• Assessment: It would appear from the provided information that the courts practice is compatible with the requirements of the Convention.

            3) Unlawfulness of the applicants’ detention due to the fact that it was not based on a written order as required by domestic law (violation of Article 5§1): the Dobrev and I.I. cases present similarities to the case of Anguelova (Section 4.2). The authorities have indicated that in a circular letter of 13/03/2002 the Director of the National Police reminded all chiefs of Regional Police Directorates of their obligation to take all necessary measures to ensure strict compliance with the provisions regulating detention by the police.

            4) Right to be brought before a judge, excessive length of detention pending trial (violations of Article 5§3) and lack of effective judicial review of the lawfulness of the applicant's detention (violation of Article 5§4 in the Staykov, I.I., Kostadinov and Gavazov cases):  these cases present similarities to those Assenov (judgment of 28/10/1998) and Nikolova (judgment of 25/03/1999) closed by Resolutions ResDH(2000)109 and ResDH(2000)110, following a legislative reform of criminal procedure which took effect from 1/01/2000.

            5) Denial of access of the applicant’s lawyer to the case file (violation of Article 5§4 in the Kehayov case): the case presents similarities to the Shishkov case (judgment of 09/01/2003), which has been closed following the dissemination of the judgment to the competent authorities with a circular letter drawing their attention to the fact that the practice of refusing access to case files is contrary to the requirements of the Convention (Resolution CM/ResDH(2007)158).

            6) Lack of prompt examination of the requests for release (violation of Article 5§4): the Dobrev case presents similarities to that of Kolev (Kitov group, Section 4.2).

            7) Prevention of the applicant's lawyer from representing him at one of the hearings (violation of Article 5§4 in the Kehayov case): the publication and the dissemination of the judgment appear to be sufficient measures to prevent similar violations. The European Court noted that the alleged defect in the authorisation for representation did not justify the decision depriving the applicant of his defence, not only under Article 5 of the Convention, but also with regard to the relevant domestic law.

•Information provided: The Kehayov and the I.I. judgments were published on the Internet site of the Ministry of Justice www.mjeli.government.bg and were sent out in May 2007 to the competent authorities with circulars drawing attention to what actions of the authorities had caused the violations found by the European Court.

            8) Lack of an enforceable right to compensation for detention in contravention of Article 5 (violation of Article 5§5): the Dobrev case presents similarities to the Yankov case (Application No. 39084/97, 1051st meeting March 2009).

9) Excessive length of criminal proceedings (violations of Article 6§1): the Iovchev and Gavazov cases present similarities to the Kitov case (Section 4.2).

            10) Searches of homes in contravention of domestic law (violations of Article 8 in the Dobrev and Yordanov cases): in view of the development of the direct effect given by Bulgarian courts to the Convention and to the case-law of the European Court, the dissemination of one of these judgments to the competent authorities appear to be sufficient measures for execution.

• Information is still awaited in this respect.

            11) Lack of an effective remedy to challenge the excessive length of the criminal proceedings (violation of Article 13 in conjunction with Article 6): The Gavazov case presents similarities to the Kitov group of cases (Section 4.2).

72663/01           Dimitrov Nikolay, judgment of 27/09/2007, final on 27/12/2007

This case concerns the authorities’ failure in their obligation to conduct an effective investigation into the applicant’s credible allegations of ill-treatment inflicted by private third parties (violation of Article 3). The applicant had identified the assailants to the authorities, had provided medical evidence that he had been physically assaulted and that certain investigative steps had been conducted by the authorities in the immediate aftermath of the applicant’s complaint. Despite that, the authorities had not acted with sufficient diligence and had finally put an end to the criminal proceedings against the accused basing their decision mainly on the fact that the applicant had withdrawn his complaint in the meantime. The authorities had thus relied mostly on the fact that the applicant had withdrawn his complaint, disregarding the evidence gathered during the investigation and the applicant’s later statements according to which the withdrawal of his complaint was the result of the pressure brought on members of his family by one of his alleged aggressors.

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damages suffered.

• Information is urgently expected about the possibility for the applicant to request the conducting of a new investigation into his allegations of ill-treatment.

General measures: The Court noted that the ill-treatment of which the applicant complained is identified as a crime under Bulgarian criminal law and that the applicant could request compensation for the damage caused. The Court therefore found that the authorities could not be reproached for not having put an appropriate legal framework in place.

• Information is awaited on measures envisaged or already taken to prevent similar violations (e.g. training activities for the investigative authorities, including the prosecution service). In any event, the publication and dissemination of the European Court’s judgment to all investigation authorities, if appropriate with a circular letter explaining the main conclusions of the European Court in this case, appear to be appropriate measures for the execution of this judgment.

46343/99          Riener, judgment of 23/05/2006, final on 23/08/2006

The case concerns the violation of the freedom of movement of the applicant (born in Bulgaria but having acquired dual Bulgarian and Austrian nationality by marriage) due to the ban imposed on her leaving Bulgaria between 1995 and 2004 for non-payment of tax debt amounting to the equivalent of at least 150,000 euros (violation of Article 2 of Protocol No 4).

The European Court found that the authorities had failed to give due consideration to the principle of proportionality in their decisions, the travel ban imposed on the applicant being of an automatic nature and of indeterminate duration. The authorities failed to take account of a number of relevant issues, such as the fiscal authorities’ failure to take steps to recover the debt, the debtor’s potential ability to pay and the respect of her private and family life, since under the legislation in force at the material time, a travel ban could be lifted only when the debt was either paid or sufficiently secured (apparently for the full amount) or after the extinction of the debt by prescription. For the same reasons, the domestic courts only examined the formal lawfulness of the travel ban and thus only a limited degree of review was afforded to the applicant in respect of this measure (violation of Article 13).

Individual measures: The travel ban imposed on the applicant was lifted in 2004 following the expiry of the prescription period of her debt. The European Court awarded her just satisfaction in respect of the non-pecuniary damage she sustained. The applicant’s request for compensation of an alleged pecuniary damage was rejected as it was not supported by convincing evidence.

• Assessment: in these circumstances, no further individual measure appears to be necessary.

General measures: The provisions of the Laws on Foreigners and on Passports, challenged in this judgment, were replaced in 1998 and 1999 respectively, by those of the Aliens Law and the Law on Bulgarian Identity Documents. However, these modifications do not appear to have remedied the deficiencies found in the European Court’s judgment (see the summary of the new provisions currently in force in §§61-66 of the judgment). Furthermore, the new provisions do not appear to contain any more safeguards against arbitrariness than those in force at the material time concerning the manner in which the authorities handled some issues in this case (in particular, their communication through internal notes – not communicated to the applicant – as regards the annual confirmation of non-payment of the debt and the prescription question, see §129 of the judgment).

In addition, it should be noted that the European Court referred in its judgment to different solutions concerning these issues adopted by several other member states and indicated that, regardless of the approach chosen, the principle of proportionality must apply, in law and in practice (§128 of the judgment).

• Evaluation: legislative measures appear to be necessary in this case.

• Information provided by the Bulgarian authorities (letter of 12/11/2007): The European Court’s judgment was sent by the Minister of Justice to the Supreme Administrative Court, the Sofia City Court, the Ministry of Interior and the Ministry of Finance, together with a letter emphasising the conclusions of the European Court. The Action Plan presented by the authorities envisages the drafting of legislative proposals in line with the requirements of the European Court.

• Information awaited: A copy of any such draft legislative proposals would be appreciated.

The judgment of the European Court has been published on the internet site of the Ministry of Justice http://www.mjeli.government.bg.

52435/99          Ivanova, judgment of 12/04/2007, final on 12/07/2007

The case concerns a violation of the applicant’s right to freedom of religion on account of her dismissal in December 1995 from a state school at which her functions did not include teaching (violation of Article 9).

The European Court considered that whilst her employment was ended, in conformity with the law, by modifying the qualifications attached to the post, the dismissal was nonetheless motivated by religious considerations, being just part of a series of events in the context of action against the activities of a religious organisation, “Word of Life”, of which the applicant was an adherent.

Individual measures: Proceedings brought by the applicant to challenge the lawfulness of the dismissal were dismissed by a final decision of the Supreme Court of Cassation in December 1998.

Before the European Court, the applicant stated that she had remained unemployed for more than six months after her dismissal. The European Court awarded her just satisfaction in respect of pecuniary damage resulting from the loss of earnings during this period as well as non-pecuniary damage sustained.

Until the entry into force in March 2008 of the new Code of Civil Procedure (see General measures) the applicant would have been able to request the reopening of the proceedings in question under Article 231§1 (h) of the Code of Civil Procedure.

• Assessment: given the circumstances of the case, no further individual measure seems necessary.

General measures: Freedom of religion in Bulgaria is guaranteed by the Constitution of 1991 (see Articles 13 and 37) and the Religious Denominations Act 1949 (see Sections 1 and 4). The Bulgarian Constitution (Article 38), the Education Act of 1991 (Section 4) and the Labour Code (Article 8§3) provide protection against discrimination grounded on, inter alia, religious beliefs. On 1/01/2004 the Protection Against Discrimination Act entered into force, which provides a comprehensive framework for protection against discrimination.

According to Article 328§1(6) of the Labour Code, a contract of employment may be terminated by giving notice in writing to an employee that he or she does not have the necessary education or vocational training for performing the work assigned. The European Court noted the practice of domestic courts in reviewing such terminations according to which it is sufficient for a dismissal to be lawful to establish that there were new qualification requirements for performing the assigned work which the employee no longer met; the courts are not required to assess whether it was necessary to introduce such requirements (§62-63 of the judgment).

As of March 2008, the Code of Civil Procedure no longer allows the reopening of civil proceedings if the European Court has found a violation of the Convention or its Protocols.

• The authorities are invited to provide information on the current practice of domestic courts in similar cases. The authorities’ comments will also be appreciated concerning the deletion of the provision in the Code of Civil Procedure which, up until March 2008, authorised the reopening of civil proceedings following a judgment of the European Court.

The judgment of the European Court was published on the internet site of the Ministry of Justice http://www.mjeli.government.bg.

• Information is awaited on further dissemination to other relevant authorities, in particular to prosecutors, mayors, educational inspectorates throughout the country.

- Cases concerning the dissolution of a political party and to register refusal of an association aiming to achieve “the recognition of the Macedonian minority in Bulgaria”

59489/00          United Macedonian Organisation Ilinden - Pirin and others, judgment of 20/10/2005, final on 20/01/2006

59491/00          United Macedonian Organisation Ilinden and others, judgment of 19/01/2006, final on 19/04/2006

                       CM/Inf/DH(2007)8

The first case relates to the applicant party’s unjustified dissolution in 2000 by the Constitutional Court which found that the party had advocated separatist ideas and thus imperilled Bulgaria’s territorial integrity. The second case relates to the competent courts' refusal to register the association Ilinden in 1998‑99, based on insufficient grounds to justify such a radical measure (violations of Article 11).

The European Court concluded that these radical restrictive measures adopted by the authorities were prescribed by law and pursued a legitimate aim but were not ”necessary in a democratic society” insofar as the applicants had not hinted at any intention to use violence or other undemocratic means to achieve their aims nor had it undertaken any practical steps which could pose a threat to national security. The Court reiterated in this respect that the fact that a group of persons calls for autonomy or even requests secession of part of the country's territory - thus demanding fundamental constitutional and territorial changes - cannot automatically justify interferences in their rights under Article 11. Concerning the Ilinden organisation's virulent style and its acerbic criticism of the authorities' actions, the Court recalled that the freedom of expression protects not only “information” or “ideas” that are favourably received or regarded as inoffensive or as matter of indifference, but also those that offend, shock or disturb the state or any sector of the population (§76 of the judgment UMO Ilinden and others).  

Individual measures:

1) Re-registration of the political party:

- First request for re-registration (2006-2007): with a view to erasing the consequences of its unjustified dissolution, and having regard to the fact that at that moment the party had more that 6000 members, the representatives of UMO Ilinden – Pirin decided to introduce an application for the registration of their party on the basis of the new law on political parties of 2005, even if this law raised the number of required members for the registration of a new party from 500 to 5000. The request was rejected by the court of the City of Sofia in October 2006. The reasons for this decision concern mainly alleged formal deficiencies in the individual declarations of membership, which would make the constitutive assembly not in conformity with the requirements of the law on political parties and would invalidate the statutes and the other documents adopted by this assembly. The Supreme Court of Cassation confirmed the decision of the first-instance court (decision of 14/02/2007). According to the Supreme Court of Cassation, the documents presented in view of the registration did not make it possible to identify the members of the Initiative Committee (which calls the constitutive meeting and adopts certain documents necessary for the constitution of the party), and therefore to verify whether they satisfy the requirements of the law (for more details see the text of this decision, DD(2007)154). It did not find that the allegations of irregularity concerning the list of member of the party were relevant for its examination of the case. 

The applicants addressed several complaints to the Committee with respect to these proceedings. The authorities observed in response that the judgment of the European Court does not imply automatic registration of a new political party and that the new registration proceedings are not linked to the execution of this judgment. The Secretariat recalled in this respect that the requirement to erase the consequences of the violations found (as far as possible restitutio in integrum) implies, according to the practice of the Committee of Ministers that the applicants have the possibility of obtaining new registration of their party, except if reasons in conformity with the Convention oppose such registration (see for more details CM/Inf/DH(2007)8).

The applicants also complained before the Committee of Ministers that certain actions of the police (the police interrogated “party” members of UMO Ilinden-Pirin while the registration process was going on) had the aim of intimidating their members (for more details see DD(2006)651, DD(2006)699 and DD(2007)183). They indicated that as a result of these actions they will not be able at present to gather the 5000 members required for a new political party. The authorities indicated in this respect that the investigations carried out by the police had been ordered by the prosecution authorities on the basis of indications concerning irregularities and falsification of documents committed in view of registering this party (for more details see DD(2006)716). According to the applicants, certain proceedings instituted on facts related to the constitution of the party were still pending in March 2007 (see the DD(2007)183). The Secretariat notes that the Supreme Court of Cassation did not find the investigations carried out relevant to its examination of the case.

- Second application for re-registration (2007): Faced with the situation described above, UMO Ilinden – Pirin complained of the excessive formalism of the courts, as well as of the fact that further registration proceedings on the basis of the new Political Parties Act will be doomed to failure having regard to the problems encountered on meeting the requirement of 5,000 members. They recalled in this respect that according to the transitional provisions of this law, existing parties are not subject to new registration and in consequence may continue to function even if they do not meet the requirements for a new registration. In other words, if the party had not been dissolved in 2000 it would not had been subject to the 5000-member requirement. In view of these particular problems, the Committee invited the Secretariat, in co‑operation with the Bulgarian authorities and the applicants, rapidly to examine the avenues at the applicants’ disposal with a view to obtaining the registration of UMO Ilinden – Pirin (see the decision adopted at the 997th meeting, June 2007).

Following the consultations between the Secretariat, the Bulgarian authorities and the representatives of UMO Ilinden - Pirin, the Secretariat wrote to the Bulgarian authorities suggesting that the most appropriate and swift avenue for obtaining the erasure of the consequences of the violation established - and thus the registration of the party – appeared to be a new application for registration on the basis of the new Political Parties Act. Indeed this law, if interpreted in the light of Bulgaria’s obligations following the judgment of the Court, appeared to allow the registration of a party on the basis on the list of 6000 members presented before the courts in the registration proceedings of 2006-2007. In the light of this information, the applicants immediately re-founded their political party, with the same programme as at the time of their dissolution. They lodged a new application for registration in July on the basis of the list of 6 000 members gathered in 2006. The public prosecutor gave an opinion against the registration, observing that the members list was “out of date” and that the party’s programme was contrary to the Constitution. This new application was rejected by the Court of the City of Sofia (decision of 23/08/2007). In this decision no reference was made to the judgment of the European Court regarding UMO Ilinden – Pirin. Concerning the political programme, the court reiterated the grounds for unconstitutionality already challenged by the European Court’s judgment in this case. The court also found that the members’ list was no longer valid and added also certain grounds related to formal deficiencies. The first-instance court’s judgment was confirmed by the Supreme Court of Cassation (decision of 11/10/2007). The Supreme Court of Cassation found that the first-instance court decision was correct and should not be quashed. The grounds on which the Supreme Court of Cassation relied concern only the fact that the list of members was not up to date.

- Development: The Committee took note of the issues still raised by the individual measures and invited the Bulgarian authorities to examine possible solutions to these issues in co-operation with the Secretariat (see decisions adopted at the 1007th and 1028th meetings, October 2007 and June 2008). Several training activities have already been organised in this field between October 2007 and October 2008, with the participation in particular of judges from the Supreme Court of Cassation, from the Sofia City Court and of representatives of the prosecution office (see general measures). In the meantime, in May 2008, the applicants complained of new actions of the police towards their members (see DD(2008)312). The Bulgarian authorities indicated that these actions concerned examination of witnesses in the framework of criminal proceedings opened in 2008 on indications of forgery of documents regarding the registration of this party in 2006 (for further details see DD(2008)347).

The applicants indicated that they would lodge a new request for registration of their party with the competent court (i. e. the third request) during the week of 20/10/2008. Moreover, it should be noted that the first two refusals to re-register mentioned above are the subject of two new applications before the European Court (see DD(2008)553). Moreover, the applicants expressed concerns as regards certain proposals for legislative amendments which, according to them, are currently being discussed before the Bulgarian Parliament (see DD(2008)604).  

• Outstanding issues: These relate mainly to the issue of the consequences of the most recent decision of the Supreme Court of Cassation, which confirmed the first- instance court’s decision refusing registration of the party without clearly rejecting the grounds of unconstitutionality of the statutes of UMO Ilinden – Pirin indicated by the first-instance court. The issue of the maintenance in the new registration proceedings of the stricter membership requirements of the new law on political parties –requirements which would not have applied to the party had it not been unjustifiably dissolve – is also outstanding.

            2) New registration of the association: The European Court noted in the second case that in 2002-2004 the competent courts once again refused to register the applicant association. These facts are the object of another application, currently pending before the Court (see DD(2008)564). The applicants did not refer to a new request for registration following the judgment of the European Court. However, the authorities indicated that it appeared likely, having regard to the direct effect that the authorities should give to the Convention and to the judgments of the European Court, that a possible new request will be examined in compliance with the requirements of the Convention (see also the general measures).

General measures:

            1) Dissolution of political parties: It was noted that the Constitutional Court’s decision challenged in the judgment was inspired by the Convention and by the European Court’s case-law existing at that time. It was also noted that 3 out of 12 judges voted against the dissolution on the basis of grounds similar to those of the European Court’s judgment. In this situation, and in view of the direct effect of the European Court’s case-law granted in Bulgarian law, the government considered it sufficient to send the European Court’s judgment United Macedonian Organisation Ilinden - Pirin and others to the Constitutional Court and to the courts competent for the registration of political parties in order to ensure that domestic law is interpreted in conformity with the Convention and thus to prevent new violations, similar to that found by the European Court. This dissemination was done by a circular letter drawing these courts’ attention to the fact that this communication is made within the framework of the adoption of the general measures for the execution of the European Court’s judgment. In addition, with a view to raising the awareness of the competent authorities, a CD manual, elaborated by the National Institute of Justice, was sent to 153 courts, the same number of prosecutor’s offices and to 29 investigation offices. The manual contains examples of case-law of the European Court in the field of the freedom of association and freedom of assembly, as well as articles, studies and other material relating to these areas. It may be downloaded from Internet, at www.blhr.org/bibl.htm

Following the decisions adopted by the Committee of Ministers in the framework of the case of the UMO Ilinden-Pirin and others in October 2007 and in June 2008, several training activities have been organised.

A seminar for judges and prosecutors on freedom of association and assembly with the participation of the Council of Europe was organised by the National Institute of Justice in October 2007. Another seminar on this subject, for judges, prosecutors, representatives of the Ombudsman’s Office, lawyers and NGOs was organised in December 2007 by the Ministry of Justice and the Department for execution of judgments. Yet another training activity for mayors and police chiefs took place in May 2008. Another seminar for judges and prosecutors was organised by the National Institute of Justice in June 2008.

• Development: In October 2008 a group of judges from the Supreme Court of Cassation, of prosecutors and of representatives of the Government Agent’s Office paid a study visit to the Council of Europe during which they participated in a working seminar. 

• Contacts are under way regarding these training and awareness-raising measures.

            2) Registration of associations: the judgment in United Macedonian Organisation Ilinden and others was sent to the Court of the City of Sofia and to the Supreme Court of Cassation with a letter drawing their attention to their obligations under the Convention. Both judgments were sent to the Regional Court of Blagoevgrad and to the Sofia Court of Appeal (competent for the registration of associations in the region concerned), together with a letter indicating that this communication is made within the framework of the adoption of the general measures for the execution of the European Court’s judgments. The training and awareness-raising measures mentioned above are also relevant for the issue concerning the registration of associations.

            3) Publication: The judgments of the European Court were published on the website of the Ministry of Justice www.mjeli.government.bg, to draw the public’ attention, as well as that of other authorities which may be brought to act in this area, to the requirements of the Convention in this field. The judgments were also published in the new quarterly journal European Law and Integration, which is published by the Ministry of Justice in 1000 copies and distributed to magistrates and academics (No. 2/2006), together with an article analysing the European Court’s conclusions in these cases, as well as the Court’s case-law in this field. 

The Deputies, 1.             recalled the information document CM/Inf/DH(2007)8 according to which in other cases relating to the dissolution of political parties the Committee of Ministers is supervising the removal by the respondent state of the laws or practices incriminated by the Court and the possibility given to the applicants to have their organisation registered anew in proceedings respecting the Convention; 2.             recalled the outstanding issues regarding individual measures in the case of United Macedonian Organisation Ilinden - Pirin and others, and noted in this respect that the applicants have lodged a new request for registration; and invited the Bulgarian authorities to keep the Committee informed of developments in this matter;  3.             took note with interest of various training activities relating to freedom of association and freedom of assembly organised by the Bulgarian authorities with the participation of the Council of Europe, with the aim of raising the awareness of the competent authorities concerning the requirements of the Convention and the judgments of the European Court in these fields;  4.             decided to resume consideration of all the measures necessary for the implementation of these judgments at the latest at their 1059th meeting (2-4 June 2009) (DH).

- Cases concerning infringements of the freedom of assembly of organisations which aim to achieve “the recognition of the Macedonian minority in Bulgaria” and of their members

44079/98          United Macedonian Organisation Ilinden and Ivanov, judgment of 20/10/2005, final on 15/02/2006

46336/99          Ivanov and others, judgment of 24/11/2005, final on 24/02/2006

These cases relate to the unjustified prohibition of a number of commemorative meetings between 1998 and 2003 in south-west Bulgaria and in Sofia (violations of Article 11).

The European Court noted with concern that one of the prohibitions was imposed in 2003 on grounds, which had been previously declared contrary to the Convention in the case of Stankov and the United Macedonian Organisation Ilinden against Bulgaria (judgment of 02/10/2001). The European Court also observed that on one occasion the authorities appeared somewhat reluctant to take all appropriate measures to prevent violent acts directed against the participants in Ilinden's rally. The last case also relates to the lack of an effective remedy at the applicants' disposal to complain against the prohibitions of their meetings (violation of Article 13). The European Court noted that the possibility to seek judicial review of such bans before the competent courts in accordance with Article 12§6 of the Meetings and Marches Act could in principle operate effectively. However, it was rendered ineffective in the applicants' case on account of the way it was applied by the competent courts.

The European Court recalled its case-law according to which grounds such as threat of disruption of the public order or danger for the territorial integrity and the security of the country could not justify restrictions to the freedom of assembly when there is no real foreseeable risk of violent action and the initiators of the meeting in question had not hinted at any intention to use violence or other undemocratic means to achieve their aims (see also the judgment of Stankov and UMO Ilinden v. Bulgaria, cited above). The Court also noted that the risk that some of the participants in the rallies might broadcast separatist slogans could not itself justify their banning.

Individual measures: The Bulgarian authorities informed the Committee that in 2006 only 2 out of 10 requests for organisation of meetings were rejected. One of the refusals concerned a meeting room reserved for another event; the information provided gives no more details concerning the other. The police ensured the security of the participants and the public order at the authorised meetings. However, it should be noted in this respect that two other applications are at present pending before the European Court relating to prohibitions of meetings organised by the applicants, scheduled initially respectively between 2004-2008 and in September 2006 (see in particular DD(2008)553).

Moreover, the applicants complained before the Committee in April 2007 of the ban by the Governor of a commemorative meeting they organised for 22/04/2007 (see DD(2007)224). The Committee noted this ban with concern as it was based on grounds already incriminated by the European Court, but noted in this respect with satisfaction that the meeting in question had nevertheless taken place, in particular following the intervention of the Agent of the Government (see the decision adopted by the Committee at the 997th meeting, June 2007). According to the applicants, in fact the meeting in question did not take place as they claim to have encountered various problems related to the transportation of the participants, the behaviour of the police and the fact that no music, speeches, laying of wreaths or raising of flags had been allowed in practice. They lodged a new application with the European Court with regard to these facts (see DD(2008)553). 

• Development: The Bulgarian authorities indicated that the United Macedonian Organisation Ilinden – Pirin had declared itself satisfied, in certain publications on its website, with the organisation of two recent commemorative meetings (which took place on 20/04/2008 and on 04/05/2008). The authorities specified that the presence of a great number of police officers, which was criticised by the applicants, was necessary to ensure the protection of the participants in these meetings against possible violent counter-demonstrations. The authorities observed that the absence of such a protection was criticised by the European Court in the judgment of the United Macedonian Organisation Ilinden and Ivanov (see §115 of the judgment).

• Assessment: The awareness-raising measures below, as well as the measures concerning the effectiveness of the domestic remedies in the field of freedom of peaceful meetings are also relevant for the individual measures. Additional information would be appreciated on the applicants’ meetings since June 2008.

General measures:

            1) Organisation of peaceful meetings: The authorities recalled that following the judgment of Stankov and the United Macedonian Organisation Ilinden of 2001 (Final Resolution ResDH(2004)78), a copy of the judgment translated into Bulgarian and accompanied by a circular letter was sent to the mayors of the towns of Petrich and Sandanski, directly concerned by this case. As the violations found in the present cases also concern other towns, the judgments of the European Court were also sent to the mayors of Sofia and Blagoevgrad, to draw their attention to the requirements of the Convention and to ensure that domestic law is interpreted in conformity with it.

The judgments were also sent to the district courts of the cities cited above, as well as to the competent prosecutors and to the directors of the National Security Service, of the Police Directorate of Sofia and of the Directorate of the Interior of Blagoevgrad. The dissemination of the judgments in these cases was made by a letter drawing the authorities' attention to the main conclusion of the European Court in these cases, as well as to the fact that this communication was made within the framework of the adoption of the general measures for the execution of the European Court's judgments.

These judgments were also be included in 2007 in the programme of seminars on the Convention and the case-law of the European Court organised by the by the National Institute of Justice (more that 23 seminars for more than 798 participants - judges, prosecutors and national experts - took place in the period 2001-2006, of which 3 seminars on Article 11). A seminar for judges and prosecutors on freedom of association and assembly with the participation of the Council of Europe was organised by the National Institute of Justice in October 2007. Another seminar on this subject, for judges, prosecutors, representatives of the Ombudsman’s Office, lawyers and NGOs was organised in December 2007 by the Ministry of Justice and the Department for execution of the judgments. Yet another training activity for mayors and police chiefs took place in May 2008. Another seminar for judges and prosecutors on freedom of association and assembly with the participation of the Council of Europe was organised by the National Institute of Justice in June 2008. In October 2008 a group of judges from the Supreme Court of Cassation, of prosecutors and of representatives of the Government Agent’s Office paid a study visit to the Council of Europe during which they participated in a working seminar. 

• Contacts are under way regarding these training and awareness-raising measures.

            2) Effective remedies: A reflection was carried out within the Ministry of Justice on the need to amend the Meetings and Marches Act. In June 2007 the authorities informed the Committee that a draft law amending the Meetings and Marches Act will be examined soon by the Parliament. According to this text, organisers of meetings and demonstrations to take place outdoors must inform the mayor's office of the district concerned 48 hours in advance. The mayor may ban a meeting for the reasons set out in the law, no later that 24 hours after the notification by the organisers. The mayor's decision may be appealed before the competent district court, which must give its decision, which is final, within in 3 days.

• Evaluation: The grounds on which a meeting may be banned, according to the law currently into force, appear to make it possible to apply the law in conformity with the Convention, taking into account the awareness and training activities planned. These grounds are not changed in the draft law. On the other hand, the Bulgarian authorities have been invited to consider the possibility of better arranging different time-limits provided by the draft law in order to allow that complaints against meeting bans may be examined before the date intended for the meeting (see the decision adopted by the Committee of Ministers at their 1007th meeting (October 2007)).  

• Information was requested on this issue, as well as on the time frame for the adoption of the draft law amending Meetings and Marches Act.

• Development: The Bulgarian authorities indicated on 16/10/08 that a Bill on Meetings and Marches had been submitted to the Bulgarian Parliament. The text of the Bill was provided. The Secretariat is examining this information. 

14134/02           Glas Nadejda EOOD and Elenkov, judgment of 11/10/2007, final on 11/01/2008

The case concerns an unlawful interference with the freedom of expression of the applicant company due to the refusal without reasoning by the competent body, the National Radio and Television Committee (NRTC), to award it a radio broadcasting licence (violation of Article 10).

The European Court pointed out in particular that the NRTC had not held any form of public hearing and its deliberations had been kept secret, despite a court order obliging it to provide the applicants with a copy of its minutes. Nor had the NRTC given reasons explaining why it considered that the applicant company had failed to meet its requirements. This lack of reasons had not been made good in the ensuing judicial review proceedings, because the Supreme Administrative Court had held that the NTRC’s discretion was not reviewable. This, coupled with the vagueness of some of the NRTC’s criteria, had denied the applicants legal protection against arbitrary interference with their freedom of expression.

The case also concerns the absence of a judicial review of the NRTC’s decision. The Court observed that the approach taken by the Supreme Administrative Court in the applicants’ case, which had involved refusing to interfere with the NRTC’s discretionary powers, had fallen short of the requirements of Article 13, which obliges domestic authorities to examine the substance of the complaints made under the Convention (violation of Article 13).

Individual measures:  

• Information is still awaited as to whether the applicants may submit a new application for a radio broadcasting licence (currently before the Electronic Media Council).

General measures: The European Court found in its judgment that the guidelines adopted by the Committee of Ministers in the field of broadcasting regulations called for open and transparent application of the regulations governing the licensing procedure and specifically recommended that all decisions taken by regulatory authorities are duly reasoned and open to review by the competent judicial bodies (Recommendation Rec(2000)23). In this connection, it should be noted that the national law provided at the material time and still provides that the decisions of the competent body to grant, modify or withdraw a radio broadcasting license may be reviewed by the Supreme Administrative Court (Article 38 of the Law on Radio and Television). The approach followed by the Supreme Administrative Court in this case appears to be based solely on its practice.

• Information is awaited on measures envisaged to prevent new, similar violations. In particular it would be useful to have a copy of the regulations currently in force concerning the criteria and procedure for the award of radio broadcasting licences. In any event, the publication of the European Court’s judgment and its dissemination to the Electronic Media Council formerly the NRTC), to the State Telecommunications Commission and to the Supreme Administrative Court, appear necessary measures of execution.

62540/00           Association for European Integration and Human Rights and Ekimdzhiev, judgment of 28/06/2007, final on 30/01/2008

The case concerns the absence of sufficient guarantees in the framework of a law authorising recourse to secret surveillance measures (violation of Article 8).

The European Court, ruling on an application lodged by the applicants, an association having the protection of human rights as one of its principal aims and a lawyer whose practice includes representing applicants in proceedings before the European Court, considered that the very existence of the Special Surveillance Means Act of 1997, in force at the time as well as currently, exposed them to the possibility of being subjected to secret surveillance measures without any notification at any point in time. As to the quality of the law, the Court concluded that while the relevant legal provisions provided substantial safeguards against arbitrary or indiscriminate surveillance during the initial stage of such surveillance, this was not the case during the later stages, namely when the surveillance is actually carried out or has already ended.

The Court criticised in particular:

- the fact that the law did not provide for any review of the implementation of secret surveillance measures by an external and independent body or official;

- the apparent lack of regulations specifying how the intelligence collected should be screened, preserved and destroyed;

- the fact that the overall control over the system of secret surveillance is entrusted solely to the Minister of the Interior, while the manner in which the Minister effects such control is not set out in the law; and

- the fact that the persons subjected to such surveillance are not notified at any time of this fact.

The case also concerns the lack of effective remedy to challenge the usage of special surveillance measures (violation of Article 13).

Individual measures: These are linked to the general measures.

General measures:

• Information provided: The judgment was translated and published on the Internet site of the Ministry of Justice. It was sent to the Constitutional Court, the Prosecution Office of Cassation, the Supreme Court of Cassation, all regional, military and appellate tribunals, as well as to all the other institutions concerned, with a circular letter placing an emphasis on the most important conclusions of the judgment.

Draft amendments were prepared to the Special Surveillance Means Act of 1997 as a direct response to the European Court’s judgment in this case. The proposed draft amendments, and a note explaining the motives behind them, were posted on the Ministry of Justice’s website at the beginning of October 2008. Currently, they are at the inter-ministerial stage of co-ordination. The main elements of the proposed amendments aim to introduce external control of the special surveillance measures by an independent authority, and through annual parliamentary scrutiny, as well as to inform people who have been subjected to undue use of special surveillance means.

• The Bulgarian authorities are invited to provide a summary of the most relevant legislative amendments, as well as information on the progress of the legislative reform, including the time-frame for its adoption. A copy of the circular letters which accompanied the judgment when it was sent out will be appreciated.

50899/99          Yordanov Krasimir, judgment of 15/02/2007, final on 15/05/2007

The case concerns the fact that correspondence and other items seized during a criminal investigation could not be returned to the applicant once proceedings against him had been closed, because they had disappeared from the file (violation of Article 8). The European Court noted that the disappearance of seized items from the case file cannot be considered as “provided by law”.

The case also concerns the lack of an effective remedy to obtain compensation for this loss (violation of Article 8 and Article 13 taken together). The Court noted in this respect that although the applicant had legal means to request the return of the seized items, he had no possibility of obtaining compensation for their loss.

Finally, the case concerns the excessive length of criminal proceedings and lack of an effective remedy in this respect (violation of Articles 6§1 and 13). The proceedings in question began in February 1991 and ended in November 1998 (more than 6 years and 2 months within the Court’s jurisdiction ratione temporis).

Individual measures: The proceedings are closed. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. The applicant did not request just satisfaction for pecuniary damage.

• Assessment: no further measures appear necessary.

General measures:

            1) Violation of Art. 8: It seems that this was an isolated violation resulting from the negligence of public prosecutor’s office.

            2) Violation of Article 13 taken together with Article 8: When criminal proceedings are closed through the dropping of charges the prosecutor decides on the disposal of material evidence. Since 1/01/2000 any refusal by the investigating or prosecuting authorities to return seized items is subject to judicial recourse. The European Court noted however that Bulgarian law provided no compensation in case of loss of items seized during a criminal investigation.

• The Bulgarian authorities are invited to provide information about measures taken or envisaged in order to comply with the requirements of the European Convention.

            3) Violation of Article 6 and Article 13: This case presents similarity to the Kitov group of cases (Section 4.2).

• Information is awaited concerning the publication of the European Court's judgment and its dissemination to relevant courts and authorities to raise their awareness of the Convention's requirements as they result from this case.

48191/99          Kushoglu, judgment of 10/05/2007, final on 10/08/2007 and of 03/07/2008, possibly final on 03/10/2008

The case concerns the fact that through arbitrary decisions the domestic courts failed to assist the applicants in recovering the property they were forced to sell to the local municipality in 1989, when the communist regime forced tens of thousands of ethnic Turks, among them the applicants, to emigrate (violation of Article 1 of Prot. no. 1).

The house in question was sold by the municipality to third parties in 1990. In 1995 the Supreme Court declared with final effect the nullity of the transaction of 1989 but referred the issue concerning the validity of the contract between the municipality and the third parties to the lower courts for further examination. By final decision of 1996 the domestic courts declared that the third parties had acquired the house on the basis of their contract with the municipality, which is in manifest contradiction with the Property Act and the relevant practice of Bulgarian courts (when a property sale is declared null and void, subsequent buyers cannot acquire title to the property). The European Court noted that those findings were vague to the point of being arbitrary (§53).

The European Court further found that the authorities’ failure to afford the applicants judicial procedures of effective and fair adjudication in accordance with the applicable law continued in 1998 since the second action was dismissed on the ground that the matter was res judicata. Thus, the reasons provided by the courts for their refusal to examine this action were in contradiction with the applicants’ second claim, in which they did not challenge the validity of the contract in question but claimed restitution on other grounds (§58).

Consequently the European Court observed that the legal acts which denied the applicants’ rei vindicatio claims and precluded any further action on their part to recover possession of the house did not meet the Convention’s requirement of lawfulness and did not have a clear basis in domestic law.

Individual measures: The European Court delivered its judgment on just satisfaction on 03/07/2008. This judgment is not final yet.

General measures: The European Court noted that the domestic courts’ decisions were given in contradiction with existing law and court practice.

• The authorities are invited to provide information on current practice of domestic courts in similar cases and, if appropriate, measures taken or envisaged to comply with the requirements of the European Convention.

• Publication of the European Court's judgment and its dissemination to relevant courts and authorities are expected, in order to raise their awareness of the Convention's requirements as they result from this case.

61951/00          Debelianovi, judgment of 29/03/2007, final on 29/06/2007

The case concerns the fact that the applicants could not obtain enforcement of a final court decision of 1994 ordering the restitution of their house, which had been expropriated in 1953, converted into a museum and classified as a national historic monument. In June 1994 the Bulgarian National Assembly voted a moratorium on the laws concerning the restitution of properties with historical monument classification, which prevented the applicants from obtaining restitution of their property (violation of Article 1 of Protocol No. 1)

The European Court observed that the National Assembly’s decision, constituting a temporary restriction on the use of property, was provided by law and pursued a legitimate aim, namely to ensure the preservation of protected national heritage sites. However, the situation imposed on the applicants had lasted for about 12½ years and, except for a small sum awarded in respect of the two months preceding the moratorium, the applicants had obtained no compensation for their inability to enjoy their property (§56 of the judgment). In addition, they still have no information as to when the impugned measures will end (§58 of the judgment).

Individual measures: The European Court considered that the question of the application of Article 41 was not yet ready for decision as regards pecuniary and non-pecuniary damage.

General measures: The National Assembly decision in question stipulated that the moratorium would remain applicable until the enactment of a new law on cultural monuments. In this context, the European Court noted that this decision fixed no time-limit in this respect and that no draft law seemed to be envisaged yet.

• The authorities are invited to present an action plan for the execution of this judgment.

The judgment of the European Court was published on the Internet site of the Ministry of Justice www.mjeli.government.bg.

• Dissemination of the European Court's judgment among relevant courts and authorities is expected, to raise their awareness of the Convention's requirements as they result from this case.

49429/99           Capital Bank AD, judgment of 24/11/2005, final on 24/02/2006[3]

60018/00           Bonev, judgment of 08/06/2006, final on 08/09/2006

The case concerns the unfairness of the applicant’s trial in that he was unable to cross-examine the witnesses whose statements had served as the main basis for his conviction in 1999 (violation of Article 6§§1 and 3 d)). The court considered that these witnesses could not be found, and could not be summonsed to appear as one of them had died and the other was not found at the indicated address (and was apparently a vagrant). It therefore, with the applicant’s consent, had read into the record the testimony they had given at the stage of the preliminary investigation. The applicant appealed without success.

The European Court found that the applicant could not be regarded as having waived his rights under Article 6 of the Convention, as he was not represented by a lawyer when he agreed to the reading of the statements and, moreover, he had not been cautioned as to the consequences of this act. The Court noted, furthermore, that no effort had been made to establish the whereabouts of the only eyewitness still alive, even though the applicant was accused of murder and risked a severe sentence.

Individual measures: the applicant was sentenced in 1999 to ten years’ imprisonment. According to the Code of Criminal Procedure (Articles 421§2 and 422§1, p. 4) when a judgment of the European Court has found a violation of the Convention which is decisive for the criminal proceedings, the Prosecutor General is obliged to request the reopening of the proceedings in question within one month from the date upon which he took cognisance of the judgment of the European Court.

• Information is awaited on the applicant’s present situation and on a possible request for reopening of his trial. 

General measures: The witnesses statements at issue in this case were included in the file on the basis of Article 279§1, pp. 4 and 5 of the Code of Criminal Proceedings of 1974. According to the first of these provisions, the statement of a witness given at the preliminary investigation could be read out at the trial and included in the file if the witness had died or he could not be found in order to be called. According to the second provision, this could also be done, if the witness, despite being duly subpoenaed, did not appear and the parties agreed to this. 

According to a new provision, introduced in 2003 (Art. 279§3), on the conditions of §1 (see above) statements made at the preliminary investigation may be included in the file if the parties agree. In such cases, the court is obliged either to appoint a lawyer for the accused, if he is not already represented but wishes to have a lawyer, or to explain to the accused what would be the consequences of his consent. This legislative framework was maintained in the new Code of Criminal Procedure of 2006 (Art. 281§§1 and 3). 

• Assessment: as it seems that it is still possible to include in criminal case-files witness statements given at the preliminary investigation without the consent of the accused, it is necessary to send the judgment of the European Court out to all criminal courts, to draw their attention in particular to the need for thorough efforts to locate witnesses before considering that they could not be found.

It should be noted that two decisions of the Supreme Court, of 1981 and 1991, support this approach, but they were not followed in the present case (§31 of the European Court’s judgment).

The judgment of the European Court was published on the Internet site of the Ministry of Justice www.mjeli.government.bg.

9808/02            Stoichkov, judgment of 24/03/2005, final on 24/06/2005

The case relates to the imprisonment of the applicant in February 2000, shortly after his return to Bulgaria, in execution of his conviction in absentia in 1989 of rape and attempted rape. Whilst the initial deprivation of the applicant’s liberty might be deemed justified under Article 5§1(a), being for the purpose of enforcing a lawful sentence, it ceased to be so after 19 /07/2001, when the Supreme Court of Cassation refused, in the particular circumstances of the case, to reopen the proceedings (violation of Article 5§1).

The European Court considered that the criminal proceedings against the applicant, coupled with the impossibility of obtaining a new trial in his presence, were manifestly contrary to the principles embodied in Article 6.

The case also relates to the lack of judicial review of the lawfulness of the applicant's detention (violation of Article 5§4) and to the absence in domestic law of an enforceable right to compensation in respect of this detention (violation of Article 5§5).

Individual measures: The applicant was released by decision of 17/04/2006. According to this decision, the sentence is considered to have been executed as from 27/07/2005, the date on which its execution was suspended following the judgment of the European Court. The applicant’s unconditional release was also motivated by the impossibility of reopening of his criminal trial due to the destruction of the case file.

• Assessment: No further individual measure appears necessary.

General measures:

            1) Violation of Article 5§1: The European Court noted in its judgment that since 01/01/2000 Bulgarian law has expressly provided for reopening of criminal cases heard in absentia and that the Supreme Court of Cassation refused to reopen the case essentially on the grounds that the case-file of the original proceedings had been destroyed in 1997, a fact which, in its view, rendered a re-hearing impossible in practice. The case-file was destroyed before the time-limit for keeping case-files provided by the law had expired and the applicant received no reply to his request for its restoration. In this context, the publication and the dissemination of the judgment of the European Court to the competent authorities appear to be sufficient measures for execution.

            2) Violation of Article 5§4: The Ministry of Justice, following the proposal made by its Directorate for Legislation, requested an opinion of the Supreme Judicial Council on the possibility of introducing into Bulgarian law judicial review of a deprivation of liberty in similar situations.

• Information provided by the Bulgarian authorities (letter of 12/11/2007): The Supreme Judicial Council declined to take a position on this issue as falling outside its competence. Subsequently, the Government Agent proposed to put the question before a working group on legislation to be created in the near future to discuss the setting-up of a permanent Council for Legal Aid. It is envisaged that this Council will comprise representatives of the legislative, judicial and executive powers, and civil society members active in human rights protection. It is expected that this Council will assist the process of execution of judgments of the European Court at national level.

• Additional information is awaited on the follow-up given by the national authorities to the question of introducing into domestic law judicial review of the lawfulness of deprivation of liberty in situations of detention in execution of a sentence after the expiry of the time-limit for the enforcement of the sentence..

            3) Violation of Article 5§5: The case presents similarities to that of Yankov (1051st meeting (17‑19 March 2009)).

            4) Publication and dissemination: the judgment of the European Court was published on the Internet site of the Ministry of Justice www.mjeli.government.bg and sent out to the competent authorities (the District Court of Pernik, the Supreme Court of Cassation and the Supreme Cassation Prosecutor’s Office) with an accompanying letter emphasising the conclusions of the European Court.

66455/01          Bulinwar OOD and Hrusanov, judgment of 12/04/2007, final on 12/07/2007

This case concerns the infringement of the applicant company’s right of access to a court to challenge the refusal by a commission to authorise the use of its new building (violation of Article 6§1). The applicants obtained a decision in their favour in June 1999 before the Sofia City Court but this judgment was subsequently quashed by the Supreme Administrative Court which found that that it was not competent to examine an administrative decision on the merits.

Individual measures: The European Court held that the finding of the violation in itself constituted sufficient just satisfaction with regard to the non-pecuniary damage. Furthermore, Article 239-6 of the Code of Administrative Procedure allows the reopening of administrative proceedings if the European Court has found a violation of the Convention or its Protocols.

• Assessment: No further measure appears necessary.

General measures: At the material time the procedure to obtain authorisation to use new buildings was regulated by Ministerial Decree No. 6 of 15/03/1993 which was subsequently abrogated in July 2003 following the entry into force of a new law on territorial planning.

• Information provided by the Bulgarian authorities (March 2008): The Ministry of Justice is currently collecting information concerning the practice of the Supreme Administrative Court in such cases.  

• Information is still awaited on the current practice of the Supreme Administrative Court in similar cases and, if appropriate, measures taken or envisaged to comply with the requirements of the European Convention.

• Publication of the European Court's judgment and its dissemination among relevant courts and authorities are expected, to raise their awareness of the Convention's requirements as they result from this case.

57785/00          Zlínsat, spol. S. r.o., judgment of 15/06/2006, final on 15/09/2006 and of 10/01/2008, final on 10/04/2008 (Article 41)

The case concerns the absence of a judicial remedy in relation to decisions taken by the prosecution authority regarding the applicant company’s ownership and use of a hotel: in July and October 1997 the prosecutor had ordered the suspension of the contract concluded with the applicant company privatising the property and ordered its eviction, on the ground that the contract had been concluded under conditions manifestly unfavourable to the state.

The European court found that as the public prosecutor could not pass for an independent or impartial judicial body, there could be no justification for not providing a judicial remedy in respect of his decisions in civil matters (violation of Article 6§1).

The case also concerns interference in the exercise of the applicant company’s right to the peaceful enjoyment of its possessions. The Court considered that this interference was unlawful inasmuch as the decision of the prosecution authorities – which were not subject to judicial supervision – were grounded on legal provisions drafted in particularly vague terms (violation of Article 1 of Protocol No. 1).

Individual measures: In October 1999, the Prosecutor’s Office notified the police that, following the dismissal of the action for annulment of the privatisation contract, the decisions concerning the suspension of the privatisation and the eviction of the applicant company were no longer enforceable. The hotel in question was restored to the applicant company.

The European Court awarded just satisfaction in respect of the pecuniary damage sustained by the applicant.

• Assessment: no further individual measure seems necessary.

General measures:

• Situation at the material time: The decisions challenged in this judgment were adopted on the basis of Article 185§1 of the Code of Criminal Procedure and Article 119§1, p. 6 of the Judicial Power Act. According to the first provision, the investigation authorities are bound to take the necessary measures to prevent a criminal offence, for which there is a reason to believe that it will be committed. These measures may include impounding the means which might be used for committing the offence (it should be noted that the Prosecutor’s Office had declared its intention to open an enquiry against certain officials suspected of having committed an offence in the framework of the privatisation proceedings; it appears that no such enquiry has been initiated). According to the second provision concerned, prosecutors may take all measures provided for law, if they have information that a publicly prosecutable criminal offence or other illegal act may be committed.

These rules, drafted in particularly vague terms, giving the Prosecutor’s Office unfettered discretion to act in any manner it saw fit, and combined with the lack of adequate procedural safeguards, led the European Court to conclude that the minimum degree of legal protection to which individuals and legal entities are entitled was lacking.

• Development: Article 185§1 of the Code of Criminal Procedure was repealed and the new Code of Criminal Procedure, which entered into force in 2006 does not contain similar provisions (see also §37 of the judgment).

• Information is required on the measures envisaged to clarify the exact scope of Article 119§1, p. 6 of the Judicial Power Act and to introduce independent supervision of the prosecution authorities’ decisions taken on the basis of this provision, and in a more general manner adopted by prosecutors in similar situations.

In any event, the Bulgarian authorities were invited to publish the judgment of the European Court and to disseminate it to the competent authorities, and in particular to prosecutors.

The judgment was published on the Internet site of the Ministry of Justice http://www.mjeli.government.bg.

On 08/12/2006, the Secretariat wrote to the Bulgarian authorities inviting them to present a plan of action for the execution of this judgment.

- Cases mainly concerning the length of detention on remand

45114/98          Bojilov, judgment of 22/12/2004, final on 22/03/2005

42026/98          Asenov, judgment of 15/07/2005, final on 15/10/2005

47799/99          Bojinov, judgment of 28/10/2004, final on 28/01/2005

56796/00          Danov, judgment of 26/10/2006, final on 26/01/2007

60859/00          Hristova, judgment of 07/12/2006, final on 07/03/2007

48870/99          Iliev, judgment of 22/12/2004, final on 22/03/2005

40063/98          Mitev, judgment of 22/12/2004, final on 22/03/2005

47279/99          Yosifov, judgment of 07/12/2006, final on 07/03/2007

These cases, except the Bojinov case, concern the excessive length of the applicants' pre-trial detention between 1994 and 2000, in view of the insufficient reasons to justify it and in view of the fact that “special diligence” was not displayed in the conduct of the proceedings in the Mitev case (violations of Article 5§3). The Asenov and Hristova cases also concern the lack of judicial review of the lawfulness of the detention, due to refusals by the competent court to examine the applicants' requests concerning bail, in spite of the fact that they remained in detention (violations of Article 5§4).

The Asenov, Bojilov, Danov, Mitev and the Yosifov cases also concern violations of the applicants' right to be brought before a judge promptly after their arrest (violations of Article 5§3).

The Asenov, Bojilov, Bojinov, Hristova and Mitev cases also relate to the unlawfulness of the applicants' continued detention pending trial following the domestic courts' decisions ordering their release (violations of Article 5§1). In the Hristova case this violation was due in particular to the fact that the applicant remained in detention despite the expiry of the maximal time-limit for detention pending trial provided for in the law.

The Danov case also concerns the failure to justify the continuation of the applicant's house arrest (violation of Article 5§3) and the unfairness of the proceedings in response to the applicant's appeal against his detention (violation of Article 5§4).

The Bojilov, Bojinov, Hristova, Mitev and Yosifov cases also relate to the lack of an enforceable right in Bulgarian law to compensation for detention contrary to Article 5 of the Convention (violations of Article 5§5).

The Asenov, Hristova, Iliev, Mitev and Yosifov cases also concern the excessive length of the criminal proceedings instituted against the applicants (violations of Article 6§1).

The Hristova and Mitev cases also relate to the competent court's failure to examine promptly some of the applicants' requests for release (violations of Article 5§4). Finally, the cases of Mitev and Yosifov relate also to the lack of effective remedies to enforce, at national level, the right to a hearing “within a reasonable time” (violations of Article 13).

Individual measures: The proceedings instituted against the applicants in the cases of Asenov, Hristova and Iliev ended. The applicants in the cases of Asenov, Bojilov, Danov, Hristova, Iliev, Mitev and Yosifov were released. The European Court granted the applicants just satisfaction in respect of the non-pecuniary damage they suffered.

• Information is awaited on the state of domestic proceedings in the Mitev and Yosifov cases and, if appropriate, on their acceleration.

General measures:

            1) Excessive length of the detention pending trial in the Asenov, Bojilov, Danov and Iliev cases (Article 5§3) and the unlawfulness of the applicants' continued detention pending trial in the Asenov, Bojilov, Bojinov and Mitev cases (Article 5§1):

• Information provided: The authorities have sent the translated text of the judgments in the Bojilov and Asenov cases out to the Sofia District Court and to the corresponding prosecutor's office. The judgments in the Bojilov, Asenov and Danov cases have been posted on the internet site of the Ministry of Justice (www.mjeli.government.bg).

Between 2001 and 2006 six training seminars on Articles 5 and 6 of the Convention have been implemented for Bulgarian judges, prosecutors, representatives from the Ministry of Justice and police officials.

• Information expected: In view of the development of the direct effect given by Bulgarian courts to the Convention and to the Court's case-law, a circular to the authorities competent for pre-trial detention would be a relevant measure. This circular should draw their attention in particular to the need to take into consideration the resources of the person concerned when deciding on the amount of the bail (§§60-65 of the Bojilov judgment and Article 61§2 of the new Code of Criminal Procedure), to their obligation to provide sufficient justification of detention, when such detention results from non-payment of the requested guarantee (§§69-71 of the Asenov judgment) and to the requirements of the Convention concerning the reasoning of the decisions on detention pending trial (§§45 and 46 of the Iliev judgment). The attention of the competent authorities should also be drawn to the particular vigilance required in respect of execution of decisions for release (see in particular §§69-75 of the Bojilov judgment, §§35-39 of the Bojinov judgment and §§116-119 of the Mitev judgment).

            2) Lack of judicial review of the lawfulness of the detention in the Asenov case (Article 5§4): It should be noted that according to the new Code of Criminal Procedure (which entered into force in April 2006), in case of non-payment of bail, the court may order and the prosecutor may request either house arrest or detention of the accused person (article 61§5). Now, such measures must be justified by the competent court (articles 59 and 63 of the new CCP). Furthermore, the accused may now contest the lawfulness of detention resulting from non-payment of bail at each stage of the proceedings (articles 65§11 and 270 of the new CCP), whilst the provisions in force at the relevant time did not provide such a possibility at the stage of the preliminary investigation.

• Information is awaited on the dissemination of the European Court's judgment to criminal courts, to draw their attention to their obligation to ensure judicial review of the lawfulness of detention, when such detention results from non-payment of the requested guarantee. 

3) Excessive length of detention pending trial in the Mitev case (caused by the fact that “special diligence” was not displayed in the conduct of the proceedings) (Article 5§3): this case presents similarities to the Kuibishev case (Section 6.2).

4) Failure to justify the continuation of the applicant's house arrest (Article 5§3) and the unfairness of the proceedings in response to the applicant's appeal against his detention (violation of Article 5§4) in the Danov case: With respect to the violation of Article 5§3, the case presents similarities to that of Nikolova No. 2 (Section 4.2, Kitov group). Concerning the violation of Article 5§4, the authorities were invited to consider publishing and disseminating this judgment, to draw competent courts' attention to their obligation to inform the defence of any source of information used by the authorities to justify a deprivation of liberty (see in particular §§ 92-93 of the judgment).

The European Court's judgment in the Danov case has been posted on the internet site of the Ministry of Justice (www.mjeli.government.bg).

• Information is awaited on the dissemination of this judgment as suggested above.

            5) Right to be brought before a judge (Article 5§3): the Asenov, Bojilov, Danov and Mitev cases present similarities to those of Assenov (judgment of 28/10/1998) and Nikolova (judgment of 25/03/1999) closed by Resolutions ResDH(2000)109 and ResDH(2000)110, following a legislative reform of criminal procedure which took effect from 01/01/2000.

            6) Lack of prompt examination of the request for release (Article 5§4): the Mitev case presents similarities to the Nikolov case (judgment of 30/01/03) which had been transferred to Section 6.2, following the entry into force of new provisions of the Code of Criminal Procedure providing for more strict time-limits for the examination of requests for release.

7) Lack of an enforceable right to compensation for detention contrary to Article 5 (Article 5§5): the Bojilov, Bojinov and Mitev cases present similarities to the Yankov case (1051st meeting (17‑19 March 2009)).

            8) Excessive length of the criminal proceedings (Article 6§1) and the lack of an effective remedy at the applicant's disposal in this respect (Article 13): the Asenov, Iliev and Mitev cases present similarities to the Kitov case (Section 4.2).

                       - Cases of length of criminal proceedings and of lack of an effective remedy

37104/97           Kitov, judgment of 03/04/03, final on 03/07/03

35825/97           Al Akidi, judgment of 31/07/03, final on 31/10/03 rectified on 16/10/03

61662/00           Angelov Vasil, judgment of 12/04/2007, final on 12/07/2007

61596/00          Atanasov and Ovcharov, judgment of 17/01/2008, final on 17/04/2008

39270/98           Belchev, judgment of 08/04/2004, final on 08/07/2004

50401/99           Dimitrov Vasko Yordanov, judgment of 03/05/2006, final on 03/08/2006

56762/00           Dimov, judgment of 08/03/2007, final on 08/06/2007

68356/01           Doinov, judgment of 27/09/2007, final on 27/12/2007

43231/98           E.M.K., judgment of 18/01/2005, final on 18/04/2005

44062/98           Hamanov, judgment of 08/04/2004, final on 08/07/2004

35436/97           Hristov, judgment of 31/07/03, final on 31/10/2003

67189/01           Ivanov, judgment of 24/05/2007, final on 12/11/2007

49163/99           Kalpachka, judgment of 02/11/2006, final on 02/02/2007

65051/01           Karagyozov, judgment of 25/10/2007, final on 25/01/2008

76965/01           Karmo, judgment of 06/12/2007, final on 06/03/2008

45964/99           Karov, judgment of 16/11/2006, final on 26/03/2007

50326/99           Kolev, judgment of 28/04/2005, final on 28/07/2005

58775/00           Mladenov, judgment of 12/10/2006, final on 12/01/2007

38106/02           Nalbantova, judgment of 27/09/2007, final on 27/12/2007

40896/98           Nikolova No. 2, judgment of 30/09/2004, final on 30/12/2004

44241/98           Nedyalkov, judgment of 03/11/2005, final on 03/02/2006

54178/00+         Osmanov and Yuseinov, judgment of 23/09/2004, final on 23/12/2004

50358/99           Pekov, judgment of 30/03/2006, final on 30/06/2006

48137/99           Popov, judgment of 01/12/2005, final on 01/03/2006

56337/00           Rezov, judgment of 15/02/2007, final on 15/05/2007

37355/97           S.H.K., judgment of 23/10/03, final on 23/01/04

55057/00           Sidjimov, judgment of 27/01/2005, final on 27/04/2005

58733/00           Sodadjiev, judgment of 05/10/2006, final on 05/01/2007

62594/00           Terziev, judgment of 12/04/2007, final on 12/07/2007

56308/00           Toshev, judgment of 10/08/2006, final on 10/11/2006

42987/98           Vachev, judgment of 08/07/2004, final on 08/10/2004

59913/00          Vasilev, judgment of 02/02/2006, final on 02/05/2006

61257/00           Vasilev and others, judgment of 08/11/2007, final on 08/02/2008

70728/01          Yankov No. 2, judgment of 07/02/2008, final on 07/05/2008

45563/99           Zhbanov, judgment of 22/07/2004, final on 22/10/2004

These cases concern the excessive length of the criminal proceedings instituted against the applicants between 1986 and 1999 (violations of Article 6§1). The cases of Dimitrov, Karov, Osmanov and Yuseinov, Popov, Sidjimov, Sodadjiev, Karagyozov, Yankov No. 2, Nalbantova and Atanasov and Ovcharov also relate to the lack of an effective remedy at the applicants' disposal against the excessive length of the proceedings (violations of Article 13).

The cases of Al Akidi, Belchev, Dimov, E.M.K., Hamanov, Hristov, Kolev, Nedyalkov, Nikolova No. 2, Pekov, Popov, Toshev, Vachev and Vasilev also concern violations of the Convention related to the applicants’ detention between 1993 and 2003 (violations of Article 5§§1, 3, 4 and 5).

Individual measures: Concerning violations of Article 5, the applicants detained in these cases were released. The European Court awarded just satisfaction in respect of the non-pecuniary damage the applicants suffered on account of the violations, with the exception of the Ivanov case in which the applicant did not submit claim any just satisfaction.

• Additional information is awaited on the state of the proceedings in the Belchev, Hamanov, Karov, Kitov, Kolev, Nedyalkov, Pekov, Sidjimov, Toshev, Vasilev, Karagyozov and Yankov No. 2 cases and, where appropriate, on their acceleration.

General measures:

I. Excessive length of criminal proceedings and effective remedies in this respect:

1) Violations of Article 6§1:

• Information requested: concerning the measures envisaged or adopted. The dissemination of the European Court’s judgment in the Kitov case, together with a circular, to criminal courts, prosecutors and preliminary investigation authorities drawing their attention to the conclusions and the concrete suggestions of the Court on the problems found (especially §§ 71, 73 and §§ 81-83) have also been requested.

• Information provided: A new Code of Criminal Procedure entered into force on 29/04/2006. Its adoption is part of a global reform of criminal justice in Bulgaria, aimed in particular at accelerating criminal proceedings. For instance, the Code explicitly introduces the obligation for courts and investigation authorities to examine criminal cases within a reasonable time; further, cases in which the accused is in detention are investigated, and decided by the court, with priority as compared to the other cases (Article 22).

Many other new provisions are aimed at accelerating of the proceedings. The most important among them provide for short time limits for the examination of a criminal case and for the postponement of its examination (Articles 252, 271 and 345), as well as for wider use of simplified proceedings (Articles 362-367, 370‑374 and 356-361).

Furthermore, seminars and other training activities on the Convention and the case-law of the European Court (including Art. 6 and 13) are regularly organised by the National Institute of Justice (more that 23 seminars for more than 798 participants – judges, prosecutors and national experts – took place in the period 2001-2006).    

In June 2007 the Bulgarian authorities provided statistical data concerning the average length of criminal proceedings only before first-instance courts, and not in respect of the criminal proceedings in their entirety. According to this data, in 2006 the district courts, acting as first instance, terminated 79 901 criminal cases in less than 3 months from the moment when they were seized, and 23 285 cases in respect of which it took longer than 3 months to terminate. As regards the criminal cases terminated in 2006 by the regional tribunals, acting as first instance, these were 14 409 in less than 3 months and 2 524 in respect of which it took longer than 3 months. In terms of appeals, 9 510 appeals against the district courts judgments and 1 479 against the regional courts judgments have been lodged. The authorities consider that the relatively low number of appeals suggests that the length of criminal proceedings in the bigger number of cases is relatively short.

At the beginning of 2006, the number of pending cases before district courts was 23 187, while at the end of 2006 this number had diminished to 20 296. The equivalent numbers as regards the regional courts are 2 460 at the beginning of 2006 and 1089 at the end of that year. The authorities believe that these statistics are indicative of a positive, stable tendency in the functioning of the criminal justice system as regards length of proceedings.

• Additional information will still be appreciated on other measures, apart from the legislative reform, envisaged to reduce the excessive length of criminal proceedings. It should be noted in this respect that the Ministry of Justice’s plan of action for the implementation of the reform of criminal justice provides for the computerisation of the judicial system, the creation of a consistent mechanism for collection and analysis of statistical data concerning the work of courts, as well as, other relevant measures in this field. Information is also awaited on the dissemination of the European Court’s judgment in the Kitov case.

2) Lack of effective remedy to challenge excessive length of proceedings (violations of Article 13): Articles 368-369 of the new Code of Criminal Proceedings provide for a defendant to ask for the transfer of his or her case to a competent court once a period of 1 or 2 years has elapsed since the beginning of the preliminary investigation, according to the gravity of the charges. The court to which the case is referred may order the prosecutor to bring the preliminary investigation to an end within two months or put an end to the penal proceedings.

In the Atanasov and Ovcharov judgment, the European Court recognised that the applicants used the possibility afforded to them in the Code of Criminal Procedure (as modified in 2003 to allow an accused person to request to have their case brought before the courts if the preliminary investigation had not been completed within a certain statutory time-limit) and successfully brought about the discontinuation of the criminal proceedings against them in November 2004 (§57 of the judgment).

The Bulgarian authorities indicated that the Ministry of Justice envisages proposing the introduction of a similar remedy concerning criminal proceedings pending at the trial stage.

• Additional information is still awaited in this respect.

II. Violations concerning pre-trial detention:

1) Unlawfulness of the applicant's detention after expiry of the time-limit for detention (violation of Article 5§1 in the Popov case): No specific measure appears to be necessary (prosecutor's decision to transmit the request for release to the court instead of ordering the applicant's release contrary to the domestic law, finding confirmed by the domestic court which received this request – see §§75-76 of the judgment of the European Court).

2) Excessive length of house arrest (violations of Article 5§3 in the cases of Nikolova No. 2 and Pekov): Although as from 01/01/2000 house arrest may only be ordered by a court, and not as formerly by a prosecutor, the Bulgarian authorities are invited to consider sending the judgment in this case to the competent courts with an explanatory note drawing their attention to the requirements of the Convention concerning the length and the justification of such measures (§§61-62 and 67-68 of the judgment of the European Court).

• Information is awaited on the dissemination of the case of Nikolova No. 2.  

3) Excessive length of the detention on remand, violation of the right to be brought before a judge (violations of Article 5§3) and lack of effective judicial review of the lawfulness of the pre-trial detention (Article 5§4): The cases of Al Akidi, Belchev, Dimov, E.M.K., Hamanov, Hristov, Kolev, Nedyalkov, Nikolova No. 2, Pekov, Popov, Toshev and Vachev present similarities to the Assenov (judgment of 28/10/1998) and Nikolova (judgment of 25/03/1999) cases closed by Resolutions ResDH(2000)109 and ResDH(2000)110, following a legislative reform of criminal procedure which took effect from 01/01/2000.

4) Violation of Article 5§4 in the Nedyalkov case (due the competent court's refusal to examine an applicant's request for release after expiry of the time-limit provided in domestic law for detention): The Court observed that the domestic court's decision was contrary to established practice in this field (§79 of the Nedyalkov case). For this reason, the dissemination of this judgment to competent courts appears to be sufficient measure for execution.  

• Information is awaited on the dissemination of the Nedyalkov case.

5) Lack of effective judicial review of the lawfulness of house arrest (violations of Article 5§4 in the cases of Nikolova No. 2, Pekov and Vachev): The Court noted (§55 of the Vachev judgment) that in 2000, after the facts in this case, the Code of Criminal Procedure was modified: Article 151§2 introduced a full initial and subsequent judicial review of this measure (see also Articles 62 and 270 of the new Code of Criminal Procedure).

6) Non-adversarial nature of proceedings before an appellate Court and before the Supreme Court (violations of Article 5§4): The E.M.K., Hristov and Kolev cases present similarities to that of Ilijkov (judgment of 26/07/2001), closed following the enactment in 2003 of a legislative reform of appeals against pre-trial detention (Resolution CM/ResDH(2007)158).

            7) Lack of prompt examination of the requests for release (violations of Article 5§4 in the Kolev and Popov cases): It has already been noted that following the amendments of the Code of Criminal Procedure which entered into force on 01/01/2000, courts are required to consider the requests for release within very short time-limits (see also Article 65 of the new Code Code of Criminal Procedure). However, as such time-limits are specified only at the preliminary investigation stage of criminal cases, it would be necessary to inform the competent courts of the requirements of Article 5§4 of the Convention concerning this matter, and more particularly of the obligation also to examine promptly requests for release made at the trial stage.

• Information is awaited in this respect.

8) Lack of judicial review of the lawfulness of the detention in the Toshev case (Article 5§4): The case presents similarities to the Asenov (judgment of 15/07/2005).

9) Lack of an enforceable right to compensation for detention in contravention of the provisions of Article 5 (violations of Article 5§5): The cases of Belchev, Hamanov and Vachev present similarities to the Yankov case (Application No. 39084/97, 1051st meeting, March 2009).

III. Publication of the judgments of the European Court:

The judgments in Belchev, Hamanov, Kitov, Nedyalkov, Nikolova No. 2, S.H.K., Sidjimov and Zhbanov have been published on the Internet site of the Ministry of Justice www.mjeli.government.bg. The Zhbanov judgment was also published in the first issue of the new quarterly journal European Law and Integration, published by the Ministry of Justice in 1000 copies for distribution to magistrates and academic circles.

- 8 cases against Croatia

35030/04           Karadžić, judgment of 15/12/2005, final on 15/03/2006

The case concerns the failure of the Croatian authorities to take adequate and effective measures to reunite the applicant with her son born in 1995 due to delays, first in the proceedings in application of the 1980 Hague Convention (on the Civil Aspects of International Child Abduction) and secondly in the enforcement of the decision delivered in 2003 requiring the applicant's child to be returned to her (violation of Article 8). 

The European Court noted in particular that the police did not show the necessary diligence in locating the child's father and twice allowed him to escape from their custody. Furthermore, the only sanction the authorities used against the father was the imposition of a fine and a detention order, neither of which appeared to have been enforced.

The Court reiterated that in cases of this kind the adequacy of measures taken is to be judged by the swiftness of their implementation, as the passage of time and change of circumstances can have irreparable consequences for relations between children and the parent who does not live with them.  

Individual measures:

            1) Applicant's situation at the time when the European Court delivered its judgment: In February 2005 the domestic court concluded the enforcement proceedings, having been informed by the applicant's lawyer that the child had been returned to his mother. The applicant submitted before the European Court that she had given no such instructions to her lawyer and that the child had not been returned to her (§§27 and 56 of the judgment). The Court, however, considered that the authorities cannot be held responsible for the conduct of the applicant's lawyer of her choice, and only took into consideration the period prior to February 2005. The Court also noted that the applicant did not appeal against the decision terminating the enforcement proceedings.

            2) Development: In May 2006, the applicant's representative complained to the Committee of Ministers that the 2003 decision requiring the applicant's child to be returned to her had not been enforced. In response, the Croatian delegation, recalling the European Court's findings concerning the termination of the proceedings relating to the enforcement of this decision, indicated that it would be necessary for the applicant to contact the authorities so that, if appropriate, they may consider measures to remedy her situation.

The applicant's representative indicated that he will keep the Committee informed as to how his client decides in this respect.

            3) Present situation of the applicant's child: The child is living with his father on the basis of an agreement between the parents, concluded in February 2005. The social welfare authorities adopted a decision on 15/02/2005 to approve this agreement. The decision indicates furthermore that the mother has access to her son on the basis of an agreement with the father. Reports by the social services of July 2006 and October 2008 indicate that the child is living with his father and his new family, regularly attends school, where he has very good marks, is in good health and is normally developed. It should be also noted that the applicant’s child spends two weeks per year with the mother and also has a mobile telephone allowing him to contact her.

General measures:

• Information required: the Croatian authorities were invited to present a plan of action for the execution of this judgment, in particular concerning the necessity of adopting measures to ensure that proceedings in application of the 1980 Hague Convention are carried out speedily and to guarantee the effectiveness of the enforcement mechanisms for decisions requiring the return of a child. The authorities' attention has been drawn to the experience of other member states having encountered similar problems (see the memorandum on the judgments of the European Court of Human Rights raising issues linked to international conflict of jurisdiction in child custody matters - CM/Inf/DH(2005)11).

The publication and dissemination of this judgment to the competent authorities (Ministry of Health, welfare centres, courts and police authorities) were also requested.

On 7/12/2007 the Croatian government decided to form a working group for the preparation of a legislation for implementation of The Hague Convention. The group has prepared a draft law amending the Family Act which takes into account the requirements of the European Court’s case-law. The draft is currently being examined by the Croatian government and should be sent subsequently to Parliament for adoption. On 20/10/2008 the Croatian authorities submitted the text of the draft law which is currently being assessed by the Secretariat.

• Information is expected on the progress in the adoption of the draft law.

The European Court's judgment was published on the Internet site of the Ministry of Justice http://www.provosudje.hr and in the legal journal Case law of the European Court of Human Rights, No. 2 (June-December 2005). It was sent out to all authorities involved in the application of The Hague Convention. In addition three seminars on the application of The Hague Convention have already been organised by the Judges' Academy, with lecturers from Germany and from the Secretariat of The Hague Conference.

                       - Cases concerning poor conditions of detention and lack of an effective remedy

73786/01           Cenbauer, judgment of 09/03/2006; final on 13/09/2006

33138/06           Pilčić, judgment of 17/01/2008, final on 17/04/2008

29660/03           Štitić, judgment of 08/11/2007, final on 31/03/2008

20877/04           Testa, judgment of 12/07/2007, final on 30/01/2008

These cases concern inhuman and/or degrading treatment inflicted on the applicants due to the absence of medical care during detention or the poor conditions of that detention (violations of Article 3).

In the Cenbauer case the European Court found that insufficient space in Lepoglava State Prison, in which the applicant was detained from January 2001 to April 2003, coupled with lack of access to a toilet for over twelve hours a day during the period of about two years and three months were in themselves sufficient to cause the applicant hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and amounted to degrading treatment.

In the Pilčić case, although the prison authorities have been aware since July 2003 that surgery had been recommended in connection with the applicant's kidney ailment, no steps were taken to have the surgery carried out. The European Court noted that by failing to organise the necessary surgery and thus leaving the applicant to suffer considerable occasional pain for a prolonged period with no prospect of being permanently relieved of his kidney problems, amounted to inhuman and degrading treatment.

In the Štitić case, the applicant was held from September 2004 to November 2005 and again from March to May 2006 in Unit 2 of Cospić Prison where he was locked in a damp cell with no access to natural light for about twenty hours a day. These conditions, combined with the length of the period during which the applicant was detained, amounted to degrading treatment.

In the Testa case, the European Court noted that the lack of requisite medical care and assistance for the applicant’s chronic hepatitis coupled with the prison conditions in Požega Penitentiary (in particular the excessive number of persons in the cell and the lack of proper hygiene or heating and the general state of repair) which the applicant had to endure since May 2005, amounted to inhuman and degrading treatment.

The Štitić case also concerns the lack of an effective remedy to complain about the prison conditions (violation of Article 13). The European Court noted that the declaration by the judge responsible for the execution of sentences at the Gospić County Court, that he was not competent to hear the applicant's complaint rendered an existing, otherwise effective, remedy ineffective in the circumstances of the case.

Individual measures:

1) Cenbauer: The applicant was released, having served his sentence, on 8/04/2003. The European Court awarded him just satisfaction in respect of non-pecuniary damages.

2) Pilčić: On 17/10/2008 the applicant underwent the required operation for kidney-stones. The European Court awarded him just satisfaction in respect of non-pecuniary damage.

3) Štitić: The applicant was moved to another prison before the European Court gave its judgment (May 2006). He submitted no claim for just satisfaction.

4) Testa: The applicant was released on 7/09/2007. The European Court awarded her just satisfaction in respect of non-pecuniary damages.

• Assessment: It seems that no individual measure is necessary in any of the cases.

General measures:

1) Violation of Article 3:

- Measures related to improvement of prison conditions: Following the Benzan case (friendly settlement, Resolution ResDH(2005)49 of 8 November 2002), the Croatian authorities undertook a number of measures including the renovation of Lepoglava State Prison. Further, since 2006 the Croatian authorities have undertaken a series of measures to increase the capacity of existing prison facilities, in particular in the Glina Penitentiary (creation of additional space for 104 prisoners, renovation of all sanitary facilities in so-called “Ward” facility, complete reconstruction of half of the facility), the Lipovica Penitentiary (creation of additional space for 100 prisoners), the Turopolje Penitentiary (creation of additional space for 14 prisoners)and prisons in Zagreb, Varaždin, Zadar (creation of additional space for 58 persons).

With a view to improving prison conditions in general, total amounts of 12,650,000 HKR in 2006 and 17,711,000 HKR in 2007 were spent on the needs of persons deprived of their liberty (underwear, clothes, footwear, working clothes, bed linen, pillows, blankets, mattresses, towels, utensils for personal hygiene, sporting equipment, kitchen utensils, library books, medical equipment, appliances for prison medical clinics, kitchen appliances, closets, beds and chairs for prisoners).

Further, the Croatian authorities are currently implementing projects related to construction of new accommodation capacities and to the adaptation and conversion of existing facilities within the prison system. In particular, the construction of the following new facilities is currently at various degrees of advancement: a new facility in the Prison Hospital in Zagreb (new space for 106 patients; also reconstruction of the existing facilities), a new facility in Glina Penitentiary (new space for 400 prisoners), a new facility in Zagreb Prison (new space for 376 persons temporarily deprived of their liberty), a new prison complex in Šibenik (new space for accommodation of 400 prisoners and 200 persons temporarily deprived of their liberty), an ongoing project of adaptation and conversion of existing facilities in Varaždin Prison (new space for 37 persons and adaptation of the basement to prisoners’ workshops).

- Measures related to medical treatment of prisoners: As part of a special project, the total number of prisoners infected with hepatitis and HIV has been determined. In order to improve medical treatment of prisoners, a number of measures have taken place, including interferon therapies, organisation of counselling for prisoners infected with different types of hepatitis in the Zagreb Prison Hospital, organisation of therapy groups for prisoners infected with different types of hepatitis in prisons and detention facilities.

The judgments of the European Court in the Cenbauer and Pilčić cases were translated and sent out to the competent authorities. They are also published on the internet site of the Ministry of Justice (www.pravosudje.hr) and in the periodical publication on the case-law of the European Court of Human Rights.

• Bilateral contacts are under way to assess the scope of measures adopted and the need for further measures, also taking into consideration the conclusions and the recommendations of the Report to the Croatian Government on the visit to Croatia in 2007, carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

2) Violation of Article 13: It should be noted that the Act on Enforcement of Prison Terms contains provisions governing living conditions and standards of hygiene in detention facilities as well as providing the possibility to complain about prison conditions. Under Article 17 it is possible to lodge a complaint directly to an execution judge who gives a decision after deliberation. Article 15 provides the possibility to lodge an appeal with the execution judge against acts and decisions of prison administrations. In the context of the Štitić case, the European Court acknowledged that the existing domestic legislation, i.e., the institution of civil proceedings for damages in combination with an urgent decision of a judge responsible for execution of sentences, with an immediate effect on the actual conditions of an individual applicant, satisfies the requirements of effective remedy (§82 of the judgment). It seems that the violation in the Štitić case was an isolated event caused by the conduct of the judge who declined his jurisdiction in the matter. The European Court noted that this conclusion does not call into question the effectiveness of the remedy as such.

• Assessment: Taking into account the direct effect of the European Convention in Croatia and the existence of appropriate legal framework, publication of the European Court's judgment and dissemination to the relevant courts and authorities seem to be sufficient.

40116/02           Šečić, judgment of 31/05/2007, final on 31/08/2007

The case concerns the failure of the public authorities to carry out an effective investigation into a racist attack by unidentified men in April 1999 on a person of Roma origin (violation of Article 3).

The European Court noted that the criminal proceedings remained pending at the pre-trial phase for almost seven years without the police bringing any charges. Thus, the police neither questioned anyone belonging to a skinhead group known to have participated in similar incidents nor the person identified by an eye-witness as an attacker. Moreover, the police did not seek a court order to compel a journalist who had interviewed a young skinhead who admitted having engaged in attacks on the Roma population, to reveal his source, although the law has provided such possibility since 2003. Finally, the police had not made use of any of the other investigative measures open to them or taken any action since 2001.

The European Court also observed that, knowing that the attack was probably the result of ethnic hatred, the police should not have allowed the investigation to drag on for more than 7 years without taking serious steps to identify or prosecute those responsible (violation of Article 14 in conjunction with Article 3).

Individual measures: As the police could not identify the attackers, the investigation into the attack was conducted against unknown perpetrators and was still pending when the European Court gave its judgment. In the meantime, the possible criminal offences have been subject to prescription (6 years for similar cases).

• Assessment: in these circumstances, no further individual measure appears necessary.

General measures:

- Legislative measures: In 2006 hate crime was introduced into the Criminal Code and the first judgments related to this crime have already been delivered. The amendment to Article 89 defines hate crimes as “any criminal act according to the Criminal Code, committed through hatred towards a person on the basis of his/her race, skin colour, sex, sexual orientation, language, religion, political or other belief, national or social background, property, birth, education, social status, age, medical status or any other attribute.”

- Institutional measures: A special Division for Terrorism and Extreme Violence has been established within the Zagreb Police Department. It is authorised to conduct criminal inquiries to identify perpetrators of hate crimes. The division is also authorised to carry out inspections of police stations within its territory and to provide assistance to police stations in more complex cases.

- Training:Since June 2006, the Ministry of Interior, in co-operation with the OSCE, has been conducting training on “Law Enforcement Officer Programme on Combating Hate Crime”. The main aims followed by the programme include: raising police officers’ awareness in identifying hate crimes and effective reaction to such crimes, ensuring specific investigation techniques and methods for successful detection of hate crimes and incidents which include identification of motives governed by prejudices in regard to hate crimes, exchange of police practice in gathering and analysing figures related to hate crimes.

The Ministry of the Interior plans to continue and intensify the education of police officers in relation to hate crimes by: incorporating the content of the programme in the national curriculum for police training, organising specialised training in the Department for professional training and specialisation of the Police Academy; providing additional training in police departments all over the country; organising lectures and open discussions on hate crime.It should be also noted that, as early as in April 2007, the Police Academy developed an educational plan for suppressing hate crime as a part of specialised courses at the Police Academy.

The judgment of the European Court has been translated and sent out to the Constitutional Court, the Supreme Court, the Ministry of Interior and State Attorney’s Office. It is also available on the Internet site of the Ministry of Justice (www.provosudje.hr) and will be published in a periodical.

• Assessment: under way.

24661/02           Buj, judgment of 01/06/2006, final on 01/09/2006

This case relates to the excessive length of civil proceedings concerning the registration of the applicant's ownership in the land registry (violation of Article 6§1). Proceedings began in May 2002 and were still pending when the European Court delivered its judgment. The case also relates to the lack of an effective remedy against the excessive length of this kind of proceedings (violation of Article 13).

Individual measures: On 27/09/2006 the Stari Grad Municipal Court recorded the applicant's ownership in the land register.

• Assessment: No further measure appears to be necessary.

General measures:

            1) Excessive length of land registry proceedings: In the course of the examination of this case before the European Court the Croatian authorities recognised the systemic nature of the problem (§25 of the judgment). A reform of the system for registration in the land registry has followed the following aims: to decrease number of pending land registry cases, to shorten overall duration of proceedings in land registry cases in accordance with the “reasonable time” requirement and to transfer all registry data on mortgage and ownership rights into electronic form.

• Reduction of the number of pending land registry cases: In the course of the implementation of the reform the number of pending land registry cases has been decreasing continuously. Thus, in the first quarter of 2007 there were 146,085 unsolved registry cases in Croatia, which makes 47,970 less cases than at the relevant time in 2006. This number has decreased to 109 379 unresolved cases in September 2008 (in this context it should be noted that, during the period from April 2007 to September 2008, 754 749 new cases were received by municipal courts, while the total number of resolved cases amounted to 787 036).

• Shortening of the duration of proceedings in land registry cases: As regards proceedings for registration of mortgage rights, in 2007 and 2008 the overall duration amounted to 7 days. As regards proceedings for registration of ownership rights, the overall duration amounted to 63 days in 2007 and to 78 days in 2008 (the authorities presented statistical data concerning the duration of land registry proceedings in particular before municipal courts in Croatia).

• Transfer of registry data: The transfer of all registry data into electronic form is in its final stage (in May 2007 99.17% of the data had been transferred into electronic form). It should be also noted that all application forms for initiation of registry proceedings are available in electronic form on Internet.

• Bilateral contacts are under wayto assess the information submitted and the necessity of further measures.

            2) Effective remedy against the length of such proceedings: When the European Court gave its judgment the constitutional complaint against the excessive length of judicial proceedings introduced in 2002 was not applicable to land registry proceedings (§§20 and 34 of the judgment). However, this practice has been changed subsequently and now it is possible to bring a complaint against the excessive length of land registry proceedings before the Constitutional Court.

• Assessment: No further measure appears to be necessary.

3) Publication and dissemination: The judgment of the European Court has been translated and sent out to the Supreme Court and other courts dealing with the case. The translation is also available at the internet site of the Ministry of Justice (www.pravosudje.hr) and should be published in a periodical publication on case-law of the European Court.

25774/05           Bistrović, judgment of 31/05/2007, final on 31/08/2007[4]

- 1 case against Cyprus

28025/03          Kolona, judgment of 27/09/2007, final on 27/12/2007 and of 02/10/2008 – Friendly settlement

This case concerns an unjustified interference in the applicant’s right to the peaceful enjoyment of her possessions due to the unlawful demolition of her home in 2000 (violation of Article 1of Protocol No. 1).

The European Court observed that the authorities demolished the applicant’s house on the basis of a requisition order adopted simultaneously with an order of compulsory acquisition in the public interest. However, at the material time it was still open to the applicant to appeal against the compulsory acquisition order and, what is more, at the moment the house was demolished, the compulsory acquisition order had been revoked because the property was no longer required in the public interest. The Court considered the demolition based on the temporary requisition order to be unlawful.

In addition it noted that the applicant had not been offered or granted any compensation for the demolition of her house despite the authorities’ duty both under the Constitution and the applicable legislation.

For the same reasons, the case also concerns the violation of the applicant’s right to the respect for her home (violation of Article 8).

Individual measures: In its Article 41 judgment, the European Court took note of an agreement reached between the parties. In this respect, the government undertook to compensate the pecuniary and non-pecuniary damages sustained by the applicant.

The applicant died on 23/12/04. The application was pursued by her husband, who is also the administrator of her estate.

• Assessment: no further individual measure appears necessary.

General measures:

            1) Violations of Article 1 of Protocol No. 1 and Article 8: The Court found violations of both articles as the demolition of the applicant’s home was arbitrary and therefore did not meet the requirement of lawfulness. The arbitrary nature of the demolition was based on three main factors:

- at the time of the demolition of her property, the applicant’s appeal against the compulsory acquisition order was still outstanding; there was no compulsory acquisition order in force, despite the appeal (it had been revoked); the applicant had not been notified of the revocation of the compulsory acquisition order and a new compulsory acquisition order was not issued until one year and 10 months after the first compulsory acquisition order had been revoked (§73 of the judgment);

- the applicant was not notified of the intended demolition of her property (§75);

- the applicant was not offered or granted any compensation for the demolition of her house (§76).

Article 23(3) and 23(8)(d) of the Cypriot Constitution and Section 11§37 of the Requisition Law provide the offer and prompt payment of compensation.

            2) Publication and dissemination: On 10/10/2008 the Cypriot authorities confirmed that the European Court’s judgment was placed (in English) in the Human Rights Section of the Legal Service web-site. Once it has been translated (the translation is in progress) it will be inserted in the Section of the Legal Service website which contains Greek translations of the European Court’s judgments. The Greek translation will also be transmitted to the Cyprus Bar Association for publication in the Cyprus Law Journal and on the Association’s web-site.

The judgment has also been sent to the authorities concerned and the reasons for the findings of the European Court explained. It will be sent again to the Supreme Court, the Presidents of the Cyprus Bar Association and of the Legal Affairs and Human Rights Parliamentary Committees and the relevant authorities.

Information is awaited on any measures envisaged or taken

- to reform practice in relation to the service of compulsory acquisition orders and other orders relating to state confiscation of property, particularly where such orders are contested before the domestic courts;

- on giving notification where property is to be demolished;

- on practice regarding the offer and payment of compensation where property has been confiscated or demolished.

Confirmation of the translation and subsequent publication of the judgment would be welcome.

- 2 cases against the Czech Republic

23499/06          Havelka and others, judgment of 21/06/2007, final on 21/09/2007

23848/04          Wallovà and Walla, judgment of 26/10/2006, final on 26/03/2007

These cases concern violations of the applicants' right to respect for their private and family life due to the placement of their children in public residential care on the grounds that the families' economic and social conditions were not satisfactory (violations of Article 8).

In the Wallovà and Walla case, the reason for the placement of the children in public care in November 2000 was that the family had not had a suitable and stable home since 1997 and that the applicants had been trying to evade the terms of a previous supervision order.

In the Havelka case, the applicant's three children (the other applicants) had been taken into public care in March 2004 on the sole ground that the family's economic and social conditions were not satisfactory and the family was threatened with eviction from a flat owned by the municipality of Prague because of outstanding rent payments.

The European Court noted that in both cases the fundamental problem for the applicants was the housing for the family. Neither the applicants' capacity to bring up their children, nor the affection they bore them had ever been called into question. Therefore, the underlying problem was a lack of resources, which the Czech authorities could have made up for by means other than the total separation of the family, which seemed to be the most drastic measure and could be applied only in the most serious cases. Consequently, the Court considered that although the reasons given by the Czech administrative and judicial authorities had been relevant, they had not been sufficient to justify such a serious interference in the applicants' family lives as the placement of their children in public institutions. The European Court reiterated the fact that a child could be placed in a more beneficial environment for his or her upbringing did not on its own justify a compulsory measure of removal from the care of the biological parents; there had to exist other circumstances pointing to the “necessity” for such an interference with the parents' right under Article 8.

Individual measures:

            1) Wallovà and Walla case: As of 2008, the two eldest children are of age. The care order concerning the third child had been annulled in February 2006 and he returned to live with his parents. The custody of the two youngest children was given to foster parents in January 2005, with whom they have been living since then. They are today 8 and 11 years old.

• Information provided by the Czech authorities (letters of 22/05/ and 5/12/2007 and 26/05/2008): The applicants had instituted civil proceedings with a view of terminating the foster care of the two youngest children and obtaining their custody again. Their application was dismissed by the Ceske Budejovice Regional Court in June 2007 on the grounds that the children have built strong emotional ties with the foster parents and that their outright removal would endanger the psychological development of the children. The applicants may apply for review to the Constitutional Court. Meanwhile, the authorities are working together progressively to restore ties between the two youngest children and the applicants and create conditions for their eventual reunion. The applicants have regular written contact with the two youngest children. A first, very positive meeting between the first applicant, the mother, and the foster-parents took place on 27/02/2008. A visit of the two elder children in the foster family was planned to be held in June 2008 to re-establish contacts with the two younger siblings. It seems that the first applicant would prefer that her children stay with the foster family until they finish school as they are used to their environment now.

• Bilateral contacts are under way to clarify the position of the applicants with a view to the foster care of their two younger children and on whether they have appealed to the Constitutional Court against the judgment of the Ceske Budejovice Regional Court.

• Further information is awaited on the meeting held in June 2008 and on the development of the family contacts.

2) Havelka case: The three children are today 14, 15 and 16 years old.

• Information provided by the Czech authorities (letters of 5/12/2007 and 3/03/ and 26/05/2008): The children are still in public care. However, their placement is subject to judicial review at six-month intervals and the court has to establish whether the conditions for public care still exist (Article 46§3 of the Family Code). The President of the competent court, the Prague 10 District Court, has promised to take into account the European Court's judgment when reviewing the situation of the applicant's children.

In March and April 2008, two meetings with the applicant, his legal representatives, and representatives of the Prague 15 City District took place at the Family Policy Department of the Ministry of Labour and Social Affairs to address the applicant's situation. The applicant is in regular contact with the children via telephone and he regularly sees them during holidays, when the children are staying with the applicant's sisters. The applicant can not afford the traveling expenses to visit the children for weekends; at the meeting he was informed of the opportunity to apply for an extraordinary travel allowance. For the moment the applicant has not applied at the courts for the termination of the children's institutional care because he intends to find appropriate housing for himself and the children first. This is difficult due to his economic situation. The applicant's only regular income is his partial disability pension and he has not yet succeeded in finding stable employment. A recent request for a rented flat in Varnsdorf, which is in the Decin area where the applicant's sisters live, was dismissed on the grounds that he had previously been evicted for unpaid rent from a flat in Prague. At the meeting the applicant was informed of the opportunity to apply for a welfare flat in the Prague 15 District; however the outcome depends on the availability of social housing and other factors and cannot be predicted for the moment. The Ministry of Labour and Social Affairs will also examine the possibilities for an affordable rented flat for the applicant and his children in the Decin area. Furthermore, the possibility of accommodation in a state-run family hostel in the Decin or Prague area will be explored.

• Information is awaited on whether further measures have been taken to help the applicant to find suitable housing for him and the children. Further information is awaited on whether there has been a judicial review of the placement of the children in public care and on the outcome of the decision.

General measures: According to a recent analysis by experts from the Czech Ministry of the Interior, many children are placed in public care institutions because of the economic situation of their parents and only few children in these institutions are actually orphans or ill-treated children. No efficient procedure seems to be in place to reassess whether the economic situation of the family has improved; the average stay of the children in the public institution is 14,5 years.

• Assessment: there seems to be a systemic problem concerning the placement of children from families with a difficult economic situation in public institutions.

• Measures taken:

a) Dissemination: A translation of the European Court's judgment in both cases has been disseminated to socio-legal protection agencies. The judgments have also been presented to the Justices of the Constitutional Court at a plenary session.

b) Amendments to Law on Socio-Legal Protection: Since 1/06/2006, this amended law imposes on the competent public authorities a duty to provide parents immediate and comprehensive assistance with a view to effectively reuniting the family following removal of children from their care. This task involves, among others, a duty to assist the parents in applying for financial and other kinds of material benefits to which they are entitled to within the scheme of state social support (new Section 12§2 of the Law).

• Measures envisaged (information received from the Czech authorities at a bilateral meeting on 24/10/2008): The initially envisaged creation of a National Office for Employment and Social Administration to improve the overall situation in the field of family policy has been dropped. Reflections are ongoing on alternative measures, the reflection period will be completed by the end of 2009.

• Information is awaited on further measures to address the systemic problem. Furthermore, information would be useful on the follow-up mechanism that takes effect after the placement of children to establish whether the conditions for public care still exist; clarification is awaited in this context on the scope of Article 46§3 of the Family Code, which provides for regular review of the placement of children in public care.

- 2 cases against Finland

18249/02           C., judgment of 09/05/2006, final on 09/08/2006

This case concerns a violation of the applicant’s right to respect for his family life due to a Supreme Court decision reversing two judgments of lower courts awarding the applicant custody of his children (violation of Article 8).

The custody had initially been awarded to the children’s mother, who lived in Finland with her female partner. Following the mother’s death in 1999, a District Court decision, confirmed at appeal, awarded custody to the father, who lives in Switzerland. However, the Supreme Court reversed these judgments, instead awarding custody to the mother’s partner, with whom the children had been living since 1993 and with whom they had continuously expressed the wish to live.

The European Court found that the Supreme Court, in giving exclusive weight to the children’s views without considering any other factors, in particular the applicant’s rights as a father, had effectively given the children, both of whom were at least 12, an unconditional power of veto. Moreover, the European Court found that the Supreme Court had acted without holding a hearing and without requiring any investigation or expert testimony which might have clarified the parties’ positions.

Individual measures: The children are now of age. The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained. However, the just satisfaction in respect of costs and expenses was seized by the Finnish authorities against previous debts of the applicant. The applicant has complained about this situation.

• Bilateral contacts are under way concerning this issue.

General measures: In view of the direct effect of the Convention and its case-law in Finnish law, the publication and dissemination of the European Court’s judgment to all judicial authorities appears useful to prevent new, similar violations. In this context it should be noted that the judgment of the European Court has been published in the judicial database Finlex (www.finlex.fi) and it has been widely disseminated inter alia to the Supreme Court, Supreme Administrative Court, Ministry of Justice and the Ombudsman for Children.

In addition, the Ministry of Justice was planning to modify the Law on Seizure so that the seizure of just satisfaction awarded by the European Court would no longer be possible. The working group which has been appointed to examine the problem of length of proceedings and the lack of an effective remedy has already proposed a similar amendment to the Law on Seizure. 

• Additional information is awaited on the results of the working group.

22508/02           F. and M., judgment of 17/07/2007, final on 17/10/2007

This case concerns the unfairness and the excessive length of criminal proceedings against the applicant for sexually abusing his daughter following statements she had made in 1991 to a psychologist.

Criminal proceedings against the applicant began in October 1995 and ended in December 2001 (six years and two months for three levels of jurisdiction) (violation of Article 6§1).

As regards the unfairness of the procedure, the child was 11 years old at the time of pre-trial investigation and 14 at the time of the District Court hearing. She was never questioned during the criminal proceedings. The European Court found, in particular, that neither the applicant nor his counsel were given the opportunity to question the child, who was minor, and the applicant was convicted on the sole basis of the child’s statement to the psychologist in 1991 (violation of Article 6§1 together with Article 6§3 (d)).

Individual measures: Criminal proceedings ended. Moreover, the applicant has the possibility to ask for the re-opening of domestic proceedings. The European Court awarded just satisfaction in respect of non-pecuniary damage suffered by the applicant.

• Assessment: no individual measure seems necessary.

General measures:

1) Fairness of the criminal proceedings: The case presents similarities with the W. case (Section 6.1), but certain differences need to be clarified, in particular following the 2003 reform of the Code of Judicial Procedure.

• Bilateral contacts are under way to clarify the applicable legislation and the scope of guarantees of the rights of the defence at the beginning and during the procedure.

Publication and dissemination of the European Court’s judgment are also expected.

2) Length of the proceedings: This case presents similarities with the Kangasluoma group (Section 5.1).

- 22 cases against France

39922/03          Taïs, judgment of 01/06/2006, final on 01/09/2006

This case concerns the death of Mr Pascal Taïs, the applicants' son, in 1993 while he was detained in a police cell in which he had been placed overnight to sober up.

The European Court found that the government had not been able to provide a plausible explanation for the discrepancy, or even contradiction, between the medical report drawn up when discharging the applicants' son from hospital and the autopsy report, and regarding the cause of the injuries found on his body, given in particular that the injuries could in any event only have occurred during his detention (§95); furthermore, the inertia of the police officers confronted with physical and mental distress of the applicant's son, and the lack of effective police and medical supervision, had constituted a violation of France's obligation to protect the lives of persons in custody (violations of the substantive aspect of Article 2).

The European Court also found that the French authorities had not conducted an effective and particularly a quick investigation into the circumstances surrounding the death of the applicants' son (procedural violation of Article 2). To reach this conclusion, the Court first took account of the fact that the investigation had been too long and had failed to establish the actual cause of Pascal Taïs’s death, the uncertainty in this respect growing with the passing of time (the Court in particular underlined the fact that certain steps of the investigation had been taken too late). The Court also took into account the facts that no detailed evidence had been taken from the girlfriend of the deceased, who twice failed to respond to summons issued by the judge, even though she had been at the police station on the night of the incident, that the investigating judge had refused to allow a reconstruction of the events, the conduct of a post-mortem psychological inquiry of dubious utility in establishing the truth and which was negative as regards the deceased, stressing inter alia the theory of a suicide and the importance given to it .

Individual measures: In its judgment, the Court itself noted that the violation was irreversible and, given that it had been impossible for the applicants to obtain an effective enquiry or adequate compensation, granted them 50 000 euros as just satisfaction for the non-pecuniary damage sustained.

Following this judgment, the Public Prosecutor, in accordance with his competence under Article 109 of the Code of Criminal Procedure, examined and on 12/01/2007 rejected the applicants’ request for a new investigation. The Public Prosecutor held that he did not have enough new grounds to change the initial conclusion of the investigation, i.e. that there were no sufficient charges against anyone.

Several other elements make it objectively impossible to rectify the shortcomings of the original investigation. By definition, it is not possible to change the fact that the investigation has been too long, nor that the investigating judge went too late to the scene to examine it (he went there but, even at that time, it did not help in understanding the reasons for the victim’s death), nor finally that the post-mortem psychological inquiry had been carried out. Furthermore, a reconstitution of the events would be objectively impossible, as the cell in which the events occurred does no longer exists as it was at the material time, works having been carried out between 1997 and 1998, i.e. since the material time. As to Mr. Pascal Taïs’ girlfriend, she has no known address.

Finally, it is recalled that observations had been communicated to the Committee of Ministers under Rule 9 by the Ombudsman (“Médiateur de la République”, an independent authority which does not accept instructions from any other authority according to Law 73-6 of 03/01/1973) and the National Human Rights Advisory Board (“Commission nationale consultative des droits de l'Homme”, another independent authority, giving advice and making proposals to the government, in particular in the field of Human Rights).

• Assessment: no further measure appears necessary.

General measures: Measures have been taken to make the European Court’s findings public so as to avoid new, similar violations. The judgment has been brought to the attention of competent judges. It was sent to the First President of the Court of Cassation and to the Public Prosecutor before the same Court (as well as to the Public Prosecutor before the Court of Appeal of Bordeaux, which was concerned in this case). It was also presented in the “Bulletin d’information de la cour de cassation” (BICC) No. 643 of 01/07/2006 and in “La Cour européenne des Droits de l’Homme – 2006 – Arrêts concernant la France et leurs commentaires”, a publication of the Observatoire du droit européen (Cour de cassation, July 2007). Finally, several articles have been published on this judgment in broadly disseminated law journals.

The attention of the police as also been drawn to this judgment, which is commented upon during police officers' training, in order to draw the consequences of this judgment in their work and to avoid new, similar violations. The judgment was also published and commented in the September/October 2006 issue of the Legal Bulletin of the Ministry of Interior. This bulletin is available on the intranet site of the Ministry, to which all the Ministry (including police) and Préfecture officials have access.

More generally speaking, the French government recalled first, that it has maintained important efforts for several years, taking into account the CPT's recommendations, to improve conditions of detention on remand. For example, a Circular which was issued on 11/3/2003 sets out measures to “modernise professional practice and the means devoted to detention on remand (…) in order to guarantee respect for the dignity of detainees”. Second, the government recalls that Law 2000-494 of 06/06/2000 created the National Commission for Policing Ethics (Commission Nationale de Déontologie de la Sécurité, www.cnds.fr), an independent authority entrusted with the mission of supervising respect of ethics by all those working in the field of security within the French republic, including the police.

Finally, it may be noted that the Director General of the Police requested the Police General Inspectorate (Inspection Générale de la Police Nationale) in December 2006, together with the ministries concerned and the medical doctors’ professional body, to carry out a study on placement in cells for sobering up. It was requested that this study “evaluate how the police take account of the rules on handling persons in a state of inebriation, to analyse the shortcomings and the difficulties encountered and to make proposals for reform.

• Assessment: no further measure appears necessary.

6253/03            Vincent, judgment of 24/10/2006, final on 26/03/2007, rectified on 25/09/2008[5]

9375/02            Saoud, judgment of 09/10/2007, final on 09/01/2008

The case concerns the violation of the right to life of the son and brother of the applicants: his death by suffocation in 1998 was a direct consequence of being held down on the floor by police officers (violation of Article 2).

The European Court considered that the way in which the applicant, a schizophrenic, was arrested, especially the force exerted by the police, was proportionate to the violence of his behaviour, not least towards members of his family. As to the events following his arrest, the applicant was in a dependant relationship with the public authorities who, as the Court recalled, had a positive obligation to protect his life. This obligation was not respected in this case. Although aware of the young man’s illness and although he no longer presented a danger to others (his feet and hands were restrained) the policemen held him down on the floor for 35 minutes, in the immobilisation position which caused his death. The Court stated that this type of immobilisation (“ventral decubitus”) was considered highly life-threatening. Furthermore, no medical examination, even superficial, was carried out.

The case also concerns the violation of one of the applicants’ right to a fair trial, in that it was materially impossible for the counsel assigned to her – at a late stage in the proceedings – to file pleadings with the Cour de cassation (violation of Article 6§1). As the applicant had been refused legal aid, she appealed this decision before the First President of the Cour de cassation. This appeal was ultimately successful but in the meantime the reporting judge had already deposited his report which, under Article 590 of the Code of Criminal Procedure extinguished her counsel’s right to file pleadings. The European Court noted that although a civil party’s right to lodge an appeal before the Cour de cassation is a limited right, the decision to grant the applicant legal aid implicitly recognised the existence of serious grounds for appeal and offered her the chance of being defended by specialised counsel.

Individual measures: In this case the cause of death is known: the Court found (§97) that the fact that Mr Saoud had been held down on the floor was the direct cause of his death by slow suffocation. The Court awarded 20 000 euros to the applicants, who had requested just satisfaction in respect of the non-pecuniary damage sustained, considering the circumstances in which their son and brother had died and the fact that the violation of Article 6 had prevented them from obtaining the criminal conviction of the persons responsible for this death and to mourn properly (§138).

• Assessment: Information appears necessary as to whether other measures have been taken or envisaged concerning the agents concerned.

General measures

1) Violation of Article 2: In addition to the matters presented above concerning the causes of the violation, the Court regretted that no specific instructions had been given by the French authorities regarding this type of immobilisation technique and that, although professionals trained in first aid were present, no first aid had been given to Mr. Saoud before his cardiac arrest.

• The French authorities have provided information which is being analysed.

2) Violation of Article 6§1:

• Information is awaited on measures taken or envisaged to guarantee the full effect of appeals before the First President of the Cour de cassation against decisions to refuse legal aid.

25389/05          Gebremedhin (Gaberamadhien), judgment of 26/04/2007, final on 26/07/2007

The case concerns the absence of an effective remedy whereby the applicant, an Eritrean journalist who had sought asylum in France at Paris-Charles de Gaulle Airport, might challenge the decision not to admit him to French territory so that he might defend his complaint concerning the risk of ill-treatment under Article 3 if he were to be repatriated (violation of Article 13, in conjunction with Article 3).

The European Court said that, given the importance it attached to Article 3 of the Convention and the irreversible nature of the harm that might occur if the risk of torture or ill-treatment materialised (which is obviously also the case where a state decides to send a foreigner back to a country where there are serious reasons to believe that he would be at such a risk), it was a requirement of Article 13 that the persons concerned should have access to a remedy with automatic suspensive effect.

Individual measures: After the applicant had lodged his application in this case, the European Court indicated to the French government, on 15/07/2005, pursuant to Rule 39 (interim measures) of the Rules of Court, that it was desirable not to remove him to Eritrea prior to the forthcoming meeting of the appropriate Chamber. On 20/07/2005 the French authorities granted him leave to enter France and then issued him with a temporary residence permit. On 7/11/2005 the applicant was granted refugee status. The Court noted that Article 33 of the Geneva Convention of 28/07/1951 on the status of refugees now stands in the way of his deportation to his country of origin and accordingly concluded, in its admissibility decision of 10/10/2006 (§36) that the applicant had lost the quality of victim of the alleged violation of Article 3.

Furthermore, the Court held that, in the circumstances of the case, the non-pecuniary damage suffered by the applicant is sufficiently compensated by the finding of a violation of Article 13.

• Assessment: In these circumstances, the judgment would not appear to call for individual measures, other than payment of the just satisfaction.

General measures:

• Origin of the violation: The “frontier asylum procedure“ is used to authorise or refuse territorial access to asylum-seekers arriving at airports without the necessary documents. This procedure comes under the Ministry of the Interior which decides whether or not to grant leave to enter France following an advisory opinion by OFPRA (the French authority for the protection of refugees and stateless persons). The alien is held in a “waiting area” for the time needed to examine whether or not their planned asylum application was “manifestly ill-founded”; if the authorities (Ministry of the Interior) deem the application to be “manifestly ill-founded”, they reject the request for leave to enter the country, and the individual concerned is automatically liable to be removed.

At the material time, the individuals concerned by this procedure could appeal against the ministerial decision refusing them leave to enter, but could also apply to the urgent applications judge. While this procedure appeared on the face of it to offer solid guarantees, it did not have an automatic suspensive effect, with the result that the person concerned could, quite lawfully, be deported before the urgent applications judge had given a decision. Hence there was no remedy “with an automatic suspensive effect”, required by the Convention.

• Measures adopted following the judgment: The authorities rapidly took provisional measures to avoid new, similar violations. In particular, on 26/07/2007, Air and Border Police officers were instructed to apply the provisions of the draft law, in course of adoption at the time, in advance (see below).

On 20/11/2007, the Law on the control of immigration, integration and asylum was adopted and promulgated (see articles L213-2, L213-9, L221-3 of the Code on Foreigners' Entry and Asylum, and article L777-1 of the Code of Administrative Justice).

The new provisions provide that foreigner who have been refused access to French territory in order to request asylum have 48 hours from the notification of this decision to request its annulment in a reasoned application to the Administrative Tribunal, which, with a single judge sitting (the President of the Tribunal or a substitute designated by him), must deliver judgment within 72 hours of being seised. The applicant may request the assistance of an interpreter. He may be assisted by his lawyer if he has one. If he does not, he may ask the judge to appoint him a lawyer. Decisions refusing leave to enter on grounds of asylum may not be executed before the expiry of a 48-hour delay following notification or, if the judge has been seised, before he has delivered its judgment. If the decision refusing leave to enter is annulled by the judge, the applicant is authorised to enter France so as to take the relevant steps before OFPRA.

Judgments of the President of the Administrative Tribunal or his substitute may be appealed within 15 days, before the President of the local Administrative Court of Appeal, or a substitute designated by him. This appeal has no suspensive effect.

The government is of the opinion that these provisions draw all the consequences of the Gebremedhin judgment, and stress the rapidity of the French authorities' reaction.

• Three sets of comments of ANAFE (“association nationale d'assistance aux frontières pour les étrangers”) and a joint comment by the National Human Rights Advisory Board (“Commission nationale consultative des droits de l'Homme”) and the Ombudsman (“Médiateur de la République”) have been brought to the attention of the Committee of Ministers, together with observations of the delegation. They concern among other things the scope of the measures resulting from the European Court’s judgment and the effectivity of the appeal provided for by the above-mentioned law. These comments have been made in conformity with Rule No. 9 (Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements).

• The examination of all this information is under way.

43546/02           E.B., judgment of 22/01/2008 – Grand Chamber

This case concerns the discriminatory treatment suffered by the applicant on account of her sexual orientation in the context of an application for authorisation to adopt, violating her right to the respect of her private life (violation of Article 14, combined with Article 8). The final rejection of her application by the competent local authorities (President of the Conseil Général of Jura, based on the recommendation of the local social services), confirmed by the administrative tribunals, was principally based on the ambiguous nature of the partner’s commitment to the adoption plan and the absence of a “father-figure” in the household.

The European Court found no discrimination with regard to the first ground for rejection. The Court, however, criticised the importance that was given to the second ground of rejection (absence of “father-figure”) concerning the adoption by a single person; in the Court’s view, in the whole procedure the reference to the applicant’s homosexuality was at least implicit and the influence of this element on the appreciation of the application was decisive. As a result, the applicant was treated differently. In view of the fact that national law authorised the adoption of a child by a single person and remained silent as to the necessity of a referent of the other sex and in view of the fact that the applicant was said to present undoubted personal qualities and aptitude for bringing up children by the Conseil d’Etat, the European Court concluded that the difference in treatment was discriminatory as it was based on the applicant’s sexual orientation; the illegitimacy of one of the grounds had the effect of contaminating the entire decision.

Individual measures: Without the authorisation denied the applicant in the proceedings at issue, adoption is legally impossible.

• The French authorities have provided observations on individual measures which are being examined.

General measures: Article 343-1 of the Civil Code provides that any single person over 28 may apply to adopt. French law therefore implicitly allows adoption by single homosexuals (§ 94 of the judgment).

• Assessment: the law itself does not seem in question. What is important is that in the case of an application for authorisation to adopt, there should be no distinction based on the sexual orientation of the applicant, a distinction which is not authorised under the Convention.

• Information provided by the French authorities: The judgment has been brought to the attention of the Conseil d’Etat and of administrative tribunals and courts of appeal via their intranet sites, with a view to ensuring the broadest possible dissemination of the judgment amongst administrative judges. The delegation will provide further information on the dissemination of the judgment to Conseils Généraux.

59450/00           Ramirez Sanchez, judgment of 04/07/2006 - Grand Chamber

This case concerns the lack of a remedy in domestic law whereby the applicant might challenge decisions prolonging his solitary confinement (violation of Article 13). The applicant was imprisoned in 1994 and sentenced to life imprisonment in 1997. From 1994 until 2002 he was kept in solitary confinement. At the material time, decisions to place detainees in solitary confinement or to extend that confinement were considered to be “internal measures”, of which no judicial review was possible.

Individual measures: The violation found relates to a period which ended in 2002. The applicant has not been held in solitary confinement since January 2006 (§76 of the judgment). Furthermore, it should also be noted, besides the absence of violation of Article 3, that the applicant made no claim before the European Court for compensation of any damage sustained.

• Assessment: in these circumstances, no individual measure appears necessary.

General measures: In a judgment of 30/07/2003, the Conseil d'Etat changed its case-law to admit that judicial review of solitary confinement decisions should be available before administrative courts. Henceforth a judge may, if appropriate, quash such decisions “given the importance of the effects they have on conditions of detention”.

This case-law change has now been confirmed by two Decrees on solitary confinement dated 31/03/2006, which change the legal status from “internal measures” (without possibility of judicial review) to “individual administrative decisions” (see Code of Criminal Procedure, Partie Réglementaire - Décrets en Conseil d'Etat, Chapter II), i.e. “unilateral acts of the administration”. As of right, it is possible to challenge the legality of these acts before the Administrative Courts (Conseil d'Etat, judgment of 17/02/1950, Dame Lamotte). Administrative courts are competent to rule on the external (form) and internal (law) legality of the act and are entitled to annul it. It is recalled that French Administrative Magistrates directly apply the Convention as interpreted by the European Court (see below, publication and dissemination of the judgment).

It is worth noting that the Decrees of March 2006 also provide further guarantees for detainees during proceedings concerning placement in solitary confinement: in particular, adversarial argument before the decision is taken, the possibility for the detainee to have free legal assistance; the obligation to give adequate reasons for the decision; the decision must be notified to the detainee and must indicate the appeals available and in which time period (indications given either in the decision itself, or in a notification that the detainee must sign), etc.

Prison staff have been informed in detail of the new regulations through a ministerial circular of 24/05/2006 and via training.

The European Court's judgment has been sent out to the relevant courts and authorities and published with comments on the Internet site of the Ministry of Justice. The authorities add that case-law provided since then shows that the 2003 change in the case-law is now “better known”, as required by the European Court in its judgment (§165), and that the law professionals make use of it.

• Assessment: no further measure appears necessary.

71611/01           Wisse, judgment of 20/12/2005, final on 20/03/2006

This case concerns a breach of the applicants' right to respect for their private and family life in that from November 1998 to February 1999, while they were in detention on remand their conversations with their relatives in prison visiting rooms were recorded (violation of Article 8).

According to the European Court, the systematic recording of conversations in a visiting room for purposes other than prison security is a denial of the sole purpose of such facilities, namely to allow detainees to maintain some degree of “private life”, including the privacy of conversations with their families. In this respect the Court considered that French law did not indicate with sufficient clarity how and to what extent the authorities could interfere with detainees' private lives, or the scope and manner of exercise of their powers of discretion in that sphere.

The proceedings resulted, in 2002, in the applicants being sentenced respectively to 25 and 20 years imprisonment by the Ille-et-Vilaine Assize Court (first degree of jurisdiction). They did not appeal this decision

Individual measures: It may be noted that in its (partial) decision on the admissibility of this application, the European Court rejected the applicants' complaint that the criminal proceedings had been unfair on account of the use of the recordings as evidence against them (complaint under Article 6§1) for non exhaustion of internal remedies.

• Information on the fate of the recordings would be useful

General measures: After the events a law was passed containing provisions relating to the recording of conversations in the context of proceedings concerning facts of organised crime (law No.2004-204 of 09/03/204, “adapting justice to the evolutions of crime”). On 14/06/2006, the Secretariat wrote to the French authorities requesting information concerning the exact scope of the new provisions, in order to assess the need to adopt further measures.

• Information is requested as to whether and to what extent Law (No. 2004-204 of 9/04/2004) may be applied to facts similar to those of the Wisse case. If it cannot apply, information would be required as to the measures the French authorities envisage to avoid the repetition of the violation found in this case.

59842/00           Vetter, judgment of 31/05/2005, final on 31/08/2005

This case concerns an interference in the applicant's right to respect for his private life. The applicant was suspected of intentional murder and the police, acting on the instructions of the examining magistrate, had bugged the apartment of a third person regularly visited by the applicant.

The European Court found in particular that as French law with regard to the planting of listening devices did not set out clearly enough the extent of the authorities' discretion or how this discretion should be exercised, the audio surveillance at issue was not “in accordance with the law” (violation of Article 8).

The case also concerns the unfairness of the proceedings before the criminal chamber of the Cour de cassation, due to the failure to communicate the report of the reporting judge to the applicant or to his lawyer, whereas this report had been submitted to the advocate-general (violation of Article 6§1).

The proceedings resulted in 2000 in a final judgment sentencing the applicant to 20 years' imprisonment.

Individual measures: The applicant may apply for the re-opening of his appeal on the basis of Articles L 626-1 ff of the Code of Criminal Procedure.

• Information has been requested concerning the fate of the recordings.

General measures:

            1) Violation of Article 8: On 19/12/2005, the Secretariat wrote to the French authorities drawing their attention to the conclusions of the European Court in this judgment (inter alia § 26) and inviting them to draw up a plan of action for its execution. Since this letter was sent, the Committee of Ministers has examined the case of Wisse against France (Section 4.2) in which judgment the Court mentions the Vetter judgment and the entry into force, subsequent to that judgment, of Law No. 2004-204 of 9/04/2004, the intention of which is to adapt the justice system to certain developments in crime. This Act contains provisions concerning the use of sound recordings in proceedings to establish facts relating to organised crime (Article 706-9 of the Coe of Criminal Procedure).

• Information is requested as to whether and to what extent Law (No. 2004-204 of 9/04/2004) may apply to facts similar to those of the Vetter case. If it cannot apply, information would be required as to the measures the French authorities envisage to avoid the repetition of the violation found in this case.

            2) Violation of Article 6: This case presents similarities to those of Reinhardt and Slimane-Kaïd (22921/93, Resolution DH(98)306) and Slimane-Kaïd No. 2 (Resolution CM/ResDH(2008)13).

12316/04           Asnar, judgment of 18/10/2007, final on 18/01/2008[6]

65399/01+        Clinique des Acacias and others, judgment of 13/10/2005, final on 13/01/2006

This case concerns the failure to respect the right of the applicants (clinics) to an adversarial trial in that their appeals were dismissed in 2000 on a ground considered to be mandatory by the Cour de cassation, which had not informed the parties beforehand of its intention to do so (violation of Article 6§1).

The European Court held that the applicants had accordingly been caught off their guard and could not reply before the Cour de cassation reached its decision, being thus deprived of a fair trial with regard to their claims relating to the reimbursement of certain sums by health insurance offices.

Individual measures: The applicants' claims concerned several hundred thousand euros. In view of the violation found, the European Court held that it could not speculate as to the outcome of the proceedings if Article 6§1 had not been breached.

• Information is awaited on measures taken or envisaged to erase the consequences of the violation for the applicants.

General measures: A summary of this judgment has been published in La Cour européenne des droits de l'Homme - 2006 - Arrêts concernant la France et leurs commentaires  - a publication of the European Law Observatory (Observatoire de Droit Européen) available on the Internet site of the Court of Cassation : http://www.courdecassation.fr/jurisprudence_publications_documentation_2/du_droit_2185/publications_2007_2333/).

• The French authorities have provided information which is being examined.

65411/01           Sacilor-Lormines, judgment of 09/11/2006, final on 09/02/2007[7]

34043/02           Mattei, judgment of 19/12/2006, final on 19/03/2007

73529/01           Miraux, judgment of 26/09/2006, final on 12/02/2007

These cases concern the unfairness of certain criminal proceedings (closed respectively in 2002 and 1999) against the applicants, because the charges against them were changed at a late stage in the proceedings without the necessary procedural guarantees, respectively before the Court of Appeal (Mattei) and the Court of Assizes (Miraux) (violations of Article 6§1 and 3 a and b). The European Court did not contest that the courts concerned might change the charges but underlined the right of the accused to be informed of such changes “with extreme care”, which was not done in these cases. The Court thus found that the applicants were not in a position to prepare and present their arguments regarding the new charges and their consequences, including the potential sentences.

Individual measures: The applicants may request re-examination of their convictions under Articles L 626-1 ff. of the Code of Criminal Procedure. In both cases, the European Court recalled that in principle, this is an appropriate means to redress the violation. In the Mattei case; the Court considered that the finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage irrespective of the applicant's claims. In the Miraux case, the Court awarded just satisfaction in respect of all heads of damage taken together.

• Assessment: no further individual measure appears necessary.

General measures: These cases present similarities to that of Pélissier and Sassi against France (judgment of 25/03/1999), in section 6.2 in view of the publication and dissemination of the judgment, so that courts may adapt their practice to the requirements of the Convention on the issue, and in view of the adaptation of the case-law of the Court of Cassation (see below). In the Mattei case, the Court found significant the government's contention that the Court of Cassation has referred since 2001 to Article 6§1 in the part of its judgments concerning “the Law”, and stated that as a rule it is for criminal judges to ensure that the charges truly correspond to the facts, but this implies an obligation to place the accused in a position to defend himself in respect of the new charges envisaged. However, it would appear that this new case-law is not always applied and, in any case, when the Court of Cassation delivered its judgments, in particular in the Mattei case (2002), it did not apply this case-law, although it was subsequent to the Pélissier and Sassi judgment.

The delegation indicated that the Miraux judgment was sent out to the Rouen Court of Appeal on 27/10/2006.

• Information is awaited to the effect that the 2001 case-law has been confirmed and that these judgments have been brought to the attention of the Court of Cassation and of criminal courts. Information is also requested on other measures possibly taken or envisaged by the French authorities.

                       - Cases concerning freedom of expression

54968/00          Paturel, judgment of 22/12/2005, final on 22/03/2006

71343/01          Brasilier, judgment of 11/04/2006, final on 11/07/2006

22567/03           Desjardin, judgment of 22/11/2007, final on 22/02/2008

64016/00          Giniewski, judgment of 31/01/2006, final on 01/05/2006

20893/03           July and S.A.R.L. Libération, judgment of 14/02/2008, final on 14/05/2008

12697/03          Mamère, judgment of 07/11/2006, final on 07/02/2007

These cases concern breaches of the applicants’ right to freedom of expression due to findings against them in proceedings for defamation, both criminal and civil, between 1994 and 2003, under the terms of Article 29 to 31 of the Law of 29/07/1881 on the freedom of the press (violations of Article 10).

In the Paturel case, the applicant received a criminal conviction on the basis of extracts from a book he had published. The European Court, unlike the domestic courts, found that the value-judgments at the origin of his conviction were in reality adequately based in fact.

The same conclusion was reached in the Brasilier and Desjardin cases which concerned civil courts’ findings against politicians on the basis of pamphlets and banners used in electoral campaigns.

In the Giniewski case, the civil courts found against the applicant in respect of an article he had published, the European Court considering, unlike the domestic courts, that the article did not really constitute an attack on religious convictions as such and was neither “gratuitously offensive” nor insulting, nor likely to incite disrespect or hatred.

In the Mamère case the applicant, a politician, was convicted for a statement he made on a television programme. The European Court considered that the utterances in question were as much value judgments as they were statements of fact and accordingly the applicant should have been able to exonerate his responsibility by establishing the good faith of the former and the factual truth of the latter, but this had not been the case. First of all, the grounds relied on by the domestic judge in establishing the absence of good faith demonstrated a “signal rigidity” in his reading of the applicant’s words, whilst secondly, Article 35 of the 1881 Act prevented the applicant from claiming an exceptio veritatis, the events in question being more than ten years before the material time.

Finally, in the case of July and S.A.R.L. Libération, the applicants, a newspaper publishing company and its director, were subject to both a criminal conviction (the director was fined) and a civil finding of libel for an article published in 2000. The European Court took the view that, as a matter of general interest was concerned, the applicants should have been able to exonerate their responsibility by proving their good faith. The domestic courts had denied this means of defence despite, among other things, the stylistic care used by the journalist and the fact that the article criticised the action of a civil servant in the exercise of his official duties.

Individual measures:

            1) Cases of Paturel, Mamère and July and S.A.R.L. Libération: The applicants were ordered to pay fines and damages. In the cases of Paturel and July and S.A.R.L. Libération, the European Court awarded just satisfaction covering the sums they were required to pay as a result of the proceedings at issue. In the Mamère case, the applicant submitted no claim in respect of just satisfaction.

As regards other possible negative consequences of the violations, in particular the inclusion of convictions in the applicant’s criminal records, as this was a result of judicial decisions, the principle of the parallelism of forms requires that their removal can only be brought about by another judicial decision. With this in mind it may be noted that, following the European court’s judgments, the applicants may apply for re-examination of the relevant domestic decisions by virtue of Article L 626 et seq of the Code of Criminal Procedure.

In addition to the re-examination of criminal proceedings, there are two further means of changing their criminal records if the applicants so wish. These procedures concern only part of the criminal record (Part 2, which is accessible to a certain number of public administrations specified in the Code of Criminal Procedure), but even if this is done, Part 1 is still visible to judges. This forms part of the process of rehabilitation which is an entitlement in certain cases (depending on time-limits which vary with the seriousness of the offence) and may be applied for before a court (Article 782 et seq of the Code of Criminal Procedure). The other means is a request to be dispensed from having an inscription in one’s criminal record, which enables convicted persons to ask the court which convicted them not to include the offence in Part 2 of the record.

• This information is being analysed.

            2) Brasilier, Giniewski and Desjardin cases: The applicants were ordered in civil proceedings to pay certain sums, but there seem to be no further negative consequence for them resulting from the violations. Either the damages were symbolic and the applicant’s have not asked for just satisfaction in respect of them (Brasilier and Giniewski) or the European Court has granted just satisfaction accordingly (Desjardin).

General measures:

            1) In all these cases (except point 2 below) it is the grounds relied upon by the domestic courts in finding against the applicants (i.e. their application of the relevant texts) which the European Court has called into question.

The authorities confirm that all the judgments (except Desjardin for the time being) have been sent out to relevant courts and directorates of the Ministry of Justice, so that they can be taken into account in practice.  The Paturel and Mamère judgments have also been published, with a commentary, on the website of the Office of European, International and Constitutional Law of the Directorate of Public Freedoms and Legal Affairs of the Ministry of the Interior. The Mamère judgment was also transmitted on 27/11/2006 to the Cour de cassation and the Prosecutor General at the Paris Court of Appeal. The Brasilier and Giniewski judgments have been sent to the Cour de cassation, which has issued a commentary accessible to all judges since July 2007 in the European Law Observatory.

            2) Mamère case - Impossibility of establishing the truth of matters dating back more that ten years: The law itself provides that “the truthfulness of defamatory facts may be always be proved unless […] (b) the utterance refers to matters which occurred more than ten years before”.

In the authorities’ view, the Mamère judgment does not constitute a fundamental or express attack on the validity of Article 35 of the 1881 Act on the freedom of the press. In particular the European Court specified that it was in the case of an utterance “on a matter of general interest” that defendants must be able to exonerate thelselves by proving the truthfulness of the facts alleged. The authorities accordingly deduce that, in other circumstances (such as facts concerning private life) it would be admissible to prohibit the adduction of evidence. In addition they consider that the Court seems, from a general point of view, to recognise a restriction on the exceptio veritatis based on the passage of time, inasmuch as “the longer ago the alleged circumstances occurred, the harder it is to assess their truthfulness”. The Court considers, however, that “as far as historic events or scientific matters are concerned, it may on the contrary seem that with the passage of time, the debate is enriched by new data which may promote a better understanding of reality”, as was the case here.

This being the case, the authorities indicate, national judges have a margin of appreciation in interpreting the legal norms, not least in the light of Article 10 of the Convention. They quote in this connection an appeal judgment from 1997 and conclude that the prerogative of the judge is sufficient, on a case-by-case basis, to ensure that the requirements of the law are reconciled with those of the Convention and the case-law of the European Court.

• All the information on general measures is being examined.

1914/02            Dupuis and others, judgment of 07/06/2007, final on 12/11/2007

This case concerns an infringement of the freedom of expression of the applicants, two journalists and publishing company, on account of their criminal conviction and their being ordered to pay damages following publication of a book containing information derived from an investigation under way at the time (Violation of Article 10). The investigation at issue concerned telephone tapping instigated by the office of the President of the Republic in the mid-1980s against, among others, leading figures in civil society (known as the  “les écoutes de l’Elysée”). The judicial decisions at issue were grounded on the violation of the doctrine of the confidentiality of investigations or of professional confidentiality in the interest of protecting the reputation and rights of others and of maintaining the authority and impartiality of the judiciary.

The European Court noted first of all the wide public interest in what could only be described as an affair of state. It noted that the person whose reputation and rights were to be protected was an influential public figure, involved in political life and in government at the highest level, and that in such a situation the limits of acceptable criticism were broader than they might be for a private person. In finding the violation, the European Court took into account not least the wide coverage already given to the case in the media when the book was published, the applicants’ respect for the professional ethics of journalism and the negative effect that the decisions at issue might have on the exercise of the freedom of expression.

Individual measures: Both journalists were found guilty in criminal law of using information obtained in breach of investigative or professional confidentiality and each ordered to pay a fine equivalent to 762.25 euros. The European Court’s judgment does not mention any other negative consequences of the violation (e.g. a mention of their convictions in their criminal records). Under Article L 626-1 ff. of the Code of Criminal Procedure, they may ask to have their convictions re-examined, following the European Court’s judgment.

In civil law, both journalists were jointly ordered to pay damages equivalent to 7 622,5 euros. The publishing company was found civilly liable. Despite these findings, the applicants made no request for just satisfaction before the European Court. Finally, it should be noted that the applicants’ book was not withdrawn and no copies were seized.

• Information has been provided by the French authorities on the individual measures (see details in the Paturel group), which is being examined.

General measures: The violation originated in the national judges’ assessment as to whether, in the circumstances of the case, the general public’s interest in being informed had prevailed over the “duties and responsibilities” imposed on the applicants in view of the origin of the published documents.

Similar problems are being examined in other cases regarding decisions of criminal or civil justice in violation of Article 10 (case of Paturel and other cases, also examined in the present section).

• Information has been provided by the French authorities, which is being examined.

5356/04            Mazelié, judgment of 27/06/2006, final on 23/10/2006[8]

62740/00           Matheus, judgment of 31/03/2005, final on 01/07/2005

This case concerns the fact that the applicant, following a judicial decision in his favour delivered in 1988, could not obtain police assistance to evict the unlawful occupiers of a plot of land he owned in Guadeloupe and which he finally sold in 2004, having lost all hope of recovering possession. The European Court found that the excessively sustained failure to execute the judicial decision in the absence of any exceptional circumstance to justify it, and the resultant uncertainty for the applicant as to the fate of his property, undermined his right to effective judicial protection (violation of Article 6§1). The Court also considered that the refusal in this case to provide police assistance in the absence of any public-interest justification had resulted in a form of private expropriation from which the unlawful occupant had benefited (violation of Article 1 of Protocol No. 1).

Individual measures: It is recalled first that the land at issue is no longer the applicant’s property and secondly that the applicant received various sums to compensate both for the loss of its use and also for the serious offence (faute lourde) committed by the state in refusing to take part in the execution of the judicial decision at issue. What is more, the European Court granted the applicant just satisfaction in respect of the non-pecuniary damage he suffered.

• Assessment: No further individual measure seems necessary.

General measures: The European Court held, in particular, that the refusal to grant police assistance originated in “an omission by the bailiffs (huissiers) and the Prefect rather than a deliberate refusal, in the particular local circumstances, to assist with eviction proceedings for the last 16 years” (§68). The national courts held that such refusal was illegal in the present case (see the case-law of the Conseil d’Etat mentioned in the European Court’s judgment: if refusal by the police to execute a judicial decision is not justified on serious grounds of law and order – as in this case – it is illegal, and the state is liable for a serious offence (faute lourde)).

Hence, the violation does not appear to have its origin in the law itself but in its implementation by the relevant authorities.

• In this context, information has been requested on measures taken or envisaged to avoid new, similar violations. In any event, publication of the European Court’s judgment and dissemination to all authorities concerned (in particular prefects) would seem appropriate.

• Information provided by the French authorities: information has been provided on publication measures, which is being examined.

- 6 cases against Georgia

30779/04           Patsuria, judgment of 06/11/2007, final on 06/02/2008

The case concerns an infringement of the applicant’s right to liberty and security due to his being detained on remand in 2004 on grounds which cannot be regarded as “relevant” or “sufficient” (violation of Article 5§3).

The European Court held that, because they relied essentially on the seriousness of the charges against the applicant, the Georgian courts had failed to address the specific circumstances of his case or to consider alternative pre-trial measures. The Court underlined that the fact that the last decision extending the applicant’s detention on remand was a standard template text with pre-printed reasoning was particularly worrying.

Individual measures: The Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained. The applicant is no longer detained on remand.

• Assessment: No further measure seems necessary.

General measures:

Ÿ Translation and publication of the Court’s judgment as well as its dissemination to the Prosecutor General’s Office, district courts, Regional courts and Supreme Court are awaited. Information on provisions currently applicable to detention on remand is also awaited.

71156/01           97 members of the Gldani Congregation of the Jehova’s witnesses and 4 others, judgment of 03/05/2007, final on 03/08/2007

The case concerns the inhuman and/or degrading treatments inflicted, in October 1999, on the applicants, a number of members of the Gldani Congregation of Jehovah’s Witnesses, by a group of extremist Orthodox believers, led by Vassil Mkalavishvili (known as “Father Basil”), without being able to obtain the protection of the state and an effective investigation into the events at issue (violations of Article 3).

The case also concerns the inactivity of the Georgian authorities, who failed in their obligation to take steps to ensure that the group of Orthodox extremists lead by Father Basil should tolerate the existence of the applicants’ religious community and allow them to enjoy the free exercise of their right to religious freedom (Violation of Article 9).

Lastly, the case concerns the fact that certain comments and attitudes of officials involved in the matter – comments and attitudes which cannot be considered compatible with the principle of equality of everyone before the law – gave the appearance of the authorities’ unofficial support for the activities of “Father Basil”, allowing him to continue to incite hatred through the media and pursue acts of religiously motivated violence (violation of Article 14 taken together with Articles 3 and 9).

Individual measures: The Court awarded just satisfaction to the applicants in respect of non-pecuniary damage sustained. The Committee's consistent position in this kind of cases is that there is a continuing obligation to conduct investigations where a violation of Article 3 is found.

• Information is awaited on measures taken or envisaged by the authorities to comply with this obligation.

General measures: It appears from the Court judgment that there has been no further violence against Jehovah’s Witnesses since 2004.

On 5/1/2007, the Secretariat received a copy of the Georgian Official Gazette No. 50 dated 24/10/2007 in which the European Court’s judgment, translated into Georgian, was published. The translated judgment was distributed to various state bodies. It is also available on the website of the Ministry of Justice: www.justice.gov.ge/gldani.pdf .

• Confirmation of the dissemination of the European Court’s judgment to the police and to all criminal courts, to draw their attention to the requirements of the Convention is awaited.

38736/04           FC Mretebi, judgment of 31/07/2007, final on 30/01/2008, rectified on 24/01/2008

The case concerns an infringement of the right of access to a court, and thus to a fair hearing, in that the applicant, the Football Club Mretebi, could not continue proceedings for damages following the refusal by the Supreme Court to grant its request for exemption from court fees (violation of Article 6§1).

The European Court observed in particular that the Supreme Court failed to secure a proper balance between the interest of the state in securing reasonable court fees on the one hand that of the applicant in vindicating its claim through the courts on the other.

Individual measures: The applicant did not request just satisfaction for non-pecuniary damage. The Court rejected the applicant’s claim for pecuniary damage on the ground that it could not speculate about the outcome of the domestic proceedings had they been in conformity with Article 6§1. The Court stated that, having regard to its finding in this case, and without prejudice to other possible measures remedying the unjustified denial of the applicant's right of access to the court of cassation, it considered that the most appropriate form of redress would be to have the applicant's points-of-law appeal of 5/01/2004 examined by the Supreme Court, in accordance with the requirements of Article 6§1, should the applicant so request.

• Information is awaited on the individual measures taken or envisaged in favour of the applicant, and in particular on the existence of provisions concerning reopening of proceedings in Georgian law.

General measures (No examination envisaged at the present meeting):

• Translation and publication of the judgment of the European Court are awaited as well as its dissemination to the Supreme Court. Information is also awaited on provisions currently applicable to exemption of court fees.

71678/01           Gurguenidze, judgment of 17/10/2006, final on 17/01/2007

The case concerns the failure by the Georgian Courts adequately to protect the applicant's private life following the publication in a newspaper of his photograph and a series of insulting interviews. The courts rejected the applicant's request for compensation for non-pecuniary damage.

The European Court considered that the wrong done to him and the absence of sufficient protection by the domestic courts would have caused the applicant to experience disadvantage in his private and professional life as well as a strong feeling of shame preventing him from facing others (violation of Article 8).

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

• Publication and dissemination of the Court's judgment (see below) will constitute an additional measure in order to erase the consequences of the violation found.

General measures: On 5/12/2007, the Secretariat received a copy of the Official gazette of Georgia, No. 55 dated 26/11/07, in which the European Court judgment, translated into Georgian, was published. The judgment translated was distributed to various state bodies. It is also available on the website of the Ministry of Justice of Georgia: www.justice.gov.ge/gurgenidze.pdf.

• Confirmation is awaited of the dissemination of the Court's judgment, to Georgian districts and regional courts, with a circular drawing their attention to their obligations under the Convention, as interpreted by the present judgment.

                       - Case concerning freedom of expression

12979/04           Gorelishvili, judgment of 05/06/2007, final on 05/09/2007

The case concerns an infringement of the right to freedom of expression of the applicant, a journalist at the material time, on account of her conviction for defamation in September 2003 for having published an article on the financial situation of a political personality in the light of the latter’s declaration of property (violation of Article 10).

The European Court noted in particular that there was no doubt that the applicant's freedom of expression was exercised in the context of a matter of important public interest and that the expressions condemned by the Supreme Court amounted to an opinion, albeit expressed provocatively. The Court concluded that the standards applied by the Supreme Court were not compatible with the principles embodied in Article 10, since it had not adduced relevant and sufficient reasons to justify the interference with the applicant's right to impart information and ideas on matters of public concern. The Court therefore concluded that the interference was not necessary in a democratic society.

Individual measures:No claim for pecuniary damage was made. The European Court considered that the applicant must have suffered some non-pecuniary damage for which the finding of a violation would not constitute sufficient compensation and therefore awarded the applicant a sum under this head.

• Assessment: In the light of the above, no further measure seems necessary.

General measures: The European Court stated that it was state of the Georgian law on defamation at the material time which had led to the decision of the Supreme Court. In particular, Article 18 of the Civil Code made no distinction between value-judgments and statements of fact, referring uniformly to “information” (cnobebi), and required the truth of any such “information” to be proved by the respondent party. Such an indiscriminate approach to the assessment of speech is, in the eyes of the Court, per se incompatible with freedom of opinion, a fundamental element of Article 10.

On 5/12/2007, the Secretariat received a copy of the Official Gazette of Georgia No. 54, dated 12/11/07, in which the European Court’s judgment, translated into Georgian, was published. The translated judgment was distributed to various state bodies. It is also available on the website of the Ministry of Justice of Georgia http://www.justice.gov.ge/gorelishvili.pdf.

• Information is awaited on the provisions currently applicable in matter of defamation.

40765/02           Apostol, judgment of 28/11/2006, final on 28/02/2007

The case concerns a violation of the applicant's right to a fair trial due to excessive restriction of his access to enforcement proceedings concerning a final judgment given in his favour on 21/11/2001. This judgment, remained unenforced as the applicant was unable to pay the court fees, demanded in advance, for the enforcement proceedings (violation of Article 6§1).

Because he was unable to bear “preliminary expenses associated with enforcement measures”, the authorities refused to initiate the enforcement proceedings.

Individual measures: The applicant did not submit any claim for just satisfaction. The Court held that Georgia should use all appropriate means to ensure enforcement of the judgment of 21/11/2001.

• Information provided by the Georgian authorities (30/10/2007): To date the public authorities have been unable to ensure enforcement of the judgment of 21/11/2001 because it is impossible to establish the whereabouts of the debtor and because it seems that the debtor does not possess any goods (neither vehicle, nor immovable property, he is not registered as a private entrepreneur and has no bank account). On 14/05/2008, the applicant informed the European Court that the domestic judgment remained unexecuted.

•Information is awaited

- on further measures taken to execute the judgment of 21/11/2001;

- on the existence of an appeal in Georgian law founded on the state's responsibility for defective functioning of the public justice service

General measures: The Court stated that by placing the responsibility of funding the organisation of the enforcement proceedings on the applicant, the state tried to escape its positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice.

• Information provided by the Georgian authorities (30/10/2007): The European Court’s judgment has been translated into Georgian, published in the Official Gazette No 13 of 13/03/2007 and sent out to various state bodies. The government is currently working on a draft law concerning enforcement proceedings which will incorporate international standards. Moreover, structural changes are intended, to raise the effectiveness of the Enforcement Department. 

• Information on the development of the draft and a copy of the draft are awaited. Moreover, detailed information on the administrations to which the Court’s judgment was transmitted would be very useful.

- 177 cases against Greece

40907/98          Dougoz, judgment of 06/03/01, final on 06/06/01

28524/95          Peers, judgment of 29/09/99, final on 19/04/01

                       Interim Resolution ResDH(2005)21

The Dougoz case concerns the conditions of the applicant's detention in 1997, in the Alexandras Avenue (Athens) Police Headquarters and the Drapetsona (Piraeus) police detention centre, which amounted to degrading treatment (violation of article 3) in particular due to the considerable overpopulation and the lack of bedding, combined with the excessive length of his detention under such conditions. The case also concerns the fact that the applicant's detention pending expulsion was not in accordance with a procedure “prescribed by law” in the sense of Article 5§1 of the Convention. The Court noted in this respect that the applicant’s detention, which had been ordered by a judicial decision, was based on the application by analogy of a ministerial decision applicable to the administrative expulsion of foreigners (violation of Article 5§1). Finally, the case concerns the fact that the domestic legal system did not afford the applicant an opportunity to have the lawfulness of his detention pending expulsion determined by a national court (violation of Article 5§4).

The Peers case concerns the conditions of the applicant's detention in 1994, in Korydallos prison, which amounted to degrading treatment (violation of article 3). The Court observed in particular that, for at least two months, the applicant had been obliged so spend a major part of each day on his bed in a windowless and unventilated cell in which the heat sometimes became intolerable. The case also concerns the opening by the prison administration of letters addressed to him by the Secretariat of the former European Commission of Human Rights, a measure considered by the Court as unnecessary in a democratic society (violation of Article 8).

Individual measures: The applicants are no longer detained in Greece. They were expelled in 1998.

General measures:

            1) Violations of Article 5§§1 and 4 in the Dougoz case: The detention and expulsion of aliens following a court order are now regulated by Inter-ministerial Decision 137954 (OJHR B 1255/16.10.2000), issued under Immigration Law 1975/1991 and making express reference to Article 5§1f of the Convention. According to this Decision, the detention of aliens under expulsion following a court order is now subject to control by the public prosecutor and the courts.

            2) Violation of Article 8 in the Peers case: The Penitentiary Code (Art 53§§ 4 and 7 of Law 2776/1999) may now be regarded as providing sufficient safeguards for the protection of prisoners' correspondence.

            3) Common violation of Article 3

• Information provided on Greek authorities' action plan:

Measures to improve detention conditions in police and other detention centres

In the area of immigration, Laws Nos. 2910/2001, 3386/2005 and 3536/2007 have been adopted. Henceforth, detention pending expulsions may not exceed three months (articles 44§3 and 76/3). Special reception centres with appropriate medical staff are also envisaged so as to accommodate adults, minors and families. One such centre was opened in 2007 in the Prefecture of Evros in Northern Greece. It has a capacity of 500. A second reception centre, which is viewed as model of its kind, has been in operation in Samos since November 2007. As regards the old detention centres ad Rhodope, Mytilini and Piraeus, improvements have been carried out in line with the observations of the committee for the Prevention of torture and of inhuman or degrading treatment or punishment (CPT). The number of persons detained in the Piraeus centre most not exceed 30.

In 2006, a new centre for the transfer of detainees has opened in Athens (Petrou Ralli Avenue). It has a total area 25,000m² and one of its wings is used solely for detainees pending expulsion. This wing has a capacity of 208 men, 150 women and 20 minors.

Seven new detention centres opened in various police headquarters, four of which on the border islands of Chios, Samos, Lesbos and Corfu.

In addition, the Central Policie Station in Alexandras Avenue is no longer used for detention pending expulsion, and the Drapetsona Detention Centre has been refurbished to provide the best conditions of cleanliness and dignity for detainees.

Measures to improve detention conditions in prisons

- Construction of new prisons: New prison building forms part of an overall reform leading to the modernisation of the whole penitentiary system. The first phase, comprising the construction of seven prisons with a total capacity of 2 700 was competed at the end of 2007.A new prison in Trikala opened in June 2006. Six more were completed in 2007, three of which are already in operation (in Domokos, Grevena and Thiva) and three more will open in 2008 (Drama, Serres and Chania). Each will have a capacity of 400 places.

The second phase will comprise the building of five new prisons and will begin on schedule in 2008, with a total capacity of 4 000 places.All these new prisons are constructed in accordance with international standards: the detainees are kept in cells of 2 persons; each cell is 15m² with toilet, shower and windows allowing their lighting and airing. Training and multi-purpose rooms, laboratories and libraries are also provided for.

Once the new prisons were built, prisoners from Korydallos, at issue in the Peers case, were transferred to Trikala and the recently opened establishment at Domokos, which has also received transfers from Komotini, Chios and Thessaloniki. Likewise, 350 women prisoners from Korydallos will be sent to the new prison at Thiva and the remaining detainees in Korydallos will be transferred to the new prison in Grevena.

- Important renovation work has been carried out in many prisons.

Special measures for preventing prison overpopulation

- Law 3388/2005 provides, inter alia, that the reception capacity of the present prisons may not exceed 300 detainees, while the future, new ones should not exceed 400;

- Law 3346/2005 provides the release under specific conditions of detainees who have served a part of their sentence. Since its application, 400 detainees have benefited;

- decision 138317/2005 of the Justice Minister introduced the possibility of measures alternative to imprisonment under conditions. These consist of community service; 102 public institutions participate in this programme with, (until September 2006), 756 beneficiaries;

- decision 8508/2005 of the Justice Minister has allowed the transfer to agricultural prisons (which are less crowded) of 650 detainees;

- a programme is under way to group detainees according to their age, the nature of their offence and the gravity of their sentence;

-as 35% of prisoners are foreign, there is a programme to ensure that they serve their sentences in their countries of origin. Special co-operation has been established with Albania (50% of foreign prisoners are Albanian nationals) with a view to building a new prison there, financed by Greece.

Training of prison staff: In 2005 125 prison surveillance staff members took part in seminars on the treatment of detainees.

Education and professional training of detainees:

a) “Second chance” schools are operational in the Korydallos and Larissa prisons, in co-operation with the Education Ministry, benefiting young detainees without professional training. Participation in these programmes results in the halving of detainees' sentences;

b) In minors' prisons now there exist primary and secondary schools run in cooperation with the Education Ministry.

Drug-dependent detainees: Support programmes exist for the support of these detainees, also providing for the follow-up of their treatment after release.

In 2005, for the first time, cultural, artistic and sport events took place in various prisons in the context of the programme “life is everywhere”.

Effective domestic remedy against detention conditions: Article 6 of Law 2776/1999 (Prison Code) and Ministerial Decree No. 58819/2003 provide the right to lay complaint, particularly regarding detention conditions, before the prison authorities and in particular the prosecutor/supervisor of the prison. National law moreover allows the person concerned to complain about detention conditions before the prosecutor at the relevant criminal court. Article 572 of the Code of Criminal Procedure provides the right to seise the prosecutor responsible for sentence enforcement and security measures who is moreover required to visit the prison at least once a week. If an application concerning detention conditions is rejected, detainees may, under 6 and 86 of Law 2776/1999 seise the competent enforcement tribunal to contest the rejection.

National courts’ case-law demonstrates that both requests to the prison council and appeals to enforcement tribunals may relate to conditions of incarceration in prison (e.g. cell size, the quality of ventilation or heating systems, means of communication with third parties (decisions 2075/2002 and 175/2003) of the indictment chamber of the Piraeus Criminal Court.

Article 7 of Ministerial Decree 58819/2003 provides the possibility of seeking information from the competent prosecutor concerning the various steps and appeals available, particularly regarding detention conditions.

It should also be noted that the European Court has found the remedies set out above to be effective and sufficient for the purposes of Article 35 of the Convention, having declared several complaints about detention conditions inadmissible on account of their not having been exhausted (Gehre against Greece, decision of 5/07/2007, Vaden against Greece, judgment of 29/03/2007 and Tsivis against Greece, judgment of 6/12/2007). 

Finally is should be noted that access to lawyers, consular authorities and NGOs is available seven days a week in all detention centres for foreigners. In addition, leaflets are available to detainees in 15 languages in all centres. A file is set up for each person detained pending expulsion in which all events during detention a recorded.

• Assessment: During the examination of these cases at the 1013th meeting (December 2007) reference was made to the concerns expressed in the Human Rights Commissioner's follow-up Report on Greece (CommDH(2006)13, 29/03/06, §§14-19) and in the report of CPT on its 2005 visit to Greece (CPT/Inf(2006)41) where CPT welcomed the measures already taken by Greece but noted that “there is still much to be done and the authorities need in particular to invest greater efforts to tackle the systemic deficiencies in the prison service and the establishments holding foreigners nationals” (§7).A new CPT report on, among other things, detention conditions and other centres of detention in Greece, was published in February 2008 (CPT/Inf(2008)3)

• On 14-15/10/2008, there was a high-level meeting in Athens between the Secretariat and the Greek authorities, including an exchange of views to assess the measures that had already been taken to execute these cases and clarify any questions these measures might raise. The possible need for further measures was also addressed. The Greek authorities committed themselves to provide written information relating to the points raised during the meeting.

35522/04           Stavropoulos Vassilios, judgment of 27/09/2007, final on 27/12/2007

The case concerns a breach of the principle of the presumption of innocence in that in 2004 the administrative court of appeal and the Council of State had expressed doubts as to the applicant’s innocence in their decisions on the annulment by administrative courts of his right to social housing on the grounds of deception and making a false declaration of his wealth. These doubts were expressed despite the fact that the applicant had been acquitted in criminal proceedings concerning the same matter (violation of Article 6§2). 

Individual measures: The European Court awarded just satisfaction in respect of the non-pecuniary damage suffered by the applicant. 

• Bilateral contacts are under way to assess the need for further individual measures.

General measures:

• The Greek authorities are invited to consider publishing of the European Court’s judgment in this case and to ensure its wide dissemination to the competent authorities to draw their attention to the Convention’s requirements concerning the respect of the principle of the presumption of innocence.

21091/04           Papa, judgment of 06/07/2006, final on 06/10/2006

The case concerns a violation of the applicant's right to a fair trial in that the Athens Assize Court, in December 2003, decided without providing a sufficient reasoning not to award the applicant compensation, following his acquittal, for pre-trial detention lasting 430 days (violation of Article 6§1).

The European court noted that the Assize court’s reasoning failed completely to address the question as to whether the applicant was “voluntarily responsible for his own detention” which, under Article 535 of the Code of Criminal Procedure is the only situation in which a court may refuse compensation to someone who whose remand in custody is followed by acquittal. The Court recalled that it had already criticised this practice of Greek courts (§14 of judgment).

Individual measures: The applicant may request reopening of the proceeding after the European Court's judgment, in accordance with Article 525A of the Code of Criminal Procedure.  The European Court has awarded the applicant just satisfaction in respect of pecuniary and non‑pecuniary damage.

• Assessment: in these circumstances, no further individual measures appear necessary.

General measures: The case presents similarities to that of Anastassios Georgiadis, supervision of which by the Committee was concluded following the adoption by Greece (especially in 2001) of a number of legislative and other measures to prevent similar violations (see Final Resolution ResDH(2004)82, adopted on 22/12/04). It is noted that Greek law, especially following the 2001 amendments of the Constitution and of the Code of Criminal Procedure, requires courts to provide detailed reasoning for all their decisions. The Greek authorities considered that these measures would prevent similar violations.

• However, given that that the facts of the present case occurred after these measures had been adopted, information was requested regarding additional measures envisaged or already taken.

• Information provided by the Greek authorities: The European court’s judgment has been translated into Greek and forwarded to the Ministry of Justice for dissemination to the judicial authorities. It is also available on the website of the State Legal Council (www.nsk.gr). It may be noted that judges’ training at the National Judicial School includes course content on human rights, as do practical training activities on international institutions (see Article 3 of Law No. 2236/1994 and Article 19 of the new Law No. 3689/2008.

• Assessment: bilateral contacts are in hand to assess whether further general measures are needed.

17721/04           Perlala, judgment of 22/02/2007, final on 22/05/2007

The case concerns a violation of the applicant’s right to a fair trial in that in 2003 the Court of Cassation refused to examine the applicant’s complaint related to the taking of evidence by the Court of Appeal on the sole ground of Article 6 of the Convention. As a consequence, the guarantees provided by this Article had not been taken into consideration and applied in this case (violation of Article 6§§1 and 3) which led to the applicant’s conviction and suspended prison sentence.

Individual measures: The European Court noted that the best redress for the violation found would be new proceedings or reopening of the proceedings upon application by the interested party (§35 of the judgment).

• Information provided by the Greek authorities (letter of 25/10/2007): Reopening is possible under Greek law and the applicant has the right to request it.

The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained.

• Assessment: No further individual measure seems necessary.

General measures: It is noted that even though in principle the Convention and the European Court’s case law enjoy direct effect in Greek law and practice (see e.g. appendix to Final Resolution ResDH(2004)82 on the Tsirlis and Kouloumpas and Georgiadis cases), the Court of Cassation has held to date that the right to a fair trial as guaranteed by Article 6 of the Convention is not an independent ground of appeal on points of law and may only be invoked in combination with other grounds provided in Article 510 of the Code of Criminal Procedure (§17 of judgment).

• Information provided by the Greek authorities (letter of 25/10/2007): The text of the judgment was sent to the Ministry of Justice on 26/06/2007 and afterwards to the Prosecutor General and the President of the Cassation Court for further dissemination to all judicial authorities. The Greek translation of the judgment was placed on the internet site of the Legal Office of the State (www.nsk.gr). The authorities pointed out that the violation in this case was due to the reasoning given by the Court of Cassation in its judgment, and therefore publication and broad dissemination of the judgment represents sufficient general measures of execution.

• The question of general measures is currently being considered by the Secretariat.

32186/02           Agga No. 3, judgment of 13/07/2006, final on 13/10/2006

33331/02           Agga No. 4, judgment of 13/07/2006, final on 13/10/2006

These cases concern the prosecution, convictions and sentencing to imprisonment (subsequently commuted to fines) under Article 175 of the Criminal Code (1997-2002), for having usurped the functions of a minister of a “known religion”, on the ground that in 1996 and in 1997 he had issued and signed messages in the capacity of the Mufti of Xanthi, following his election by Muslims in that area.

In both cases the European Court found that the applicant's convictions constituted an interference with his right, in community with others and in public, to manifest his religion in worship and teaching, which was not necessary in a democratic society (violations of Article 9).

Individual measures: The applicant is entitled to request the reopening of the criminal proceedings, following the European Court's judgments, under Article 525§1.5 of the Code of Criminal Procedure.

It is noted that the Court did not award any pecuniary damages given that the applicant failed to show that he had paid any amount as a fine (§§35 in both judgments).

General measures: These cases present similarities to those of Serif (judgment of 14/12/99, final on 14/03/00) and of Agga No. 2 (judgment of 17/10/02, final on 17/01/03 - it concerns the same applicant and similar facts) in which supervision by the Committee was concluded by Final Resolution ResDH(2005)88 (adopted on 26/10/05). The Committee took particularly into consideration the change of domestic case-law (especially by decisions and judgments of first-instance and appeal courts delivered in 2001 and 2002) interpreting Article 175 of the Criminal Code in the light of the European Court's case law. The Greek government had considered that the measures taken would prevent similar violations.

These positive developments have nonetheless proved insufficient to prevent new, similar violations in the present cases due to the failure of Greek criminal courts in 2000, and especially of the Court of Cassation in 2002, to give direct effect to the European Court's judgments (Serif and Agga No 2). Further general measures therefore appear necessary.

• Information provided by the Greek authorities: The judgments were translated and sent out to all the judges in the country between December 2006 and March 2007 together with a letter from the President of the Court of Cassation drawing attention to the reasoning and conclusions of the European Court. They were also sent to the Prosecutor General, who in turn sent them out to all Greek prosecutors.

In conformity with the annual training programmes of the National School for Magistrates, the European Convention on Human Rights has been taught in 2006 and 2007 as part of Constitutional law. More concretely, this training comprised in-depth analysis of the various rights protected by the Convention, as well as the procedures for application before the European Court. The direct effect of the Convention and the Court’s case- law has been a central element of these training programmes. Special emphasis was placed on cases against Greece and the consequences their execution produces on the legal system of the country. Rights related to the criminal-law sphere received particular attention.

Further, a number of ad hoc thematic seminars have been organised with the aim of updating the judges with most relevant and recent information on the Convention.

It should be noted that the domestic courts have often applied the Court’s case law directly in their decision-making; concrete examples have been provided by the authorities.

Copies of the training programmes of the National School for Magistrates for 2006 and 2007 were also provided.

• Assessment: underway.

35151/05           Bekir-Ousta and others, judgment of 11/10/2007, final on 11/01/2008

The case concerns the refusal of the competent courts to register the applicants’ association, on the sole basis of a suspicion that the applicants intended to promote the idea that an ethnic minority existed in Greece (violation of Article 11).

The European Court noted that the contested measure rested only on a simple suspicion concerning the true intentions of the founders of the association and concerning the actions that the association might pursue once it started to operate. Further, the European Court estimated that even if the real aim of the association was to promote the idea that an ethnic minority existed in Greece, this could not in itself constitute a threat to a democratic society. The Court noted in this connection that nothing in the statute of the association indicated that its members would engage in violence or non-democratic or anti-constitutional actions. Finally, once the association was founded, the relevant court could order its dissolution if it subsequently pursued an aim different from that stipulated in the statute or if its functioning turned out to be contrary to public order. As a result, the Court concluded that the contested measure was disproportionate to the objectives pursued.

Individual measures: The Court concluded that the finding of a violation constituted sufficient just satisfaction for the non-pecuniary damage sustained.

• Information is awaited as to whether the applicants might make a new application to have their association registered.

General measures: Publication and wide dissemination of the European court’s judgment to all competent courts, accompanied by an explanatory letter emphasising the requirements of the Convention in the field of freedom of association as spelled out in this judgment, appear necessary.

• Information is also awaited on the possible organisation of targeted training activities for judges in this area.

 

                        - Cases mainly concerning freedom of expression

19331/05          Katrami, judgment of 06/12/2007, final on 06/03/2008

28504/05           Kanellopoulou, judgment of 11/10/2007, final on 31/03/2008

The case concerns disproportionate interference with the freedom of expression of the applicants, one of whole was a journalist sentenced in 2004 to a year’s imprisonment suspended for having written an article about a judge using language which was considered abusive, the other being given a suspended sentence of five months on account of two articles in which she expressed herself very frankly concerning a physician at whose hands she had suffered (violations of Article 10).

The European Court stressed in the first case that a prison sentence imposed in the context of a case concerning freedom of expression of journalists is not compatible with the requirements of Article 10, except in exceptional circumstances having a serious effect on the rights of others, such as hate speech or incitement to violence. The Court also noted that in these cases the protection of the reputation of the claimants could have been ensured by the means offered in civil law. Moreover, in the first case the Court indicated that the national courts had not made a distinction between “facts” and “value judgments” and had only looked into whether the words used by the applicant were likely to impinge upon the reputation of the claimant.

The Kanellopoulou case also concerns the excessive length of civil proceedings brought by the applicant for damages against the physician concerned (violation of Article 6§1).

Individual measures: The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage.

• Information is awaited on measures taken to erase the legal consequences of the conviction of the applicants and in the Kanellopoulou case on the outcome of the civil proceedings still pending according to the judgment of the European Court..

General measures:

            1) Violation of Article 10: It may be noted that the direct effect of Article 10 in the field of freedom of the press has been expressly recognised in Greek case-law (see Council of State judgment 253/2005, referred to in the framework of the Rizos and Daskas case, Section 6.2). In this context, circulating the European Court’s judgments to courts competent in this field appears a sufficient measure of execution. 

• Information is awaited on the publication and dissemination of the European Court’s judgments, as well as any other measure adopted or envisaged to prevent similar violations.

            2) Violation of Article 6§1: The Kanellopoulou case presents similarities to the Konti-Arvaniti case (Manios group, Section 4.2).

11801/04           Tsalkitzis, judgment of 16/11/2006, final on 26/03/2007

The case concerns the violation of the applicant's right of access to court in that Parliament (in 2002) and the Speaker (in 2004) rejected a request by the Prosecutor before the Court of Cassation to lift the parliamentary immunity of a member of parliament, elected in 2000, against whom the applicant, a property developer, had lodged a complaint for blackmail, abuse of office and subornation, offences allegedly committed in 1997 when the parliamentarian had been mayor (violation of Article 6§1).

The European Court noted that in such cases the lack of a clear link with a parliamentary activity calls for a narrow interpretation of the notion of proportionality between the aim pursued and the means employed, especially when the restrictions of the right of access to a court emanate from a decision of a political organ (§49 of judgment). Besides, the Court considered that the suspension of every criminal proceeding against a member of parliament during their parliamentary mandate would result in a substantial amount of time elapsing between the commission of the acts complained of and the opening of criminal proceedings that would render the latter uncertain, particularly regarding evidence (§50 of judgment).

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained.

• Bilateral contacts are under way to assess whether further individual measures are needed.

General measures: It may be noted that according to Article 62§1 of the Constitution, during the parliamentary term, members of parliament may not be prosecuted, arrested, imprisoned or otherwise confined without prior leave granted by Parliament. Pursuant to Article 83 of Parliament's Regulations, requests for leave to prosecute a member of parliament are first examined by the Parliament's professional ethics committee which should take into account, inter alia, whether the act complained of is linked to a political activity of the member of parliament (see §§16-17 of judgment). In this context, it is worth noting that in similar cases against Italy (see Cordova case, judgment of 30/01/03, final on 30/04/03; De Jorio case, judgment of 03/06/04, final on 10/11/04, section 6.2), there has been a change in the case-law of the Italian Constitutional Court, according to which it is no longer possible to extend the scope of parliamentary immunity to acts and statements which are not connected with parliamentary duties.

The Greek authorities have indicated that the European court’s judgment has been notified in Greek translation to the Speaker of Parliament for transmission to parliamentary committees as well as to all members. The judgment has also been sent to the Ministry of Justice and subsequently to the President of the Court of Cassation and the Prosecutor General for dissemination to judicial authorities. The text is also available on the internet site of the State Judicial Council (www.nsk.gr).

• Assessment: It transpires from the European Court’s judgment that the violation found does not originate in the legal texts relating to the immunity of members of Parliament, but rather to the way in which they were applied here. This being the case, and taking account of the direct effect given in Greek law to the judgments of the European Court, publication and dissemination of the judgment in this case should constitute sufficient measures of execution. This said, examples of changed practice of parliamentary bodies in this area would be helpful, given that the European Court’s case-law (judgment in Cordova against Italy, see above) had been unsuccessfully invoked before them (§§12-15 of the judgment).

2898/03            N.T. Giannousis and Kliafas Brothers S.A., judgment of 14/12/2006, final on 23/05/2007

The case concerns the violation of the applicant company's right of access to a court, as in 2002 the State Council (the supreme administrative court) discontinued proceedings pending before it to set aside a prefectoral decision on the ground that it was no longer in a position to rule on the merits. The State Council considered that the prefectoral decision at issue, revoking the applicant's authorisation to use its factory (which dated from 2000, the authorisation being valid until April 2001) was already no longer in force when the Council was called upon to consider the matter in 2002, having been rescinded in December 2000 (violation of Article 6§1).

The European Court considered that the State Council had relied on a legal device to give effective confirmation of the prohibition on the continued use of the factory without taking a decision on the lawfulness of the administrative acts at issue, thus failing in its obligation to determine the question submitted to it, which is the essential function of a court (§28 of judgment).

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained.

• The Greek authorities submitted information concerning individual measures on 25/10/2007. Bi-lateral contacts are underway on this question.

General measures: The European Court’s judgment has been translated into Greek and sent to the Ministry of Justice and to the President of the State Council, for dissemination to all the administrative tribunals of the country. The judgment is also available on the State’s Legal Council’s Internet site (www.nsk.gr). It was also published in 2007 a law journal published by the Athens’ Bar.

• Assessment: under way

- Cases concerning various violations in the context of land expropriation proceedings

46355/99          Tsirikakis, judgment of 17/01/02, final on 10/07/02 and of 23/01/03, final on 09/07/03

39725/03          Anastasiadis, judgment of 10/05/2007, final on 10/08/2007

48392/99          Hatzitakis, judgment of 11/04/02, final on 11/07/02

51354/99          Karagiannis and others, judgment of 16/01/03, final on 16/04/03 and of 15/07/2004, final on 15/10/2004

51356/99          Nastou, judgments of 16/01/03, final on 16/04/03 and of 22/04/04, final on 22/07/04

17305/02           Zacharakis, judgment of 13/07/2006, final on 11/12/2006

50824/99          Azas, judgment of 19/09/02, final on 21/05/03

2531/02            Athanasiou and others, judgment of 09/02/2006, final on 09/05/2006

61582/00          Biozokat A.E., judgment of 09/10/03, final on 09/01/04

55794/00          Efstathiou and Michaïlidis and Cie Motel Amerika, judgment of 10/07/03, final on 10/10/03

58642/00          Interoliva Abee, judgment of 10/07/03, final on 10/10/03

58634/00          Konstantopoulos AE and others, judgment of 10/07/03, final on10/10/03

73836/01          Organochimika Lipasmata Makedonias A.E., judgment of 18/01/2005, final on 18/04/2005

32730/03          Ouzounoglou, judgment of 24/11/2005, final on 24/02/2006

2834/05            Sampsonidis and others, judgment of 06/12/2007, final on 02/06/2008

Most of these cases concern various violations of the applicants' right to the peaceful enjoyment of their possessions in the context of land expropriation proceedings (violations of Article 1 of Protocol No. 1). Other main issues raised are the following:

a) deprivation of land without compensation or with depreciated compensation; b) excessively lengthy proceedings or multiplication of proceedings in order either to obtain full compensation following expropriation or to have the decisions of executive authorities ordering expropriation be annulled; c) lack of a national land registry.

Some also concern the excessive length of civil proceedings in the context of expropriations, or the administration's refusal to abide by judicial decisions fixing compensation for or lifting expropriation (violations of Article 6§1).

Individual measures:

            1) Tsirikakis group: The applicants in all these cases have been awarded just satisfaction by the European Court, including compensation in respect of the pecuniary damage suffered.

• Information provided by the Greek authorities (on 18/02/2008): In the Tsirikakis case, the state's appeal has been finally rejected by the Court of Cassation and no further proceedings are pending; In the Nastou case the Athens regional court delivered its judgment (n°2797/2007) in April 2007 concerning the property rights on the plot of land at issue. This regional court ordered a new assessment concerning the boundaries of the plot of land.

• Additional information is required: on the outcome of the domestic proceedings in the Nastou case. Additional information is also awaited on the outcome of the proceedings for damages before the Kalamata Court of Appeal in the Anastasiadis case.

            2) Azas group: The European Court awarded just satisfaction to the applicants who claimed it.

• Information provided by the Greek authorities: The proceedings initiated by some of the applicants in the Azas case against the Thessaloniki Court of Appeal's judgment 362/2004, awarding the appellants the sum of 457 435 euros with interest, have been closed by the Court of Cassation's judgment 54/2006 rejecting the appeal as inadmissible. In the case of Athanasiou and others, the European Court awarded the applicants just satisfaction covering their pecuniary damage. In addition, three of the applicants have been awarded compensation by domestic courts for the fact that they can no longer build on the unexpropriated part of the land following its division.  In the Ouzounoglou case, the European Court considered that it was not necessary to award just satisfaction for pecuniary damages as the applicant submitted no claim in her written submission on the merits.

General measures: A new Code of Expropriation has been adopted (Law 2882/2001, amended by Law 2985/2002 and by Article 33 of Law No. 2971/2001)), following the facts of these cases, providing strict deadlines in proceedings and the possibility of additional compensation in cases of delay. The new Code of Expropriation also provides that the presumption that owners of properties adjacent to a new road had to contribute to the expropriation costs in relation to roadside properties as they would profit from the building of the road is no longer irrefutable. Under this law, legal costs incurred in the expropriation proceedings are now the state’s responsibility and no longer part of the compensation for expropriation.

New domestic case-law on land expropriation was adopted by the Court of Cassation (in several judgments in 2004 and 2005) which is in accordance with the European Court’s requirements as regards the need for “global evaluation” in such proceedings. From now on the courts are competent to rule in the same proceedings on:

-       the amount of the overall compensation to be awarded (Cassation court, plenary session 10/2004, as well as 1060/2008, 627/2007, 641/2004);

-       the award of compensation for the depreciation of the land that was not expropriated and for the work done (Cassation court, plenary session 31/2005, as well as 431/2008, 1054/2008, 2/2007) (Athens Court of Appeal 2472/2005, 1333/2005);

-       the status of the owner;

-       the amount of damages to be awarded.

It must be noted that the European Court noted the change in the Cassation Court’s case-law in the Athanasiou case (§18).

All the cases before the European Court were dealt with by the domestic courts on the basis of the repealed code of expropriation and prior to this change in the case-law.

Extensive legislative measures to accelerate proceedings in civil courts (mainly concerns the cases of Tsirikakis, Karagiannis and others, Nastou and Anastasiadis) were taken between 2001 and 2005 (see Final Resolution DH(2005)64 on Academy Trading Ltd and others and other cases). Since the entry into force of this new legislation, first-instance proceedings are now concluded within 1½ years maximum, while in the past they lasted up to four years.

Legislation for providing an effective domestic remedy in this context is also currently under preparation (see the Manios group).

The European Court’s judgments, translated into Greek, have been sent by the Ministry of justice, to the judicial authorities and are available on the internet site of the State Legal Council (www.nsk.gr).

• Assessment is underway.

- Cases concerning the failure to implement final judicial decisions

32636/05           Moschopoulos-Veïnoglou and others, judgment of 18/10/2007, final on 18/01/2008[9]

55828/00          Satka and others, judgments of 27/03/03, final on 27/06/03 and of 02/03/2006, final on 02/06/2006

38752/04           Georgoulis and others, judgment of 21/06/2007, final on 21/09/2007

38878/03          Beka-Koulocheri, judgment of 06/07/2006, final on 06/10/2006

- 137 cases of length of judicial proceedings and of lack of an effective remedy

                        (See Appendix for the list of cases in the Manios group)

                        Interim Resolution CM/ResDH(2007)74

In all these cases violations of Article 6§1 were found on account of the excessive length of proceedings before administrative courts and the Conseil d’Etat, civil and criminal courts. Some of these cases also concern the absence of an effective remedy making it possible to bring a complaint against the length of the proceedings (violations of Article 13).

The Diamantides No. 2 case also concerns a violation of the principle of presumption of the applicant's innocence in that, in 2000 and 2001 the indictment chambers of the Athens Court of Appeal and of the Court of Cassation, in decisions dismissing complaints by the applicant, used terms of a particularly categorical and vague nature which left no doubt that the applicant had committed acts of which he had already been acquitted or for which he was facing charges in criminal courts (violation of Article 6§2).

Individual measures:

            1) Excessive length of proceedings of judicial proceedings (Article 6§1): The Committee drew the authorities’ attention to the cases in which the proceedings were still pending when the European Court delivered its judgments: Inexco, Athanasiou, Kontogeorgas, Lalousi-Kotsovos, Karellis, Oikonomidis, Leonodopoulos, Karahalios No. 7, Karahalios No. 8, Papasteriades, Papastefanou, Kaparos, Gikas, Peca, Behar Metushi, Luan Metushi and Katsivardelos, Sakkopoulos No. 2. The other proceedings are closed

• Information provided by the Greek authorities: In the Inexco case, the applicants took no action between 2004 and 2007 to resume the proceedings. The authorities indicated that under the Code of Civil Procedure, parties are required to take action to bring their case forward.

The applicants in the Sakkopoulos No. 2 case contested the judicial order to send them before the correctional tribunal, and the case was transmitted to the Prosecutor before the Court of Cassation. A hearing took place before the criminal chamber of the Court of Cassation on 21/05/2008.

In the Vaden case the proceedings ended in 2007 before the Court of Cassation.

In the Vasilev case the proceedings ended on 27/03/2007 with the conviction of the applicant by the court of appeal.

In the Dalidis case, the proceedings ended in 2006.

• Information is awaited on the current state of the domestic proceedings, and if necessary on their acceleration, in the cases of Inexco, Sakkopoulos No. 2, Athanasiou, Kontogeorgas, Lalousi-Kotsovos, Karellis, Oikonomidis, Leonodopoulos, Karahalios No.7, Karahalios No. 8, Papasteriades, Papastefanou, Kaparos, Gikas, Peca, Behar Metushi, Luan Metushi and Katsivardelos.

            2) Violation of the presumption of innocence (Article 6§2): In the Diamantides No. 2 case, it is noted that the applicant was acquitted in the criminal proceedings against him, which were pending at the material time.

General measures: In June 2007, the Committee of Ministers adopted Interim Resolution ResDH(2007)74 recalling in particular its Recommendation Rec(2004)6 on the improvement of domestic remedies and urging the Greek authorities to accelerate the adoption of legislative and other measures required.

            1) Excessive length of proceedings of judicial proceedings:

a) Cases before the Conseil d’Etat and administrative courts:

- Greece has adopted a number of legislative and other measures with a view to accelerating proceedings before administrative courts (see Final Resolution ResDH(2005)65 on Pafitis and others and 14 other cases against Greece, adopted on 18/07/2005). However other issues have been raised by recent judgments in this group of cases and are being examined by the Greek authorities under the supervision of the Committee of Ministers.

By letter dated 25/06/2008, the Greek authorities provided information on the new law No. 3659/2008 entitled “Improvement and acceleration of proceedings before administrative courts and other provisions”. Further measures are envisaged for the Council of State: a Bill to accelerate proceedings before the Council of State is in its final stage of drafting.

• The Secretariat is examining this information.

• Information is awaited on the timetable of the draft law concerning the acceleration of the proceedings before the Council of State, including a translation of the text. Information would be useful about the programme concerning the construction of 25 court buildings which was expected to be finalised by the end of 2006.

- As regards in particular the case of Lalousi-Kotsovos, it is noted that although the proceedings also concern administrative courts, its excessive length was mainly caused by serious delays before the administrative “special evaluation commission” (§§15 and 24 of the judgment).

• Information is still awaited on the current average length of proceedings before this commission and measures envisaged to accelerate them.

b) cases before civil courts: A number of legislative and other measures were adopted (Laws No. 3327/2005 and 3346/2005) to accelerate proceedings before civil courts (see Final Resolution ResDH(2005)64 concerning Academy Trading Ltd and other cases against Greece, adopted on 18/07/2005).

• Information would be welcome on the current situation at national level concerning the length of civil proceedings, and if necessary, as to whether it is necessary to adopt further measures.

c) Cases before criminal courts: Greece has adopted a number of legislative and other measures with a view to accelerating proceedings before criminal courts (see Final Resolution ResDH(2005)66 on the case of Tarighi Wageh Dashti against Greece and 7 other cases, adopted on 18/07/2005).

• Information would be welcome on the current situation concerning the length of criminal proceedings, and if necessary, as to whether it is necessary to adopt further measures

            2) Effective domestic remedies: The Greek delegation has informed the Secretariat of the work accomplished on the draft law entitled “compensation of litigants due to excessively lengthy judicial proceedings”. This draft law provides a domestic remedy, in the form of compensation, in cases of excessive length of proceedings, at any stage whatsoever, before administrative, civil or criminal courts. This draft law was expected to be tabled before Parliament during the 2008 summer session (letter from the Greek authorities dated 25/06/2008)

• Information is urgently awaited on the developments and timetable for adoption of the draft law, including a translated copy.

            3) Violation of the presumption of innocence (Diamantides No.2): By a letter of 15/02/2006 the Greek authorities informed the Committee that the Court’s judgment has been translated and published on the website of the State Legal Council (www.nsk.gr) and sent to the Ministry of Justice and the Court of Cassation.

It is noted that Article 366§2 of the Criminal Code provides that if the fact alleged or imparted by the responsible person is an offence for which prosecution has been initiated, defamation proceedings are to be suspended until the conclusion of the prosecution. The defamation-related fact is considered as proven in case of a conviction and untrue in case of an acquittal. Proceedings violating this provision are absolutely void (Article 171 §1c of Code of Criminal Procedure).

It should be noted that the special issue of the length of proceedings before the Court of Audit is dealt with in the context of the Papazoglou group (Section 4.2).

- Cases of length of proceedings concerning civil rights and obligations before the Court of Audit

73840/01           Papazoglou and others, judgment of 13/11/03, final on 13/02/04

66296/01           Belaousof and others, judgment of 27/05/2004, final on 10/11/2004

12767/02           Hourmidis, judgment of 19/05/2004, final on 19/08/2004

66808/01           Lazarou, judgment of 08/07/2004, final on 08/10/2004

62771/00           Litoselitis, judgment of 05/02/2004, final on 05/05/2004

11536/05           Papadopoulos Georgios, judgment of 11/10/2007, final on 11/01/2008

These cases concern the excessive length of certain proceedings concerning human rights and obligations before the Court of Audit. The European Court indicated in the Lazarou case that the chronic case backlog of a court may not constitute a valid explanation for delays (§21 of the judgment) (violations of Article 6§1).

Individual measures: None (all proceedings are closed).

General measures:

• Information provided by the Greek authorities (letter of 02/01/2006): according to information provided by the President of the Court of Audit to the Justice Ministry in 2005, hearings in this Court are on average fixed within 7-8 months following the lodging of the application and judgments are rendered within 6 months thereafter. Delays may exceptionally occur in cases of influxes of applications by large groups of individuals, such as former servicemen, as in the present cases.

However, the Ministry of Justice has created a committee to examine a possible amendment of the Court of Audit's rules of procedure, taking into account proposals by this Court's President.

• More information is awaited on the progress of this committee's work.

46372/99          Papastavrou and others, judgments of 10/04/03, final on 10/07/03 and of 18/11/04, final on 18/02/05

66742/01           Katsoulis et autres, arrêt du 08/07/2004, définitif le 08/10/2004 et du 24/11/2005, définitif le 24/02/2006

These cases concern the violation of the 64 applicants' right to peaceful enjoyment of their possessions. In 1994 the Prefect of Athens ordered the reforestation of plots of land possessed in good faith by the applicants, but considered by the state as its own property. This decision confirmed that taken by the Minister of Agriculture in 1934 covering the same plots of land, and was taken without a fresh assessment of whether the plots in question were forests or not.

The European Court considered that the prefect's failure to reassess the complex situation and the reasoning followed by the Supreme Administrative Court had deprived the applicants of adequate protection, in particular taking into account that there is no possibility of obtaining compensation under Greek law in such cases (where the property rights have not been finally determined by a court) (violations of Article 1 of Protocol No. 1).

In the case of Katsoulis and others, the European Court also found the length of proceedings before the Supreme Administrative Court (began in November 1994 and ended in June 2000, which lasted more than 5½ years for one level of jurisdiction) to be excessive, stressing that a chronic backlog of cases in a court's list is not a valid explanation for delays (§40 of the judgment) (violation of Article 6§1).

Individual measures: The European Court awarded the applicants just satisfaction for the pecuniary damages sustained. Possible consequences of the violation still suffered by the applicants should be remedied in the context of the interim and long term general measures (see below). The applicants have not submitted any further claims.

General measures:

            1) Adopted measures: The measures adopted by the Greek authorities were summarised in the interim resolution adopted in these cases in June 2006 (see ResDH(2006)27). The most important measures are presented here:

a. Interim measures – Direct effect: Both judgments were translated, published and sent to the Ministry of Justice and to the Council of State. The Greek government noted that the Convention and the European Court’s case-law enjoy direct effect in Greek law as proved, in particular by a judgment of the Plenary of the Court of Cassation in 2005 recognising and stressing the supra-statutory force of Article 1 of Protocol No.1 to the Convention in cases regarding reafforestation and protection of individual land property rights. The government noted that under Greek law, compensation may always be awarded to individuals after their land of forest ownership has been recognised by courts. This compensation may cover any potential damages that individuals may have suffered during the period during which they have been unable to use their property due to pending proceedings concerning ownership.

b. Long-term general measures under way – progress report on the national land and forest register project

The Greek government stressed that the project of national land and forest register initiated in 1994 and consisting of 4 stages is a priority of national importance. In 2005 the Greek Technical Chamber (TEE) acting as consultant to the Greek state, submitted a study to the Ministry of the environment, Urban Planning and Public works, taking stock of the work accomplished during the first 10 years of the project and making proposals for its conclusion. It is foreseen that the second stage of the project (2005-2008) will cover all urban centres and may materialise without state funding which may instead be used for the third and fourth stages. On 5/058/2006 the Ministry of the Environment, Urban Planning and Public works submitted a new bill to the Greek parliament to accelerate the completion of the national land register, in particular by simplifying land registration procedures.

c. General measures adopted and under way to accelerate proceedings before administrative courts with a view to preventing new, similar violations of Article 6, paragraph 1: See the measures adopted in the framework of the execution of other cases (see Final Resolution ResDH(2005)65 on Pafitis and others and 14 other cases against Greece). Further measures are under way (see Manios group of cases, Section 4.2) concerning in particular the provision of an effective domestic remedy in case of excessively lengthy proceedings.

            2) Measures that remain to be taken: In its Interim Resolution ResDH(2006)27, the Committee of Ministers encouraged the rapid development of a remedy capable of providing compensation for bona fide landowners such as the applicants, affected by reforestation decisions and involved in lengthy litigation related to recognition of the ownership of forests. It also encouraged the competent Greek authorities, in particular the Ministry of the environment, Urban Planning and Public works to intensify its efforts in setting up a cadastral and forest register.

• Information is awaited on these questions.

35859/02          Housing Association of War Disabled and Victims of War of Attica and others, judgment of 13/07/2006, final on 11/12/2006 and of 27/09/2007, final on 31/03/2008[10]

- 1 case against Iceland

31930/04           Eggertsdottir, judgment of 05/07/2007, final on 05/10/2007

This case concerns the violation of the applicant’s right to a fair hearing by an impartial tribunal (violation of Article 6§1). In proceedings concerning compensation for medical negligence, the Supreme Court in 2004 overturned the District Court's decision favourable to the applicant basing its own decision on the opinion of the State Medico-Legal Board (SMLB), four of whose members were employees of the defendant hospital.

The European Court found that the applicant might legitimately fear that the SMLB had not acted with proper neutrality in the proceedings before the Supreme Court as a consequence of its composition, procedural position and role in the proceedings.

Individual measures: The Court awarded the applicant just satisfaction including compensation for loss of opportunities and non-pecuniary damages suffered. The Icelandic authorities indicated that the applicant did not ask for re-opening of the proceedings (12/03/2008). It seems that, although it is not explicitly provided, Icelandic law does not appear to exclude the possibility of reopening the proceedings at issue in order to give effect to a judgment of the European Court (Article 169 (1) of the Code of Civil Procedure).

• Information is awaited confirming that re-opening is possible following a judgment of the European Court, including examples of jurisprudence if available. 

General measures:

• Information provided by the Icelandic authorities (12/03/2008): The Minister of Health has submitted a Bill to the Parliament on the abolishment of the State Medico-Legal Board Act, No. 14/1942. The explanatory report to the bill makes reference to the European Court’s judgment to affirm that, as it stands, the procedure of the State Medico-Legal Board does not comply with the rules on impartiality. It is proposed instead to solve disputes on medical issues before courts, with the assistance from court-appointed assessors and specialist judges.

The judgment of the European Court has been translated and published on the homepage of the Ministry of Justice (http://eng.domsmalaraduneyti.is), thus ensuring its dissemination to practicing lawyers and other interested persons. It will also be published in a periodical on the case-law of the European Court.

• Information is awaited on progress in the adoption of the draft legislation (a copy of the Bill, if available, would be useful).

- 5 cases against Ireland

39474/98           D.G., judgment of 16/05/02, final on 16/08/02

The concerns the fact that the applicant, a minor suffering from severe personality disorders and consequently a risk to himself and to others, was placed from 27 June to 28 July 1997 in a penal institution ill-suited to fulfilling his constitutional rights (violation of Article 5§1).

It also relates to the fact that he was unable to obtain compensation in respect of this detention, since it was imposed in conformity with national law (violation of Article 5§5).

Individual measures: None: the applicant has meanwhile reached the age of majority. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

General measures:

1) Violation of Article 5§1:

a) Increase in special residential places for non-offending children: Since the mid 1990s health boards and, subsequently, the Health Service Executive (established on 1/01/2005 under the 2004 Health Act) have put in place a programme of high support and special care unit development to address the needs of a small number of disturbed non-offending children in need of special care or protection. The High Support Units operate as open units (i.e. children are not detained). The children in Special Care Units are detained by order of the High Court as a measure of last resort and for as short a period of time as possible. The Irish authorities have stated that the number of special residential places for non-offending children in need of special care and protection increased from 17 in 1997 to a total of over 120 places in 2003. In particular, the 24-place unit in Portrane has been in operation since September 2002 (as requested by the High Court decision of 27/06/1997 concerning the applicant). In addition, the 5-place special unit in the Mid-West Health Board area opened on a phased basis in 2003. Finally, there are three designated special care units with a total capacity of 27 special care places.

• Bilateral contacts are under way to assess the scope of the measures already taken in order to avoid future violations.

b) The Children Act 2001: This Act provides the statutory scheme for non-offending children in need of special care or protection. It enables the court to order a special care placement. It amends the Child Care Act 1991 and in Part 3 imposes statutory duties on health boards in relation to children in need of special care or protection. Part 2 of the Act establishes the Family Welfare Conference on a statutory basis. Part 11 establishes the statutorily based Special Residential Services Board to coordinate special residential services. The Act was fully implemented in 2007.

2) Violation of Article 5§5: The government has indicated that anyone who suffers damage as a result of the acts of state institutions which are incompatible with the Convention (but in conformity with national law) may seek compensation under Section 5 of the European Convention on Human Rights Act 2003. According to this provision, following a “declaration of incompatibility” made by the High Court or the Supreme Court, the injured party may apply to the government, through the Attorney General, for an ex gratia compensation payment in respect of any loss, injury or damage suffered as a result of the incompatibility.

• Bilateral contacts are under way with respect to this mechanism.

3) Publication and dissemination:The European Court's judgment has been published in the European Human Rights Reports at (1998) 25 EHRR 33.

- Cases of length of judicial proceedings

50389/99          Doran, judgment of 31/07/03, final on 31/10/03

42297/98          McMullen, judgment of 29/07/2004, final on 29/10/2004

18273/04          Barry, judgment of 15/12/2005, final on 15/03/2006               

54725/00          O’Reilly and others, judgment of 29/07/2004, final on 29/10/2004

The cases concern the excessive length of certain proceedings concerning civil rights and obligations before criminal, civil and administrative courts. In the Doran case, the proceedings lasted approximately 8 years and 5 months; in the case of O’Reilly and others, some 4 years and 11 months; in the McMullen case the proceedings started on 29/06/1988 and were still pending when the European Court delivered its judgment (the period taken into account by the Court was approximately 16 years); and in the Barry case, the applicant was brought to trial eight years after being charged, and proceedings were still pending when the European Court delivered its judgment (violations of Article 6§1).

The cases of Barry, Doran and the O’Reilly and others also concern the lack of an effective domestic remedy in respect of excessively long proceedings (violations of Article 13).

Individual measures:

- It would appear from the information furnished by the Irish authorities that proceedings are no longer pending in the McMullen case.

- As to the Barry case, the Irish authorities have indicated that in March 2006, the Circuit Criminal Court judge dealing with the case granted a permanent stay on the prosecution in Cork Circuit Criminal Court. This order has not been appealed, and the case is proceeding no further.

General measures:

            1) Violations of Article 6§1:

• Measures taken with a view to reducing the length of proceedings:

- Improvement of judicial management: The Courts Service was established in 1999 by legislation in order “to manage the courts, support the judiciary and provide a high-quality and professional service to all the courts” (by implementing an IT strategy, assisting the judiciary with case management and making major efforts to reduce waiting times in criminal and family law matters). For the time being, the ICT unit of the Courts Service was hoping to develop a civil case management system. Such a system would enable the Courts Service to identify ageing cases and those in which no action has been taken so that they can, if appropriate, be progressed or struck out.

- Register of reserved judgments: Section 46 of the Courts and Courts Officers Act 2002, which entered into force on 31/03/2005, provides the establishment of a register of every reserved judgment in civil proceedings. If the judgment is not delivered within two months from the date upon which it was reserved, the President of the Court which heard the case must list the proceedings before the judge who reserved judgment at two-month intervals. That judge must specify the date on which he or she proposes to deliver the judgment.

- Appointment of new judges: Under the Civil Liability and Courts Act 2004, a total of 8 additional judges were appointed to several courts in November 2004. Three of those judges were appointed to the High Court. The additional judges have been deployed in reducing the waiting time for serious criminal trials, cases relating to asylum and immigration matters, applications arising from child abduction and for European Arrest Warrants. As a result, in the Central Criminal Court, the waiting time from return for trial to disposal of murder and rape cases has been brought down from 18-24 months in 2004 to 6-8 months in 2006. Child abduction cases are required by law to be disposed of within 6 weeks. The High Court is required to dispose of European Arrest Warrant applications within 60 days. In May 2007 the government appointed four additional High Court Judges to assist in reducing the waiting time for trials in the High Court.

- Creation of a specialised court: A Commercial Court (rather “list”) was set up in January 2004, which contributed greatly to reducing the disposal time for cases admitted to the High Court. In the past three years, in the Commercial Court, 50% of the cases have been concluded in less than 14 weeks; 75% in less than 25 weeks; and 90% in less than 45 weeks.

- Use of court venues outside of Dublin: There are plans to use the courtrooms in the Dublin “commuter belt” as an overflow from the Four Courts complex to overcome a shortage of courtroom accommodation. Further, the President of the High Court and the Courts Service have now initiated a practice whereby High Court business is spread across the country utilising larger, recently refurbished courthouses. Thus, non-jury matters (e.g., civil proceedings related to debt recovery, contract disputes, allegations of negligence and misrepresentation, administrative proceedings) and judicial review cases may now be heard in regional courthouses. As consequence, many cases, which otherwise would remain without a hearing date, were fixed for county town venues.

- Management of the backlogs: Extra sittings were also arranged to deal with backlogs of Circuit Appeals in some of the regions.

- There are also ongoing amendments to the rules of the various courts with a view to introducing greater efficiencies in court practice and procedure.

The Irish authorities have indicated that in the light of the above information, it is clear that the measures adopted in response to the violation of Article 6 have greatly improved the situation in Ireland with regard to length of domestic judicial procedures.

• Bilateral contacts are under way to assess the scope of the measures already taken and still envisaged in order to avoid future violations.

            2) Violation of Article 13: There are currently four new cases against Ireland raising similar issues before the European Court: TH, Application No. 23663/06; Mc Farlane, Application No. 3133/06; Superwood, Application No. 4812/2004 and JB, Application No. 9519/07. They have been notified to the government, which has submitted observations regarding an effective remedy for delay, which take into account developments in Irish case-law since the delivery of the judgments in the Doran, Barry and O’Reilly and others cases. In the observations, the government submits that the applicants failed to exhaust domestic remedies. The government also submits that domestic law contains a remedy in damages for breach of the constitutional right to trial with reasonable expedition, and provides examples of case-law and a legal opinion supporting this submission.

In the light of the new cases before the European Court and the new arguments being presented to the European Court, the Irish delegation has requested that further consideration of this issue not take place until the European Court has had an opportunity to assess the arguments presented to it in the new cases.

• Assessment: As the European Court is assessing information concerning a similar issue, it would be opportune to postpone the Committee’s consideration of the Article 13 issue until the 1072nd meeting (December 2009) at the latest.

            3) Publication and dissemination: In the Barry case, the violation appears to be due to circumstances particular to the case; consequently the publication and dissemination of the judgment would appear to be sufficient for execution. Copies of the judgment have been provided to all government departments and offices that had an interest in the case, namely the Department of Justice, Equality and Law Reform, the Office of the Director of Public Prosecutions and the Office of the Attorney General. A copy of the judgment has also been provided to the Courts Service. The judgments of the European Court, as published in the official reports and/or in other law reports and journals, are available in legal libraries in Ireland. A short article in relation to the case was published in the Law Society Gazette. The judgment of the European Court and the case was widely reported in the media at the time.

Copies of the Doran, McMullen and O’Reilly judgments have been provided to all government departments and offices that had an interest in the case and copies have also been provided to the Courts Service. An article about the Doran case appeared in the Irish Times on 01/08/2003. A link to the website of the Court is provided on several Government and legal websites.

- 10 cases against Italy

59909/00          Giacomelli, judgment of 02/11/2006, final on 26/03/2007

The case concerns the failure of the Italian authorities in their duty to protect the applicant's private life and home.  She had been living since 1950 in a house in Brescia, located 30 metres from a plant for the storage and treatment of “special waste” operated by a commercial company since 1982.

The European Court held that the state authorities had failed to comply with domestic legislation on environmental matters and had refused to enforce judicial decisions dating from 29/042003 and 25/05/2004, in which the activities at issue had been found to be unlawful, thereby rendering inoperative the procedural safeguards previously available to the applicant and breaching the principle of the rule of law.  Consequently, the state did not succeed in striking a fair balance between the interest of the community in having a plant for the treatment of toxic industrial waste and the applicant's effective enjoyment of her right to respect for her home and her private and family life (violation of article 8).

Individual measures: The European Court noted that a decree of the Ministry of the Environment of 28/04/2004 had authorised the continuation of the plant's operation and the most recent decision of the Lombardy Regional Administrative Court, of 23/07/2004, had refused the applicant's request for a stay of execution.  However, the Court ruled that there had been a violation as the applicant's right to respect for her home had been seriously impaired for several years by the dangerous activities carried out at the plant (§96).

• Information awaited: As the arguments underlying the Court's ruling are not directed at the dangerous nature of the industrial activity, no individual measure appears necessary, but information on the current validity of the Ministry decree is awaited.

General measures:

• Information is awaited on the publication and dissemination of the European Court judgment to the Ministry of the Environment authorities so that they may take the Court's findings into account and be aware of their obligations pursuant to the Convention.

55764/00          Zečiri, judgment of 04/08/2005, final on 04/11/2005

The case concerns the retention of the applicant by the police pending his expulsion to his country of origin (Serbia and Montenegro). This retention was found to be unlawful insofar as the expulsion order had not only been annulled by the Court of Cassation but also commuted to a prison sentence of a year and two months which the applicant had already served (violation of Article 5§1).

The case also relates to the absence of sufficiently reliable means of obtaining redress for the first violation (violation of Article 5§5).

Individual measures: None, since the applicant has been freed and has left Italy.

General measures: The European Court found that Article 314 of the Code of Criminal Procedure, which is supposed to provide means of redress for undue privation of liberty, could not be applied in the present circumstances, and that the other remedies invoked by the government were not effective either (§§47-51 of the judgment). This being the case, it would appear necessary to provide appropriate means of redress for unlawful retention in order to prevent similar violations of Article 5§5 in the future.

• Information is awaited on measures envisaged to this end. The secretariat wrote to the Italian delegation in May 2007.

37201/06           Saadi, judgment of 28/02/2008 – Grand Chamber[11]

25575/04           Drassich, judgment of 11/12/2007, final on 11/03/2008

This case concerns the violation of the applicant’s right to be informed in detail of the nature and cause of the accusation against him and his right to have adequate time and facilities for the preparation of his defence in criminal proceedings (violation of Article 6§3 (a) and (b), together with Article 6§1).

By a judgment of 12/06/2002, the Venice Court of Appeal confirmed the applicant’s conviction for forgery and corruption and fixed a global term of imprisonment for three years and eight months, the eight months being the part of the sentence related to the conviction for corruption. The applicant appealed before the Court of Cassation. When examining the applicant’s objection that the offence of corruption of which he was accused was time-barred, the Court of Cassation decided to reclassify the acts he allegedly committed (from simple corruption to corruption in judicial acts). By a judgment of 4/02/2004 the Court of Cassation dismissed this objection on the basis of the new classification of the acts. The Court of Cassation indicated that this result could not be considered as reformatio in pejus, inasmuch as the prison sentence imposed by the lower court was not increased. 

The European Court found that whilst domestic courts may reclassify the acts which they have to judge, in this case the applicant was neither warned of the possibility of reclassification nor given the possibility to contest the new accusation by adversarial argument. The Court also noted that it was plausible to argue that the applicant’s defence would have been different had he known of the new accusation. The Court did not endorse the opinion according to which the modification of the accusation had had no effect on the determination of the conviction imposed on the applicant.

Individual measures: The applicant made no request for just satisfaction. The European Court considered that a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation.

• Information provided by the Italian authorities (30/09/2008): Following the European Court’s judgment, the applicant asked the Venice Court of Appeal to declare its judgment of 12/06/2002 non-enforceable under Article 670 of the Code of Criminal Procedure. By applying the case-law of the Court of Cassation (judgments Nos. 3600, Dorigo and 2432, Somogyi), the Court of Appeal recognised its judgment as non-enforceable as far as the part relating to corruption was concerned and sent to the Court of Cassation the applicant’s original appeal against its judgment so that it might give effect to the European court’s judgment. According to the Court of Appeal, the Court of Cassation being the jurisdiction before which the proceedings was unfair, it is also the better placed to identify the most appropriate means by which to declare the corruption crime time-barred –  a declaration it ought to have given when first it considered the original appeal. It seems that the overall prison sentence imposed by the court of appeal in its judgment of 12/06/2002 has been fully served.

• Information is awaited on the follow-up given by the Court of Cassation to the applicant’s appeal against the judgment of 12/06/2002 of the Venice Court of Appeal, which it transmitted by order No. 146/08.

General measures:

            1) Redefinition of offences without applying the principle of adversarial argument:

• Information provided by the Italian authorities (22/09/2008): According to the government, no legislative change seems necessary since the violation stems from the Court of Cassation’s jurisprudential interpretation of the general principles on the matter. A new jurisprudential interpretation is therefore necessary to ensure compliance with the European Court’s judgment. Accordingly, the government considers that the dissemination of the judgment and the raising of judges’ awareness on the subject are sufficient measures to prevent future similar violations.

The judgment has been sent out to the competent authorities and published on the internet sites of the Ministry of Justice (http://www.giustizia.it/pol_internaz/tutela/tutela_du_indice.htm) and of the Court of Cassation(http///www.cortedicassazione.it/Notizie/giurisprudenzaComunitaria/CorteEuropea/CorteEuropea.asp), as well as in the database of the Court of Cassation on the case-law of the European Court of Human Rights (www.italgiure.giustizia.it). This website is widely used by all those who practice law in Italy: civil servants, lawyers, prosecutors and judges alike.

• Assessment: no further measure seems necessary.

            2) Reopening proceedings following the finding of a violation. The last draft law introducing reopening into the Italian judicial system (AS 1797 – Senate) in respect of violations of Article 6§3 was pending before the legislature ended prematurely. The Court of Cassation, in the context of the Dorigo case (judgment of the European Court of 16/11/2000), has insisted that machinery for the re-opening of domestic proceedings is urgently needed. Seised of the matter by the Bologna Appeal Court in that same case, the Constitutional Court, in its decision No.129/2008 on the constitutionality of the revision of judgment as provided in Italian law (Article 630 Code of Criminal Procedure, which denies revision following to a finding of violation by the European Court), affirmed that the legislator is responsible for amending the legislation on revision and it invited the Parliament to take up the task immediately.

• Information is awaited on the legislative follow-up given to the Constitutional Court’s invitation to amend the law on revision (decision No. 129/2008).

26740/02           Grande Oriente d’Italia di Palazzo Giustiniani No. 2, judgment of 31/05/2007, final on 31/08/2007

The case concerns interference in the right to freedom of association of Grande Oriente d'Italia di Palazzo Giustiniani, a masonic association. The European Court noted that in the Friuli Venezia Giulia Region, only members of masonic associations are required to declare their membership when applying for certain posts in regional government. It found that there was no objective or reasonable justification for this difference of treatment between non-secret societies, which is provided in Law No. 1 of 2000 of the Friuli Venezia Giulia Region (violation of Article 14, taken together with Article 11, of the Convention).

Individual measures: The applicant association invoked non-pecuniary damage in respect of its image and the reputation of its members. It invoked no individual pecuniary damage. The European Court considered that the finding of the violation constituted in itself sufficient just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measure therefore seems necessary.

General measures: Under the terms of Law No. 1 of 2000 of the Friuli Venezia Giulia Region, which modified a regional law No. 75 of 1978, candidates for posts under the authority of the region must declare any membership of associations which are masonic or in any event secret. Failure to make such declaration is a condition of ineligibility.

The European Court, examining the case from the viewpoint of non-discrimination, considered that membership of many other non-secret associations might equally pose threats to national security or the defence of public order if their members were designated to posts of public responsibility. However, the members of such associations were not – unlike members of masonic associations – required to make a declaration of their membership. The imposition of such an obligation on free-masons alone has no objective or reasonable justification.

• Information is awaited on measures taken or envisaged to bring the regional law into conformity with the Convention, not least by repealing or amending Article 7 bis ante of Law No. 75/1978, as modified by Law No. 1/2000, of the Friuli Venezia Giulia Region.

Given that the question of the conformity of Italian regional laws with the Convention has already been raised in another case (Grande Oriente d'Italia di Palazzo Giustiniani, application No. 35972/97, Section 6.2) publication of the European Court’s judgment in the present case and wide dissemination would be desirable to avoid repetition of violations of the right of association in Italy.

36822/02           Bracci, judgment of 13/10/2005, final on 15/02/2006

62094/00           Majadallah, judgment of 19/10/2006, final on 26/03/2007

These cases both concern the unfairness of certain criminal proceedings which resulted in the applicants' conviction on the basis of testimony given at the investigatory stage by witnesses whom the applicants were unable to examine or to have questioned, in breach of their right to a fair trial (violations of Article 6§§1 and 3d).

In the Bracci case, the proceedings, which concerned a number of offences (robbery, sexual abuse, illegal possession of a weapon) against various victims, resulted on 5/12/2000 in the applicant's conviction and sentence to six years' imprisonment. The European Court noted that the part of the conviction based solely on the testimony given before the trial by the victim who then disappeared, had hampered the rights of the defence in a manner incompatible with the guarantees of the Convention

In the Majadallah case, the applicant was convicted on 22/01/1998 of sexual assault, public obscenity, bodily harm and drunkenness and sentenced to a year and four months' imprisonment, without having had the possibility of examining his accusers, who did not attend the proceedings.

Individual measures: In both cases the European court found that the finding of a violation constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage sustained by the applicants.

            1) Bracci case: The applicant appealed by means of an “incidente d'essecuzione” to the Rome Tribunal in respect of its competence to supervise the enforcement of sentences, maintaining that his sentence was illegal on account of the violation found by the European Court. The Tribunal admitted his appeal on 25/09/2006 and ruled his conviction illegal. The applicant was thus dispensed of this sentence. The Rome Tribunal noted that Italy, unlike other European states, did not yet dispose of means of reopening proceedings following judgments of the European Court, and underlined the need to introduce such means into the national judicial system so as to give effect to the Convention as interpreted by the European Court. Observing the impossibility of securing reopening by jurisprudential means, the Rome Tribunal decided to establish the unlawfulness of the applicant's detention by declaring the sentence unenforceable.

• Assessment: in these circumstances, no further individual measure appears necessary.

            2) Majadallah case: The applicant appealed first before the Florence Appeal Court and subsequently to the Court of Cassation, but his conviction was upheld.

• Information is awaited on the applicant's present situation and on a possible request on his part for reopening of the criminal proceedings which led to his conviction. In this context, it would be useful to have information on the consequences the Italian authorities intend to draw in general terms from the finding by the Rome Tribunal mentioned above and from the Court of Cassation's judgment of 1/12/2006 in the Dorigo case (Final Resolution CM/ResDH(2007)83).

It should also be noted that in its judgment of 30/04/2008 the Constitutional Court addressed a vigorous invitation to the legislature to enact measures to permit reopening of proceedings following the finding of a violation of Article 6 of the Convention.

General measures: The European Court has stated that, where a conviction is founded solely or to a significant degree on the testimony of a witness whom the defendant cannot cross-examine or have cross-examined, be it at the investigative or the trial stage, defence rights are restricted in a manner incompatible with the guarantees provided by Article 6 (§55). Article 512 of the Italian Code of Criminal Procedure still provides the possibility of convicting on the basis of testimony which the defendant cannot test, but only under circumstances where, due to unforeseeable circumstances, it is impossible to reproduce the testimony in question. In its judgment No. 4331 of 18/10/2007, the Court of Cassation recalled the obligation to comply with final judgments of the European Court under Article 46 of the Convention, and emphasised that Article 512 of the Code of Criminal Procedure must be interpreted in conformity with the Convention.

A change of law does not seem strictly necessary in principle, provided that the existing law is applied in conformity with the principles flowing from the European Court's case-law. Thus to this end the publication of the European Court's judgment is necessary, as well as broad dissemination to courts, together with any other measure likely to ensure that the case-law of Italian Courts is aligned with the requirements of the Convention.

• Information on this is awaited. As the Court of Cassation is organising the publication of the European Court's case-law on its website, it would be helpful to know whether the judgments in these cases will be translated in full into Italian and published in this context.

36813/97          Scordino No. 1, judgment of 29/03/2006 - Grand Chamber[12]

52980/99          Stornaiulo and others, judgment of 08/08/2006, final on 08/11/2006[13]

- Case concerning the failure or substantial delay by the administration in abiding by final domestic judgments

64215/01           De Trana, judgment of 16/10/2007, final on 16/01/2008

This case concerns the non-execution of an enforceable judicial decision of 5/09/1997 ordering the administration to pay the applicants compensation for damage caused by military activities on their property (violation of Article 6§1). The failure to execute this decision for almost twenty years is also at the origin of the breach of the applicants’ right to the peaceful enjoyment of their possessions (violation of Article 1 of Protocol No. 1).

Individual measures: The European Court ordered the full enforcement of the judicial decision of 05/09/1997, within three months from that date on which its judgment becomes final. It also awarded the applicants just satisfaction in respect of non-pecuniary damages.

• Information is awaited on the execution of the decision of 5/09/1997.

General measures:

• Information is awaited on measures taken or envisaged by the Italian authorities to prevent future, similar violations and in particular on effective remedies available to applicants in domestic proceedings to complain of non-compliance with judicial orders by administrative authorities. 

In any event, publication and dissemination of the European Court’s judgment in Italian, not least via modern electronic media, to authorities competent for this kind of cases seem necessary, to draw attention to the requirements of the Convention in this respect.

- 3 cases against Latvia

64846/01          Moisejevs, judgment of 15/06/2006, final on 23/10/2006

The case concerns a number of violations linked to the applicant’s detention on remand and the criminal proceedings subsequently brought against him:

- the irregularity of the detention between 04/06/1998 and 26/11/1998, his detention order having been extended automatically on expiry on the basis of a practice based on wrongful interpretation of the law (violation of Article 5§1);

- the excessive length of the detention (4 years, 2 months and 28 days) in the absence of any reason for extending it (violation of Article 5§3);

- the excessive length of the criminal proceedings (6 years, 1 month and 10 days) due to periods of inactivity and several adjournments (violation of Art. 6§1).

- a breach of the applicant’s right to respect for his private and family life due to the almost total refusal to allow him to receive family visits during his detention on remand (violation of Art. 8), and a lack of an effective remedy in this respect (violation of Article 13 combined with Article 8);

- the violation of the applicant’s right of individual application due to the interception of a letter he had addressed to the European Court (violation of Article 34);

- the fact that insufficient food was provided on court hearing days, amounting to “degrading treatment” (violation of Article 3).

Individual measures: The applicant is no longer detained on remand: on 25/09/2001 he was convicted and on 17/01/2003 sentenced to 12 years’ imprisonment. He claimed no just satisfaction before the European Court.

• Assessment: This being the case, no further individual measure seems necessary.

General measures: This case presents similarities to that of Lavents (judgment of 28/11/2002, Section 6.2) and the Kornakovs case (judgment of 15/06/2006, Section 5.3).

• Measures adopted or under way in respect of the following violations:

            1) Violation of Article 5§1: The Article on the basis of which the applicant was kept unlawfully in the detention, namely Article 77 of the Code of Criminal Procedure, has been repealed by a law of 20/01/2005 which has entered into force on 01/02/2005.

            2) Violation of Article 5§3: The grounds for the detention were not challenged by the European Court. The new Law on Criminal Procedure entered into force on 01/10/2005. The new law introduces a post of investigative judge whose main function is to supervise the observance of human rights in criminal proceedings. The judge decides on the application and extension of certain means of restraint (detention, house arrest, placement in an institution) as well as on complaints related to other means of restraint (e.g. restraint orders, bail, conditions of police supervision). The new law also imposes several time-limits for pre‑trial detention. In May 2003, the Human Rights Institute of the University of Latvia organised a seminar on detention issues for judges, prosecutors, practicing lawyers, government and parliament representatives.

            3) Violation of Article 6§1: There does not seem to be a systemic problem of excessive length of criminal proceedings in Latvia. 

            4) Violation of Article 8 (family visits): On 29/04/2003, the Latvian government adopted the Regulation on the internal rules of provisional detention centres, which provides inter alia that the administration of such establishments should allow detainees to have contact their families or others.

            5) Violation of Article 34 (correspondence): In addition to the measures already taken in the context of the Lavents case (legislative reform), publication and dissemination with a covering letter, in particular to the prison authorities, seems necessary.

• Measures required in respect of other violations:

            6) Violation of Article 3: The European Court noted that, following a complaint by the applicant, he and other defendants began to receive more food. However, to make sure that other detention centres also follow the same practice, publication and dissemination of the judgment with a covering letter, in particular to the prison authorities, seems necessary.

            7) Violation of Article 8 combined with Article 13: The Latvian authorities are invited to provide information on the existence of an effective remedy concerning family visits. On this point, the authorities may wish to take into account the concerns voiced by the European Committee for the Prevention of Torture and Inhuman Treatment or Punishment (CPT) regarding the contacts of detained persons with the outside world (See the CPT Report to the Latvian Government, 5-12 May 2004 visit, made public on 13/03/08, page 35. Available at www.cpt.coe.int/documents/lva/2008-15-inf-eng.pdf)

• Information is thus awaited on these two issues.

61655/00          Miholapa, judgment of 31/05/2007, final on 31/08/2007

The case concerns the unfairness of civil proceedings in which the applicant was sued for damages (violation of Article 6§1).

The applicant owned a flat in a block in Riga, which was put up for compulsory auction on account of non-payment of municipal taxes. The purchaser of the flat brought two actions against the applicant. The first proceedings resulted in the applicant’s eviction; in the second set of proceedings, in January 1999, the applicant was ordered to pay damages because she continued to occupy the apartment following the eviction order. The court took this decision in absentia as her new address could not be found and as she has not responded to the notification made in the Official Gazette (§25 of the judgment).

The European Court considered that the district court had not shown sufficient diligence and had not done all that could be reasonably expected of it in order to summons the applicant to appear (§31 of the judgment).

Individual measures: As the applicant had not submitted any claim for just satisfaction, the Court considered that there was no need to make an award.

• Assessment: No further individual measure thus seems necessary.

General measures:

• Information has been awaited since December 2007 on the general measures taken or envisaged by the Latvian authorities to prevent new, similar violations in the future, in particular publication of the judgment of the European Court and its dissemination to judicial authorities.

61638/00          Dmitrijevs Igors, judgment of 30/11/2006, final on 28/02/2007

The case concerns the violation of the applicant’s right to respect for his private life due to the ban imposed on his corresponding with his mother during his pre-trial detention as well as on account of the opening and monitoring of the letters addressed to the applicant by the European Court (double violation of Article 8).

The case concerns also a violation of the applicant’s freedom of thought, conscience and religion on account of the ban on the applicant’s attending the prison’s religious services (violation of Article 9). The European Court found that this interference was not provided by law (§79 of the judgment).

Finally, the case concerns a violation of the right of individual application due to the repeated refusal to forward the applicant’s application form to the European Court as well as the assertion by the deputy governor of the prison that the applicant required the authorisation of the Latvian courts to write to the Court (double violation of Article 34).

Individual measures: The applicant was released in December 2002 (§44 of the judgment). He made no application before the European court in respect of just satisfaction.

• Assessment: No further individual measure thus seems necessary.

General measures:

1) Violation of Articles 8 and 34: This case presents similarities to the Kornakovs case (judgment of 15/06/2006, Section 5.3) in which the Latvian authorities have adopted and are adopting measures in this respect.

2) Violation of Article 9:

• Information is awaited on legislative measures taken or envisaged, in addition to those mentioned above, to remedy the lack of provisions concerning the right of detainees on remand to attend religious services (§§79‑80 of the judgment). In addition, information is awaited on publication of the judgment of the European Court and dissemination to the relevant authorities.

- 3 cases against Lithuania

27527/03           L., judgment of 11/09/2007, final on 31/03/2008

The case concerns the state’s failure in its positive obligation to ensure respect for private life in not introducing implementing legislation to enable a transsexual to undergo gender reassignment surgery and change his gender identification in official documents (violation of Article 8)

The applicant was registered as a girl at birth in 1978 but, from an early age, regarded himself as a male. In 1997 he sought medical advice about gender reassignment. Although he was diagnosed as a transsexual, his doctor initially refused to prescribe hormone therapy in view of the uncertainty as to whether or not full gender reassignment could be legally carried out. He was therefore forced to follow the hormone treatment unofficially. Following the adoption of the new Civil Code in 2000, which for the first time introduced a right to gender reassignment surgery in Lithuanian law (Article 2.27§1), the applicant underwent partial reassignment surgery. However, he agreed with the doctors to defer any further surgical steps pending the introduction of implementing legislation on the conditions and procedure for gender reassignment. The implementing legislation, intended to lay down conditions and procedure for gender-reassignment surgery as required by Article 2.27§2 of the Civil Code, has not yet been enacted following strong opposition to the Bill in the Parliament.

The applicant remained a female under domestic law and although he was eventually permitted to change his name to one that was not gender sensitive, his new birth certificate and passport and his university diploma continued to indicate his gender as female.

The European Court established that the legislative gap had left the applicant in a situation of distressing uncertainty with regard to his private life and the recognition of his true identity. Budgetary restraints in the public health service might have justified some initial delays in implementing the rights of transsexuals under the Civil Code but not a delay of over four years. The State had therefore failed to strike a fair balance between the public interest and the applicant’s rights (§59 of the judgment).

Individual measures: The European Court held that the Lithuanian state must satisfy the applicant’s claim for pecuniary damage by the adoption of the requisite subsidiary legislation within three months of the judgment becoming final. Failing that, it was to pay the applicant 40 000 euros to cover the cost of having the final stages of the necessary surgery performed abroad.

• Information provided by the Lithuanian authorities (letter of 01/10/2008): On 28/06/2008 the just satisfaction awarded was paid.

• Assessment: In these circumstances no individual measure appears necessary.

General measures: It appears from the judgment that prompt adoption of the pending implementation legislation would be able to prevent new similar violations.

The Secretariat addressed an initial-phase letter to the Lithuanian authorities on 07/08/2008 regarding the general measures taken or envisaged and invited them to provide information on the status of the legislation mentioned.

• Information provided by the Lithuanian authorities (letter of 01/10/2008): The Lithuanian authorities stated that the domestic courts were in position to fill the existing legal lacunae. Moreover, a bill tabled on 19/03/2008 proposing the repeal of Article 2.27 of the Civil Code is currently before Parliament. The authorities affirmed that possible repeal of the provision at issue would have no effect as regards the possibilities for the treatment of transsexuals. In the authorities’ view, transsexuals do receive treatment in Lithuania and their right to gender reassignment, including the subsequent adjustment of official documents, is recognised.

• Assessment: In view of the European Court’s assessment, until the implementing law is adopted there do not appear to be suitable medical facilities reasonably accessible or available in Lithuania itself (§57 of the judgment). However, it appears that the Lithuanian authorities have chosen a different method to ensure legal recognition of gender reassignments. The practical effects of the measures taken still remain to be demonstrated.  In this regard, authorities’ attention is drawn to measures taken in the context of the case of Christine Goodwin against the United Kingdom (Section 6.2).

• Information is therefore awaited on measures taken or envisaged to prevent similar violations in the future, including the practical effects of measures already taken.

• Publication and dissemination: The European Court’s judgment has been translated into Lithuanian and placed on the website of the Ministry of Justice together with an explanatory note. The Government Agent informed all relevant institutions and all domestic courts about the judgment by an explanatory note. In addition, the Government Agent brought the European court’s judgment to the attention of the President of the Parliament and the Minister of Health.

74420/01           Ramanauskas, judgment of 05/02/2008 – Grand Chamber

The case concerns the violation of the applicant’s right to a fair hearing; in 2000 the applicant, a prosecutor, was found guilty of bribery following active incitement by state agents (violation of Article 6§1).

At appeal on points of law, the Supreme Court found that the evidence corroborated the applicant's guilt, which he himself had acknowledged. Thus, the Supreme Court held that once his guilt had been established, the question of whether the commission of the offence had been procured had no consequence with regard to the legal definition of the offence.

The European Court found that the actions of the state agents had gone beyond the mere passive investigation of existing criminal activity: there was no evidence that the applicant had committed any offences before, in particular corruption-related offences. All the meetings between the applicant and the agents took place at their initiative and the applicant seemed to have been subjected to blatant pressure on their part to commit a criminal act whereas there was no objective reason to suppose that he intended to do so (§§67-68 of the judgment).

The European Court further indicated that the domestic authorities and courts should at the very least have undertaken a thorough examination into “incitement”, as maintained by the applicant throughout the proceedings. They should have established in particular the reasons why the operation had been engaged, the extent of the police's involvement in the offence and the nature of any incitement or pressure. The applicant should have had the opportunity to state his case on each of those points and the courts should have made all necessary efforts to hear the state agents as witnesses (§71 of the judgment).

The European Court concluded therefore that the agents’ actions  had had the effect of inciting the applicant to commit the offence concerned and that there was no indication that the applicant would have committed it without their intervention (§73 of the judgment).

Individual measures: In January 2002 the applicant was released on probation and in July 2002 the prohibition on his working in the judiciary was lifted. Furthermore, in January 2003, his conviction was expunged (§§28-29 of the judgment). The European Court awarded him just satisfaction in respect of pecuniary and non-pecuniary damage sustained. 

• Information is awaited as to whether there remain any other consequence for the applicant resulting from his conviction in violation of Article 6§1 in his case.

General measures:

• Information is awaited on measures taken or envisaged to prevent similar violations in the future in the context of undercover operations. The authorities may wish to benefit from the experience of Portugal and Russia in their efforts to reform their legislative and judicial framework regarding the protection of individuals from undue influence by undercover agents, in the similar cases of Teixeira de Castro against Portugal and Vanyan against Russia.

• Publication and dissemination (letter of 02/09/2008): The judgment of the European Court was translated into Lithuanian and placed on the website of the Ministry of Justice together with an explanatory note with information about the judgment. The Government Agent informed all relevant institutions and domestic courts about the judgment and sent it to them with an explanatory note.

11529/04           Baškienė, judgment of 24/07/2007, final on 10/12/2007

The case concerns the violation of the applicant’s right of access to a court and the excessive length of civil proceedings,as domestic courts failed to decide on the applicant’s claims after more than seven years of proceedings (double violation of Article 6§1).

In 1996 the applicant initiated a shareholder action against a company of which directors were subject to criminal proceedings for fraud and embezzlement. Considering that the applicant’s interests were at stake in both sets of proceedings, the domestic courts joined them together. Ultimately, in 2003 the courts convicted the directors but found no causal link between their convictions and the applicant’s interests as a shareholder. As a result, the courts left her civil claims unexamined, finding that she could always pursue them through separate civil proceedings.

The European Court noted that the applicant’s civil claims had been joined to the criminal proceedings at the initiative of the domestic courts. The applicant thus could not have reasonably been expected to bring civil proceedings independently of the criminal case. The Court was particularly struck by the fact that the applicant had to wait more than seven years to be finally told that it was not appropriate to examine her civil claims along with the criminal case (§81 of the judgment).

Individual measures: The proceedings being closed, no further individual measure seems necessary in respect of their length. It is also noted that the applicant had not brought a new civil action (§48 of the judgment).

• Information is awaited on any individual measures that the authorities deem appropriate under these circumstances, to give the applicant proper redress.

General measures:

            1) Right of access to a Court:

• Information is awaited on any general measures taken or envisaged to ensure that civil parties to criminal proceedings may obtain a ruling on their claims at the end of those proceedings. In this regard, publication and dissemination of the European Court’s judgment to judicial authorities seem necessary at the outset.

            2) Excessive length of proceedings: General measures have already been taken, see the case of Girdauskas (Resolution CM/ResDH(2007)127).

- 8 cases against Luxembourg

76240/01           Wagner and J.M.W.L., judgment of 28/06/2007, final on 28/09/2007

The case concerns a breach of the right to a fair trial of the applicants (a Luxembourg national and her Peruvian adopted child) on account of the refusal of the Luxembourg civil courts to examine a submission regarding an alleged violation of Article 8 of the Convention (violation of Article 6§1).

The case also concerns an interference in the right to respect for family life  on account of the Luxembourg courts’ refusal to declare the enforceability of a Peruvian judgment granting the first applicant full adoption of a child. This refusal stemmed from the absence of any provision in Luxembourg law enabling an unmarried person to be granted full adoption of a child (violation of Article 8). In this connection the European Court observed that a broad consensus existed in Europe on the issue of adoption by unmarried persons;

Finally the case concerns discrimination against the applicants on account of the difference in treatment sustained by the second applicant compared with children whose full adoption granted abroad is recognised in Luxembourg and because the first applicant suffered in her daily life the indirect consequences of the obstacles facing by the second applicant, her child (violation of Article 14 combined with Article 8).

Individual measures: The European Court reiterated that the child’s best interests had to take precedence in cases of that kind and considered that the Luxembourg courts could not reasonably disregard the legal status which had been created on a valid basis in Peru and which corresponded to family life within the meaning of Article 8

• Information has been provided, which is being examined.

General measures:

1) Violation of Article 6§1: In the European Court’s view, the issue of the incompatibility of the first-instance decision with Article 8 – with particular reference to whether it was in accordance with good international relations – was one of the main grounds of appeal raised by the applicants, and as such called for a specific and explicit reply. The court of appeal, however, had omitted to reply to the submission that public policy dictated precisely that the Peruvian adoption decision should be declared enforceable, in accordance with Article 8. Moreover, the Cour de cassation had upheld the stance taken by the first-instance and appeal courts, despite its case-law according to which the Convention produced direct effects in the Luxembourg legal system.

The judgment of the European Court was published in the Codex journal, issue of June-July 2007.

• Dissemination of the Court’s judgment to all civil courts and the Cour de cassation also seems necessary.

2) Violations of Article 8 and Article 14 combined with Article 8: The refusal by the Luxembourg courts to declare the Peruvian judgment enforceable stemmed from the absence of provisions in Luxembourg

• Information has been provided, which is being examined.

2113/04            Schneider, judgment of 10/07/2007, final on 10/10/2007

The case concerns an interference with the applicant’s right to the peaceful enjoyment of her possessions (violation of Article 1 of Protocol No. 1) on account of the obligation imposed on her applicant to include her land in a hunting area.  The case also concerns an interference with her freedom of assembly and association inasmuch as, under a law of 1925, the applicant was forced to enrol in an association – le syndicat de chasse – although she disapproved of its aims (Violation of Article 11).

In spite of her declared ethical opposition to hunting and opposition to the inclusion of her land in a hunting zone, the syndicate to which she was required to belong pronounced in favour of her land being put up for rent. This decision was approved by the Ministry of the Interior and judicially endorsed in 2003 (administrative tribunal and court).

The European Court found that this system of compulsory enrolment placed the applicant in a situation which breached the fair balance which should exist between safeguarding property rights and the requirements of the general interest. To impose a legal obligation on an individual to belong to an association profoundly opposed to his or her own convictions, and to oblige that individual on the basis of such membership to authorise the association to use land which is his or her own property to conduct activities of which he or she disapproves, exceeds the bounds of the fair balance of conflicting interests and may not be considered proportional to the aim pursued. 

Individual measures: The applicant had not submitted any claim for just satisfaction; the Court held that it was unnecessary to make an award in that connection.

• The Luxembourg authorities have provided information which is being examined

General measures: What is called into question in this case is the Act of 20 July 1925 on land concessions for hunting and compensation of damage caused by game, which obliges landowners to join a hunting syndicate and lays down how land is to be incorporated into hunting zones.

The judgment of the European Court has been published in the Codex journal, issue of June-July 2007.

• The Luxembourg authorities have provided information which is being examined

                       - Cases mainly concerning length of criminal proceedings

63286/00          Schumacher, judgment of 25/11/03, final on 25/02/04

73983/01          Rezette, judgment of 13/07/2004, final on 13/10/2004

40327/02          Casse, judgment of 27/04/2006, final on 27/07/2006

33747/02          Laghouati and others, judgment of 05/04/2007, final on 18/05/2007

11282/05          Electro Distribution Luxembourgeoise (E.D.L.) S.A., judgment of 31/07/2007, final on 31/10/2007

34471/04           S.J., judgment of 04/03/2008, final on 04/06/2008

These cases concern the excessive length of certain civil and criminal proceedings which began in 1991 and 1996 (violations of Article 6§1).

These cases present similarities, as each of them the excessive length of criminal proceedings was the main problem. In the Rezette and Casse cases, pursuant to the rule that civil proceedings arising from a criminal offence must await the decision of the criminal court, the civil proceedings had been postponed pending the completion of certain criminal proceedings, the length of which had also been excessive.

The Casse and Laghouati cases also concern the lack of an effective remedy (violation of Article13).

In addition, the Casse case concerns the fact that the applicant was not informed of the nature of the accusations against him (violation of Article 6§3a). In fact he had been under accusation since 1996, but had never been charged, or summonsed to appear before the investigating magistrate.

Individual measures:  

            1) Schumacher, Laghouati and S.J. cases: none, the proceedings at issue being now closed.

            2) Rezette and Casse cases:  In the Rezette case, the delegation has stated that the criminal proceedings at issue (in which the applicant was not indicted) were now closed, so that the civil proceedings could be resumed.

• The Luxembourg authorities have provided information which is being examined.

General measures:

            1) Violations of Article 6§1:

• Origin of the violations: It emerges both from the judgments and from the analysis provided by the delegation that the excessive length of the criminal proceedings at issue is due mainly either to factors specific to the cases or to the excessive workload of the Police Criminal Investigation Department (Service de Police Judiciaire, SPJ) and of the investigating magistrates of the Luxembourg Tribunal d'arrondissement. However, in the Luxembourg authorities' view, there is no structural problem as such concerning the length of criminal proceedings.

• Measures adopted:

- Excessive workload of the SPJ: Staff has been reinforced, from 138 officers in 2003 to 169 in 2005. Furthermore, the Ministries of the Interior and of Justice have reorganised the SPJ, effective since 1/12/2003. This reorganisation, instituting regular meetings between the police and the judiciary, is mostly aimed at improving the SPJ's efficiency through, among other things, better co-ordination between the judiciary and the head of the SPJ by minimising the time needed to carry out enquiries requested from the SPJ so as to accelerate treatment of criminal cases by the courts. Thus prosecutors and investigating magistrates are now in a better position to supervise the evolution of enquiries made by the SPJ. The government add that it is working work consistently to improve the material, human and organisational working conditions of the police staff and the courts as well as the rules of procedure, not least in criminal matters.

- Excessive workload of investigating magistrates:

First, here too, staff has been increased. In this respect, the delegation recalled Law of 24/07/2001 (programme of recruitment of judges and other staff), already noted in the Scheele case (ResDH(2003)89). A second programme of recruitment was provided in a law of 1/07/2005 on increasing this time the staff of the Public Prosecutor's office. More specifically, a law of 12/08/2003 also provided an increase in the number of investigating magistrates in the Luxembourg tribunal d'arrondissement, from 6 in 1996 to 13 in 2004.

Secondly, this increase in staff made it possible to reallocate files between investigating magistrates, taking into account their specialisation and experience.

Thirdly, improvements were made concerning the inventory of cases pending before investigating magistrates.

Finally, the Law of 6/03/2006, adopted to improve the everyday operation of criminal justice, introduced measures to reduce investigating magistrates' workload among others (the text of the law may be found at the following link; <http://www.legilux.public.lu/leg/a/archives/2006/0471503/0471503.pdf?SID=b8a998ca93a034e01a0c2f2a48e76ba8>). Now, a simplified form of pre-trial investigation makes it possible to take more steps in the investigation without it being mandatory to open of a pre-trial investigation, with the attendant workload for investigating magistrates. This law also introduced probation into Luxembourg law, as an alternative to detention on remand - a very severe measure requiring priority treatment of the files requesting such a measure, thus having an influence on the steady management of cases by investigating magistrates.

• Measures under adoption concerning the rule that civil proceedings arising from a criminal offence must await the decision of the criminal court. In the Rezette and Casse cases, the civil proceedings lasted too long because of postponements pending the completion of related criminal proceedings. In itself, the rule that civil proceedings arising from a criminal offence must await the decision of the criminal court has not been criticised by the European Court; on the contrary, it recalled that delivering a judgment on the civil issue before the end of the criminal proceedings could be incompatible with the requirements of the proper administration of justice.

In view of these elements, the government is drafting a bill to give an optional character to application of the rule that civil proceedings arising from a criminal offence must await the decision of the criminal court (Article 3 of the Criminal Pre-trial Investigation Code).

• Publication and dissemination of the judgments. The Rezette judgment was published in Codex No. 12 of December 2004 and in the Bulletin des Droits de l'Homme (n°11-12 - 2005) edited by the Luxembourg Human Rights Institute. The Schumacher judgment was published in Codex No. 2 of February 2004. Furthermore, both judgments were transmitted by the Ministry of Justice to the State Prosecutor General, on 29/07/2004 and 11/12/2003 respectively, for the information of all interested judicial authorities. Finally, the Casse judgment was published in Codex No. 6 of June 2006.

• Assessment: effect of these measures on the length of criminal proceedings: In view of the backlog which had accumulated before the measures taken, the beneficial effect of the measures on the length of criminal proceedings is only beginning to be perceptible. The Luxembourg authorities confirm, on the specific issue of investigating magistrates' workload, that there has been a considerable reduction of the accumulated backlog since the entry into force of these laws of 24 July 2001 and 12 August 2003

• The Luxembourg authorities have provided further information which is being examined.

            2) Violation of Article 13:

• Present situation: The Luxembourg authorities have indicated that under Luxembourg law it is possible to obtain reparation for any prejudice caused to citizens by the defective running of the Civil Service, through a claim for damages lodged either under Articles 1382 ff. of the Civil Code of Luxembourg (general rules), or under a special law of 1/09/1988. Whilst taking note of these legislative provisions, it should also be noted that the European Court itself found in the above-mentioned Rezette case (and confirmed since then, see in particular the Dattel and others judgment of 04/08/2005), that the remedy provided by the Law of 1/09/1988 had not acquired a sufficient degree of legal certainty to be used or exhausted by the applicant for the purposes of Article 35§1 of the Convention.

The Luxembourg authorities are aware of no case-law concerning the application of the Law of 1/09/1998 to cases of excessive length of judicial proceedings, other than those already presented before the European Court, the problem being that parties prefer to seise the European Court directly rather than using this internal remedy.

For the last developments, see the judgment of Shore Technologies c. Luxembourg (31 July 2008; § 23 ff.).

• The Luxembourg authorities have provided further information which is being examined.

            3) Violation of Article 6§3a): In the Casse case the violation was a consequence of the fact that the investigating magistrate did not inform the applicant of the accusations against him.

• The Luxembourg authorities have provided information which is being examined.

- 1 case against Malta

                       - Case concerning freedom of expression

7333/06            Lombardo and others, judgment of 24/04/2007, final on 24/07/2007

The case concerns a breach of the freedom of expression of the applicants, of whom the first three are members of the Fgura Local Council and the fourth the editor of the newspaper In-Nazzjon Taghna due to a judgment against them in civil libel proceedings concerning the publication of an article on a road-building project denouncing the Council for failure to consult the public or to take account of public opinion (violation of Article 10).

The European Court found that the article did not exceed the bounds of acceptable criticism, observing in particular the importance of preserving elected representatives’ freedom of expression in matters of public interest. The Court also considered that the applicants’ statements had adequate basis in fact, and included that in spite of the modest amount of damages awarded against the applicants, the finding had been such as to dissuade criticism of the local Council’s policy and was thus unnecessary in a democratic society.

Individual measures: The European Court awarded just satisfaction in respect of the pecuniary damages sustained with regard to the fines and damages ordered in the domestic proceedings.

• Assessment: No further individual measure appears necessary.

General measures: All judgments of the European Court against Malta are automatically sent out to competent authorities and are publicly available via the website of the Ministry of Justice and Home affairs (www.mjha.gov.mt/ministry/links.html) which provides a direct link to the European Court's website.

• Information is awaited on measures envisaged to prevent new, similar violations, particularly measures of dissemination and awareness-raising.

- 68 cases against Moldova

36492/02           Bujnita, judgment of 16/01/2007, final on 16/04/2007

The case concerns the violation of the applicant's right to a fair trial in criminal proceedings, due to the unjustified quashing of a final judicial decision acquitting him on a rape charge (violation of Article 6§1).

In June 2001 the applicant was acquitted of rape by Râşcani District Court. This judgment was confirmed by the Court of Appeal's final judgment of 30/10/2001. In December 2001 the Deputy Prosecutor General lodged with the Supreme Court of Justice a request for annulment of the judgments of the Râşcani District Court and the Court of Appeal. He argued that those courts had assessed the evidence erroneously and unlawfully. The Supreme Court of Justice upheld his request and declared the applicant guilty of rape.

The European Court found that the grounds for the Deputy Prosecutor General's motion to annul were insufficient to justify challenging the finality of the judgment and using this extraordinary remedy to that end as they were based on no new fact or breach of procedural guarantees. The Court therefore considered that the state authorities failed to strike a fair balance between the interests of the applicant and the need to ensure the effectiveness of the criminal justice system.

Individual measures: The European Court considered that the most appropriate form of redress would be for the applicant's final acquittal of 30/10/2001 to be confirmed by the authorities and for his conviction to be erased with effect from that date.

• Information provided by the Moldovan authorities: By its judgement of 26/11/2007 the Moldovan Supreme Court of Justice confirmed the applicant’s final acquittal of 26/06/2001. As a result, the Ministry of Interior erased the conviction of the applicant from his criminal record.

• Assessment: No further individual measures seem to be necessary.

General measures: The new Code of Criminal procedure, entered into force in 2003, amended the provisions concerning notably the Prosecutor’s power to lodge an extraordinary request for annulment of a final judgment (Section 369 of the former Code of Criminal Procedure). It remains to be assessed to what extent the new provisions meet the Convention requirements and in particular the principle of legal certainty. This assessment is underway.

• Information is awaited on the publication of the full text of the European Court's judgment and its dissemination to all relevant authorities, in particular to all courts and prosecutors.

20289/02           Guţu, judgment of 07/06/2007, final on 07/09/2007

This case concerns a number of violations related to the applicant’s unlawful arrest and detention due to her refusal on 30/12/2001 to accompany her son, suspected of theft, to a police station and to the subsequent proceedings resulting in her conviction for disobedience of a lawful order of the police officers.

Although Article 129 of the Code of Criminal Procedure provides the possibility of forcibly taking someone into police custody, it also establishes clear conditions, i.e. the person’s failure to appear before the investigating authority after having been duly summonsed in the framework of an already opened investigation. This condition not being met, the European Court found that the applicant's arrest and detention was unlawful (violation of Article 5§1).

The European Court also found that the police officers’ entry into the applicant's house was unlawful since none of the situations described in the Police Act of 18 December 1990 was applicable to the circumstances of the present case (violation of Article 8).

The European Court further noted that it had not been shown that there had been effective remedies in respect of the applicant’s complaint under Articles 5 and 8: Section 4 of law No.1545 allows claims for compensation only in case of acquittal (violation of Article 13).

Finally, the European Court also found a violation of the applicant’s right to a fair trial on account of the authorities’ failure to show that she had been summonsed to the appeal hearing concerning her alleged disobedience to the police officers’ order (violation of Article 6§1).

Individual measures: The applicant is no longer detained. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained. It results from the judgment that on 25/11/2002, the Prosecutor’s Office decided not to institute criminal proceedings against the police officers involved since the applicant had been convicted by a final judgment of the offence of disobeying the lawful orders of police officers (§ 22).

• In view of the findings of the European Court, information is awaited on measures, either criminal or disciplinary, taken or planned in respect of the police officers at the origin of the violations found.

General measures:

1) Violation of Articles 5§1 and 8: It would appear that in this particular case the police officers acted in breach of domestic law, which has not been challenged in the Court’s judgment.

• However, clarification would be useful on the current legal framework governing the arrest of persons suspected of having committed an administrative offence. Information is also awaited on measures taken or envisaged in respect of the police, in particular on training measures, mainstreaming Human Rights and the Convention’s requirements in their daily practice, strengthening of their disciplinary liability, etc.

2) Violation of Article 6§1: see the Ziliberberg case (Section 5.1)

3) Violation of Article 13: see the Corsacov case (Section 4.2).

4) Publication and dissemination of the judgment of the European Court: The judgment has been translated and published on the official web site of the Ministry of Justice (http://justice.md/md/cedo/).

• Information is awaited on the wide dissemination of the judgment to all competent authorities together with circular letters and detailed instructions to be issued by higher authorities, in particular the Ministry of Interior and the Prosecutor General, to explain to all subordinates the obligations flowing from the judgment and their effects on the day-to-day practice. An explanatory note from the Supreme Court to all lower courts would also be useful.

14385/04          Oferta Plus SRL, judgments of 19/12/2006, final on 23/05/2007 and of 12/02/2008 (Article 41), final on 07/07/2008

The case concerns a violation of the applicant company’s right to a fair hearing and to the peaceful enjoyment of its possessions due to the three-year failure to enforce a final judgment given in its favour in 1999, followed by the unjustified extension of the time limit for lodging an appeal by the opposite party and the wrongful quashing of the final judgment in violation of the principle of legal certainty (violations of Article 6§1 and Article 1 of Protocol No. 1).

The European Court specified that by extending the time-limit for lodging requests for revision without giving reasons, and by allowing the revision of the case notwithstanding the absence of any reasons or relevant new fact, the Supreme Court of Justice had infringed the principle of legal certainty and had interfered disproportionately with the applicant company's right to the peaceful enjoyment of its possessions.

The case also concerns a violation of the right of individual petition due to the institution of criminal proceedings against the chief executive of the company and the consequent impossibility for the applicant company’s legal representative to communicate with the chief executive during his detention without being separated by a glass partition. The European Court considered also on the basis of the materials before it that there were sufficiently strong grounds to infer that the criminal proceedings against the chief executive had been started with the aim of discouraging the company from pursuing its case before the European Court (double violation of Art. 34).

Subsequently, while the just satisfaction issue was pending before the European Court, the Supreme Court of Justice, whilst revoking the annulment of 1999 judgment, ordered on 29/10/2007 that this judgment was never to be enforced. In its Article 41 judgment of 12/02/2008 the European Court expressed serious concern that despite its abundant case-law and regardless of its findings in its principal judgment, the Supreme Court had adopted a solution which once again failed to respect the finality of the judgment of 1999 (§ 69 of the judgment).

Individual measures: In the Article 41 judgment, the European Court granted the applicant just satisfaction in respect of the outstanding debt under the original judgment of 1999 and the non-pecuniary damage sustained by the applicant as a result of the violations found.

As regards the criminal proceedings initiated against the chief executive of the applicant company, the chief executive was acquitted by the first-instance court on 28/06/2007. The public prosecutor appealed, but on 12/10/2007, the Chişinău Court of Appeal dismissed this appeal. On 1/04/2008 the prosecutor’s further appeal to the Supreme Court of justice was also dismissed as manifestly ill-founded, in particular with reference to the conclusions of the European Court.

• Applicant’s submission: In July 2008, the applicant’s representative submitted that the prosecutors’ office had challenged the judgment of the Court of Appeal of 12/10/2007 with a view to discouraging the applicant also from pursuing the just satisfaction procedure before the European Court (not least asking that the chief executive be convicted and sentenced to 15 years’ imprisonment).

• In view of the findings of the European Court and of the Supreme Court of Justice with respect to the well-foundedness of the prosecution, the Moldovan authorities are invited to provide information on any action taken in response to these findings, in particular by the prosecution authorities.

General measures:

            1) Violations of Article 6§1 and Article 1 of Protocol No. 1: The general issues raised by this case present similarities notably with Luntre (non-enforcement of domestic judicial decisions) and Popov No. 2 (use of revision procedure) (1051st meeting, March 2009) in which the Moldovan authorities are currently adopting measures to prevent new, similar violations. The special criticism directed by the European Court against the judicial practices will be taken into account in the context of the examination of the aforementioned groups.

            2) Violations of Article 34: this case presents certain similarities to that of Boicenco (Section 4.2).

• Information provided so far by the Moldovan authorities: The glass partition at the detention centre at issue, the Centre for Fighting against Corruption and Economic Crime, which was hindering the possibility of the detainees to communicate directly with their representatives, was dismantled in April 2007.

• However, in view of the European Court’s conclusion with respect to the criminal proceedings initiated against the chief executive of the applicant company and similar situations highlighted by other cases (Colibaba (Section 4.2), Cebotari (1051st meeting, March 2009), the Moldovan authorities are invited to provide information about the measures envisaged or taken to ensure that this kind of practices can no longer take place. In the meantime, information is awaited on the publication and dissemination of the full version of the Article 41 judgment of the European Court.

The Deputies: As regards the violation of Article 34 of the Convention 1.             stressed the fundamental importance of the right of individual petition and the state’s obligation not to hinder in any way the effective exercise of this right; 2.             noted that the violation of this right was in particular due to criminal proceedings brought against the applicant company’s representative in order to discourage the pursuit of the case before the European Court; 3.             noted with concern that notwithstanding the finding of this violation, these criminal proceedings were not immediately discontinued after the Court’s judgment, but pursued for 11 months until the representative’s final acquittal by the Supreme Court of Justice; 4.             took note of the information provided by the Moldovan authorities, in particular with regard to the new mechanisms envisaged in the draft law on the reform of the Prosecutor’s office, regarding the supervision of the activities of prosecutors and to remedies available to persons subject to abusive criminal prosecution; As regards the violations of Article 6 of the Convention and Article 1 of Protocol No. 1 5.             noted with concern, that the European Court was compelled to conclude in its separate just satisfaction judgment that the Supreme Court of Justice had in a new decision taken following the European Court’s principal judgment, once again disregarded the final character of the domestic judicial decision delivered in the applicant’s favour, in a manner incompatible with the Convention; 6.             took note of the examples of domestic courts’ case-law demonstrating the direct effect of the Convention, as well as of the training measures which are being taken in this domain within the National Institute of Justice; 7.             in the light of the above, invited the competent Moldovan authorities to take all additional measures necessary to remedy the violations found and to prevent new violations, similar to those found in this case; 8.             in particular invited the authorities to intensify their efforts further to develop the direct effect of the case-law of the European Court, including by special training programmes for judges and prosecutors, and to keep the Committee of Ministers informed about the progress made; 9.             decided to resume consideration of this case at their 1051st meeting (17-19 March 2009) (DH), in the light of information to be provided by the Moldovan authorities.

- Cases concerning ill-treatment under police custody, lack of effective investigation in this respect (Articles 3 and 13)

18944/02          Corsacov, judgment of 04/04/2006, final on 04/07/2006

6888/03            Pruneanu, judgment of 16/01/2007, final on 23/05/2007

41088/05          Boicenco, judgment of 11/07/2006, final on 11/10/2006 and of 10/06/2008, final on 10/09/2008

29089/06          Colibaba, judgment of 23/10/2007, final on 23/01/2008

These cases concern inhuman and degrading treatments inflicted on the applicants while in police custody (substantial violation of Article 3) and the authorities' failure to carry out effective investigations in this respect (procedural violation of Article 3). The European Court identified the following shortcomings in the domestic investigations, in particular

-           a number of serious and unexplained omissions and inconsistencies of the investigation, in particular between the conclusions of the medical reports and the explanations given by the police officers (Corsacov case);

-           factual findings made by the prosecutors entirely based on the statements of the police officers accused of ill-treatment (Pruneanu case);

-           lack of independence of the prosecutor who conducted the investigation since it was the same prosecutor who requested the applicant's remand and for the extension of his detention as well as his failure to undertake any investigative measures after receiving the complaint from the applicant's lawyer, not least to consult the applicant's medical file (Boicenco case);

The Colibaba case concerns a number of serious omissions of the investigation into the applicant’s allegations of ill-treatment on account of

- the prosecutor’s refusal without any plausible reason to grant the applicant’s request to undergo an independent medical examination in the presence of his relatives;

- the disregard by the domestic court of the applicant’s appeal against the prosecutor’s refusal and of the results of an independent medical examination revealing signs of ill-treatment later undergone by the applicant; and

- the prosecutor’s refusal to re-examine the case in the light of the conclusions of this independent medical examination.

The Court noted that since the criminal investigation conducted by the domestic authorities concluded that the actions of the police officers were legal, any civil action against them would have been ineffective. The European Court accordingly found that the applicants did not have an effective remedy to claim compensation for their ill-treatment (Corsacov and Pruneanu cases) (violations of Article 13).

In addition, the Boicenco case concerns

- the applicant's detention without a detention order (violation of Article 5§1);

- the impossibility for him to be released under section 191 as he was charged with intentional offences punishable by more than 10 years' imprisonment (violation of Article 5§3) and

- a violation of the applicant's right of individual petition due to the fact that his lawyers and a doctor were not allowed to see the applicant or his medical file for the purpose of defending his rights before the European Court (violation of Article 34).

Finally, the Colibaba case concerns a violation of the applicant’s right of individual petition on account of the Prosecutor’s General threat to initiate criminal proceedings against his lawyer on the ground of his “improper” complaint to international organisations (violation of Article 34).

Individual measures: In all cases, the European Court awarded just satisfaction to the applicants in respect of the non-pecuniary damage suffered as a result of the torture and of the failure of the authorities properly to investigate the case.

As regards the investigations into the applicants' allegations of ill-treatment:

            1) Corsacov case: the General Prosecutor's Office conducted an investigation against the alleged perpetrators of the ill-treatment inflicted on the applicant. The case is currently under examination by the Hânceşti Court of First Instance (a hearing was scheduled for 28/11/2006).

• Information is expected on the progress of these proceedings.

            2) Pruneanu case:

• Information is awaited in respect of conducting new investigations concerning the allegations of ill treatment in May 2001 and July 2002.

            3) Boicenco case: on 06/07/2006, the Buiucani Court of First Instance decided to release the applicant on bail and he was able leave the psychiatric hospital. Subsequently, on 03/11/2006, the same court decided to suspend the criminal proceedings against him until his recovery. He was authorised to go to Bucharest and Kiev for medical examination.

On 27/07/2006, the Buiucani Court of First Instance asked the clinical director of the psychiatric hospital to give the applicant's lawyer immediate and free access to his medical file.

On 17/07/2006, the Deputy General Public Prosecutor quashed the decision of 08/06/2006 of the Catana public prosecutor not to open a criminal investigation against the agents of the CFECC. Subsequently, the case-file was transmitted to the Anti-corruption Prosecution Office. Additional enquiry was ordered into the facts relied on by the applicant's wife and lawyer.

On 21/02/2007 the Prosecutor of the Anti-corruption Prosecution Office, taking into account the evidence gathered in the course of this enquiry, issued an order closing the proceedings.

• More details are awaited on the new investigation, in particular on how the shortcomings identified by the European Court have been remedied and on the investigatory steps taken in this respect. The need for further individual measures is being assessed by the Secretariat.

            4) Colibaba case:

• Information is awaited on the conduct of new investigations concerning the allegations of ill treatment in April 2006.

General measures:

            1) Measures taken with a view to preventing ill-treatment in police custody:

            a) Legislative changes: On 30/06/2005 the Moldovan Parliament adopted an amendment to the Criminal Code, defining and criminalising torture. Article 309¹ of the Criminal Code provides a jail sentence of 2 to 5 years with suspension of the right to hold certain offices or to engage in certain activities for up to 5 years. More severe penalties are provided (3 to 8 years' imprisonment with the same suspension of rights) for organising or inciting torture and in respect of certain types or techniques of torture (5 to 10 years). Torture and other forms of cruel, inhuman or degrading treatment are prohibited by a series of special provisions contained in the Criminal Code (Articles 306-309 and 327, 328) and in the Code of Criminal Proceedings.

            b) Regulatory changes: On 19/04/2006 the Moldovan government approved the Code of Police Ethics (published in December 2006) drafted with the Council of Europe's assistance. Among the relevant provisions, Section 13 provides that all police officers are fully responsible for their actions or omissions as well as for orders given to their subordinates. According to Section 16 it is prohibited to apply, encourage or tolerate any act of torture under any circumstance, to use force, except in cases of absolute necessity and only to the extent necessary to achieve a legitimate aim. Section 30 of the Code provides that any failure to comply with its provisions entails the disciplinary, civil or criminal responsibility of the police under the conditions prescribed by law.

- On 30/11/2006, the General Prosecutor adopted an order (n° 325/19) on the prevention of and the fight against torture. This order requires heads of divisions of the General Prosecutors' Office to monitor the application of the legislation by the agents in charge of investigation and penitentiary institutions. It also stresses the importance of supervising investigations into allegations of torture.

- On 11/05/2005 a commission in the Ministry of Interior has been established. The commission is charged with the implementation of the National Plan of Action for 2004-2008 in the field of human rights.

- The Moldovan authorities informed that the Government provided 5.6 million Moldavian Lei to finance the renovation and restoration work of detention places in police headquarters.

- The Ministry of Interior set up a phone number for anonymous calls to gather complaints related to violations committed by police officers.

            c) Training and awareness raising

- According to Section 11 of the Code of Police Ethics, staff training should be carried out according to the objectives of the police force, while respecting fundamental principles such as the rule of law, democratic pluralism and the protection of human rights.

- Several training programmes on human rights (torture, inhuman and degrading treatment) and the European Convention have been organised within the Ministry of Interior for the police and their co-workers. Other seminars have been organised with help of the Moldovan Institute of Penal Reform and the UNDP, for the employees of the Ministry of Interior.

- During its visit to Chisinau (29/11/06-01/12/06), the Secretariat delegation was informed that the authorities were considering setting up twelve workshops on the implementation of the Code of Police Ethics. The Secretariat has been also informed of changes already made and to come in the Police training curricula.

• Assessment: According to the Committee of Ministers' practice regarding this kind of cases (see, in particular, Interim Resolutions DH(99)434, DH(2002)98 and ResDH(2005)43 concerning the action of the security forces in Turkey, Interim Resolution ResDH(2005)20 concerning the action of the security forces in Northern Ireland and Final Resolutions ResDH(94)34 in the case Tomasi against France and ResDH(2006)13 in the cases Egmez and Denizci against Cyprus), particular attention should be paid to the existence of a number of procedural safeguards surrounding taking persons into custody.

• Additional information would thus be helpful notably on the following issues:

-           while in custody, to what extent an individual will be allowed to have contacts with the outside world, e.g. his lawyer or his relatives?

-           what actions may be taken by the outside persons if the ill-treatment is alleged?

-           what are the prosecutors' duties in respect of persons in custody (do they have an obligation to visit persons in custody, how often, does a special report have to be drawn up)?

-           is a person subjected to a medical examination at the time of his arrest?

-           does the Moldovan law provide for a video recording of custodial questioning of suspects?

            2) Measures taken with a view to ensuring the effectiveness of investigations: According to Article 298 of the Code of Criminal Procedure, as amended by the Moldovan Parliament on 28/07/2006, complaints concerning actions of organs conducting criminal investigations may be addressed to the prosecutor who supervises this investigation. If a complaint concerns the prosecutor supervising or directly involved in the investigation, he or she is required to transmit it, together with his or her explanations, to a superior prosecutor within 24 hours. All declarations, complaints or other circumstances indicating that a person has been tortured or subjected to inhuman or degrading treatment shall be examined by a public prosecutor under Article 274 of the Code of Criminal Procedure, in a separate procedure.

• Assessment: It would be helpful to receive information on the following issues:

-           What bodies are responsible for the investigation of abuses committed by police officers and what are the guarantees of the investigative authorities' independence and impartiality from a hierarchical, institutional and practical point of view? And in particular

-           What are the investigation powers and means of Prosecutors General vis-à-vis the police?

-           How is the competent investigating authority determined so as to guarantee its independence (e.g. the investigators are called in from another jurisdiction)?

-           Is there an independent investigating body within the police and/or Prosecutor General office to investigate cases of alleged abuses committed by police officers (a kind of internal affairs division)?

-           What is the victim's involvement in the proceedings (right to be heard, right to have reasons for non-prosecution, right to challenge such decisions before the courts)?

The authorities may also wish to illustrate their answers with recent specific examples and statistics, if any.

            3) Measures taken with a view to ensuring a possibility to claim compensation: At the material time, it was necessary to establish that the act at issue was illegal in order to claim compensation for the damage sustained.

The authorities have indicated that Articles 1403-1405 of the Civil Code establish responsibility and the possibility of compensation for damage caused by public authorities or by organs of criminal prosecution, public prosecutors and the judiciary. One example related to the application of these provisions has been provided.

• Information would useful on whether these Articles provide for the objective liability of the state or whether their application is still subject establishing the guilt of the state agents concerned.

The authorities have also indicated that persons whose rights had been violated are entitled to compensation for non-pecuniary and pecuniary damage under the provisions of Law No. 1545 of 25/02/1998 “on Compensation for Damage caused by the Illegal Acts of the Criminal Investigation Bodies, Prosecution and Courts”. According to this Law, the damage caused shall be fully compensated, irrespective of the degree of liability of the agents of the criminal investigation organs, prosecution or courts.

• Assessment: The authorities are invited to provide clarification on the applicability of Law No. 1545 to compensation for infliction of torture (in particular, whether it is necessary to establish the illegality of the acts in question in order to claim compensation for damage sustained) and its relationship to the general provisions contained in the Civil Code. Relevant examples of their application are also expected.

            4) Other violations found in the Boicenco case:

- Articles 5§1 and 5§3: see the Sarban group of cases (1051st meeting, March 2009).

- Article 34: Information is awaited on the measures taken or envisaged by the authorities to ensure that the lawyers have access to their clients in detention and on other possible measures to prevent new similar violations.

            5) Publication and dissemination of the Court's judgments: These judgments were translated and published on the website of the Ministry of Justice (http://www.justice.md). It has also been sent for publication in the Official Journal and sent out to the national courts, the Ministry of Interior and all sections of the police.

- Cases concerning poor conditions of detention and lack of effective remedy in this respect

9190/03            Becciev, judgment of 04/10/2005, final on 04/01/2006

12066/02          Ciorap, judgment of 19/06/2007, final on 19/09/2007

30649/05          Holomiov, judgment of 07/11/2006, final on 07/02/2007

35207/03          Ostrovar, judgment of 13/09/2005, final on 15/02/2006

8721/05+          Istratii and others, judgment of 27/03/2007, final on 27/06/2007

These cases concern various violations related to the applicants' detention on remand, as follows:

1) Violations of Article 3

- Poor conditions of detention: All these cases concern the poor conditions of the applicants' pre-trial detention between 2001 and 2005, were due in particular to the absence of outdoor exercise, the inadequacy of food, presence of parasitic insects, lack of access to daylight or electricity, the exposure to cigarette smoke.

- Force-feeding of a detainee on hunger-strike: In the Ciorap case, the European Court found that the repeated force-feeding of the applicant while on hunger-strike against his detention conditions was amounted to torture.

- Lack of special medical assistance during pre-trial detention: In the Holomiov case, the European Court noted that the core issue in this case was not the lack of medical care in general but rather the lack of medical care suited to the applicant's particular conditions. The Court stressed that merely having the applicant seen by doctors and hospitalised in the prison was not enough. The applicant was prescribed urgent surgery on one of his kidneys in 2002 and 2003 but the doctor's recommendations were never followed up.

In the Istratii and others case, the violation was also due to the authorities' failure in the CFECC remand centre to provide timely medical assistance to the one of the applicants, to his transfer to prison hospital less than four hours after surgery and to the fact that he was unnecessarily handcuffed while in hospital.

2) Violation of Article 13: The Ostrovar case concerns the lack of an effective remedy into the allegations of poor conditions of detention (violation of Article 13 taken together with Article 3).

3) Violations of Article 8:

- Interception of correspondence: The Ostrovar and Ciorap cases concern the interception of the applicants' correspondence. In this respect, the European Court considered that Article 18 of the Law on Pre-Trial Detention did not indicate with reasonable clarity the scope and manner of the exercise of discretion in respect of restrictions on prisoner's correspondence.

- Failure to ensure acceptable conditions for the applicants' meetings with their relatives: Failure to ensure acceptable conditions for meeting with the applicants' families was due to the installation of a glass partition in the visitors' suite (Ciorap case) and to the refusal to authorise visits with relatives (in Ostrovar case).

4) Other violations:

The Becciev case also concerns insufficient grounds for detention (violation of Article 5§3) and the domestic courts' refusal to hear a witness for the defence (violation of Article 5§4).

The Istratii and others case concerns insufficient grounds for detention (violation of Article 5§3) and the lack of confidentiality of lawyer-client communications at the CFECC remand centre (Centre against Economic Crime and Corruption) (violation of Article 5§4).

The Ciorap case concerns the refusal by the Supreme Court to examine the applicant's complaint regarding the force-feeding, on the ground that he had not paid court fees, in breach of his right to access to court (violation of Article 6§1).

Finally, the Holomiov case also concerns detention after the expiry of his detention warrant (violation of Article 5§1) and the excessive length of criminal proceedings (violation of Article 6§1).

Individual measures: In all cases, except the Ciorap case, the applicants are no longer detained. The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicants.

Mr Ciorap ended his hunger strike on 04/10/2001. On 17/06/2008 he was transferred from prison No 13 (former No. 3) of Chisinau to Cricova prison No 15. According to the latest information provided by the applicant’s representative, the applicant is currently serving his sentence in prison No 9. On 01/08/2008 and 06/11/2008, the applicant’s representative lodged extensive submissions with respect to alleged violations of the applicant’s rights related to his detention. On 28/10/2008 and 19/11/2008 these submissions were transmitted to the authorities.

• Their comments in this respect are awaited.

General measures:

            1) Violations of Article 3

• Information provided by the Moldovan authorities:Most of the legal framework governing the prison system, including conditions of detention, has been changed by the new Enforcement Code, which entered into force on 01/07/2005, and other new laws.

- Overcrowding: The new Enforcement Code provides for a minimum of 4 m² for each prisoner. In an effort to reduce prison overcrowding, a Bill has been drawn up to amend the Criminal Code, reducing minimum sentences for less serious offences and increasing the number of offences in respect of which alternative penalties may be applied.

- Cell conditions: In 2005, 1500 blankets, 2000 towels, 2000 sheets, 2000 pillowcases, 1000 mattresses and 1000 pillows were acquired and distributed. Measures were taken to improve conditions in Chisinau No. 3 Penitentiary with the repair of 129 cells. New provisions have been introduced banning smoking in cells and other parts of prisons, detainees being allowed to smoke only in specially equipped rooms.

- Diet, medicines and care: New minimum daily diet standards have been established to improve the quantity and quality of rations. All prisons also now possess all major types of medicaments, particularly those needed to treat prisoners suffering from tuberculosis. Rules on the provision of medical care in prisons are in the process of being drafted and adopted.

- Prisoners' free time:  Educational, cultural and sports programmes have been drawn up and implemented in prisons as a framework for detainees' free time. Psychologists and social workers are carrying out social integration programmes.

• Detailed information is awaited on the possibility for outdoor exercise.

- Lack of medical assistance during pre-trial detention: The Moldovan authorities indicated that the Department of Penitentiary Institutions of the Republic of Moldova signed contracts for 2004-2007 with specialised medical health institutions (among others the Republican Centre for Diagnosis, the Republican Hospital of neurology and neurosurgery) to improve the quality of the special medical care given to detainees.

- Force-feeding of detainees on hunger strike: The force-feeding of the applicant was carried out on the basis of instructions regarding the detention in prisons of persons refusing to take food and the manner of their force-feeding, adopted by Ministry of Health and Ministry of Justice in 1996, which prohibited the force-feeding of detainees.

The European Court noted that on 9/10/2003 Article 33 of the Law on Remand (which had provided for the force-feeding of detainees on hunger-strike) was amended to expressly prohibit the force-feeding of detainees.

• Information is awaited as to whether the 1996 instructions mentioned above have been withdrawn, on implementation measures taken with respect to the new instructions based on the Law of 2003), on possible training for prison staff, etc. A copy of the new Law would also be useful.

• Assessment: The information provided is currently being assessed by the Secretariat.

            2) Violation of Article 13

• Information provided by the Moldovan authorities:A Supreme Court of Justice decision of 19/06/2000 laid down that where domestic law does not provide a right to an effective remedy against any right safeguarded in the Convention, the competent court shall directly apply the provisions of the Convention, whether in civil or criminal proceedings.

Article 53 of the Moldovan Convention provides that the state is responsible for prejudice resulting from errors by prosecutors and courts in criminal proceedings. Article 1405 of the Civil Code contains a similar provision concerning the state's responsibility for judicial errors. A concrete mechanism for the reparation of judicial errors is provided in Act No. 1545-XIII of 25/02/1998. An example is given: in the case of Drugalev against the Ministries of the Interior and Finance, the applicant was awarded 15 000 Lei in respect of non-pecuniary damages.

With a view to ensuring respect for the right to an effective remedy, a Complaints Committee has been set up as an independent body with the mandate to deal with prisoners' complaints at any time during their sentence.

• More details would be useful on the composition, functioning and powers of the Complaints Committee. Relevant examples of case-law are awaited demonstrating the effectiveness of this remedy with regard to poor conditions of detention.

3) Violations of Article 8

- Interception of correspondence

• Information provided by the Moldovan authorities:Articles 18 and 19 of the Law on Pre-Trial Detention were slightly modified in 2003 and then repealed in 2005 by the new Enforcement Code. Article 229§2 of the Code prohibits the censorship of the correspondence of the detained persons with their lawyer, the Complaints Committee, the prosecution authorities, courts, the central public administration authorities and international, intergovernmental organisations protecting human rights and fundamental freedoms. The Statute on the Enforcement of Sentences (adopted 26/05/2006) provides that prisoners' correspondence with relatives or with other physical or legal persons may not be subject to censorship except under the conditions set out in the Code of Criminal Procedure or in Article 6, paragraph 2.2 of the Act on Operational Investigations.

• Information is awaited as to whether instructions exist concerning the implementation of these Articles and on how the control over the compliance with these obligations by the penitentiary authorities is ensured (e.g. internal monitoring mechanism, verifications by the prosecutors, etc).

- Failure to ensure acceptable conditions for the applicants' meeting with their relatives

• Information would be also useful on the current situation regarding the conditions of meeting of detainees with visitors in prison n° 3 Chisinau.

4) Other violations

As regards the following violations:

- Violation of Article 5§1 in the Holomiov case: see the Sarban group (Section 4.2).

- Violations of Article 5§3 (insufficient grounds for the detention) in Becciev and Istratii and others case and Article 5§4 (domestic courts' refusal to hear a witness for the defence) in Becciev case: see the Sarban group.

- Violation of Article 5§4 in the Istratii and others case on account of the lack of confidentiality of lawyer-client communications at the CFECC remand centre: see the Sarban group.

- Violation of Article 6 in the Ciorap case, the European Court noted that in accordance with Article 85 (1) of the Code of Civil Procedure, the applicant should have been exempted from paying court fees due to the nature of his claim (damage to his health caused by the actions of the authorities), regardless of his ability to pay. However the domestic court had not taken into consideration the nature of his complaint. The Moldovan authorities have indicated that the European Court's judgment has been published in the Official Journal and sent out to national courts.

As regards the violation of Article 6§1 in the Holomiov case due to the excessive length of proceedings:

• Information is awaited on the publication and dissemination of the judgment to all courts together with a circular letter of the Supreme Court of Justice drawing their attention to their obligations with regard to the reasonableness of the proceedings.

            5) Publication and dissemination: All judgments of the European Court have been translated and published in the Official Journal of the Moldovan Republic (Monitorul Oficial) as well as on the official internet site of the Ministry of Justice (http://www.justice.md) and sent out to all appropriate authorities.

41578/05           David, judgment of 27/11/2007, final on 27/02/2008

This case concerns the unlawful and arbitrary detention of the applicant in the Central Psychiatric Hospital to undergo medical examinations to determine whether he was fit to plead in compensation proceedings he brought against the state(violation of Article 5§1 e)).

The European Court considered that the court order of 14/03/2004 to hospitalise the applicant was not aimed at protecting him or others but simply to check his fitness to plead and that the applicant had agreed. Thus from the moment that he made it know that he wanted to leave the hospital, his detention became arbitrary and unlawful within the terms of Article 5§1 e) (§40 of judgment).

Individual measures: The applicant was released from the hospital on 29/04/2005. The European Court awarded him just satisfaction in respect of non-pecuniary damage.

General measures:

• Information is awaited on measures envisaged to prevent new, similar violations.

17211/03           Dolneanu, judgment of 13/11/2007, final on 13/02/2008

This case concerns the violation of the applicant’s right to peaceful enjoyment of his possessions due to the belated payment of an amount due to him, on the basis of a decision of the Parliament adopted in 1994 for the partial recovery of the depreciation of his deposits at the State Savings Bank (violation of Article 1 of Protocol No.1).

The European Court noted that the domestic courts had established the illegality of the interference with the applicant’s right and that the delay in payment was attributable to the Ministry of Finance due to the lack of budgetary resources.

The case also concerns the lack of an effective remedy in this respect (violation of Article 13 taken in conjunction with Article 1 of Protocol No. 1). The Court noted that the domestic courts had admitted the absence of any legal basis for awarding compensation to the applicant.

Individual measures: In 2004 the applicant received the amount due to him. The European Court awarded him just satisfaction in respect of the pecuniary and non-pecuniary damage sustained.

• Assessment: no further individual measure seems necessary.

General measures:

• Information is awaited on measures envisaged to prevent new, similar violations and in particular dissemination of the judgment to the Ministry of Finance.

13229/04           Clionov, judgment of 09/10/2007, final on 09/01/2008

This case concerns the belated enforcement of a final domestic judgment awarding the applicant compensation for his employer’s failure to pay him monthly invalidity benefit (violations of Article 6§1 and Article 1 of Protocol No. 1).

The case also concerns a violation of the applicant’s right of access to a court due to the refusal by the Supreme Court of Justice to examine his appeal because he did not pay court fees (violation of Article 6§1). In this respect the European Court, noting that under Article 437 (2) of the Code of Civil Procedure, appeals on points of law before the Supreme Court of Justice may not be subject to any exemption from court fees, partial or total, irrespective of the appellant’s financial situation, took the view that such a blanket prohibition of waiving court fees itself raises an issue under Article 6§1 (§41 of the judgment).

Individual measures: The domestic court judgment was enforced and the European Court awarded the applicant just satisfaction in respect of pecuniary and non-pecuniary damage sustained.

General measures:

            1) Late enforcement of final domestic judgments: see Luntre group, (1051st meeting, March 2009).

            2) Right of access to a court:

• Information is awaited on the measures envisaged by the authorities to comply with the requirements of Article 6§1 relating to Article 437 (2) of the Code of Civil Procedure.

40117/02           Cazacu, judgment of 23/10/2007, final on 23/01/2008

This case concerns a violation of the applicant’s right to the peaceful enjoyment of his possessions due to the refusal of the domestic courts to award him redundancy payments as provided in Articles 45 and 80 of the Labour Code.

The European Court noted that the applicant fulfilled the legal conditions governing entitlement to the payment, the only reason for dismissing his claim being the failure of his employer to provide for redundancy payments even though such provision was required by law of all employers (§§44 and 46). It therefore found the domestic courts’ refusal illegal (violation of Article 1 of Protocol No. 1).

Individual measures: The European Court awarded the applicant just satisfaction in respect of pecuniary and non-pecuniary damages.

• Assessment: no further measure seems necessary.

General measures:

• Information is awaited on measures envisaged by the authorities to prevent new, similar violations.

19247/03           Balan, judgment of 29/01/2008, final on 29/04/2008

The case concerns the violation of the applicant’s rights to the peaceful enjoyment of his possessions on account of the refusal by domestic courts to compensate him for the unauthorised use by the Ministry of Internal Affairs of one of his photographs as a background for the national identity cards (violation of Article 1 of Protocol No. 1).

In the first set of proceedings (November 1998 – December 1999) the Supreme Court of Justice awarded compensation to the applicant for the author’s rights on the photograph taken by him, but rejected the applicant’s request that the Ministry be ordered to sign a contract with him for the future use of the photograph.

In the second set of proceedings (December 1999 – October 2002) concerning the continued unlawful use of the photograph between March 1999 and May 2000, the Supreme Court of Justice, essentially repeating the reasons given in the judgment of the Court of Appeal of 26/03/2002, rejected the applicant’s claims, considering that during the first set of proceedings he had already been compensated and had never asked that this photograph no longer be used.

The European Court noted “the discrepancies in the manner in which the domestic authorities interpreted the Copyright and Related Rights Act (“the 1994 Act”) in the first and in the second proceedings, even though they decided on essentially the same legal situation”. The Court found that the public interest could have been served without violating the applicant’s rights, for example by using another photograph or by signing a contract with the applicant.

Individual measures: Since 01/05/2000, the photograph taken by the applicant is no longer used on the identity cards. The European Court awarded the applicant a lump sum (5 000 euros) in respect of pecuniary and non-pecuniary damage.

• Information provided by the applicant’s representative: On 21/07/2008 the applicant lodged with the Supreme Court of Justice a revision request under Article 449 of Code of Civil Procedure.

• Information is awaited on the progress of the re-opening proceedings.

General measures:  It appears that the violation of the author’s rights was a consequence of the inconsistency in application of the 1994 Act by the domestic courts.

• Information provided by the Moldovan authorities (letter of 25/09/2008): The Ministry of Justice informed the Superior Council of Magistrates of the need to strengthen the responsibility of judges while examining similar cases. The authorities also indicated that on 9/11/1998 the Plenary of the Supreme Court of Justice adopted a decision on domestic courts’ practice in applying certain legal provisions concerning copyright. Finally, the authorities mentioned the organisation by the National Institute of Justice of regular training seminars for judges and prosecutors.

• Assessment: The decision of the Plenary of the Supreme Court of Justice mentioned above had apparently already been taken when the domestic courts examined the case but it did not impede their delivering decisions which were challenged by the European Court.

• Information is therefore awaited on other measures to ensure that the domestic courts’ practice is in compliance with the Convention requirements. As far as the training seminars organised by the National Institute of Justice are concerned, more details on their content and duration would be useful.

According to the information provided by the Moldovan delegation, the excerpt of the judgment of the European Court has been translated and published in the Official Journal of the Republic of Moldova. The full text of the judgment has been sent for publication on the official web-site of the Ministry of Justice (http://justice.md/md/cedo/).

• Information is thus awaited on the publication and dissemination to all courts of the full version of the European Court’s judgment.

45701/99          Metropolitan Church of Bessarabia and others, judgment of 13/12/01, final on 27/03/02 - Interim Resolution ResDH(2006)12

952/03              Biserica Adevărat Ortodoxă din Moldova and others, judgment of 27/02/2007, final on 27/05/2007

                       CM/Inf/DH(2008)47

These cases concern the authorities’ refusal to recognise the applicant churches and the lack of an effective remedy in this respect.

In the case of the Metropolitan Church of Bessarabia and others, the European Court concluded that the failure of the government to recognise the applicant Church constituted an interference with the applicants' right to freedom of religion (merely because of the effects that the absence of recognition of the applicant church had on its members to practice their worship and any religious activities, and on the possibility for the applicant Church to have an effective access to a court to claim property entitlements). This interference, although pursuing a legitimate aim, was not “necessary in a democratic society” and thus not justified under the Convention (violation of Article 9). The Court also concluded that the applicants did not enjoy an effective remedy in respect of their various claims at domestic level (violation of Article 13).

The case of Biserica Adevarat Ortodoxă din Moldova and others concerns the authorities’ persistent refusal to register the applicant church (violation of Article 9). The European Court noted that despite a final judgment of August 2001 ordering the registration of the church and repeated requests from the enforcement authority, the government and the State Service for the Protection of Religious Denominations (“the Service”) refused to register the applicant church. On the contrary, the government made three unsuccessful attempts to reopen the proceedings which had led to the decision ordering the registration of the church and the Service continued to request additional documents from the applicants, although these documents had been already presented and in any event were not required by law. The Court found that the failure to enforce the judgment ordering the registration of the applicant church was due to a general problem of lack of an effective mechanism in this respect (violation of Article 13). The case also relates to a violation of the applicants' right to the peaceful enjoyment of their property due to the delayed enforcement of the part of the judgment of August 2001 awarding compensation to the applicant Church in respect of non-pecuniary damage suffered on account of the authorities' refusal to register it (violation of Article 1 of Protocol No. 1).  

Individual measures:

            1) Case of Metropolitan Church of Bessarabia and others:

a) Registration of the applicant Church and its entities and the protection of religious activities: Following the European Court's judgment, the Moldovan authorities recognised and registered the applicant Church on 30/07/2002 in accordance with the Moldovan Law on Religious Denominations, as amended on 12/07/2002. The Church has thus acquired legal personality opening the possibility for it to claim property entitlements, among other things. This also allowed the beginning of the registration process of different components of the applicant church.

According to the information provided by the Moldovan authorities in March 2006, 86 parishes, 9 monasteries, 2 social missions with 73 sub-divisions, 2 seminaries (one theological and one monastic) and a school of ecclesiastical arts have been registered. The applicant church also disposed at the time of more than 120 rectories with almost 160 priests.

However, between 2004 and 2006, the applicant Church informed the Committee and the Secretariat that it had encountered, on several occasions, some obstacles with the registration of some of its parishes

In reply to these allegations, the Moldovan authorities explained that some of the registration requests were rejected because there already existed parishes with the same name. According to Article 66 of the Civil Code, a legal person cannot be registered if it has the same name as another legal person already registered. The refusal to register these parishes was appealed but without success.

At the end of 2006, some registrations continued to be rejected on the ground of a lack of permission from the local administration. The Moldovan authorities indicated that 22 parishes of the Metropolitan Church of Moldova would like to be transferred to the Metropolitan Church of Bessarabia. Because the existing legislation did not apply to this kind of situations, these parishes had to be registered as new ones. Eight such parishes were awaiting registration at that time.

According to the information submitted to the Committee by the Moldovan delegation, a total of 293 entities of the applicant Church had been registered on 01/03/2007. Some of the entities had however complained afterwards and the processes for others were still pending.

With the entry into force of the new law on religious denominations and their component parts on 17/08/2007, the registration rules have changed. This law annuls the requirement of prior approval by local authorities for the registration of a religious entity.

The applicant church has indicated however that there were still problems with the registration of its parishes and complained of a hostile campaign against it launched by the state authorities (letters of 16/02/2007, 14/10/2007 and 09/01/2008).

In a letter of 3/03/2008, the Moldovan authorities provided information indicating that the new registration system within the Ministry of Justice began to function at the beginning of 2008 (see general measures). The authorities have also given some explanations concerning the responses to the alleged official negative campaign against the applicant church and its members.

b) Connected issues: In September 2003 the Committee of Ministers was made aware of pending domestic court proceedings initiated by the applicant Church in February 2002 challenging a decision by the Moldovan government of 26/09/2001 approving an amendment to the statute of the Moldovan Metropolitan Church by which the latter declared itself as the legal successor to the former Metropolitan Church of Bessarabia (which ceased its activity in 1944). It was claimed that such approval allegedly infringed the property rights of the applicant Church. On 14/04/2004, the Enlarged Collegium of the Supreme Court, sitting as a cassation court, confirmed its decision of 02/02/2004 by which it cancelled the government’s decision of 26/09/2001. However, this decision did not recognise the succession rights of the appellant church on the ground that, in the light of the legislation currently in force, the former Metropolitan Church of Bessarabia had no legal successor at the moment of cessation of its activity in 1944.

Thus, in the light of this decision it is by no means clear that the applicant Church may have effective access to a court to claim property entitlements in any subsequent proceedings.

In this respect, it seems that the applicant church introduced a new complaint on these issues before the European Court in 2004. By letters of 16/02/2007 and 09/01/2008, the applicant church has also complained that the Moldovan government refused to restore the church archives illegally confiscated and nationalised.

In response, in their letter of 3/03/2008, the Moldovan authorities informed the Secretariat that all documents deposited at the National Archives are part of the State Archives Fund. The State Archives Fund is state property, constitutes national patrimony, and consequently enjoys full protection from the state. In this way, these documents may not be disposed of and may be consulted by anyone. The authorities stated that the archived documents are open to the public, to physical or moral persons, i.e. to the Metropolitan church of Bessarabia.

            c) Latest developments: During the most recent examinations of this case (March and June 2008), the Deputies took note of the applicant’s allegations and the explanations provided in this respect. They insisted however that some questions should be further clarified. In this context, the Deputies welcomed the idea of organising bilateral meetings between the Secretariat and the relevant Moldovan authorities. During these meetings, which took place in September 2008, the Secretariat raised various outstanding issues, in particular those related to the existence of effective remedies and received a certain number of assurances. Moreover, a meeting was organised by the Ministry of Justice with representatives of various religious denominations to discuss issues related to the implementation of the new law on religious denominations, in particular that of registration. The applicant Church, which was invited, was not present at the meeting.

Afterwards, the Moldovan authorities transmitted to the Secretariat additional observations on outstanding matters.

• Evaluation: Most of the pending questions appear to relate to progress with general measures. These issues will be examined in a Secretariat Memorandum at the 1043rd meeting (see also general measures).  

            2) Case of Biserica Adevărat Ortodoxă din Moldova and others: the applicant church was registered on 16/08/2007.

• Assessment: No further individual measure seems necessary.

General measures:

            1) Publication: The original version of the judgment of the European Court in the case of Metropolitan Church of Bessarabia and others and its official translation were published in the Official Journal of Moldova in 2002. The judgment in the case of Biserica Adevărat Ortodoxă din Moldova and others was published in the Official Journal and posted on the website of the Ministry of Justice (www.justice.md).

            2) Legislative amendments:  A first amendment to the Moldovan legislation on religious denominations was brought about by Law No. 1220-XV which entered into force on 12/07/2002. Article 325 of the Code of Civil Procedure has also been amended so as to allow the reopening of domestic civil proceedings following violations of the Convention found by the European Court. These amendments were found to be insufficient to prevent new, similar violations, inasmuch as they did not reflect the requirement of proportionality inherent in the Convention and as the right of a religious community to take judicial proceedings to challenge a registration decision was not provided with sufficient clarity. 

Between March 2003 and February 2006 six draft laws have been submitted to the Committee. These texts have been appraised by the Secretariat and by independent experts mandated by the Council of Europe, and have been further discussed at the working meetings with the representatives of the Moldovan Ministry of Justice, of the experts and of the Secretariat, as well as of the representatives of different religious denominations. The problems identified in these draft laws have been examined in detail and concrete solutions have been proposed.

In March 2006, at the 960th meeting (DH), the Committee of Ministers adopted Interim Resolution ResDH(2006)12. It urged the Moldovan authorities to enact the necessary legislation rapidly and to adopt the necessary implementing measures so as to comply with the Convention's requirements as set out in the present judgment without further delay. It further encouraged the Moldovan authorities to take account of the conclusions and recommendations provided by the Council of Europe experts, with a view of concluding the ongoing reform in a satisfactory manner.

A new Law on Religious Denominations was adopted by the Moldovan Parliament on 11/05/2007.

In June 2007, the Committee regretted that the text of the finally adopted law had still not been communicated to it and declared that it expected that the findings of the European Court have been taken into account in this law, and that it also reflects the various expert reports carried out by the Secretariat and the experts of the Council of Europe. The Committee also noted the assurances given by the Moldovan authorities on this matter (see the decision adopted at the 997th meeting).

The new law entered into force on 17/08/2007. The Committee noted that although the new law presented many improvements compared to previous drafts, some of the recommendations of the Council of Europe experts and preoccupations of the Committee of Ministers had still not been taken into consideration (in particular, the maintaining of the requirement of a minimum of 100 members for the registration of a religious denomination, the unclear definition in the law of the applicable registration procedures). The Committee also underlined the importance of conceiving the proposals for implementation of this law so as to ensure full compliance of the new regulatory framework with the requirements of the Convention and that the judicial remedies provided are fully effective.

It would appear that such proposals have not been formulated. On the other hand, the Moldovan authorities presented several explanations concerning the implementation of the new registration system in their letter of 3/03/2008. Thus by government decision No.1130 the former State Service for religious denominations has been dissolved and all files on registration of religious denominations transferred to the Ministry of Justice, which started its work on 10/01/2008.

At their 1028th meeting, the authorities also provided information about the first example of registration according to the new system, as well as other additional information on pending issues concerning general measures. In this respect, the Deputies recalled the need to clarify a number of aspects, in particular those related to the rights of religious groups or denominations which do not fulfil the requirements set by the new law to obtain their registration. The Deputies encouraged the rapid organisation of meetings between the Secretariat and the Moldovan authorities to clarify the outstanding issues in time for the Deputies’ next Human Rights meeting. The negotiations that took place in this respect between the Secretariat and the Moldovan delegation, led to the organisation of bilateral meetings on 8 and 9/09/2008 in Chisinau with the competent Moldovan authorities, including the Ministry of Justice, the Service in charge of the registration of religious denominations, the Parliament, the National Institute of Justice, the Prosecutor’s office, etc.

The preliminary conclusions of these meetings were presented by the Secretariat at the 1035th meeting.

A Secretariat memorandum, presenting in detail the conclusions of the discussions and further exchanges held with the different authorities involved, together with an analysis of the various outstanding issues, was prepared for the 1043rd meeting (December 2008).

3) Delayed enforcement of final domestic court decisions: the case of Biserica Adevărat Ortodoxă din Moldova and others presents similarities to that of Luntre and others (1051st meeting, March 2009).

The Deputies, having examined the above cited cases in the light of Memorandum CM/Inf/DH(2008)47, 1.             noted with satisfaction that an important number of measures have already been taken by the Moldovan authorities with a view to ensuring respect for freedom of religion as required by the above judgments, including for groups of less than 100 members or groups which have for other reasons not sought registration; 2.             noted with interest the information provided by the Moldovan authorities during the meeting, in particular concerning the follow-up given to the 39 registration requests and the state of the three currently pending registration requests; 3.             noted that a number of issues required additional clarification, as identified in the Memorandum, in particular as regards the registration procedure and the efficiency of remedies in certain situations; 4.             encouraged the Moldovan authorities to pursue their reflection on the above mentioned issues and on other possible needs to align existing administrative practices and relevant legislation with the new law on religious denominations and the Convention; 5.             instructed the Secretariat to introduce into the Memorandum the clarification provided by the authorities during the meeting with a view to declassifying the Memorandum by written procedure; 6.             recalled that the particular issue relating to the respect of judicial decisions is dealt with in the context of the Luntre group of cases; 7.             decided to resume the consideration of outstanding individual and general measures at their 1051st meeting (17-19 March 2009) (DH), in particular in the light of a revised version of this Memorandum, taking into account further information to be provided.

                       - Cases concerning freedom of expression[14]

31001/03           Flux No. 2, judgment of 03/07/2007, final on 03/10/2007

28702/03           Flux, judgment of 20/11/2007, final on 20/02/2008

32558/03           Flux No. 3, judgment of 12/06/2007, final on 12/09/2007

17294/04           Flux No. 4, judgment of 12/02/2008, final on 12/05/2008

28700/03           Flux and Samson, judgment of 23/10/2007, final on 23/01/2008

36305/03           Tara and Poiata, judgment of 16/10/2007, final on 16/01/2008

42864/05           Timpul Info-Magazin and Anghel, judgment of 27/11/2007, final on 02/06/2008

14277/04           Guja, judgment of 12/02/2008 – Grand Chamber

This case concerns a breach of the applicant’s freedom of expression, in particular his right to impart information, as a result of his dismissal, in March 2003 from his employment as the Head of the Press Department of the Prosecutor General’s Office for having disclosed internal information to a newspaper. The information at issue concerned an interference by a high-ranking politician (Deputy Speaker of Parliament) with the Prosecutor General’s Office in pending criminal proceedings concerning four police officers prosecuted for ill-treatment.

Civil action brought by the applicant against the Prosecutor General’s Office seeking reinstatement was dismissed on the ground that the applicant had breached his obligations under internal regulations by not consulting other departmental heads and by disclosing secret documents. In November 2003, the Supreme Court of Justice dismissed his action on the same grounds and stated that obtaining information through the abuse of one’s position was not part of freedom of expression (§25 of the judgment).

The European Court noted that reporting of illegal conduct or wrongdoing in the workplace by a civil servant should in certain circumstances enjoy protection and concluded that the interference with the applicant’s right to freedom of expression was not necessary in a democratic society for the following reasons (violation of Article 10):

-           there was no provision either in the legislation or in the internal regulations enabling employees to report irregularities;

-           the information disclosed was very important for the public interest since it concerned the separation of powers, improper conduct by a high-ranking politician and the government’s attitude towards police brutality;

-           the information disclosed was genuine;

-           the protection of the public interest in information about undue pressure and wrongdoing within the Prosecutor’s Office was more important than that of the interest in maintaining public confidence in the Prosecutor General’s Office;

-           the applicant had acted in good faith because his motive for disclosing the information was to help fight corruption and trading in influence;

-           the sanction imposed on the applicant (i.e. dismissal from his employment) was very severe.

Individual measures: The European Court awarded just satisfaction in respect of pecuniary and non-pecuniary damage resulting from the applicant’s dismissal. However it considered that the sanction imposed to the applicant, his dismissal, was a very harsh measure having negative repercussions on the applicant’s career (§95 of the judgment).

• Applicant’s submission: By letter of 4/09/2008 the applicant’s representative reported that, following the European Court’s judgment, the applicant requested the Supreme Court of Justice to review its judgment of November 2003 and to reinstate him in his previous position at the General Prosecutor’s Office. On 28/05/2008, the Supreme Court of Justice upheld the revision request. On 29/05/2008 the applicant met the Prosecutor General who allegedly suggested that he resign. On 6/06/2008 the applicant received a copy of the Prosecutor’s General order, dated of 5/06/2008, indicating that the applicant was reinstated in his previous position as from 28/05/2008.

However, the applicant alleges that since 6/06/2008 he has been assigned no task, and has not been given the badge needed to access the premises of the General Prosecutor’s Office. As a result, every morning he has had to wait until the head of security staff lets him in. Moreover, the applicant has had to share the office of other employees and when they were leaving the office, the applicant was requested to stay in the corridor (sometimes for several hours), because he was “not allowed to have access to secret information”.

On 16/06/2008, the applicant was handed another order of the Prosecutor General, dated of the same day, indicating that with the agreement of the trade union, of 6/06/2008, and on the ground of Article 14§8 of the Law on public service, the applicant has been dismissed on 10/06/2008. The article in question basically provides that the appointment of a new Director for certain public services results in the termination of activity, by resignation, for those staff members working under the previous Director.

Concerning the use of this provision in practice, the applicant’s legal representative pointed out that although the Prosecutor General has been changed twice since 2003, no staff member was dismissed until 16/06/2008 on the ground provided by Article 14§8 of the Law on public service.

On 28/10/2008 the applicant’s submission was transmitted to the Moldovan authorities.

• Comments of the Moldovan authorities in this respect are awaited.

General measures: The judgment of the European Court has been translated and published in the Official Journal of the Republic of Moldova (Monitorul Oficial) as well as on the official internet site of the Ministry of Justice (http://justice.md/md/cedo/). The judgment has also been communicated to the Prosecution Service and to the Superior Council of Magistrates.

• Information is awaited on other measures envisaged by the authorities to prevent new, similar violations.

41827/02           Kommersant Moldovy, judgment of 09/01/2007, final on 09/04/2007

The case concerns a violation of the applicant company's right to freedom of expression due to a decision of the Moldovan Economic Court ordering the closure of its newspaper (violation of Article 10).

This decision was based on the fact that between June and September 2001 the applicant company published a series of articles criticising the Moldovan authorities for their actions in respect of the break-away region of Moldova ( “Moldovan Republic of Transdniestria” or “MRT”) and reproducing harsh criticism of the Moldovan government by certain leaders of the “MRT” and the Russian Federation.

The European Court observed that in their decisions the domestic courts did not consider the question of whether it was necessary to interfere as they did in the applicant's rights. It noted, in particular, that they did not specify which passages of the articles at issue were objectionable and in what way they endangered national security or the territorial integrity of the country or defamed the President and the country. The only analysis made was limited to the issue of whether the articles could be considered as reproductions in good faith of public statements for which the applicant could not be held responsible in accordance with domestic law. The Court considered that the domestic courts did not give relevant and sufficient reasons to justify the interference in question and was not satisfied that they “applied standards which were in conformity with the principles embodied in Article 10” or that they “based themselves on an acceptable assessment of the relevant facts”.

Individual measures: The European Court awarded the applicants just satisfaction in respect of the pecuniary and non-pecuniary damages suffered by the applicant company. Moreover, the applicant company was subsequently re-registered under the name “Kommersant-Plus” and has resumed publication of the newspaper after only a brief pause.

• Applicant’s submission: The applicant’s representative states that on 29/05/2007, i.e. about 1½ months after the European Court’s judgment became final, the applicant requested a revision procedure on the basis of Article 450-g of the Moldovan Code of Civil Procedure, which provides the possibility of revision after a judgment of the European Court. However, this request was rejected by the Supreme Court of Justice on 4/10/2007 on the sole ground that it was lodged outside the 3-month time-limit provided by the Code. This decision appears to be in contradiction with the position of the Supreme Court of Justice adopted while deciding to grant the revision request in another case, namely “the Christian Democratic Peoples’ Party” (judgment of 14/02/2006). In that case, the Supreme Court of Justice indicated that the 3-month period should be calculated as from the date on which the European Court’s judgment became final.

On 13/11/2007 the submission of the applicant’s representative was submitted to the authorities for comments.

In their letter of 1/04/2008, the Moldovan authorities indicated that Article 450-g of the Code of Civil Procedure provided that revision requests must be submitted within three months as from the delivery of the judgment of the European Court and not within three months after this judgment becomes final.  Moreover, the authorities did not comment on the inconsistency of the case-law of the Moldovan Supreme Court of Justice on this issue.

• Assessment: It is recalled that Article 450-g was introduced in the Code of Civil Procedure with the aim of providing the applicants having won a case in Strasbourg with the possibility to seek revision of their case at national level, thus ensuring compliance by the Republic of Moldova with its obligations under Article 46 of the Convention. Thus, according to the aim of Article 450-g, it should be interpreted in the light of the Convention, and in particular of Article 46. However, Article 46 refers to final judgments of the European Court.

Consequently, the Moldovan authorities’ interpretation of Article 450-g in this case is contradictory to the Convention and thus cannot be considered as a way of discharging their obligations under the Convention, namely of the obligation to undertake the individual measure which guarantees to the applicant the restitutio in integrum.

• Information is awaited on measures taken and/or envisaged by the authorities with a view to providing the applicant the restitutio in integrum. In this respect, information would be useful on whether the applicant may request the revision of his case at national level, in the light of the above comments on Article 450-g.

General measures: The violation found in this case seems to arise from the fact that, when deciding on the necessity of the interference to the freedom of expression, the domestic courts did not give sufficient reasons for their decisions. Consequently, a change in domestic courts' practice in this respect appears to be necessary.

• Information provided by the Moldovan authorities: The translated copy of the judgment of the European Court was published in theOfficial Journal and disseminated on the internet site of the Ministry of Justice (www.justice.md).

• Further information is awaited on the other measures taken or envisaged to prevent similar violations. Information is also awaited on measures taken and/or envisaged (amendments to the legislation or change of the case-law) with a view to guaranteeing compliance with the Convention of the mechanism provided by Article 450-g of the Code of Civil Procedure.

- Cases concerning the failure or substantial delay by the administration in abiding by final domestic judgments[15]

2916/02            Luntre and others, judgment of 15/06/2004, final on 15/09/2004

29808/02           Avramenko, judgment of 06/02/2007, final on 06/05/2007

31530/03           Baibarac, judgment of 15/11/2005, final on 15/02/2006

32760/04           Banca Vias, judgment of 06/11/2007, final on 06/02/2008

32347/04           Becciu, judgment of 13/11/2007, final on 13/02/2008

25238/02+         Biţa and others, judgment of 25/09/2007, final on 25/12/2007

18872/02+         Bocancea and others, judgment of 06/07/2004, final on 06/10/2004

19981/02           Botnari, judgment of 19/06/2007, final on 19/09/2007

27533/04           Buianovschi, judgment of 16/10/2007, final on 16/01/2008

27883/04           Bulava, judgment of 08/01/2008, final on 08/04/2008

31043/04           Cogut, judgment of 04/12/2007, final on 04/03/2008

39745/02           Cooperativa Agricola Slobozia-Hanesei, judgment of 03/04/2007, final on 03/07/2007

18882/02           Croitoru, judgment of 20/07/2004, final on 20/10/2004

34322/02           Curararu, judgment of 09/10/2007, final on 09/01/2008

46581/99           Daniliuc, judgment of 18/10/2005, final on 18/01/2006

14925/03           Deliuchin, judgment of 23/10/2007, final on 23/01/2008

33276/03           Deordiev and Deordiev, judgment of 16/10/2007, final on 16/01/2008

75975/01           Draguta, judgment of 31/10/2006, final on 31/01/2007

20940/03           Dumbraveanu, judgment of 24/05/2005, final on 24/08/2005

35994/03           Grivneac, judgment of 09/10/2007, final on 09/01/2008

40541/04           Lipatnikova and Rudic, judgment of 23/10/2007, final on 23/01/2008

20567/02           Lozan and others, judgment of 10/10/2006, final on 10/01/2007

3021/02            Lungu, judgment of 09/05/2006, final on 09/08/2006

3417/02            Lupacescu and others, judgment of 21/03/2006, final on 21/06/2006

17359/04           Marcu, judgment of 16/10/2007, final on 16/01/2008

1115/02            Mazepa, judgment of 10/05/2007, final on 10/08/2007

31790/03           Mizernaia, judgment of 25/09/2007, final on 25/12/2007

14914/03           Moisei, judgment of 19/12/2006, final on 19/03/2007

18726/04           Nadulisneac Ion, judgment of 16/10/2007, final on 16/01/2008

9898/02            Pasteli and others, judgment of 15/06/2004, final on 15/09/2004

74153/01           Popov, judgment of 18/01/2005, final on 18/04/2005 and of 17/01/2006, final on 17/04/2006

49806/99          Prodan, judgment of 18/05/2004, final on 10/11/2004 and of 25/04/2006, final on 25/07/2006 - Striking-out

3479/04            Rusu, judgment of 15/01/2008, final on 15/04/2008

20864/03           Scutari, judgment of 26/07/2005, final on 26/10/2005

73562/01+         Sîrbu and others, judgment of 15/06/2004, final on 10/11/2004

18893/04           Tiberneac, judgment of 16/10/2007, final on 31/03/2008

26103/04           Tiberneac Vasile, judgment of 16/10/2007, final on 16/01/2008

22970/02           ŢÎmbal, judgment of 14/09/2004, final on 14/12/2004

27568/02           Ungureanu, judgment of 06/09/2007, final on 06/12/2007

6901/03            Vitan, judgment of 16/10/2007, final on 16/01/2008

- 1 case against Norway

15472/02           Folgerø and others, judgment of 29/06/2007 – Grand Chamber

The case concerns the violation of the applicants’ right to obtain for their children an education consistent with their religious and philosophical beliefs, in that the authorities refused to dispense them entirely from “Christianity, religion and philosophy” (“KRL”) lessons which are an obligatory part of the curriculum during the ten years’ compulsory schooling in Norway (violation of Article 2 of Protocol No. 1).

The applicants are all members of a Norwegian humanist association and at the material time their children were all at primary school.

The European court noted that KRL lessons had been introduced in 1997 with the aim of promoting understanding and respect for Christian and humanist values as well as fostering comprehension and dialogue amongst people with different convictions and beliefs. Nonetheless, the description of the aims and content of the KRL syllabus as described in the 1998 Education Act and other pertinent legislative texts give the impression that Christianity assumes a preponderant importance, in both qualitative and quantitative terms.

What is more, the European Court considered that the arrangement for partial dispensation from KRL classes placed a heavy burden on parents in that they were obliged to indicate in detail which parts of the syllabus they opposed, with the attendant risk of compromising their private life. It could also dissuade parents from asking for dispensation, to avoid any potential dispute concerning the reasonableness of their requests.

Finally, the Court found that in spite of the many admirable legislative aims mentioned when KRL classes were introduced, the respondent state seemed not to have paid sufficient attention to ensuring that the course content was presented in a sufficiently objective, critical or pluralist spirit to satisfy the requirements of Article 2 of Protocol No. 1.

Individual measures: The European Court considered that the finding of the violation constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage sustained by the applicants, not least since the respondent government has stated that it is ready to review the KRL course.

• Assessment: no further individual measure seems necessary.

General measures: The European Court indicated that the violation resulted directly from the legal framework at issue (in particular, Articles 1-2§1 and 2-4 of the 1998 Education Act, Circulars F-90-97 and F-03-98 and the syllabus for the ten years of compulsory schooling) and not from the manner in which it had been implemented (§109 of the judgment). The Court also noted that the government had undertaken to reform the legal framework following a decision of the United Nations Human Rights Committee in 2004 (seised by different applicants) declaring the laws to incompatible with the International Covenant on Civil and Political rights of 1996.

In 2005, the Parliament adopted certain amendments and additions to the 1988 Education Act, which entered into force with immediate effect; changes were completed by Circular F-02-05. They already remedied some of the issues that were subsequently found to be in violation of the Convention by the European Court, which examined the legal framework as it applied at the time when the case stood before national courts. Amendments aimed at redressing the qualitative difference between the teaching of Christianity and other religions and philosophies, in particular by deleting the reference in section 2-4(3) to the Christian object clause of section 1-2(1) as the starting point for teaching.

A new provision on partial exemption (2-3A) was introduced. It is now sufficient for parents to report, not to apply for exemption and they do not have to give reasons in order to avoid undue interference with their private life. Finally, in 2005, the Curriculum was adapted to the changes occurred in the legislation.

• Information provided by the Norwegian authorities (14/10/2008): The amendments to the Education Act entered into force on 01/08/2008 (Royal Decree of 27/06/2008) with effect from the school year 2008/2009. Section 2-4 has been amended to respond to the concern of qualitative equality between Christianity and other religions and philosophies. To this purpose the name of the subject has been altered to Religion, Philosophies of Life and Ethics and it must be presented in an objective, critical and pluralistic manner, in accordance with human rights. Section 2-3 (a) provides the right to exemption from any part of the school curriculum that might be conceived as the practice of a particular belief. Schools are obliged to provide parents with sufficient information on how exemption functions and on the planned teaching in the subject. The amendment of the object clause in the Education Act, so that it will no longer contain a reference to schools’ assisting the home in giving children a Christian upbringing, is foreseen for adoption in February 2009.

The Curriculum has also been changed in consequence of the amendments in Section 2-4 as from the 2008/2009 school year. Although there will still be more objectives regarding knowledge of Christianity, due to its role in Norwegian and European culture, according to the government this will not raise any qualitative difference between different religions and philosophies of life. Finally a circular letter of August 2008 gave all schools information about the amendments and instructed them to take immediate measures to implement the new Curriculum for the subject Religion, Philosophies of Life and Ethics.

• Communication from the Norwegian Humanist Association (14/10/2008): The association considers that the measures taken by the Norwegian government are insufficient in practice to prevent future violations. In particular, it observes that, during the school year 2008/2009, teaching will still be based on the Christian object clause, and that, notwithstanding the legal amendments, the aims and content of the Curriculum are practically the same giving priority both quantitatively and qualitatively to the Christian faith. Moreover, it claims that, though the Court recognised a structural problem to exist, the responsibility to ensure human rights standards in the subject at issue is laid upon single schools and teachers. Finally, exemption is still partial and no instruction was issued to municipalities to provide new teaching material.

• Information is awaited on the amendment of the object clause on the Christian faith mentioned by the Norwegian authorities. The authorities’ comments on the communication from the Norwegian Humanist Association would be appreciated.

- 72 cases against Poland

11562/05           Byrzykowski, judgment of 27/06/2006, final on 27/09/2006

This case concerns the violation of the right to life due to the failure to carry out an effective investigation into the death of the applicant's wife and the serious damage to his son's health (violation of Article 2).

In July 1999 the applicant's wife was about to give birth to their child and was admitted to the Wrocław Medical Academy hospital. The physicians decided to perform a caesarean section and gave her an epidural, as a result of which she went into a coma. All resuscitation efforts failed and she died on 31/07/1999. Their son, born by caesarean section, suffers from serious health problems, mostly of neurological character, and requires permanent medical attention.

At the applicant's request, a police inquiry was opened and led to the opening on 29/12/1999 of a criminal investigation into the suspected offence of manslaughter. Due to the lengthy process of taking evidence, and in particular forensic reports, these proceedings were stayed once, three times discontinued and three times resumed. They are still pending.

In August 1999 the applicant also requested that disciplinary proceedings be brought. Those proceedings were stayed, resumed and then stayed again on 25/04/2005 and are still pending.

Moreover, in July 2002 the applicant also lodged a compensation claim against the hospital before a civil court. On 07/04/2003 those proceedings were stayed, pending the outcome of the two other sets.

The European Court noted that three sets of proceedings had been and were still pending for periods ranging from four to almost seven years and that the applicant had used all the remedies available to him concerning  the alleged medical malpractice. It observed that after almost seven years, there had been no final decision in any of them.

Moreover, it observed that the authorities repeatedly referred to the other sets of pending proceedings as a justification for staying them or the refusals to resume them. However, having regard to the overall length of the period which had elapsed since the death of the applicant's wife and also to the fact that the procedures instituted seemed rather to have hindered the overall progress in the proceedings, the Court concluded that the procedures applied in order to elucidate the allegations of medical malpractice did not resulted in an effective examination into the cause of the death of the applicant's wife

Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage.

• Information provided by the Polish authorities: Following the police investigation of the alleged manslaughter of the applicant's wife the Wrocław District Prosecutor found on 18/05/2006 that there was insufficient evidence. This finding, which was based on expert medical opinions supplied by the Universities of Krakov, Katowice, Poznań and Bialystock, became final on 7/06/2006. The disciplinary proceedings are still suspended but given the Prosecution's decision not to prosecute, they should be discontinued soon.

The civil proceedings for compensation, pending before the Wrocław Regional court, have been resumed and are subject to administrative supervision. A last hearing took place on 30/01/2008.

• Information is awaited concerning the present state of the disciplinary proceedings and, if need be, its acceleration, as well as on the progress of the civil proceedings.

General measures: The European Court found no indication of any failure on the part of the state in its obligation to provide a procedure to determine the criminal, disciplinary or civil responsibility of persons who might be held answerable (§ 106 of the judgment). The finding of a violation in this case resulted from the Court's assessment of how this procedure had worked in the concrete circumstances.

• Information provided by the Polish authorities: The Polish authorities have undertaken reforms with a view to:

            1) Making judicial experts more efficient: On 12/09/2008 the Council of Ministers adopted a Bill on experts in judicial proceedings. It aims at providing a comprehensive legislative framework concerning experts’ status, their appointment, dismissal and supervision as well as on expert institutions allowed to deliver opinions.

            2) Introducing a remedy in case of excessive length of investigations: On 21/12/2006 the Minister of Justice wrote to the Polish Ombudsman suggesting that certain provisions of the Code of Criminal Procedure were incompatible with the requirements flowing from the European Court's case-law in relation to Article 13 and indicating his intention of taking steps to introduce an effective national remedy in case of excessively lengthy pre-trial investigations.

            3) Changing the disciplinary procedure before the Medical Association: The Minister of Health is currently preparing an amendment to the 1989 Act on the Medical Association, the main effect of which would be to broaden injured parties' rights in disciplinary proceedings. At present, their status is limited to that of witness. It is also proposed to make hearings before the professional body public, to introduce the possibility of appealing its decisions before criminal courts, to increase the range of disciplinary sanctions available and to fix time-limits for each phase of disciplinary proceedings.

By letter 24/08/2007 the authorities provided the Secretariat with the draft amendment to the 1989 Act on the Medical Association. The Secretariat is currently assessing this information.

• Information is awaited concerning the development of these reform proposals.

5410/03            Tysiąc, judgment of 20/03/2007, final on 24/09/2007

This case concerns the authorities’ failure to comply with their positive obligation with regard to the respect for the applicant’s right to her private life, due to the absence of a legal framework to guarantee her right to therapeutic abortion (violation of Article 8).

According to the applicable Polish law (1993 Family Planning Act) abortion is generally prohibited, unless pregnancy poses a threat to the woman’s life or health, attested by at least one medical certificate. A doctor who terminates a pregnancy in breach of the law is guilty of a criminal offence.

The applicant, who is severely myopic, amounting to disability of medium severity, became pregnant in February 2000. Concerned about the possible impact of the delivery on her health, and especially her eyesight, she consulted four doctors (three ophthalmologists, one general practitioner). Although the ophthalmologists concluded that the pregnancy and the delivery constituted a risk to her eyesight, only the GP issued a medical certificate with a view to a therapeutic abortion. The applicant contacted a gynaecological clinic, but the gynaecologist found no grounds for therapeutic abortion. A few months after the birth of her third child, the applicant’s eyesight deteriorated and she was reclassified as significantly disabled. She has tried in vain to lay criminal complaints against the gynaecologist on the grounds that he had denied her right to a therapeutic abortion.

The European Court noted that the right to respect for private life implies that in case of therapeutic abortion the State must secure the physical integrity of mothers-to-be, striking a fair balance between the interest of the individual and the community. It observed that the Polish legal framework as applied in this case denied the applicant the possibility of expressing her disagreement with the doctors and made it impossible to determine where the conditions for therapeutic abortion had been met.

Moreover, it found that such retrospective legal measures as those based on civil law on tort or the criminal proceedings instituted against one of the doctors could of themselves provide appropriate protection for the physical integrity of the applicant.

Individual measures: The European Court rejected the applicant’s claim for just satisfaction for pecuniary damage, considering that it could not speculate as to the correctness of the doctors’ conclusions concerning the future deterioration of her eyesight. It awarded her just satisfaction in respect of non-pecuniary damage (25 000 euros).

• Assessment: in these circumstances, no other individual measure appears to be necessary.

General measures: In reaching its conclusion on the lack of effective mechanism to determine whether the conditions for obtaining a lawful abortion have been met, the European Court referred to the provisions of an Order by the Minister of Health of 22/01/1997 and the 1996 Medical Profession Act (§§ 121-122).

First, it found that the Minister of Health’s Order, which provided a procedure governing decisions on therapeutic abortion, provided no particular procedural framework to address and resolve disagreement as to the advisability of therapeutic abortion, either between the pregnant woman and her doctors, or between the doctors themselves.

Secondly, it noted that Article 37 of the 1996 Medical Profession Act, which allows a doctor to obtain a second opinion from a colleague in the event of therapeutic doubts or at the patient’s request, was only addressed to members of the medical profession and does not give patients a procedural guarantee to obtain such an opinion or to contest it in the event of disagreement. Nor does the provision address the more specific issue of a pregnant woman seeking a lawful abortion.

Measures taken:

            1) Publication: The judgment of the European Court was published on the website of the Ministry of Justice www.ms.gov.pl.

            2) Legislative measures:On 18/04/2008 the Polish authorities provided the Secretariat with a copy of the draft Law on the Protection of Individual and Collective Rights of Patients and the Patient Rights’ Ombudsman, which was introduced before Parliament in January 2008.

According to Section 33 of this draft law, a patient or his/her legal representative may lodge an appeal (sprzeciw) against a doctor’s diagnosis (rozpoznanie) if there is a disagreement between the patient and the doctor. Such a diagnosis may be reviewed by the Commission of Physicians (Komisja Lekarska) established by the Regional Medical Chamber (Okregowa Rada Lekarska) and composed of three doctors. The Commission of Physicians, having analysed the medical file and/or having seen the patient, changes or confirms the initial diagnosis. The decision of this commission shall be final and the provisions of the Code of Administrative Procedure shall not apply.

On 24/06/2008 the Council of Ministers submitted its opinion on this draft law to Parliament and proposed certain amendments aiming inter alia at introducing time-limits for the Commission of Physicians while changing or confirming the initial diagnosis. The proposed amendments were accepted by the parliamentary sub-committee examining the draft law in July 2008.

• Two sets of comments, by the Centre for Reproductive Rights and the Polish Federation for Women and Family Planning, have been brought to the attention of the Committee of Ministers, together with observations of the delegation in May 2008. They concern the very first version of the draft law, and in particular the need to fix short time-limits in proceedings concerning an appeal against doctor’s refusal to carry out an abortion. These comments have been made in conformity with Rule No. 9 (Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements).

• The Secretariat is assessing this information. In any event, information is awaited on current stage of the legislative proceedings concerning this draft law as well as on other possible measures taken and/or envisaged to avoid similar violations in the future.

11638/02           Pawlik, judgment of 19/06/2007, final on 19/09/2007

This case concerns the violation of the applicant’s right to respect for his family life due the authorities’ failure to take effective steps to enforce his right of contact with his son, born in 1988 (violation of Article 8).

By a decision of 16/09/1994, the Szczecin Regional Court dissolved the applicant’s marriage, limited the exercise of the applicant’s parental rights over his son and specified the access arrangements (later modified on 30/06/2000). Since the applicant’s ex-wife consistently refused to comply with these arrangements, the applicant actively sought their enforcement before the Szczecin District Court. Even though he managed to see his son only very rarely, the only sanction used against his ex-wife by the authorities was a fine imposed in September 2001. The situation only improved after 17/06/2002, when the Szczecin District Court discontinued the proceedings following an agreement reached between the applicant and his wife concerning access to the child.

The European Court noted that there had been long delays in the enforcement proceedings and that no satisfactory explanation had been put forward to justify them. The inaction of the authorities placed on the applicant the burden of having to have constant recourse to a succession of time-consuming and ultimately ineffectual remedies to enforce his rights. The European Court recalled that cases of this kind of require urgent handling as the passage of time and the change of circumstances may have irreparable consequences for relations between the children and the parent who does not live with them.

Individual measures: The European Court awarded just satisfaction ion respect of non-pecuniary damage.

The applicant’s son reached the age of majority in 2006.

• Assessment: no further individual measure appears to be necessary in this case

General measures: Concerning the enforcement of court decisions on parental rights of access, the provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable. According to Article 1050, Section 1, if the debtor fails to comply with the obligation to take measures which cannot be taken by any other person, the court may fix time-limits for complying with this obligation on pain of a fine.

A similar problem has been raised in the context of the examination in the case of Zawadka (Section 6.2), in which the violation of Article 8 was partially due to the lack of enforcement of access arrangements. In that case, the authorities published and widely disseminated the European Court’s judgment.

• Information is awaited as to the scope of application in practice of the provisions of the Code of Civil Procedure mentioned above in ensuring the enforcement of access arrangements as well as on any other measure envisaged or taken in order to prevent new similar violations. In any event, publication of the European Court’s judgment and dissemination to the competent courts would be useful.

• Recent development:by letter of 03/10/2008 the authorities provided information on general measures. The Secretariat is currently assessing it.

22860/02           Woś, judgment of 08/06/2006, final on 08/09/2006[16]

- Cases concerning the applicants’ unlawful detention in a remand centre pending placement in a psychiatric hospital

26917/05           Mocarska, judgment of 06/11/2007, final on 06/02/2008

34151/04           Pankiewicz, judgment of 12/02/2008, final on 12/05/2008

These cases concern the unlawful provisional detention of the applicants pending placement in a psychiatric hospital (violations of Article 5§1 (e)).

In the case of Mocarska on 25/10/2005 the Warsaw District Court discontinued criminal proceedings against the applicant on the ground that she could not be held criminally responsible due to her poor mental condition and ordered that she be placed in a psychiatric hospital. Subsequently the applicant remained in a detention centre for eight months, due to delays caused by the district court itself and the Psychiatric Commission on Preventive Measures, which was responsible for indicating in which psychiatric hospital the applicant should be placed.

In the case of Pankiewicz case, the applicant remained in a detention centre between 05/01/2004 and 30/03/2004 pending his transfer to a psychiatric hospital.

The European Court noted that the continuation of provisional detention for eight months in the case of Mocarska and two months and twenty-five days in the case of Pankiewicz could not be regarded as lawful.

Individual measures:

In the case of Mocarska, on 30/06/2006 the applicant was transferred from the detention centre to the Pruszkow Psychiatric Hospital. She claimed no just satisfaction before the European Court.

In the case of Pankiewicz, the applicant was admitted to a psychiatric hospital on 30/03//2004. The European Court awarded him just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measure appears necessary.

General measures: According to Article 264§3 of the Code of Criminal Procedure, if proceedings are discontinued for reasons linked to the mental health of the accused, detention may be ordered pending the application of a preventive measure.

The European Court noted that the length of detention pending transfer to a psychiatric hospital is not specified by any statutory or other provision.

• Information is awaited on the publication and dissemination of the European Court’s judgment to competent authorities (criminal courts, psychiatric commission) and other measures to prevent similar violations in the future.

• Latest development: by letters of 23/07/2008 and 03/10/2008, the authorities provided information on general measures. The Secretariat is currently assessing it.

- Cases mainly concerning the lack of promptness in examining appeals against decisions to prolong detention on remand

39742/05           Baranowski Piotr, judgment of 02/10/2007, final on 02/01/2008

54476/00           Pyrak, judgment of 12/02/2008, final on 12/05/2008

The Baranowski Piotr case concerns the failure to examine promptly the applicant’s appeal against a decision of 12/12/2003 extending his detention on remand. The Warsaw Appeal Court took 45 days to deal with it (violation of Article 5§4).

The Pyrak case concerns the excessive length detention of the applicant on remand between January 1998 and January 1999 (violation of Article 5§3) and the failure of the Warsaw Appeal Court to examine promptly his appeal against the decision to extend his remand (two months and two weeks; violation of Article 5§4).

Individual measures: The applicants have been released. The European Court awarded them just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measure appears necessary.

General measures:

            1) Violation of Article 5§3 in the Pyrak case: The case presents similarities to that of Trzaska (1059th meeting, June 2009).

            2) Violation of Article 5§4 in both cases: Under Article 252§3 of the Code of Criminal Procedure, any appeal against a preventive measure (including remand in custody and extension of detention pending trial) must be examined promptly (see the Trzaska case, Interim Resolution CM/ResDH (2007)75, in which a similar violation occurred before 01/09/1998, when the Code of Criminal Procedure entered into force). It seems that in these cases the violation resulted from delays caused by the Warsaw Appeal Court.

• Information is awaited on the publication of the European Court’s judgments and their dissemination to criminal courts, as well as on other measures to prevent similar violations in the future.

• Recent development: by letters of 23/07/2008 and 03/10/2008, the authorities provided information on general measures. The Secretariat is currently assessing it.

- Cases concerning the lack of equality of arms in proceedings concerning the review of the lawfulness of the applicants’ detention on remand[17]

22755/04           Chruściński, judgment of 06/11/2007, final on 06/02/2008

28481/03           Łaszkiewicz, judgment of 15/01/2008, final on 15/04/2008

                       - Cases concerning the unfairness of lustration proceedings[18]

38184/03           Matyjek, judgment of 24/04/2007, final on 24/09/2007

68761/01           Bobek, judgment of 17/07/2007, final on 10/12/2007

37469/05           Luboch, judgment of 15/01/2008, final on 15/04/2008

21508/02           W.S., judgment of 19/06/2007, final on 24/09/2007

This case concerns the violation of the applicant’s right to a fair trial and right to obtain attendance and examination of witnesses (violation of Article 6§1 in conjunction with Article 6§3(d)).

By judgment of 06/11/1997 of the Łòdź Regional Court, the applicant was convicted of sexual abuse of his daughter X. and sentenced to four years’ imprisonment. His conviction, upheld at appeal, was mainly based on the opinions of a psychologist, who had interviewed X.

The European Court noted that, X. had never at any stage been questioned either by the police, the prosecutor or the court. The authorities did not attempt to test the reliability of the victim in a less invasive manner, such as an interview in the presence of a psychologist with written questions from the defence or, in a studio, enabling the applicant or his lawyer to be present indirectly via a video-link or one-way mirror. No procedure was introduced to counterbalance the difficulties faced by the defence and the applicant and the latter was not given an adequate and proper opportunity to challenge and question this witness against him.

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained.

Under Article 540§3 of the Code of Criminal Procedure, he may apply to have the criminal proceedings reopened invoking the finding of a violation by the European Court (see the Skałka case, judgment of 27/05/03, final on 27/08/03, Section 5.3).

• Assessment: in these circumstances, no other individual measure appears necessary.

General measures: It appears that the violation in this case resulted from the decisions of the prosecutors and the criminal courts.

• Information is expected on the publication of the European Court’s judgment, and dissemination to relevant authorities (prosecutors, criminal courts, the Supreme Court) as well as on other measures envisaged or taken to prevent new, similar violations.

54723/00           Brudnicka and others, judgment of 03/03/2005, final on 03/06/2005

This case concerns the lack of independence and impartiality of the Maritime Disputes Appeals Chamber in proceedings brought in 1993 to determine the cause of a shipwreck in which relatives of the applicants had died (violation of Article 6§1). These proceedings resulted on 26/01/99 in a final decision by the Gdańsk Maritime Disputes Appeals Chamber, attributing responsibility to the crew on account its failure to exercise due diligence in that there was no coordination in the conduct of operations.

The European Court found that Polish law provided in principle no form of judicial review of the decisions delivered by maritime disputes chambers and that, as the presidents and vice-presidents of these chambers were appointed and removed from office by the Minister of Justice with the agreement of the Minister for Maritime Affairs, the relationship between them and the ministers was one of hierarchical subordination. It thus concluded that a maritime disputes chamber as constituted under Polish law could not be regarded as an impartial court capable of ensuring compliance with the principles of fairness set out in Article 6 of the Convention.

Individual measures:

• Information provided by the Polish authorities: The applicants may bring actions in compensation for pecuniary and non-pecuniary damages before the ordinary courts on the basis of Articles 415 et seq. of the Civil Code. Lodging such application will oblige the judge to examine the question of the crew members' liability. Accordingly, seven cases arising out of this shipwreck, brought by the families of the crew members, are currently pending before the Szczecin Regional Court.

• Information is awaited concerning the state of these proceedings.

General measures: In its judgment, the European Court noted that Polish legislation on maritime disputes chambers has been amended recently, but the new legislation did not provide a right of appeal on points of law against a decision given by a maritime disputes appeal chamber, nor does it alter the procedure for appointing or removing from office the president and vice president of maritime disputes chambers.

• Information provided by the Polish authorities: Legislative modifications are envisaged. Amendments to the 1961 Act on Maritime Chambers will inter alia guaranteethat the maritime chambers will be composed of judges and will introduce the possibility of judicial review of their decisions.

• Further development: the authorities provided the Secretariat with a copy of the recent version of the amendments to the 1961 Act on Maritime Chambers (version of January 2008). Moreover, in February 2008 the Secretariat had high-level meetings with the Polish authorities in Warsaw to discuss the execution measures required in this case.

• Information is expected on the adoption of the announced amendments to the 1961 Act on Maritime Chambers.

                       - Case concerning freedom of expression

28949/03           Sanocki, judgment of 17/07/2007, final on 17/10/2007

This case concerns the violation of the applicants’ right to freedom of expression due to a finding against him in civil defamation proceedings (violation of Article 10). The applicant, who at the material time was Mayor of Nysa, was the subject of several critical articles published in the local daily newspaper, Nowa Trybuna Opolska. In reply to one of these articles, which accused him of poor financial management, in March 2000 the applicant published a provocatively worded article entitled “The lies of the Trybuna” in a local weekly paper. The company publishing the Nowa Trybuna Opolska, considering that this article was damaging to its reputation, sued the applicant for libel. In its decision of 20/12/2001, subsequently confirmed at appeal, the Opole Regional Court ordered the applicant to publish an apology to the publishing company, to pay court fees and the plaintiff’s costs and to make a payment to charity equivalent to approximately 1700 euros.

The European Court found that even though the finding against the applicant was in conformity with the relevant law (Article 24 of the Civil Code) and pursued the legitimate aim of protecting the reputation and rights of others, it was not “necessary in a democratic society”. The Court drew attention to the fact that the utterances at issue had been made in the press and in the framework of an open political debate. Although the applicant had expressed himself provocatively and immoderately against his adversary, he should legitimately have been able to defend himself when he considered that the articles written against him were untrue and likely to arouse negative public opinion concerning his exercise of his office.

Individual measures: The European Court awarded the applicant just satisfaction in respect of both non‑pecuniary and pecuniary damages, including all the sums he had been ordered to pay.

• Assessment: no further individual measure seems necessary.

General measures: The European Court found that the national courts had not convincingly established an overriding social need for giving higher priority to the rights of the journalist than to both the applicant’s right to freedom of expression and the general interest of preserving such freedom in the context of political debate. The violation found derives therefore from the national court’s failure to take into account the criteria which flow from the Convention with regard to freedom of expression.

• Information is awaited on the publication of the European Court’s judgments and its broad dissemination to competent courts (civil courts and the Supreme Court) as well as on other measures which might be envisaged to prevent new, similar violations.

• Recent development: by letter of 03/10/2008 the authorities provided information on general measures. The Secretariat is currently assessing it.

1543/06            Bączkowski and others, judgment of 03/05/2007, final on 24/09/2007[19]

35014/97          Hutten-Czapska, judgment of 19/06/2006 - Grand Chamber; (Article 41) judgment of 28/04/2008 - Grand Chamber – Friendly settlement

This case concerns a violation of the applicant's right to the peaceful enjoyment of her possessions (violation of Article 1 of Protocol No. 1). Despite several civil and administrative actions brought between 1992 and 2002 the applicant, who had inherited her parent's house in Gdynia in 1990, could neither secure the re-housing of the tenants who had been assigned apartments in her house nor freely fix the amount of their rent. This resulted from a law applied to private property in Poland instituting rent controls and restrictions on the termination of leases (a law of 1994, replaced by a 2001 law and subsequently modified in 2004 following certain decisions by the Constitutional Court). This system, which had its origins in laws adopted during the communist period, fixed such a low rent ceiling that landlords could not even cover the cost of maintaining their buildings, still less make a profit.

The European Court (Grand Chamber) concluded that the finding of a violation did not reside solely in the question of the amount of the rent (unlike the conclusions of the chamber in its judgment of 22/02/2005) but was rather the result of the combined effect of the unsatisfactory provisions on the fixing of rent and the various restrictions on the right of landlords in the matter of terminating leases, the financial burdens imposed upon them and the total absence of any legal mechanism whereby they might compensate or mitigate losses sustained on maintenance or to obtain, where justified, any state assistance to that end.

In the light of the foregoing, and having regard to the effects of the operation of the rent-control legislation during the whole period under consideration on the rights of the applicant and other persons in a similar situation, the Court considers that the Polish State has failed to strike the requisite fair balance between the general interests of the community and the protection of the right of property.

Individual measures: The applicant's house was definitively made available to her in February 2006.

The European Court awarded the applicant 30 000 euros in respect of non-pecuniary damage and 22 500 euros for costs and expenses. In addition, the parties reached a friendly settlement according to which the government undertook in particular to compensate the pecuniary damage suffered by the applicant (see judgment of 28/04/2008).

• Assessment: No further individual measure seems to be required.

General measures: Applying the “pilot-judgment” procedure, in line with the case of Broniowski against Poland (judgment of 22/06/2004, Grand Chamber), the European Court concluded in the operative part of the principal judgment that:

1) the violation found was the result of a structural problem linked to a malfunctioning of national legislation which:

-           despite the amendments introduced in 2004, had imposed and continued to impose restrictions on landlords' rights, particularly as the legislation contains defective provisions on the determination of rent;

-           had lacked and continued to lack any legal ways and means enabling them to at least to recover losses incurred in connection with property maintenance;

2) the respondent state must secure in its domestic legal order a mechanism maintaining a fair balance between the interests of landlords and the general interest of the community in accordance with the principles of the protection of property rights under the Convention.

In this respect the European Court took due note of the Polish Constitutional Court's judgment of 19/04/2005 (i.e. rendered after the Chamber judgment of 22/02/2005) abrogating the provisions introduced by the 2004 law setting an annual 10% ceiling for in creases in rents greater than 3% of the reconstruction value of the dwelling.

Nonetheless, and notwithstanding this judgment of the Constitutional Court, the Grand Chamber took the view that the general situation has not yet been brought into line with the standards of the Convention: the Polish authorities have not yet repealed the former restrictions with regard to the termination of leases nor put in place legal ways and means for landlords to mitigate or compensate losses incurred in connection with maintenance.

The European Court also observed that amongst the many possibilities at the disposal of the Polish state, there were those set out in the recommendations made to Parliament by the Constitutional Court on 29/06/2005 which among other things set out the features of a mechanism balancing the rights of landlords and tenants and criteria for what might be considered a “basic rent”, “economically justified rent” or “decent profit” (§§136-141 of the judgment).

Finally, the European Court noted that the rent control scheme might potentially affect some 100 000 landlords and from 600 000 to 900 000 tenants. It accordingly postponed the examination of similar pending applications (standing at 18, one of which had been lodged by an association of some 200 landlords).

• Measures taken and/or under way:

            1) Amendment to the Act of 21/06/2001 on the protection of the rights of tenants and the housing resources of municipalities:On 15/12/2006 the Polish Parliament adopted an amendment to this Act, which entered into force on 1/01/2007. Consequently, annual rent increases of more than 3% of the reconstruction value of the dwelling may only be made in justified cases (Article 8a, Section 4a, of the amended Act). The increase of rent is justified if:

- it does not exceed the index of the average general annual increase of the prices of consumer goods and services in the previous year (Article 8a Section 4e), or

- the landlord has no profit from the rent or other charges for the use of the dwelling at a level allowing him/her to cover the costs of maintenance of the dwelling, as well as a return on capital and a profit (Article 8a Section 4a). The limits within which such increase may be made are set out in Article 8a, Section 4b, which determines what percentage of the costs borne by the landlord for the construction or the modernisation of the dwelling (such costs are defined in the provision of Article 2, Section, 1 Item 8a) may be included in such an increase. This provision also provides that the increase of rent mentioned in Article 8a, Section 4a, may include a “decent profit”; however, the Act does not define this term.

At a tenant's written request, the landlord shall give the reasons for the increase and its calculation in writing within 14 days (Article 8a Section 4). A rent may not be increased before 6 months have elapsed since the last increase (Article 9 Section 1 b).

Although the newly adopted amendments extend and specify landlords' rights as regards rent increases, they neither define the notion of “decent profit” nor introduce the terms of “basic rent” or “economically justified rent”, as stated in the Constitutional Court's decision of 29/06/2005. According to the authorities, the scope of the notion of “economically justified rent” has been determined in the provisions of Article 8a on the increase of rents. The definition of the “decent profit” has been, however, left to national courts. The “decency” of rents is to be determined on a case-by-case basis. In this respect, the authorities provided an example of a judicial decision (decision of 14/06/2007 of the Tarnów District Court), in which the court referred to the usual meaning of the word “decent” in the Polish language and also to the average interest rate on State Treasury bonds (5%). In any event, the financial situation of the tenant should have no impact on the determining of the “decency” of a rent.

            2) Constitutional Court's Judgment of 11/09/2006: The Constitutional Court found that the provision of Article 18, Section 4, of the Act of 21/06/2001 limiting municipalities' civil liability for damage resulting from failure to provide welfare accommodation to tenants entitled to it, was contrary to the Constitution. Consequently, this provision has been repealed. Nowadays, landlords may claim full compensation for such damage on the basis of Article 417 of the Civil Code.

            3) Act of 8/12/2006 on financial assistance for welfare accommodation, protected accommodation, night shelters and housing for the homeless: This new legislation aims at solving the problem of the shortage of welfare accommodation in municipalities by providing means whereby the state may finance the construction of such housing. It entered into force on 23/12/2006.

            4) Amendment to the 1997 Land Administration Act: On 24/08/2007 the Land Administration Act and certain other statutes were amended. These amendments introduced the “rent-mirror system”, i.e. a system for monitoring the levels of rent in all municipalities. It provides information on average rent levels in a given region and should serve as an auxiliary instrument enabling the courts to assess the basis for fixing or increasing rents.

            5) Bill on assistance for thermal insulation and renovation: The government submitted this Bill to Parliament on 29/02/2008. It is a part of the government’s housing programme, aimed at improving the existing housing resources and concerns in particular tenement houses, both state- and privately owned, which have been neglected and fallen into disrepair as a result of the operation of the rent-control scheme. According to this Bill, an investor who has carried out renovation or thermal insulation work will be entitled to the so-called “renovation refund” (premia remontowa) or “thermal insulation refund” (premia termomodernizacyjna). Moreover, a system of compensatory funds (premia kompensacyjne) will be available to owners whose property was subject to the rent-control scheme between 12/11/1994 and 25/04/2005.

• Two sets of comments, by the National Real Property Owners Association, mainly concerning this Bill have been brought to the attention of the Committee of Ministers, together with observations of the delegation in August and October 2008. These comments have been made in conformity with Rule No. 9 (Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements).

6) Other measures foreseen: The Minister of Construction is currently preparing a draft law which would extend landlords' right to dispose of the object of lease. This draft law was to be ready before the end of 2007.

7) European Court’s further assessment in the judgment of 28/04/2008 (friendly settlement): The European Court noted that the relevant legislative process was under way (see above) and underlined that by virtue of Article 46 of the Convention it will be for the Committee of Ministers to evaluate the general measures adopted by Poland (§§ 42-43). Having taken account the government’s demonstrated active commitment to taking measures to resolve the systemic problem identified in the principal judgment and the individual measures of redress afforded to the applicant under the terms of agreement, it decided to strike the case out of the list.

On 8/07/2008 the European Court decided to maintain the adjournment of pending (24) and future applications concerning the operation of the rent-control scheme in Poland pending the implementation by Poland of general measures referred to in the judgment of 28/04/2008.

• Further information is awaited on the development of domestic courts' case-law concerning the definition of “decent profit”, the legislative work mentioned in items 5-6 above as well as on other measures to prevent new, similar violations. Clarification would be also useful concerning the determination of the scope of the notion of “basic rent” and its introduction into the legislative framework.

- Cases concerning the violation of the right to the peaceful enjoyment of possessions following modifications to the local land development plan[20]

52589/99          Skibińscy, judgment of 14/11/2006, final on 26/03/2007 and of 21/10/2008, possibly final on 21/01/2009

10446/03           Buczkiewicz, judgment of 26/02/2008, final on 26/05/2008

17373/02           Rosiński, judgment of 17/07/2007, final on 17/10/2007

38672/02           Skrzyński, judgment of 06/09/2007, final on 06/12/2007

                       - Cases mainly concerning the monitoring of prisoners’ correspondence[21]

31583/96          Klamecki No. 2, judgment of 03/04/03, final on 03/07/03

43120/05           Andrulewicz, judgment of 03/04/2007, final on 24/09/2007

20138/03           Bobel, judgment of 22/01/2008, final on 22/04/2008

20841/02           Drozdowski, judgment of 06/12/2005, final on 06/03/2006

35833/03           Dzitkowski, judgment of 27/11/2007, final on 27/02/2008

72976/01           Jasiński, judgment of 06/12/2007, final on 06/03/2008

8363/04            Kliza, judgment of 06/09/2007, final on 06/12/2007

10816/02           Kozimor, judgment of 12/04/2007, final on 12/07/2007

51895/99           Kwiek, judgment of 30/05/2006, final on 30/08/2006

21890/03           Lewak, judgment of 06/09/2007, final on 31/03/2008

73988/01           Łuczko, judgment of 03/10/2006, final on 03/01/2007

14450/02           Maksym, judgment of 19/12/2006, final on 19/03/2007

37641/97           Matwiejczuk, judgment of 02/12/03, final on 02/03/04

42083/98           Mianowski, judgment of 16/12/03, final on 16/03/04

62323/00           Najdecki, judgment of 06/02/2007, final on 06/05/2007

6390/03            Nowicki, judgment of 27/02/2007, final on 27/05/2007

64284/01           Oleksy, judgment of 28/11/2006, final on 28/02/2007

10381/04           Owsik, judgment of 16/10/2007, final on 16/01/2008

39840/05           Pawlak, judgment of 15/01/2008, final on 15/04/2008

92/03                Pisk-Piskowski, judgment of 14/06/2005, final on 14/09/2005

29366/03           Stępniak, judgment of 29/01/2008, final on 29/04/2008

64283/01           Tomczyk Prokopyszyn, judgment of 28/03/2006, final on 28/06/2006

38007/02           Warsiński, judgment of 04/12/2007, final on 04/03/2008

63905/00           Wasilewski, judgment of 06/12/2005, final on 06/03/2006

45133/06           Zborowski, judgment of 15/01/2008, final on 15/04/2008

                       - Cases of length of proceedings concerning civil rights and obligations before administrative bodies and courts[22]

33870/96           Fuchs, judgment of 11/02/03, final on 11/05/03

51837/99           Beller, judgment of 01/02/2005, final on 06/06/2005

22305/06           Błaszczyk, judgment of 08/01/2008, final on 08/04/2008

49961/99           Bogucki, judgment of 15/11/2005, final on 15/02/2006

4054/03            Boszko, judgment of 05/12/2006, final on 05/03/2007

43702/02           Grabiński, judgment of 17/10/2006, final on 17/01/2007

40732/98           J.S. and A.S., judgment of 24/05/2005, final on 12/10/2005

38049/02           Kaniewski, judgment of 08/11/2005, final on 08/02/2006

52495/99           Koss, judgment of 28/03/2006, final on 28/06/2006

77420/01           Kryszkiewicz, judgment of 06/03/2007, final on 06/06/2007

12550/02           Olesiński, judgment of 18/12/2007, final on 18/03/2008

77795/01           Orzechowski, judgment of 24/10/2006, final on 24/01/2007

13024/05           Olszewska, judgment of 18/12/2007, final on 18/03/2008

77741/01           Piekara, judgment of 15/06/2004, final on 15/09/2004

11101/04           Rygalski, judgment of 22/01/2008, final on 22/04/2008

61967/00          Sernawit, judgment of 06/11/2007, final on 06/02/2008

19607/03           Sito, judgment of 09/01/2007, final on 09/04/2007

36431/03           Skowroński, judgment of 24/01/06, final on 24/04/06

13568/02           Stevens, judgment of 24/10/2006, final on 24/01/2007

67979/01           Szenk, judgment of 22/03/2005, final on 22/06/2005

12134/02          Urbańska, judgment of 13/11/2007, final on 13/02/2008

33777/96           Urbańczyk, judgment of 01/06/2004, final on 01/09/2004

17949/03           Wesołowska, judgment of 04/03/2008, final on 04/06/2008

28983/02           Wilczkowska and others, judgment of 08/01/2008, final on 08/04/2008

33017/03          Wójcicka-Surówka, judgment of 27/11/2007, final on 27/02/2008

- 36 cases against Portugal

73229/01           Reigado Ramos, judgment of 22/11/2005, final on 22/02/2006

The case concerns the failure to take adequate and sufficient action to enforce the applicant’s right of access to his child (born in 1995) (violation of Article 8). After their separation, the applicant and the mother concluded an agreement regarding their child, according to which the applicant should have visitation rights. A year later, the applicant brought proceedings seeking the judicial enforcement of the agreement, which was not being observed by the mother. Over several years, the mother could not be found by the domestic court, even though it undertook several steps to locate her (by requesting assistance from the police and the social security services, etc.). The proceedings were closed with the decision by the court to impose a moderate fine on the mother and to award equally moderate damages to the applicant. The European Court found that the measures taken by the Portuguese authorities with a view to enforcing the agreement, which is still valid, had been automatic and stereotyped and that they had failed to take practical and concrete steps to resolve the issue. The Court noted in particular that neither the prosecution nor the competent court had tried to bring the parties together or actively involve the social services in finding a solution to the problem.

Individual measures: In February 2007, the Portuguese delegation informed the Committee that, with the assistance of the judicial police, the whereabouts of the mother and the child have been identified. At a meeting held before a judge on 20/06/2007, it was agreed between the parties that, before a new regime on visiting rights could be determined, the child in question, as well as both the parents, had to undergo psychological examinations, which took place beginning 2008. According to the Portuguese authorities, following these examinations, two meetings took place before the judge (6 and 13/05/2008) between the parents accompanied by their counsel. During the second meeting the child was heard and she refused to meet her father. It was agreed that a meeting between father and daughter would be organised at the social security offices in presence of social advisers, to enable the father to establish contact with his daughter.

• Information provided by the Portuguese authorities (25/09/2008): The meeting did not take place as the father was not summoned in time. Following to the Evaluation Report prepared by the Social Security Institute, the judge ordered a new date to be found for the meeting between the child and her father and to seek the mother’s approval in order for the child to receive preparatory psychological support. An Intervention Plan was presented to the judge on 16/07/08, in which, first, the father’s opinion, that visits cannot start until the child is emotionally ready, was reiterated and, secondly, it was suggested that psychotherapist support should begin in order to evaluate the difficulties and the positive factors as regards the objective pursued. It is not yet known whether the mother has agreed.

• Information is awaited as to whether, with a view to establishing a new agreement regarding the applicant's visiting right, the Intervention Plan of July 2008 has been implemented.

General measures: A copy of the judgment has been sent to all national authorities concerned, including to the Instituto de Reinserção Social (the Institute of Social Reintegration, which carries out social investigations ordered in the framework of court proceedings on matters related to parental rights). The judgment has also been translated and published on the internet (www.gddc.pt). In addition, the judgment was sent out by the Portuguese Attorney General to all magistrates working with courts that deal with family cases. Finally, both the Supreme Council of Magistrates and the aforementioned Institute of Social Reintegration were requested to adopt appropriate measures in order to prevent new, similar violations in the future. The Portuguese authorities indicated (05/03/2008) that the Institute for Social Security has been recently vested with competences concerning parental authority; the Institute envisages implementing alternative measures, in particular mediation, to resolve conflict situations due to non-execution of judicial decisions.

• Information provided by the Portuguese authorities (25/09/2008): The Social Security Institute is currently studying training projects on positive parenting so as to establish psycho-social policies to help families with matters such as failure to comply with visiting rights or to enforce judicial decisions on parental authority. As regards the legal framework, the Portuguese authorities mention Section 150 of the OTM (Organisation of Care for Minors - Organização Tutelar de Menores) which provides a party’s right to act against a parent who fails to exercise parental authority correctly. This right to take action makes it possible to take the necessary steps to ensure respect for obligations and provides sanctions in the form of fines or compensation.

• Information is awaited on the measures taken or envisaged by the Supreme Council of Magistrates, as well as on the implementation of the measures envisaged by the Institute for Social Security. As regards the legal framework, more precise information is awaited on the pertinent legislation in the field of the protection of minors, in particular on whether Section 150 OTM is new legislation. In addition, the authorities’ global assessment of the effectiveness of the existing means in Portuguese law for ensuring the respect of its positive obligations under Article 8 would remain nonetheless particularly useful.

40225/04           Feliciano Bichão, judgment of 20/11/2007, final on 20/02/2008

This case concerns the violation of the applicant's right to a fair trial due to the fact that memoranda prepared by the public prosecutor in criminal proceedings, in which the applicant had the status of assistente, before the appellate court and in an appeal to the Constitutional Court were not disclosed to him (violation of Article 6§1).

The European Court found that the right to a fair trial had been breached since the memoranda should have been communicated to the applicant, first because of his right to be informed and comment on all documents submitted in the proceedings and, secondly due to the weight of these documents in the courts’ decisions. 

Individual measures: The European Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained.

• Bilateral contacts are under way to evaluate the need for further individual measures.

General measures: According to Article 413§2 of the Code of Criminal Procedure (as in force at the material time), the memoranda in reply of the parties affected by the appeals must be transmitted to the applicant. In the present case, as the government acknowledged, the Code of Criminal Procedure was not respected since the applicant did not receive the public prosecutor’s memorandum replying to his appeal (§35 of the judgment). As regards the memorandum prepared in the appeal to the Constitutional Court, the Law on the Constitutional Court (Law No. 28/28 of 15 November) does not provide an obligation to disclose public prosecutors’ memoranda or opinions to individual applicants (§35 of the judgment).

• Information is awaited on measures taken or envisaged, including legislative measures, to ensure that individual applicants are also guaranteed a fair trial before the Constitutional Court as regards disclosure of documents relevant to the final decision. The authorities are also invited to publish the European Court's judgment in this case and ensure its wide dissemination to competent authorities to avoid similar violations in the future, in particular as regards the failure to disclose memoranda in criminal proceedings.

- Cases concerning inadequate compensation for land expropriated under the agrarian reform of 1975

30533/03          Carvalho Acabado, judgment of 18/10/2005, final on 15/02/2006

10172/04           Campos Costa and others, judgment of 30/10/2007, final on 30/01/2008

21513/05           Companhia Agrícola da Barrosinha S.A., judgment of 15/01/2008, final on 15/04/2008

21240/02+        Companhia Agrícola de Penha Garcia, S.A. and 16 other cases “Agrarian reform”, judgment of 19/12/2006, final on 19/03/2007

44311/04+        Costa Capucho and 23 other cases “Agrarian reform”, judgment of 15/01/2008, final on 15/04/2008

41453/02           Herdade da Comporta - Actividades Agro Silvícola e Turísticas, S.A., judgment of 10/07/2007, final on 31/03/2008

31677/04          Sociedade Agrícola Herdade da Palma S.A., judgment of 10/07/2007, final on 12/11/2007

These cases concern the failure by the respondent state to strike a fair balance between the public interest and the applicants' or the applicant companies’ right to the peaceful enjoyment of their possessions (violations of Article 1 of Protocol No.1). The applicants suffered excessive delay with respect to the determination and payment of compensation for their properties, expropriated in the framework of the 1975 agrarian reform.

Individual measures:

            1) Carvalho Acabado: The European Court awarded just satisfaction on equitable principles in respect of both the pecuniary and non-pecuniary damages suffered as a consequence of the delay in payment of the compensation and the default interests rate, which was too low as compared with the currency depreciation during the same period.

In March 2008 the Portuguese authorities indicated that the Supreme Admnistrative Court had given judgment ordering the recalculation of the compensation. This was fixed by the domestic services at 49.889,65 euros and was recalculated and paid (21/05/2007) when the domestic decision became final. No other proceedings concerning the applicant are pending.

• Assessment: no other individual measure seems necessary.

            2) Companhia Agrícola de Penha Garcia, S.A. and 16 other cases: The European Court awarded just satisfaction in respect of pecuniary or non-pecuniary damages or both according to the individual situations of the applicants. Just satisfaction was meant to cover the delay in payment of the compensation and the default interest rate, which was too low as compared with the currency depreciation during the same period.

When the case of Carneiro Vieira da Silva and others (Application No. 1999/04) was lodged, the relevant amounts due at domestic level (compensation and default interests) were not yet paid.

• Information is awaited on whether the applicants have received the compensation awarded by domestic courts and, where appropriate, the interest due.

            3) Sociedade Agricola Herdade da Palma S.A.,Campos Costa, Herdade da Comporta - Actividades Agro Silvícola e Turísticas, S.A., Companhia Agrícola da Barrosinha S.A. : Proceedings are closed. The European Court awarded just satisfaction on equitable principles in respect of the pecuniary damage suffered, as a consequence of the delay in payment of the compensation and the default interests rate, which was too low as compared with the currency depreciation during the same period.

• Assessment: no other individual measure seems necessary.

            4) Costa Capucho and 23 other “Agrarian reform” cases: The European Court awarded just satisfaction in respect of either pecuniary or non-pecuniary damages, or both, according to the circonstances of the cases, suffered as a consequence of the delay in payment of the compensation and the default interest rate, which was too low as compared with the currency depreciation during the same period.

• Assessment: no further individual measure seems necessary.

General measures: The cases present similarities to that of Matos e Silva LDA and others against Portugal (judgment of 16/09/1996) in Section 6.2, following the enactment of a legislative reform of administrative courts (Legislative Decree 229/96) aimed inter alia at accelerating administrative proceedings.

Given that similar cases continue to be brought before the European Court, it would be useful if the government were to provide an evaluation of the situation in order for the Committee of Ministers to assess the need of further possible general measures.

• The information transmitted (07/10/2008) is under assessment.

25053/05           Ferreira Alves No. 3, judgment of 21/06/2007, final on 21/09/2007

7623/04            Antunes and Pires, judgment of 21/06/2007, final on 21/09/2007

These cases concern the violation of the applicants’ right to a fair trial due to the fact that several documents presented by the public prosecutor and/or the memoranda prepared by the first-instance judge for the appellate court during civil proceedings were not disclosed to them (violations of Article 6§1).

The European Court found that their right to a fair trial had been breached since both kinds of documents should have been communicated to them, first on the ground of their right to be informed and comment on all documents submitted in the proceedings and, secondly, due to the weight of these documents in the court’s decisions.

Individual measures: In both cases the European Court held that the finding of a violation constituted in itself sufficient just satisfaction in respect of the non-pecuniary damage sustained by the applicants.

In the Ferreira Alves No. 3 case, the applicant’s right to visit his daughter was limited following the proceedings at issue. If he so wishes, the applicant may bring new proceedings for the revision of his visiting rights. 

• Assessment: In these circumstances, no individual measure seems necessary.

In the Antunes and Pires case, the proceedings did not concern the merits of the dispute between the parties, but rather the amount of damages that the applicants were ordered to pay. The applicants contended that the court had based its decision on the common report of the experts of the court and of the opposing group, which the expert nominated by the applicants refused to join. The difference between the amount set by the court and that set by the expert nominated by the applicants is about 800 euros.

• Assessment: In these circumstances, no individual measure seems necessary.

General measures: It seems that there is no provision in Portuguese law for the communication of all the documents presented by the public prosecutor. Furthermore, it appears from the combined application of the Code of Civil Procedure (articles 668§4, 669 and 744) and the case-law (Appeal Court of Evora, judgment of 29/03/1979) that there is no obligation to notify memoranda prepared by the first-instance court to the parties.

• Information is awaited on possible measures, including legislative ones if appropriate. In any event the authorities are invited to consider publishing the European Court’s judgments in these cases and ensure their wide dissemination to competent authorities to avoid similar violations of the Convention in the future.

                       - Cases of length of judicial proceedings

                       Interim Resolution CM/Res/DH(2007)108[23]

a. Cases before civil courts

34422/97           Oliveira Modesto and others, judgment of 08/06/00, final on 08/09/00

54926/00           Costa Ribeiro, judgment of 30/04/03, final on 30/07/03

53997/00           Dias Da Silva and Gomes Ribeiro Martins, judgment of 27/03/03, final on 27/06/03

53534/99           Esteves, judgment of 03/04/03, final on 03/07/03

56345/00           Ferreira Alves No. 2, judgment of 04/12/03, final on 04/03/04

53937/00           Ferreira Alves, Limited, judgment of 27/02/03, final on 27/05/03

49671/99           Ferreira da Nave, judgment of 07/11/02, final on 07/02/03

56110/00           Frotal-Aluguer de Equipamentos S.A., judgment of 04/12/03, final on 04/03/04

58617/00           Garcia da Silva, judgment of 29/04/2004, final on 29/07/2004

49279/99           Koncept-Conselho em Comunicação e Sensibilização de Públicos, Lda, judgment of 31/10/02, final on 31/01/03

52412/99           Marques Nunes, judgment of 20/02/03, final on 20/05/03

54566/00           Moreira and Ferreirinha, Lda and others, judgment of 26/06/03, final on 26/09/03

55081/00           Neves Ferreira Sande e Castro and others, judgment of 16/10/03, final on 16/01/04

57323/00           Pena, judgment of 18/12/03, final on 18/03/04

48187/99           Rosa Marques and others, judgment of 25/07/02, final on 25/10/02

59017/00           Soares Fernandes, judgment of 08/04/2004, final on 08/07/2004

44298/98          Tourtier, judgment of 14/02/02, final on 14/05/02

b. Cases before administrative courts

52662/99          Jorge Nina Jorge and others, judgment of 19/02/04, final on 19/05/04

55340/00           Sociedade Agrícola do Peral and autre, judgment of 31/07/03, final on 31/10/03

c. Cases before criminal courts

48956/99           Gil Leal Pereira, judgment of 31/10/02, final on 31/01/03

14886/03          Monteiro da Cruz, judgment of 17/01/2006, final on 17/04/2006

50775/99           Sousa Marinho and Marinho Meireles Pinto, judgment of 03/04/03, final on 03/07/03

52657/99          Textile Traders, Limited, judgment of 27/02/03, final on 27/05/03

d. Case before family courts

51806/99           Figueiredo Simoes, judgment of 30/01/03, final on 30/04/03

e. Case before labour courts

53795/00           Farinha Martins, judgment of 10/07/03, final on 10/10/03

- 63 cases against Romania

31679/96           Ignaccolo-Zenide, judgment of 25/01/00

This case concerns the absence of adequate and sufficient measures taken by the Romanian authorities to enforce a court injunction (issued in December 1994 based on The Hague Convention) requiring the applicant's children to be returned to her. In spite of this finding of a violation, court decisions affording visitation rights to the applicant were not enforced due to the fact that the father of the children refused to abide by them and appealed them before the superior courts, obtaining their suspension (violation of Article 8).

Individual Measures: No measure is required since the children have reached their majority (the younger daughter in September 2002). The European Court awarded the applicant just satisfaction for non-pecuniary damage.

General Measures:

            1) Violation of Article 8:

- Law No. 369/2004 on the implementation of The Hague Convention was adopted by the Parliament on 15/09/2004, with a view to enhancing the efficiency of proceedings concerning the return of abducted children. Among the new measures mentioned are the creation of a special court (the Bucharest court for children and family issues) competent to deal with requests for the return of children under The Hague Convention, and the establishment of a procedure through which the court may impose a deterrent fine on a parent who refuses voluntarily to fulfil his or her obligation to return a child or to allow access rights. Study of the provisions and the application of Law No. 369/2004 is a part of the initial training of legal trainees in family law and “European Convention of Human Rights”. Trainees analyse the Court's judgment in Ignaccolo-Zenide in relation to the provisions of The Hague Convention. The application of Law No. 396/2004 is also a priority in continuous training and is an element of the subjects of the seminars organised by the Institute in the series of training on “Justice for minors” and “The European Convention – civil aspects”.

Nevertheless it seemed that the law did not explicitly provide the possibility for the abducted child to undergo psychological therapy in order to prepare him or her for being reunited with the bereft parent, such a possibility existing only if access rights cannot be exercised due to the constant opposition of a child who manifests hostile feelings towards its parent. In addition, the law does not explicitly provide the possibility for bereft parents to obtain provisional access rights pending the outcome of return proceedings based on The Hague Convention.

However, the Romanian authorities consider that these issues are regulated either indirectly in the new law or in other legal acts:

- Psychological care: A measure of psychological care of the child during the procedure to examine the request for return may be taken by a judicial authority under Law No. 369/2004. As the Law provides, in Article 9, the obligatory presence of a psychologist during the hearing of the child, the legal authority may decide that the same psychologist, or a psychologist of the Directorate General of Social Assistance, assists the child.

- Access right: In response to the requests of the Superior Council of Magistracy, Romanian magistrates expressed a majority opinion in favour of granting an access right to a parent requesting the return of a child abducted on Romanian territory both during the examination of the request and in the event of a refusal to return the child. This right will be granted on request under the terms of the Romanian Family Code, which provides a right of access for the parent who does not usually live with the child. This provision is also interpreted in favour of a parent who asks the Romanian authorities to establish the illicit character of the presence of his child in Romania. Moreover, under Law No. 272/2004 on the protection and promotion of the rights of the child, the child has a right to maintain personal relations and direct contacts with his parents, the exercise of these rights being established by a judicial authority. This right is also acknowledged for a child whose parents usually live different countries (Articles 16 and 17 of Law No. 272/2004).

• Bilateral contacts are under way to assess the statistical data and examples of the application of Law 369/2004 by domestic courts, submitted by the Romanian authorities in June 2008.

            2) Publication and dissemination: The European Court's judgment has been published in the Official Journal. In addition, the Romanian authorities indicated that the judgment (accompanied by a circular letter underlining the provisions of The Hague Convention) was sent out to civil courts, the appropriate ministries and the social services.

37284/02           Lafargue, judgment of 13/07/2006, final on 13/10/2006

The case concerns a violation of the applicant's right to respect for his family life due to the failure by the Romanian authorities in their obligation to take adequate and sufficient efforts to ensure respect for the applicant's right of access to and residence with his son, born in 1995, over a period of approximately six years (violation of Article 8).

After the applicant's divorce in 1997, the custody of the child was awarded to his ex-wife. On 16/12/1999 an access and residence order was made (final on 3/05/2000) authorising the applicant to spend one week with his son during the winter holidays and two weeks during his annual holidays. The applicant applied to the court bailiff service of the Bucharest Court of First Instance to obtain enforcement of this decision. However, his attempts remained ineffectual mainly due to the conduct of the mother, who failed to appear or came alone when summoned to attend with the child, or refused her former husband, accompanied by a court bailiff, entry to her flat.

Following a request by the French authorities under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the Romanian Ministry of Justice brought an action demanding that a detailed access programme be drawn up for the applicant. In 2005, the Bucharest Court of First Instance drew up a provisional access programme granting the applicant access on alternate weekends, from 4 p.m. on Friday to 5 p.m. on Sunday. Even so, the applicant was only able to meet his child for five months at the beginning of 2005 and after notice of the application had been given to the government. Moreover, the Romanian authorities only imposed a small fine on the ex-wife.

Individual measures: According to the European Court’s judgment the authorities did not pursue the programme of meetings between the applicant and his child after first five months of 2005, even though psychologists' reports attested to the effectiveness of such meetings.

• Information provided by the Romanian authorities: The applicant spent one week with his son during the winter holidays in 2006.

By a judgment of 22/06/2006 (final in May 2007) the Bucharest Court established a visiting schedule for the applicant. According to this schedule, the applicant may visit his son from Friday (6 p.m.) until Sunday (6 p.m.) during the first and the third week of each month. The stays were also foreseen for the first week of the Easter school holidays, in the period from 15/07 (6 p.m.) to 30/08 (6 p.m.) and during the first week of the Christmas holidays. This decision provides a possibility to send the applicant’s son during those periods to the applicant’s residence in France. By a letter of 4/06/2007 the Ministry of Justice requested a bailiff’s office to undertake all necessary measures to ensure the implementation of this decision.

On 27/03/2007 the Court of First Instance of Bucharest decided that the applicant’s son should undergo two months of psychological treatment. In May 2008 the Romanian authorities presented a report from the first psychological interview of the beginning of 2008, which is currently being examined by the Secretariat.

• Additional information is expected on the implementation of the applicant’s right of access to and residence with his son.

General measures:

1) General legislative provisions regulating the exercise of the right of access

• Information is awaited on any appropriate general legislative provisions capable of ensuring the respect of the state's positive obligations under Article 8 with respect to access rights. Information would in particular be useful as regards the adequacy and effectiveness of the available means in this respect (e.g. enforcement measures, including sanctions, psychological and social assistance, etc.) and their capacity to ensure implementation of the legitimate rights of interested persons and respect for judicial decisions. Furthermore, information would be useful on any measures envisaged by the Romanian authorities in this respect.

2) Specific legislative provisions concerning the implementation of the 1980 Hague Convention with respect of the right of access

a) On 15/09/2004 Romania adopted Law No. 369/2004 on the implementation of the 1980 Convention on the Civil Aspects of International Child Abduction (entered into force on 29/12/2004). Specific provisions of this Law relate to the right of access:

- Enforcement measures

Law 369/2004 provides that the Romanian Central Authority (Ministry of Justice) shall attempt to bring about a friendly resolution concerning the exercise of the right of access. If this attempt fails, and at the explicit request of the person endowed with such right, the Central Authority shall take the necessary measures to ensure the compulsory enforcement of this right. The Law provides an initial, civil fine (approximately 125 to 625 euros) and, if the perpetrator does still not comply, the general rules governing the enforcement of court decisions are applicable. In addition, the court may order a defendant to pay a civil fine of approximately 12 to 25 euros for each day of delay.

- Preparation of the child for the contact with its parent

Law 369/2004 explicitly provides the possibility of psychological therapy for the child for a maximum of three months where access rights cannot be exercised due to the constant opposition of a child who manifests hostile feelings towards its parent (Article 18).

b) On 5/04/2005 the Ministry of Justice, on the basis of Article 24 of Law 369/2004, adopted Order No. 509/C to approve the Regulation on the modalities of exercising the duties of the Ministry of Justice as a Central Authority designated through Law No. 100/1992 on Romania's accession to the 1980 Hague Convention.

• Bilateral contacts are under way to assess the statistical data and examples of the application of Law 369/2004 by domestic courts, submitted by the Romanian authorities in June 2008.

3) Publication and dissemination of the European Court's judgment to relevant authorities:

• Information is awaited in this respect.

- 1 case against Romania and 1 case against Hungary and Romania

71099/01          Monory, judgment of 05/04/2005, final on 05/07/2005

7198/04            Iosub Caras, judgment of 27/07/2006, final on 11/12/2006

These cases concern questions related to the application by the Romanian authorities of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (violations of Article 8).

In the Monory case, the European Court condemned the way in which the Romanian authorities dealt with the applicant's request for the return to Hungary of his daughter (nearly 4 years old), who had been kept in Romania without the applicant's consent by his wife. The request for the return of the child lodged by the applicant in January 1999 under the 1980 Hague Convention was eventually rejected by the Oradea Court of Appeal in February 2000. The Romanian courts found in particular that the retention of the child by her mother was not unlawful since the applicant did not have exclusive custody rights. Furthermore, they noted that the child had already been integrated into her new environment. The European Court found that the Romanian authorities had failed to make adequate and effective efforts to assist the applicant in his attempt to secure the child's return in that

- they wrongly interpreted The Hague Convention as not being applicable to the present case, in spite of its obvious meaning which transpires from its very text, its Explanatory Report and from the recognised common practice of other European states;

- they failed to respond to the urgency of the situation, letting more than twelve months pass before adopting the final decision rejecting the applicant's request while indicating that the child had adapted to her new environment;

- they failed to take all provisional measures, including extra-judicial measures, which might have helped prevent further harm to the child or prejudice to the interested parties in accordance with Article 7 of The Hague Convention.

The Monory case also concerns the excessive length of the divorce and child custody proceedings before the Hungarian courts (violation of Article 6§1). The proceedings were brought by the applicant on 28/04/1999 and ended on 29/10/2003, when the Vác District Court declared the couple's divorce and granted the mother custody of the child.

In the Iosub Caras case, in November 2001 the Romanian Ministry of Justice received a request under The Hague Convention for the return of the applicant's child. The applicant claimed that his wife was wrongfully retaining their daughter in Romania, without his consent. In January 2002, the Ministry of Justice, acting as the Central Authority for the purpose of The Hague Convention, instituted proceedings on behalf of the applicant for the return of the child. The request was rejected in a final decision of the Bucharest Court of Appeal in June 2003 on the ground that, since the introduction of the proceedings under The Hague Convention, another Romanian court, in a final decision of 18/09/2002, had ruled the divorce of the parents and had granted sole custody of the child to the mother.

The European Court concluded that the Romanian authorities failed to fulfil their positive obligations under Article 8 on the following grounds:

- that, by failing to inform the divorce courts of the existence of The Hague proceedings, the authorities (in particular the Ministry of Justice) deprived The Hague Convention of its very purpose, i.e. to prevent a decision on the merits of the rights to custody being taken in the state of refuge;

- that the time taken by the courts to decide finally in this case (more than 18 months from the date of lodging the request for the return of the child to the date of final decision) failed to meet the urgency of the situation.

The European Court also expressed its concern that the domestic courts, when ruling on The Hague proceedings, based their judgment, among other arguments, on the fact that the custody rights had been decided on the merits, while The Hague proceedings were still pending.

Individual Measures:

1) Monory case: As the child is currently living in Romania, the Romanian authorities were asked whether the applicant currently enjoyed visitation rights. By letter of 30/11/2005, the Romanian authorities indicated that the applicant took no step under Romanian law to exercise his visiting rights.

2) Iosub Caras: None: the European Court noted that the national courts' refusal under The Hague Convention to order the return of the child, being also based on arguments which constitute an interpretation of the facts and evidence adduced in the case, did not appear to be arbitrary. The applicant was awarded just satisfaction in respect of non-pecuniary damage.

General Measures:

            1) Violations of Article 8:

- Proper application of the 1980 Hague Convention

Various measures related to the proper application of the 1980 Hague Convention are being examined in the context of the Ignaccolo-Zenide case (Section 4.2). In the context of the present cases it should be underlined that according to Law No. 369/2004 on the implementation of the 1980 Hague Convention a special court (the Bucharest Court for children and family issues) has been created, which is competent to deal with requests for the return of children under the 1980 Hague Convention. Further, study of the provisions and the application of Law No. 369/2004 is a part of the initial training of legal trainees in family law and “European Convention of Human Rights”. The application of Law No. 396/2004 is also a priority in continuous training and is an element of the subjects of the seminars organised by the Institute in the series of training on “Justice for minors” and “The European Convention - civil aspects”.

- Need to respond to the urgency of the situation and to take appropriate provisional measures

Various information, in particular related to the provisional access right, has been provided in the context of the Ignaccolo-Zenide case (Section 4.2).

            2) Publication and dissemination: The judgment in the Monory case has been translated and published in the Official Journal of Romania and on the Internet site of Supreme Court of Cassation and Justice (http://www.scj.ro/decizii_strasbourg.asp). In addition, it was transmitted to the Bucharest court which is competent to apply the 1980 Hague Convention.

• The publication and dissemination of the European Court's judgment in the Iosub Caras case to relevant domestic courts and institutions are also expected.

            3) Violation of Article 6§1 in the Monory case: This case presents similarities with the Tímár group (1051st meeting, March 2009). The judgment in the Monory case has been published on the website of the Hungarian Ministry of Justice (www.irm.hu) and in the human rights quarterly “Acta Humana”.

10337/04          Lupsa, judgment of 08/06/2006, final on 08/09/2006

33970/05          Kaya, judgment of 12/10/2006, final on 12/01/2007

These cases concern a violation of the applicants' right to respect for their private and family life on account of their expulsion for security reasons in August 2003 and April 2005 (violations of Article 8).

The European Court found that these measures were not provided by a law responding to the requirements of the Convention. In this respect it noted that the applicants, Serbian and Turkish nationals respectively, were declared to be undesirable aliens, expelled and denied access to Romanian territory. These measures were ordered by the public prosecutor's office on the ground that the Romanian Intelligence Service had received sufficient and serious intelligence that they were engaged in activities capable of endangering national security. No proceedings were brought against the applicants for participating in the commission of any offence in Romania or any other country and they were not provided with any details as to the allegations against them. Furthermore, in the Lupsa case, in breach of domestic law, the applicant was not served with the order declaring his presence to be undesirable until after he had been expelled. Finally, the Bucharest Court of Appeal confined itself to a purely formal examination of the public prosecutor's orders.

These cases also concern the failure to respect procedural guarantees in the procedure whereby the applicants were expelled (violations of Article 1 of Protocol 7). The European Court recalled that Emergency Ordinance no. 194/2002, the legal basis for the expulsion, did not afford them the minimum guarantees against the arbitrary action by the authorities. Thus, although the applicants' expulsions were carried out pursuant to a lawfully taken decision, the relevant law did not comply with the requirements of the Convention. In addition, the authorities had failed to comply with the requirements of Article 1 a) and b) of Protocol 7.

Individual measures: The Romanian authorities have indicated that the applicants may request the re-examination of the decisions in question under Article 322 (9) of the Code of Civil Procedure. The European Court awarded them just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measure seems necessary.

General measures: On 26/03/2007 Emergency Ordinance No. 194/2002 was amended. According to the new wording of Article 83, declarations of undesirability of aliens shall henceforth be made by the Bucharest Court of Appeal, seised by a public prosecutor attached to this court at the request of the authorities having jurisdiction in the field of public order and national security. The data and information at the basis of such declarations shall be placed at the disposal of the judicial authority in accordance with the conditions provided by the law regulating national security activities and the protection of classified information. The public prosecutor's submission is examined by a court chamber sitting in private, the parties being notified. The judicial authority shall inform the alien of the facts at the basis of the submission. A reasoned judgment should be given within 10 days of the prosecutor's submission. It is final and shall be communicated to the alien concerned and, if the alien is declared undesirable, to the Aliens Authority for enforcement.

Both judgments, after being translated, have been published in the Official Journal and on the internet site of the Supreme Court of Cassation and Justice.

• Bilateral contacts are under way to assess the information submitted and the necessity of further measures.

22088/04           Bragadireanu, judgment of 06/12/2007, final on 06/03/2008

The case concerns the inhuman and degrading conditions under which the applicant was detained as from March 2004, due in particular to prison overcrowding and the lack of health facilities appropriate to the applicant’s condition (violation of Article 3).

The European Court noted that although the authorities were aware that the applicant’s medical condition was severe, he was detained in an ordinary prison, sharing a cell with others with no shower or warm water at his disposal and received no regular assistance related to his needs.

The case also concerns the excessive length of criminal proceedings which ended in February 2004 (7 years and 8 months within the competence of the European Court) (violation of Article 6§1).

Individual measures: When the European Court delivered its judgment the applicant was still in prison and it seemed that he had not been transferred to an individual cell.

• Information provided by the Romanian authorities: The applicant was offered medical treatment and examinations on several occasions in 2007 and 2008. Since 1/10/2007 he has been placed in the infirmary section of the prison where he has been provided with proper conditions of personal hygiene. Thus, he is detained with four other inmates in a room of 19.58 square metres. The room has both natural and artificial light and is ventilated by two windows. A sanitary space is available in a separate room of 8.36 square metres which is equipped with a toilet, a shower and two wash-basins. The detainees have permanent access to cold and, twice a week, warm water, and receive necessary hygienic supplies. Under Ministry of Justice Order No. 2432/2000 the applicant cannot have a personal assistant at his disposal.

In February 2007, the applicant married and has benefited since then of the right to 48 hours’ conjugal visit.

• Information is expected on further measures taken or envisaged to guarantee the applicant detention conditions appropriate to his health situation.

General measures:

1) Violation of Article 3: The European Court noted that cumulative effect of overcrowding in large dormitories, a poor activity regime and inadequate access to washing facilities is detrimental to prisoners.

• Information is expected on measures taken or envisaged to avoid similar violations resulting from inadequate detention conditions, in particular in situations involving detainees in poor medical condition.

2) Violation of Article 6§1: The case presents similarities to the Stoianova and Nedelcu group of cases (1051st meeting, March 2009).

41124/02           Filip, judgment of 14/12/2006, final on 14/03/2007

This case concerns the compulsory psychiatric hospitalisation of the applicant between November 2002 and January 2003, at the behest of a public prosecutor, with a view to determining his capacity of judgment. The European Court considered that it had not been adequately established that the applicant was deranged, no prior medical opinion having been sought nor any precise indications given as to the elements which led the prosecutor to apply for the applicant's detention. It also noted that the applicant's committal had not been carried out according to law, in that the competent medical commission ought to have been implicated at the moment the committal was enforced. In point of fact, the commission which was seised a month later did not concur with the need for committal (violation of Article 5§1).

The case also concerns the failure to ensure a prompt determination of the lawfulness of the applicant's psychiatric detention (violation of Article 5§4): the relevant domestic court instead of determining the applicant's complaint, submitted in December 2002 under Article 434 of the Code of Criminal Procedure, it referred it to the prosecutor. The prosecutor ordered the withdrawal of the detention order, without examining the complaint on the merits, in January 2003. Thus the authorities took 8 weeks to withdraw the detention order.

Finally the case concerns the inadequacy of investigations carried out into the applicant's allegations of ill-treatment (violation of Article 3). The court noted that the prosecution failed to pronounce upon these complaints and the Romanian authorities provided no information indicating that a criminal investigation had been opened in this respect.

Individual measures: After the lifting of the hospitalisation order and release of the applicant the Romanian courts ordered psychiatric treatment recommended by the medical commission. The applicant did not appeal against this order.

• Information is expected as to whether it is possible to open an investigation concerning the applicant's allegations of ill-treatment during his detention in the psychiatric hospital.

General measures:

• Information is expected on measures taken or envisaged to avoid similar violations. In particular, to assess the necessity and scope of specific measures, the authorities are invited to clarify:

- the legal basis for opening criminal investigations and the reasons for disregarding the applicant's complaints about his alleged ill-treatment in present case;

- the current law governing detention in psychiatric hospitals.

• Information is also expected on the publication and dissemination of the European Court's judgment among relevant courts and authorities, to raise domestic courts' awareness of the Convention's requirements as they result from this case.

67703/01           Hauler, judgment of 12/07/2007, final on 12/10/2007

The case concerns the violation of the applicant’s right of access to a court due to the domestic courts’ refusal in 1999 and 2000 to review the lawfulness of an administrative decision concerning the allocation of a plot of land (violation of Article 6§1).

Individual measures: Romanian law provides, in Article 322§9 of the Code of Civil Procedure, the possibility of reopening civil proceedings in cases in which the European Court found a violation. In addition, the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

• Assessment: No further individual measure appears to be necessary other than payment of just satisfaction.

General measures: The case presents similarities to the Glod case (Section 6.2) in which the Committee of Ministers noted that, following the legislative reforms adopted in 1997 and 2000, courts have full jurisdiction in respect of complaints against administrative decisions dealing with land restitution. Nevertheless, in the present case while taking note with interest of the 1997 legislative change, the European Court observed that in this case in 2000, the court of appeal considered itself incompetent to review such an administrative decision. This being the case and in view of the direct effect of the European Convention in Romania, the Romanian authorities considered that it was necessary to disseminate the judgment of the European Court in the Hauler case to the competent courts to avoid any new, similar inconsistency. The judgment was sent to the Superior Council of Magistracy, with a view to its dissemination to all domestic courts, with a recommendation to discuss this judgment during activities related to continued professional education of judges. In addition, it should be noted that all judgments of the European Court against Romania are regularly published in the Official Journal.

• Assessment: No further general measure appears to be necessary.

28341/95          Rotaru, judgment of 04/05/00 - Grand Chamber, Interim Resolution ResDH(2005)57[24]

1434/02+          Lupaş and others, judgment of 14/12/2006, final on 14/03/2007

The case concerns the violation of the applicants' right of access to a court due to the application of a rule requiring unanimity amongst joint owners in order to bring an action for recovery of a property held in common which had been nationalised under the former regime (violation of Article 6§1).

The 19 applicants are the descendants of certain joint owners of a 50-hectare plot on the Black Sea coast, which was expropriated in 1950 for the construction of a military base. In 1998 and 1999 three actions for recovery of the property were brought by some of the applicants, without the agreement of the heirs of two of the former co-owners. Between 2001 and 2002 all three actions were dismissed at final instance by the Supreme Court of Cassation pursuant to the unanimity rule, on account of the refusal of one of the heirs and the difficulty of identifying all the heirs of one of the former owners.

The European Court noted that the unanimity rule had satisfied the criteria of accessibility and predictability and it had pursued the legitimate aim of protecting the rights of all the heirs of the former joint owners of the property. On the other hand, given the circumstances of the case, the strict application of the rule erects an insurmountable obstacle to any future attempt to establish the applicants' title, and imposes a disproportionate burden on them by denying them any clear and concrete possibility of having their request determined by a court.

Individual measures: Romanian law provides, in Article 322§9 of the Code of Civil Procedure, the possibility of reopening of civil proceedings in cases in which the European Court found a violation of the European Convention. As the Convention and the case-law of the Court have direct effect under Romanian Law, courts will without doubt adapt the jurisprudence criticised in this case.

In addition, all applicants were awarded just satisfaction for non-pecuniary damage.

• Assessment: Consequently, it seems that no other individual measure is necessary.

General measures: Although the unanimity rule applied in the present case had no base in domestic legislation, it was adhered to by most of the domestic courts. In its judgment, the European Court noted with interest a draft law amending the civil code, which eliminates the unanimity rule.

• Information is expected on measures taken or envisaged to avoid future violations, in particular, the draft law setting aside the unanimity rule in this context and the possible time frame for its adoption.

• Publication and dissemination of the European Court's judgment among relevant courts and authorities are expected, to raise domestic courts' awareness of the Convention's requirements as they result from this case.

60868/00           Vasilescu Grigore, judgment of 08/06/2006, final on 08/09/2006

The case concerns the unfairness of certain proceedings brought by the applicant to obtain the restitution of his property, resulting from the domestic courts' failure to take account of certain key arguments he submitted (violation of Art. 6§1). By decision of 26/06/1998, the Buftea Court of First Instance acknowledged the applicant's claims for restitution of property seized after 1945. This decision was subsequently quashed by the Bucharest Departmental Court (08/02/1999) and finally by the Bucharest Court of Appeal (13/12/1999). Neither of these courts took account of the applicant's argument that the decrees Nos 218/1960 and 712/1966, which were the basis of the seizure of the applicant's property, had been found unconstitutional by the Supreme Court of Justice in 1993.

Individual measures:

In other proceedings, initiated under Law No. 10/2001, the applicant recovered part of his property (a plot of land of 5,425 m² out of 15,000 m² and the buildings on it). Administrative proceedings concerning the restitution of the remaining land were pending when the European Court rendered its judgment.

• Information is expected on the present situation of the applicant.

General measures: As it does not appear that the violation in this case has a structural character, publication and dissemination of the European Court's judgment to the relevant courts and authorities would seem to be sufficient general measures to prevent new, similar violations.

• Information is expected in this respect.

17309/02           Grozescu, judgment of 27/09/2007, final on 27/12/2007

The case concerns the unfairness of certain civil proceedings at appeal due to the hearing of the opposing party, in December 2001, without the applicant and his lawyer having been informed (violation of Article 6§1).

The European Court noted that the court of appeal, having reopened the oral part of the proceedings to hear the opposing party without informing the applicant, rendered a new judgment unfavourable to him.

Individual measures: The European Court noted that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained. Romanian law (Article 322§9 of the Code of Civil Procedure) provides the possibility of reopening civil proceedings in cases in which the European Court found a violation.

• Assessment: no further measure appears necessary.

General measures:

• Information is expected on current legislation and practice of civil courts with respect to oral hearings in appeal proceedings and measures taken or envisaged to avoid similar violations.

• Publication and dissemination of the European Court's judgment among relevant courts and authorities are expected, to raise their awareness of the Convention's requirements as they result from this case.

30658/05           Beian No. 1, judgment of 06/12/2007, final on 06/03/2008

The case concerns the unfairness of civil proceedings brought by the applicant in order to benefit under Law No. 309/2002 granting certain rights to those whose work during military service had been defined as forced labour. The Supreme Court of Cassation and Justice dismissed the applicant’s request despite having found in favour of similar requests in other cases, both before and since the applicant’s appeal. The European Court considered that the inconsistency of the case-law of the supreme judicial authority was counter to the principle of legal certainty (violation of Article 6§1).

The case also concerns discrimination suffered by the applicant, due to the inconsistency of the case-law, in comparison with others in similar situations who obtained recognition of their rights (violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1).

Individual measures: The European Court awarded the applicant just satisfaction in respect of all heads of damage taken together. Romanian law provides, in Article 322§9 of the Code of Civil Procedure, the possibility of reopening civil proceedings in cases in which the European Court found a violation.

• Assessment: no further measure appears necessary

General measure: The European Court noted that the violations found in this case resulted from the inconsistent practice of the Supreme Court of Cassation and Justice.

• Information is awaited on the current practice of the Supreme Court of Cassation and Justice in similar cases and measures taken or envisaged to avoid future violations. Publication and dissemination of the European Court’s judgment to the relevant courts are expected, to raise their awareness of the Convention's requirements as they result from this case.

74785/01           Năstase-Silivestru, judgment of 04/10/2007, final on 04/01/2008

This case concerns the fact that the applicant, whose detention was ordered by a prosecutor on 24/11/2000, was not brought promptly before a judge but only after 18 days (violation of Article 5§3).

The case also concerns a violation of the applicant’s right to respect for her correspondence in that the authorities withheld her correspondence with her family at least for a certain time during her detention (violation of Article 8). The European Court noted that Instruction No. 901 of 10/05/1999 of the Ministry of Interior, the basis for withholding the applicant’s correspondence, was not available to the persons concerned therefore the interference at issue could not be considered as “foreseen by law” (§53).

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained.

• Information is expected on the applicant’s current situation in particular, assuming that she is still detained, whether her correspondence is still subject to restrictions.

General measures:

1) Violation of Article 5§3: The case presents similarities to that of Pantea (1051st meeting, March 2009).

2) Violation of Article 8: It should be noted that the issue of detainees’ correspondence with public institutions, judicial organs or international organisations has already been considered in the context of the Cotleţ case (Section 6.2).

• Information is expected on current regulations related to detainees’ correspondence with their families and their accessibility to the persons concerned. Publication and dissemination of the European Court’s judgment to relevant courts and institutions are also expected, to avoid similar violations.

- Cases concerning the continued impossibility to dispose of properties and to receive rent for their use resulting from the application of the urgency provisions concerning housing payments[25]

68479/01+        Radovici and Stănescu, judgment of 02/11/2006, final on 02/02/2007

77210/01           Arsenovici, judgment of 07/02/2008, final on 07/05/2008

75240/01           Burzo, judgment of 04/03/2008, final on 04/06/2008

27086/02           Popescu and Toader, judgment of 08/03/2007, final on 08/06/2007

3864/03            Spanoche, judgment of 26/07/2007, final on 10/12/2007

75849/01           Tarik, judgment of 07/02/2008, final on 07/05/2008

Cases concerning the failure or substantial delay

by the administration in enforcing final judicial decisions:

- Cases concerning the failure to enforce final judicial decisions ordering the restitution of property nationalised or lost during the communist period[26]

48102/99           Popescu Sabin, judgment of 02/03/04, final on 02/06/04, rectified on 05/07/2004

77195/01           Abăluţă, judgment of 15/06/2006, final on 15/09/2006

7114/02            Acatrinei, judgment of 26/10/2006, final on 26/03/2007

6206/03            Bratulescu, judgment of 07/02/2008, final on 07/05/2008

4305/03            Corabian, judgment of 27/09/2007, final on 31/03/2008

57810/00           Costin, judgment of 26/05/2005, final on 26/08/2005

54400/00           Croitoriu, judgment of 09/11/2004, final on 30/03/2005

2239/02            Dobre, judgment of 15/03/2007, final on 15/06/2007

1818/02            Dorneanu, judgment of 26/07/2007, final on 26/10/2007

78047/01           Dragne and others, judgment of 07/04/2005, final on 07/07/2005 and of 16/11/2006, final on 16/02/2007

18037/02           Gavrileanu, judgment of 22/02/2007, final on 09/07/2007

58318/00           Georgi, judgment of 24/05/2006, final on 13/09/2006

2611/02            Grosu, judgment of 28/06/2007, final on 28/09/2007

18013/03           Ioachimescu and Ion, judgment of 12/10/2006, final on 12/01/2007

38113/02           Matache and others, judgment of 19/10/2006, final on 19/01/2007 and of 17/06/2008, final on 17/09/2008

2726/02            Nerumberg, judgment of 01/02/2007, final on 09/07/2007

54369/00          Peter Maria and others, judgment of 31/05/2007, final on 31/08/2007

8402/03            Pietro and others, judgment of 20/07/2006, final on 20/10/2006

7234/03            Pop, judgment of 21/12/2006, final on 21/03/2007

2911/02            Popescu Mihai-Iulian, judgment of 29/09/2005, final on 29/12/2005

31442/02           Rădulescu, judgment of 28/06/2007, final on 28/09/2007

67289/01           Sandor, judgment of 24/03/2005, final on 24/06/2005

746/02              Tacea, judgment of 29/09/2005, final on 29/12/2005

9835/02            Vidu and others, judgment of 21/02/2008, final on 21/05/2008

                       CM/Inf/DH(2007)33

- Cases concerning the failure to enforce final judicial decisions ordering local authorities to undertake certain actions

5050/02            Pântea Elisabeta, judgment of 15/06/2006, final on 15/09/2006

28333/02          SC Ruxandra Trading SRL, judgment of 12/07/2007, final on 12/10/2007

40263/05           Străchinaru, judgment of 21/02/2008, final on 21/05/2008

                       CM/Inf/DH(2007)33

These cases concern a violation of the applicants’ right to a court, due to the failure to enforce final court decisions ordering the local authorities to undertake certain actions (violation of Article 6§1 and, in addition, of Article 1 of Protocol No. 1 in all cases with exception of the Pântea Elisabeta case).

In the Pântea Elisabeta, by a decision of 02/04/2001 the municipality of Grivita was ordered to record her ownership of a certain property on the agricultural land register and to remove the title of a third person to the same property. The municipal authorities refused to enforce the second limb of this decision.

In the SC Ruxandra Trading SRL, by a decision of 8/06/2000 the Bucharest city council was ordered to issue the applicant company with a permanent building permit and to grant the company a long-term lease in respect of the disputed land.

In the Străchinaru case, by a decision of 27/04/2000 the Bucharest General Council was obliged, according to Article 13 b) of Law No. 44/194 on war veterans and the rights of invalids and war widows, to attribute a plot of land to the applicant.

Individual measures:

1) Pântea Elisabeta: The European Court ordered the full execution of the domestic court's decision of 02/04/2001 and awarded the just satisfaction for non-pecuniary damage.

• Information is awaited on measures taken with the view to executing the judgment in question, in particular with respect to the removal of the title of a third party to the same property.

2) SC Ruxandra Trading SRL: The European Court found that the question of the application of Article 41 (just satisfaction) was not yet ready for decision.

3) Străchinaru: The European Court ordered the execution of the decision of 27/04/2000 or failing to do so, payment of just satisfaction in respect of pecuniary damage, within three months of the date on which its judgments became final.

General measures: The problem of the administration's failure or substantial delay in abiding by final domestic judgments has already been dealt with in the context of the restitution of property by domestic administration (Popescu Sabin, Section 4.2). These cases concern other aspects of the activities of the administration.

• Information is awaited on the authorities’ assessment whether the violations found by the European Court in these cases have a structural character and on specific measures taken or envisaged to ensure the proper execution of judicial decisions in similar situations, bearing in mind that any practice consisting in refusing or delaying the execution of decisions should be accordingly sanctioned. In the execution of this judgment, the Romanian authorities may consider the experiences of other countries confronted with similar problem of failure or late execution of judgments (see the conclusions of the Round table organised, on 21 and 22/06/2007, by the Department for the Execution of Judgments of the European Court of Human Rights CM/Inf/DH(2007)33 ).

The judgment of the European Court in the Pântea Elisabeta case was translated and published in the Official Journal and on the Internet site of the Supreme Court of Justice and Cassation (http://www.scj.ro/decizii_strasbourg.asp).

• Confirmation is expected of the dissemination of the judgment in the Pântea Elisabeta case to the relevant authorities and courts and of the publication and dissemination of the judgments in the SC Ruxandra Trading SRL and Străchinaru cases.

- Cases concerning late enforcement of final judicial decisions ordering the applicants’ reinstatement in their posts within public bodies and payment of salary arrears for the period they were unemployed

23878/02           Strungariu, judgment of 29/09/2005, final on 29/12/2005

6098/03            Durdan, judgment of 26/04/2007, final on 24/09/2007

23657/03           Miclici, judgment of 20/12/2007, final on 20/03/2008

5060/02            Mihaescu, judgment of 02/11/2006, final on 26/03/2007

9555/03            Ştefanescu, judgment of 11/10/2007, final on 11/01/2008

                       CM/Inf/DH(2007)33

These cases concern the late enforcement of court decisions, given between 1997 and 2001, ordering the applicants' reinstatement in their posts in state agencies and the payment of salary arrears for the period during which they were unemployed (violations of article 6§1).

In the Miclici case the European Court also found that the impossibility to obtain the full execution of a final decision amounted to an illegal interference with the applicant’s right to the peaceful enjoyment of his possessions (violation of Article 1 of Protocol No. 1).

Individual measures:

1) Strungariu case: The decision (October 2001) ordering the applicant's reinstatement in his post in the Agency for Privatisations and Administration of State Shareholdings and the payment of the salary arrears was executed in January 2003.

2) Durdan case: Following a domestic court’s decision in October 1997, the applicant was reinstated in his post in the District Veterinary Sanitation in May 1998 and received his salary arrears in February 2000.

3) Miclici case: The European Court noted that following the applicant’s retirement in January 2002, the final judgment of 15/12/2000 could no longer be executed in its part concerning his reinstatement. It also noted that the applicant obtained compensation for his salary for the period from his dismissal to July 2001 and awarded him just satisfaction in respect of the remaining period. Finally, the European Court noted that the Romanian authorities should take appropriate measures to pay the contributions from the applicant’s salary for the period from August to October 2001 into the health and retirement fund.

4) Mihaescu case: The decisions for his reinstatement in his post in Iaşi University of Medicine and Pharmacology (March 2000) and the payment of the salary arrears (June 2003) were executed in 2006.

5) Ştefanescu case: The European Court ordered the execution of the decision of 1/02/1999, including the reinstatement of the applicant in an equivalent post and payment of the awarded sums, or failing to do so, payment of just satisfaction for pecuniary damage.

It should be also noted that the European Court awarded all the applicants just satisfaction in respect of non-pecuniary damage.

• Information is expected about the current state of the execution of the European Court’s judgments in the Miclici and Ştefanescu cases.

General measures: Under Romanian law the obligation to reinstate a person in his post is an “obligation to do” which requires personal intervention of the debtor. According to Article 1073 of the Civil Code, the creditor has the right to obtain the exact execution of the obligation or, failing such execution, to be compensated. Further, if the execution in kind has become objectively impossible, Article 1075 of the Civil Code provides a possibility to ask the courts to order compensation for its value.

Romanian law also places at employees’ disposal various indirect coercive measures to force the employer to reinstate them:

- Article 78 of the Labour Code, published on 5/02/2003, in case of an ill-founded or illegal dismissal provides, as a main obligation, the payment of compensation, reinstatement being ordered only at the request of the employee before the court;

- Article 580³§1 of the Code of Civil Procedure provides a possibility to impose a civil fine on debtors for each day of delay until the execution of the obligation set out in the execution order;

- Article 580³§2 of the Code of Civil Procedure provides a possibility for the creditor to claim compensation for damage caused by the failure to execute;

- Article 84 of Law No. 168/1999 on work-related disputes, published on 29/11/1999, provides that failure to execute a final decision ordering the reinstatement of an employee to his post constitutes an offence punishable by imprisonment or a fine.

The judgment of the European Court in the Strungariu case was to be translated and published in the Official Journal. It was also brought to the attention of the National Agency for Public Servants, which was informed about the general principles of the European Court’s case law related to late of non-enforcement of final domestic courts’ decisions and of the implications of this judgment.

• Assessment: underway.

                       - Cases concerning failure by domestic authorities to assist in enforcing final judicial decisions placing obligations on private third parties

34647/97          Ruianu, judgment of 17/06/03, final on 17/09/03

40067/06           Butan and Dragomir, judgment of 14/02/2008, final on 14/05/2008

73706/01           Ion-Cetina and Ion, judgment of 14/02/2008, final on 14/05/2008

10395/02           Kocsis, judgment of 20/12/2007, final on 20/03/2008

67007/01           Neamţiu, judgment of 14/02/2008, final on 14/05/2008

24724/03           Oprea Constantin, judgment of 08/11/2007, final on 08/02/2008

22626/02          Schrepler, judgment of 15/03/2007, final on 15/06/2007

                       CM/Inf/DH(2007)33

These cases concern the failure of domestic authorities to assist the applicants in enforcement of final judicial decisions related to the obligation of private third parties (violation of Article 6§1 in all cases and, in addition, violation of Article 1 of Protocol No. 1 in the Ion-Cetina and Ion case).

The Ruianu case concerns the non-enforcement of two final court decisions (issued in 1993 and 1995) enjoining the defendants to demolish a building illegally constructed on the applicant's property. The European Court concluded that, in spite of the applicant's repeated requests, only one adequate attempt had been made to enforce the judgments, and this not until 2000. Following this attempt, the subsequent requests made by the applicant for the enforcement of the judgments remained unsuccessful.

The Butan and Dragomir case concerns the failure to enforce a final judicial decision given in 2005, ordering a utility company to sign a contract related the supply of drinking water to the applicants’ apartment.

The Ion-Cetina and Ion case concerns the non-enforcement of a final decision given in 1997 requiring a third party to vacate the applicants’ land.

The Neamţiu case concerns the non-enforcement of two final judicial decisions, given in 1995 and 1996, ordering the expulsion of tenants occupying a building that belonged to the applicant, the demolition of a building adjoining the applicant’s house and payment of court fees.

The Constantin Oprea, Kocsis and Schrepler cases concerns the non-enforcement of a domestic court decisions, given between 1998 and 2003, ordering payment of a certain sum to the applicants.

The Kocsis case also concerns the excessive length of civil proceedings, including the execution phase (violation of Article 6§1).

Individual measures:

1) Ruianu: Following the friendly settlement reached with their neighbours, the applicant's heirs (she died on 10/03/2005) sold to them the plot of land on which the building at issue stands.

2) Butan and Dragomir: The European Court recalled that the finding of a violation places an obligation on the authorities to put an end to the violation and to erase, as far as possible, its consequences. In the context of the present case this would require the execution of the final judicial decision of 22/11/2005. It should be noted that since the delivery of the European Court’s judgment of the applicants have complained several times about the non-execution of the domestic decision.

3) Ion-Cetina and Ion: The European Court noted that the full execution of the final judicial decision of 27/03/1997 (bringing the applicants into possession of the totality of their land) would place them, as far as possible, in the same situation as before the violations. Failing to execute this decision within three months of the date on which the European Court’s judgments became final, the authorities should pay the applicants just satisfaction in respect of pecuniary damage, corresponding to the value of the land in question.

4) Kocsis: When the European Court gave its judgment, the enforcement proceedings were still pending.

5) Neamţiu: The European Court recalled that the finding of a violation places an obligation on the authorities to put an end to the violation and to erase, as far as possible, its consequences. In the context of the present case this would require the execution of the final judicial decision of 21/09/1995 and 16/05/1996.

6) Oprea Constantin: The European Court awarded the applicant just satisfaction in respect of pecuniary damage covering the damage resulting from the non-execution of the final judicial decision of 6/12/2000.

7) Schrepler: The decision of 1998 had still not been executed when the European Court rendered its judgment.

• Information is expected on the current state of execution of domestic decisions in the Butan and Dragomir, Ion-Cetina and Ion, Kocsis, Neamţiu and Schrepler cases.

General measures:

1) Non-execution of final judicial decisions: In a letter of 31/05/2004 the Romanian authorities provided information concerning the means available in Romanian law to force debtors to execute obligations established by court decisions, such as periodic monetary penalties, fines for non-compliance, or criminal sanctions. Although this information was relevant, the Secretariat noted that the legal means invoked by the government could not avoid the violation in the Ruianu case. Therefore, given the domestic authorities' responsibility for the enforcement stage (see in particular paragraphs 59, 72 and 73 of the judgment in the Ruianu case), additional information was requested concerning the means available in domestic law to ensure the execution of domestic courts' decisions in similar situations.

In this context it should be noted that on 1/01/2007, Law no. 459 of 6/12/2006, modifying the Code of Civil Procedure with respect to the enforcement of civil court decisions, entered into force.

Further, the judgment of the European Court in the Ruianu case was published in the Official Journal on 2/12/2004 and has been included in a collection of judgments delivered against Romania between 1998 and 2004, 2000 copies of which have been distributed free of charge to courts and others. It was also transmitted to the Magistrates' Superior Council.

• Bilateral contacts are under way in order to assess the relevant provisions of the Code of Civil Procedure as amended by the Law no. 459. In addition, information is awaited on the authorities' assessment whether the violations found by the European Court in these cases have a structural character (in this context see the conclusions of the Round Table held on 21-22 June 2007, CM/Inf/DH(2007)33).

2) Excessive length of proceedings:The Kocsis case presents similarities to the Nicolau group of cases (1051st meeting, March 2009)

- Cases concerning late enforcement of final judicial decisions ordering payment of certain sums of money by a public institution

73970/01          Sacaleanu, judgment of 06/09/2005, final on 06/12/2005

1486/02            Orha, judgments of 12/10/2006, final on 12/01/2007 and of 04/11/2008 - Friendly settlement

                       CM/Inf/DH(2007)33

These cases concern late enforcement of final judicial decisions ordering payment of certain sums of money by public institutions (violations of Article 6§1).

In the Sacaleanu case the applicant's employer (the State Inspectorate for People with Disabilities) was ordered to pay her wages and penalties until her reinstatement in her former post (which eventually occurred in 2000), as well as costs and expenses. These sums were paid to the applicant with significant delays and in several instalments, almost twenty months having sometimes elapsed between them. The applicant only received the total sum on 22/02/2002. The European Court noted that the employer, as a state-funded public institution, could only pay its debts with specific sums assigned for the purpose by the Ministry of Finance. The European Court noted that delays in paying sums due to the applicant were sometimes caused by the fact that the Ministry had not made over the necessary sums in time. It therefore concluded that the state, through its own acts, had made it impossible for the applicant promptly to recover the sums which were due to her by virtue of final court decisions.

In the Orha case, the municipal authorities were ordered to pay to the applicants certain sums for expropriation of their property. The European Court noted that the decision given in October 1999 was neither executed nor annulled or modified following the application of recourses provided by law. Further, it also noted that the Law No. 33/1994 on expropriation did not provide any procedure to bring a judicial action in order to fix the modalities and time-limits for payments.

In the Orha case the European Court also considered that, by refusing to enforce the judgment the authorities had deprived the applicants of the peaceful enjoyment of their possessions (violation of Article 1 of Protocol No. 1).

Individual measures:

            1) Sacaleanu: None: the sums at issue were paid to the applicant on 22/02/2002. The non-pecuniary damage suffered by the applicant has been compensated by the European Court under Article 41 of the Convention.

            2) Orha: The European Court took note of the conclusion of a friendly settlement between the parties.

General measures: On 21 and 22 June 2007 a high level Round Table (organised by the Department for the Execution of Judgments of the European Court of Human Rights) between representatives of the Council of Europe and the authorities of different states was held to discuss solutions to the structural problems of non-enforcement of domestic court decisions. In this context the representatives of the Romanian authorities exchanged their experiences on the measures taken or under way to prevent similar violations and examined possible further reforms to be adopted.

• Information is expected on the authorities' assessment whether the violation found by the European Court in this case has a structural character and on the measures taken or envisaged to establish a system allowing the prompt payment by the public institutions of the debts owed by them by virtue of final court decisions (see the conclusions of the above mentioned Round table CM/Inf/DH(2007)33).

In the context of the Orha case the European Court also raised the question of certain shortcomings of Law No. 33/1994 on expropriation (§25 of the judgment).

• Are also expected: publication and dissemination of the European Court’s judgments to relevant domestic courts and institutions.

4227/02            Iorga, judgment of 25/01/2007, final on 25/04/2007[27]

- 165 cases against the Russian Federation

4353/03            Tarariyeva, judgment of 14/12/2006, final on 14/03/2007[28]

49790/99           Trubnikov, judgment of 05/07/2005, final on 30/11/2005[29]

59261/00           Menesheva, judgment of 09/03/2006; final on 09/06/2006[30]

63993/00           Romanov, judgment of 20/10/2005, final on 20/01/2006[31]

5140/02            Fedotov, judgment of 25/10/2005, final on 25/01/2006[32]

                       CM/Inf/DH(2006)19-rev 3 and CM/Inf/DH(2006)45

                       - Cases concerning poor conditions of detention, amounting to degrading treatment[33]

47095/99          Kalashnikov, judgment of 15/07/02, final 15/10/02, Interim Resolution ResDH(2003)123

67253/01          Babushkin, judgment of 18/10/2007, final on 18/01/2008

37810/03          Bagel, judgment of 15/11/2007, final on 15/02/2008

106/02              Benediktov, judgment of 10/05/2007, final on 24/09/2007

66802/01           Dorokhov, judgment of 14/02/2008, final on 14/05/2008

205/02              Frolov Andrey, judgment of 29/03/2007, final on 24/09/2007

52058/99          Gorodnitchev, judgment of 24/05/2007, final on 12/11/2007

30983/02           Grishin, judgment of 15/11/2007, final on 02/06/2008

34000/02          Ivanov Igor, judgment of 07/06/2007, final on 30/01/2008

37213/02          Kantyrev, judgment of 21/06/2007, final on /01/2008

25948/05           Knyazev, judgment of 08/11/2007, final on 02/06/2008

62208/00          Labzov, judgment of 16/06/05, final on 16/09/05

25664/05           Lind, judgment of 06/12/2007, final on 02/06/2008

63378/00          Mayzit, judgment of 20/01/05, final on 06/07/05

52697/99          Mikadze, judgment of 07/06/2007, final on 12/11/2007

22625/02          Mironov, judgment of 08/11/2007, final on 08/02/2008

66460/01          Novoselov, judgment of 02/06/05, final on 02/09/05

26853/04          Popov, judgment of 13/07/2006, final on 11/12/2006

36898/03          Trepashkin, judgment of 19/07/2007, final on 19/10/2007

                       - Cases concerning unlawful detention, excessive length and insufficient grounds

                       CM/Inf/DH(2007)4[34]

46082/99          Klyakhin, judgment of 30/11/05, final on 06/06/05

21153/02          Bednov, judgment of 01/06/2006, final on 01/09/2006

72967/01          Belevitskiy, judgment of 01/03/2007, final on 01/06/2007

11886/05          Dolgova, judgment of 02/03/2006, final on 03/07/2006

31008/02          Fedorov and Fedorova, judgment of 13/10/2005, final on 13/01/2006

42940/06           Govorushko, judgment of 25/10/2007, final on 25/01/2008

70276/01          Gusinskiy, judgment of 19/05/2004, final on 10/11/2004

27193/02          Ignatov, judgment of 24/05/2007, final on 24/08/2007

59696/00          Khudobin, judgment of 26/10/2006, final on 26/01/2007

6847/02            Khudoyorov, judgment of 08/11/2005, final on 12/04/2006

19126/02          Komarova, judgment of 02/11/2006, final on 02/02/2007

75039/01          Korchuganova, judgment of 08/06/2006, final on 08/09/2006

38971/06           Korshunov, judgment of 25/10/2007, final on 25/01/2008

4493/04            Lebedev, judgment of 25/10/2007, final on 02/06/2008

7064/05            Mamedova, judgment of 01/06/2006, final on 23/10/2006

18123/04           Matskus, judgment of 21/02/2008, final on 21/05/2008

24552/02           Melnikova, judgment of 21/06/2007, final on 30/01/2008

36911/02          Mishketkul and others, judgment of 24/05/2007, final on 12/11/2007

55669/00          Nakhmanovitch, arrêt du 02/03/2006, final on 02/06/2006

45100/98          Panchenko, judgment of 08/02/2005, final on 08/05/2005

28957/02          Pshevecherskiy, judgment of 24/05/2007, final on 24/08/2007

54071/00          Rokhlina, judgment of 07/04/2005, final on 12/10/2005

64140/00          Rozhkov, judgment of 19/07/2007, final on 12/11/2007

7649/02            Shcheglyuk, judgment of 14/12/2006, final on 14/03/2007

65734/01          Shukhardin, judgment of 28/06/2007, final on 28/09/2007

4459/03 Sidorenko, judgment of 08/03/2007, final on 08/06/2007

46133/99+        Smirnova, judgment of 24/07/2003, final on 24/10/2003

2708/02            Solovyev Vladimir, judgment of 24/05/2007, final on 12/11/2007

942/02              Zementova, judgment of 27/09/2007, final on 27/12/2007

14139/03           Bolat, judgment of 05/10/2006, final on 05/01/2007[35]

1509/02            Tatishvili, judgment of 22/02/2007, final on 09/07/2007[36]

71933/01          Gartukayev, judgment of 13/12/2005, final on 13/03/2006[37]

55762/00+        Timishev, judgment of 13/12/2005, final on 13/03/2006[38]

55565/00           Bartik, judgment of 21/12/2006, final on 21/03/2007

The case concerns the restriction of the applicant's liberty of movement due to the authorities' refusal to authorise him to travel abroad for private purposes for a total of twenty years on the sole ground that he had access to classified information (“state secrets”) during his professional career.

The European Court found that an unqualified restriction on the applicant's right to travel abroad imposed by the Act on the Procedure for Entering and Leaving the Russian Federation for a considerable period of time was disproportionate and not necessary in a democratic society (violation of Article 2 of Protocol No. 4).

Individual measures: None. The restriction on the applicant's right to leave the country expired on 14/08/2001. The applicant now resides in the United States of America. The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage he sustained. The applicant informed the Secretariat that he had paid tax in the United States on the sums awarded for just satisfaction and for costs and expenses. This information has been transmitted to the authorities.

General measures: The European Court pointed out that the Russian Federation, when it acceded to the Council of Europe, undertook to abolish the restriction on international travel for private purposes (§50 of the judgment).

• Information provided by the Russian authorities: On 31/03/2007 the Ministry of Foreign Affairs submitted to the government a report on the results of the consideration of citizens’ complaints concerning the restriction of their right to leave the country by a special inter-agency commission in 2006. It has also been proposed to set up a special working group with view to bringing the relevant legislation in line with the requirements of the Convention.

After considering this report, the government decided to submit the issue of improving Russian legislation to the Inter-agency Commission on the Protection of State Secrets created on 6/10/2004 by the Presidential Decree No.1286.

In August 2007 this commission instructed the Ministry of Foreign Affairs to submit to the Federal Security Service concrete proposals concerning the amendments to the legislative and regulatory framework governing the right of citizens who have access to state secrets to travel abroad.

In the meantime, these proposals are being examined by a special working group set up within the Inter-agency Commission on the Protection of State Secrets.

In addition, the Ministry of Foreign Affairs prepared an analysis of similar legislation and practices in a number of other countries. In September 2007, this analysis was also submitted to the Federal Security Service.

• Information is awaited on the progress of the activities of the special working group created within the Interagency Commission on the Protection of State Secrets.

On 21/11/2007 the judgment was sent out to all courts, together with a letter from the Deputy President of the Supreme Court of the Russian Federation.

• Information is awaited on the publication of the judgment of the European Court.

                       - Cases concerning extradition[39]

38411/02          Garabayev, judgment of 07/06/2007, final on 30/01/2008

656/06              Nasrulloyev, judgment of 11/10/2007, final on 11/01/2008

184/02              Kuznetsov and others, judgment of 11/01/2007, final on 11/04/2007[40]

10519/03          Barankevich, judgment of 26/07/2007, final on 26/10/2007[41]

72881/01          Moscow Branch of the Salvation Army, judgment of 05/10/2006, final on 05/01/2007[42]

18147/02          Church of Scientology Moscow, judgment of 05/04/2007, final on 24/09/2007[43]

30160/04           Dzhavadov, judgment of 27/09/2007, final on 27/12/2007[44]

                       - Cases concerning freedom of expression[45]

72683/01          Chemodurov, judgment of 31/07/2007, final on 31/10/2007

25968/02          Dyuldin and Kislov, judgment of 31/07/2007, final on 31/10/2007

73219/01           Filatenko, judgment of 06/12/2007, final on 06/03/2008

12365/03           Krasulya, judgment of 22/02/2007, final on 22/05/2007

55066/00+        Russian Conservative Party of Entrepreneurs and others, judgment of 11/01/2007, final on 11/04/2007[46]

17864/04+         Krasnov and Skuratov, judgment of 19/07/2007, final on 31/03/2008[47]

35082/04           Makhmudov, judgment of 26/07/2007, final on 26/10/2007[48]

32718/02           Tuleshov and others, judgment of 24/05/2007, final on 12/11/2007[49]

67099/01           Solodyuk, judgment of 12/07/05, final on 30/11/05[50]

71362/01           Smirnov, judgment of 07/06/2007, final on 12/11/2007[51]

73225/01           Fedotova, judgment of 13/04/2006, final on 13/09/2006[52]

5433/02            Shabanov and Tren, judgment of 14/12/2006, final on 14/03/2007[53]

66941/01           Zagorodnikov, judgment of 07/06/2007, final on 07/09/2007[54]

- Cases concerning the failure to summons the accused in criminal supervisory-review proceedings[55]

53203/99          Vanyan, judgment of 15/12/2005, final on 15/03/2006

66041/01          Aldoshkina, judgment of 12/10/2006, final on 12/01/2007

54632/00          Zhukov Stanislav, judgment of 12/10/2006, final on 12/01/2007

- Cases concerning violation of the right of access to a court or to fair trial due to the belated notification of a procedural act in civil or criminal proceedings[56]

23377/02           Mokrushina, judgment of 05/10/2006, final on 12/02/2007

70142/01           Dunayev, judgment of 24/05/2007, final on 24/08/2007

3354/02            Gorbachev, judgment of 15/02/2007, final on 15/05/2007

74286/01           Larin and Larina, judgment of 07/06/2007, final on 07/09/2007

8630/03            Prokopenko, judgment of 03/05/2007, final on 03/08/2007

4537/04            Sidorova, judgment of 14/02/2008, final on 14/05/2008

33132/02           Metelitsa, judgment of 22/06/2006, final on 23/10/2006

6857/02            Stadukhin, judgment of 18/10/2007, final on 18/01/2008

- Cases mainly concerning quashing of final judgments on the basis of newly discovered circumstances[57]

69529/01           Pravednaya, judgment of 18/11/2004, final on 30/03/2005

69524/01           Bulgakova, judgment of 18/01/2007, final on 18/04/2007 and of 10/06/2008 – Friendly settlement

69533/01           Kondrashina, judgment of 19/07/2007, final on 30/01/2008

73294/01           Kumkin and others, judgment of 05/07/2007, final on 30/01/2008

67579/01           Kuznetsova, judgment of 07/06/2007, final on 12/11/2007

944/02              Levochkina, judgment of 05/07/2007, final on 31/03/2008

852/02              Smirnitskaya and others, judgment of 05/07/2007, final on 31/03/2008

25580/02          Vedernikova, judgment of 12/07/2007, final on 31/03/2008

842/02              Volkova and Basova, judgment of 05/07/2007, final on 31/03/2008

560/02              Zhukov Nikolay, judgment of 05/07/2007, final on 31/03/2008

73043/01           Arshinchikova, judgment of 29/03/2007, final on 29/06/2007[58]

65582/01           Radchikov, judgment of 24/05/2007, final on 12/11/2007[59]

- Cases concerning the failure or substantial delay by the administration in enforcing judgments relating to the social benefits of former Chernobyl workers

                        Resolution ResDH(2004)85[60]

33264/02          Levin, judgment of 02/02/05, final on 02/05/06

34439/04           Agaponova and others, judgment of 07/02/2008, final on 07/05/2008

75025/01+         Aleksentseva and others, judgment of 17/01/2008, final on 17/04/2008

966/03              Almayeva, judgment of 25/10/2007, final on 25/01/2008

21932/03           Bakharev, judgment of 19/07/2007, final on 19/10/2007

37930/02          Bazhenov, judgment of 20/10/05, final on 20/01/06

24620/02          Belyayev, judgment of 25/01/2007, final on 25/04/2007

72558/01          Blagovestnyy, judgment of 04/07/2006, final on 04/10/2006

1719/02            Butsev, judgment of 22/09/05, final on 15/02/06

40642/02          Denisenkov, judgment of 22/09/05, final on 15/02/06

41842/04          Fitisov, judgment of 08/11/2007, final on 08/02/2008

38719/03          Glushakova, judgment of 12/04/2007, final on 12/07/2007

38305/02          Gorokhov and Rusyayev, judgment of 17/03/05, final on 12/10/05

63995/00          Kukalo, judgment of 03/11/2005, final on 03/02/2006

43209/04           Ledovkin, judgment of 21/02/2008, final on 21/05/2008

21074/03          Makarov, judgment of 25/01/2007, final on 25/04/2007

43282/02          Naydenkov, judgment of 07/06/2007, final on 24/09/2007

37927/02          Nikolayev, judgment of 02/03/06, final on 02/06/06

19589/02          Parkhomov, judgment of 20/10/05, final on 20/01/06

38720/03          Popov Aleksandr, judgment of 05/04/2007, final on 05/07/2007

32786/03          Silchenko, judgment of 28/09/2006, final on 28/12/2006

37647/04           Smorodinova, judgment of 17/01/2008, final on 17/04/2008

39013/05           Svitich, judgment of 31/07/2007, final on 31/10/2007

- Cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

Housing disputes (former military) [61]

63501/00          Konovalov, judgment of 23/03/2006, final on 13/09/2006

14656/03          Ponomarenko, judgment of 15/02/2007, final on 15/05/2007

41307/02          Shpakovskiy, judgment of 07/07/2005, final on 07/10/2005

- Case concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

Housing disputes (judges) [62]

11931/03          Teteriny, judgment of 30/06/2005, final on 30/09/2005

- Cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

Housing disputes (Tchernobyl) [63]

41302/02          Malinovskiy, judgment of 07/07/2005, final on 07/10/2005

7363/04            Mikryukov, judgment of 08/12/2005, final on 08/03/2006

6859/02            Nagovitsyn, judgment of 24/01/2008, final on 24/04/2008

- Cases of length of civil proceedings and of lack of an effective remedy[64]

53084/99          Kormacheva, judgment of 29/01/2004, final on 14/06/2004, rectified on 29/04/2004

33820/04           Angelova, judgment of 13/12/2007, final on 13/03/2008

30395/04          Avakova, judgment of 22/06/2006, final on 22/09/2006

55520/00          Baburin, judgment of 24/03/05, final on 24/06/05

22892/03          Bakiyevets, judgment of 15/06/2006, final on 15/09/2006

4171/03            Chevkin, judgment of 15/06/2006, final on 15/09/2006

10929/03          Glazkov, judgment of 12/10/2006, final on 12/01/2007

76964/01          Kirsanova, judgment of 22/06/2006, final on 22/09/2006

76835/01          Kolomiyets, judgment of 22/02/2007, final on 22/05/2007

44374/04          Kudinova, judgment of 02/11/2006, final on 02/02/2007

12049/02          Kutsenko, judgment of 1/06/2006, final on 1/09/2006

22118/02          Kuzin, judgment of 09/06/05, final on 09/09/05

63527/00          Levshiny, judgment of 09/11/2004, final on 30/03/2005

29510/04          Marchenko, judgment of 05/10/2006, final on 05/01/2007

15969/02          Nikitin Vladimir, judgment of 02/11/2006, final on 02/02/2007

77089/01          Olshannikova, judgment of 29/06/2006, final on 29/09/2006

14949/02          Plaksin, judgment of 29/04/2004, final on 10/11/2004

28954/02          Rash, judgment of 13/01/2005, final on 13/04/2005

19457/02          Romanenko and Romanenko, judgment of 19/10/2006, final on 19/01/2007

14983/04          Rybakov, judgment of 22/12/05, final on 22/03/06

38015/03          Salamatina, judgment of 01/03/2007, final on 01/06/2007

28639/03           Savenko, judgment of 14/06/2007, final on 14/09/2007

36219/02          Shelomkov, judgment of 05/10/2006, final on 12/02/2007

36045/02          Shneyderman, judgment of 11/01/2007, final on 11/04/2007

33914/02          Skorobogatova, judgment of 01/12/2005, final on 01/03/2006

3734/02            Sokolov, judgment of 22/09/2005, final on 22/12/2005

20496/04          Tusashvili, judgment of 15/12/05, final on 15/03/06

3852/02            Uglanova, judgment of 21/09/2006, final on 21/12/2006

75475/01          Vasyagin, judgment of 22/09/2005, final on 22/12/2005

26384/02          Vokhmina, judgment of 09/06/05, final on 09/09/05

10374/02          Volovich, judgment of 05/10/2006, final on 12/02/2007

42138/02          Yaroslavtsev, judgment of 02/12/2004, final on 02/03/2005

60408/00          Yemanakova, judgment of 23/09/2004, final on 02/02/2005

70190/01          Zimenko, judgment of 23/06/2005, final on 23/09/2005

- 2 cases against San Marino

40786/98          Beneficio Cappella Paolini, judgments of 13/07/2004 and of 03/05/2007, final on 13/10/2004 and on 03/08/2007 - Friendly settlement

The case concerns the excessive length of certain civil proceedings (more than 9 years and 9 months), to obtain partial restitution of land formerly belonging to the applicant institution which had been expropriated for the purposes of certain public works (violation of Article 6§1).

The case also relates to the lack of access to a court, in that neither the civil courts nor the administrative courts gave an answer to the applicant institution’s question concerning whether or not it had a right to restitution of that part of the expropriated land which was not used for the public works in question (violation of Article 6§1). The European Court also found that this failure to restore the land disturbed the proper balance between the requirements of the general interest and the obligation to protect the applicant institution’s right to the peaceful enjoyment of its property (violation of Article 1 of Protocol No. 1).

Individual measures: On 28/11/2006, the Court received a joint statement from the respondent state and the applicant to the effect that a friendly settlement had been reached on issues concerning Article 41. In particular, it provided for restitution of the land in question to the applicant institution. Being satisfied with the terms of this agreement, the Court decided in its judgments of 3/05/2007 to strike out the case.

• Assessment: No further individual measure appears necessary.

General measures:

            1) Length of proceedings: This case presents similarities to the Vanessa Tierce case (Section 4.2).

            2) Peaceful enjoyment of possessions:

• Information has been awaited since November 2004 on measures envisaged or taken by the respondent state to establish clear rules concerning the right to obtain restitution of land expropriated but not used. The Secretariat wrote to the respondent state in November 2004 concerning these issues.

• Information provided on 06/01/2005): The judgment of the European Court has been translated in Italian and made public ad valvas palatii (the traditional means of formally publicising a document in San Marino).

69700/01           Tierce Vanessa, judgment of 17/06/03, final on 03/12/03

This case concerns the excessive length of certain civil proceedings which lasted from 1993 to 2001, i.e. around 8 years and 9 months for two degrees of jurisdiction (violation of Article 6§1). The European Court noted that the reason for such a length was mainly the complexity of civil procedure in San Marino, characterised by the need to observe various statutory periods as well as the fact that civil judges have no power of initiative if the parties are inactive (§31 of the judgment).

Individual measures: None. The proceedings are closed.

General measures:

• Information provided by the authorities of San Marino (letter of 25/01/2006): A working group was established to take measures to reduce the length of proceedings. This group consists, inter alia, of representatives of the Ministries of Justice and of Foreign Affairs, judges and lawyers. The group started its meetings at the beginning of 2005. The working group concluded its work in early 2006 and its conclusions will be published shortly.

At the same time, a new law (No. 145) adopted on 28/10/2005 introduces procedural and material changes in order to shorten the length of proceedings. The law provides, inter alia, that the civil suits may now also be extinguished ex officio and not only on the application of the parties. The aim of this change is to prevent parties from prolonging proceedings by remaining inactive. Also, the workload of the Commissario della legge has been reduced by widening the competencies of the conciliating judges (Giudici Conciliatori) and by directing appeals concerning their decisions to appeal judges (Guidici delle Appellazioni) rather than to the Commissario della legge.

• Information is awaited on the follow-up to be given to these proposals and on the timetable for the possible legislative reform as well as on the effective remedy in the length of proceedings cases.

• Information is also awaited on publication and dissemination of the judgment of the European Court.

- 14 cases against Serbia

- Cases concerning freedom of expression

27935/05          Filipović, judgment of 20/11/2007, final on 20/02/2008

13909/05          Lepojić, judgment of 06/11/2007, final on 31/03/2008

These cases concern unjustified interference with freedom of expression of the applicants, both local politicians, who were convicted of criminal defamation or insult and subsequently ordered in civil proceedings to pay substantial damages to the same plaintiff, a local mayor who was also the director of a state-owned company (violations of Article 10).

In the case of Lepojić, the applicant was sentenced to suspended fine for criminal defamation in relation to his article, written in the run-up to the 2002 elections, alleging that the mayor had spent public funds on sponsorships and gala luncheons in a “near-insane“ manner.

In the case of Filipović, the applicant alleged in 2001, at a meeting attended by the Deputy Prime Minister, that the mayor might have been involved in embezzlement and tax evasion, in the absence of any conviction to that effect.

Both applicants were subsequently the object of civil proceedings, founded on the criminal verdicts against them, in which they were ordered to pay damages.

The European Court noted in both cases that although the applicants' statements contained some strong language and serious allegations, they were not “gratuitous personal attacks“ directed against the mayor and that the applicants clearly had legitimate reason to believe that the mayor might have been involved in the activities alleged (§77 and §58 of the Lepojić and Filipović judgments respectively).

The European Court noted in the Lepojić judgment that "bearing in mind the seriousness of the criminal sanctions involved, as well as the domestic courts' dubious reasoning to the effect that the honour, reputation and dignity of the Mayor had more significance than ... [the honour, reputation and dignity] ... of an ordinary citizen" the interference in question "was not necessary in a democratic society" (§78 of the judgment).

Individual measures: In the Lepojić case, the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

• Information provided by the Serbian authorities (letter of 06/08/2008): On 31/07/2008, the Municipal Court of Babušnica ordered the deletion of the applicant’s conditional conviction from his criminal records.

In the Filipović case, the European Court dismissed the applicant’s claim for just satisfaction, which was submitted out of time. His criminal conviction for insult was not considered, rationae temporis. Nevertheless, the Serbian authorities indicated by letter of 06/08/2008 that on 16/11/2007, the Ministry of Interior, Police Department of Pirot, erased the applicant’s conviction from his criminal record. 

• Assessment: In view of the above facts, no further individual measure appears necessary.

General measures: 

• Information provided by the Serbian authorities (26/03/2008, 17/04/2008 and 20/05/2008): Bearing in mind the European Court’s findings in the present cases as well as Parliamentary Assembly Recommendation 1814 (2007) concerning decriminalisation of defamation, the Government Agent has initiated a review of national criminal legislation in order to bring it “into line with the case-law of the European Court”. The Government Agent also referred in his initiative to at least two other applications pending against Serbia before the European Court concerning alleged violation of freedom of expression. On 30/11/2007, the Government Agent submitted his initiative by letters addressed to the Serbian Parliament, Minister of Justice and appropriate Legislation Department.

The judgments were published in the Official Gazette of the Republic of Serbia, Nos. 111 of 04/12/2007 and 114 of 08/12/2007 respectively, as well as on the website of the Government Agent (www.zastupnik.sr.gov.yu). The Agent forwarded the judgments with a note to the Ministry of Justice, the Supreme Court, the District Court of Pirot and Municipal Court of Babušnica. In addition, he published his comments on these judgments in the Paragraf legal journal and in the leading Serbian daily Politika on 22/11/2007. The judgments were also included in a book published by the Office of the Government Agent.

• Information is awaited on other possible measures taken or envisaged to ensure that domestic courts strike a fair balance in determining the amount of compensation in similar cases, where politicians are involved. In addition, further information is awaited on the outcome of the initiative concerning the decriminalisation of defamation.

- Cases concerning the failure or substantial delay by the administration in abiding by final domestic judgments

a. Civil and commercial matters

3102/05            EVT Company, judgment of 21/06/2007, final on 21/09/2007

17556/05           Marčić and 16 others, judgment of 30/10/2007, final on 30/01/2008

37343/05           ZIT Company, judgment of 27/11/2007, final on 27/02/2008

b. Family-related matters

25959/06          Tomić, judgment of 26/06/2007, final on 26/09/2007

These cases concern the violation of the applicants’ right to a fair trial as a result of the authorities’ failure to carry out effective enforcement proceedings, and related violations of the right to the peaceful enjoyment of possessions, except in family-related matters (violations of Article 6§1 and/or Article 1 of Protocol No. 1).

The European Court found that the Serbian judicial authorities have failed to conduct enforcement proceedings effectively or to enforce domestic court decisions as a result of prolonged periods of inactivity on their part (Marčić) or repeated refusal by the police to assist the bailiffs (EVT). The enforcement proceedings at issue concerned debt recovery (Marčić and EVT), taking possession of a property (ZIT Company), a custody order (Tomić) or were intertwined with insolvency proceedings (Marčić).

The European Court noted that irrespective of whether a debtor is a private or a state actor, it is up to the state to take all necessary steps to enforce final court judgments, as well as to ensure the effective participation of its entire administrative structure (§56 in ZIT Company, §48 in EVT).

The case of Marčić concerns only the violation of the right to the peaceful enjoyment of possessions (violation of Article 1 of Protocol No. 1). The European Court noted in this case that there had been no attempt to enforce the Commercial Court’s decision throughout the period in question, even though there is no evidence that this delay could be attributed to the debtor’s lack of means which, had it existed, should by now have resulted in the conclusion of the insolvency proceedings as well as the extinction of the debtor as a legal entity (§59 in Marčić).

The cases of Tomić and ZIT Company also concern the lack of an effective remedy to expedite enforcement proceedings (violations of Article 13).

The case of Tomić also concerns the violation of the applicant’s right to respect for her family life as a result of the failure to enforce a final custody judgment (violation of Article 8). The European Court noted in this case that “the forcible transfer of custody, though unavoidable and attempted on several occasions, was never brought to a successful conclusion” (§104 in Tomić).

Individual measures:

            1) EVT Company: The European Court held that “the applicant’s claim for pecuniary damage must be met by the Government ensuring, by appropriate means, the full execution of the Commercial Court’s final judgment of 7/05/1996 as modified by the enforcement orders of 17/10/ 1996 and 21/12/1998” (§60 of the judgment).

• Information provided by the Serbian authorities (letters of 04/12/2007, 05/03/2008, 09/04/2008, 17/04/2008 and 15/10/2008): The domestic court established the facts concerning the assets of the debtor companies, which appear to be largely insufficient to cover the applicant’s claim. On 11/03/2008 the applicant filed a motion to change the particular assets subject to enforcement. However, it turned out that the property specified by the applicant had been subject to prior enforcement proceedings involving over 80 other creditors. The applicant is informed of the situation and is entitled to indicate another debtor’s property should there be any free of prior encumbrance. Due to the lack of available debtor’s assets the applicant’s claim has not been satisfied.

• Information is awaited on further developments and measures taken or envisaged to ensure full execution of this judgment.

            2) Marčić: The European Court noted that the respondent state must secure, by appropriate means, the enforcement of the Commecial Court’s final decision of 27/12/1990 (§65).

• Information provided by the Serbian authorities (letter of 25/07/2008): On 25/07/2008 the Commercial Court of Leskovac informed the applicants’ lawyer in writing that the funds for enforcement of the final decision of 27/12/1990 had been secured. It further invited the lawyer to communicate bank account details for payment or to ensure that funds were collected from the court in cash.

• Assessment: In view of the above information, no further individual measure seems necessary.

            3) ZIT Company: The European Court noted that the enforcement entitlements at issue in this case had yet to be fully executed and that the applicant might still request enforcement of the Municipal Court’s decision of 04/04/2006 (§§58 and 70). It further noted that the applicant did not request the enforcement of the Municipal Court’s decision of 04/04/2006 in accordance with the relevant law, but instead resorted to an apparently ineffective civil suit (§60). The European Court considered that the Serbian authorities cannot be held accountable for any subsequent delay (§61).

• Information provided by the Serbian authorities (letter of 10/04/2008): The applicant has not yet requested the enforcement of the decision at issue.

• Assessment: In view of the above information, no further individual measure seems necessary.

            4) Tomić: The European Court held that the child’s father ”was de facto allowed to use the judicial system to his advantage until the factual situation was sufficiently altered by the passage of time so as to allow for the reversal of the applicant’s custody right through a separate set of judicial proceedings” (§104 of the judgment).

• Information provided by the Serbian authorities (letter of 10/04/2008): The applicant has not so far requested the reopening of the second set of proceedings, even though on 13/11/2007 the authorities informed her in writing that such a possibility existed. The judgment granting visitation rights to the applicant and obliging her to pay maintenance is now final. The first meeting between the applicant and her child took place on 24/11/2007 in Krupanj in the premises of the local Social Care Centre. The second meeting took place on 27/12/2007. However, the meeting scheduled for 26/01/2008 was postponed at the applicant’s request. The Social Care Centre is not aware of any subsequent private contacts between the applicant and her child. In addition, on 26/11/2007 proceedings were initiated for the removal of the judge presiding over the enforcement proceedings due to judicial malfeasance in this case.

• Assessment: It appears that the applicant has established contact with her child. Therefore no other individual measure is required.

General measures:

            1) Excessive length of enforcement proceedings

• Information provided by the Serbian authorities (letter of 15/10/2008):

A. Legislative measures: For the measures adopted so far and outstanding issues concerning excessive length of proceedings see the case of V.A.M. (Section 4.2.). Concerning the context of the specific circumstances of the cases here: The Minister of Justice appointed a working party to prepare amendments to the Enforcement Procedure Act. Certain proposals have been discussed, such as introducing a parallel system of private bailiffs, establishing a separate register listing all judicial attachments, improving service of court documents to corporations, etc. The draft bill is currently under preparation. In addition, the Regulatory Reform Council, Ministry of Economy and Regional Development, appointed a working party to prepare amendments to the Insolvency Procedure Act with a view to curbing the length of such procedures, increasing efficiency and decreasing costs.

B. Obligation of the police to assist bailiffs: The authorities indicated that the 2004 Enforcement Procedure Act defines the obligation of the police “to render a bailiff all assistance necessary to carry out enforcement” (Article 57§2). If necessary the bailiff may request that adequate preparatory measures are implemented. The regulations concerning the police will apply to the police assisting bailiffs in the course of an enforcement procedure. Finally, courts are obliged to inform the Ministry of the Interior if the police fail to act in accordance with these rules.

C. Prolonged inactivity of courts: The European Court noted that the 2005 Criminal Code incriminates “non-enforcement of a court decision” (§30 in EVT). Any official failing to enforce a final court decision within the stipulated time period is subject to fine or a prison term.

• Assessment: It seems that the legislative measures adopted are appropriate to reinforce the obligations of the police to assist bailiffs and to comply with court decisions. However, certain measures are still in the adoption process and it appears necessary to follow up their development further.

• Information is therefore awaited on further developments in the context of the proposed legislative amendments and their proposed time-frame. The text of the draft bills would be helpful if available.

2) Violation of the right to peaceful enjoyment of possessions: The above measures are also relevant in order to prevent similar violations under this head. 

3) Lack of an effective remedy: See V.A.M. (Section 4.2).

            4) Violation of right to respect for family life (non-enforcement of a court decision): See V.A.M. (Section 4.2.). The European Court noted that under the 2005 Criminal Code anyone who obstructs the enforcement of a child custody decision shall be liable to be fined or sentenced to a prison term of up to two years (§69 in Tomić).

• Information is awaited on application of the 2004 Enforcement Procedure Act and 2005 Criminal Code in practice.

            5) Publication and dissemination: The European Court’s judgments have been translated into Serbian and published in the Official Gazette as well as on the website of the Government Agent (www.zastupnik.sr.gov.yu). The judgments were also published on a CD issued by the magazine Paragraf and on the Internet page of that magazine, with expert comments. The Government Agent forwarded the judgments to the Supreme Court of Serbia requesting its distribution to all courts in Serbia as well as to the High Commercial Court in the case of EVT Company. He also made several public statements relating to the judgments. The Office of the Government Agent published a book containing translations of judgments rendered by the European Court against Serbia.

                        Cases of length of judicial proceedings

39177/05          V.A.M., judgment of 13/03/2007, final on 13/06/2007

The case concerns the excessive length of proceedings initiated in 1999 by the applicant, who is HIV positive, before the Fourth Municipal Court of Belgrade seeking dissolution of her marriage, sole custody of her daughter, born in 1995, and child maintenance (violation of Article 6§1).

The European Court recalled that exceptional diligence was required in dealing with cases in which the plaintiff was HIV positive, as well in all matters where the proceedings concern child custody disputes (§§101, 105 and 106 of judgment).

The case also concerns the violation of the applicant's right to respect of her family life due to the non execution since 1999 of the domestic court's interim order providing the applicant's access to her daughter, as well as the excessive length of the civil proceedings (double violation of Article 8). The child has not seen the applicant since August 1998 and the interim access order has not been enforced due to the unco-operative attitude of the child's father and impossibility of serving court documents on him due to his repeated changes of addresses, including abroad in Montenegro.

Finally, the case concerns the lack of an effective remedy under domestic law concerning the excessive length of proceedings (violation of Article 13).

Individual measures: The European Court recalled the obligation of the respondent state to enforce, “by appropriate means”, the interim access order of 23/07/1999 and to “bring to a conclusion, with particular diligence, the ongoing civil proceedings” (§166 of judgment).

• Information provided by the Serbian authorities and the applicant:

A. Child custody and maintenance proceedings: The proceedings concerning the child custody and maintenance were closed on 14/12/2007 and the judgment was confirmed on appeal on 12/03/2008. It has thus become final and repealed the 1999 interim order. The judgment left custody to the father and confirmed the applicant's visitation rights.

B. Enforcement proceedings: On 02/06/2008 the court ordered enforcement of the judgment of 14/12/2007 and its decision was served on the child's father on 14/06/2008. However, the child's father has persisted in obstructing the applicant's access to her child as well as the payment of costs awarded to the applicant. So far no contact between the applicant and her child has been established. The court fined the father twice for failure to produce the child for the purpose of enforcing the interim access order and twice for non-compliance with the final judgment. On 20/08/2008, the court ordered the attachment and the public auction of the chattels belonging to the child's father in order to compel him to pay the fines imposed. It also awarded costs and expenses. According to the court, the father's non-compliance cannot be and is not in the best interest of the child and amounts to a threat to the psychological, physical and emotional development of the child. All set-off claims against the applicant and proposals raised by the child's father for rescheduling the enforcement to a later date were expeditiously dismissed. The decision of 20/08/2008 is currently under appeal. However, on 28/08/2008 the bailiff attached certain chattels in the apartment of the child's father. The final decision in these proceedings is awaited.

C. Criminal proceedings: The Social Care Centre was ordered by the ministry in charge to take a number of legal steps. Pursuant to this order, the Social Care Centre filed a criminal complaint against the child's father on 21/07/2008 alleging abduction of the child and joined the applicant in her motion for enforcement of the judgment. On 08/10/2008 the public prosecutor filed a criminal indictment against the child's father before the court alleging abduction of a minor.

D. Proceedings for deprivation of parental rights initiated by the applicant: The Social Care Centre also submitted a report to the court in the proceedings for deprivation of parental rights, putting forward arguments for such deprivation and underlying that “there have been elements of emotional abuse” of the child by the father . At the hearing held on 15/09/2008, representatives of the Social Care Centre failed to attend and to respond to the court’s requests in writing. The judge informed the higher instances and ordered an expert report through the Belgrade School of Medicine concerning both parents and child in the context of the requested change of the custody decision. Upon the judge's request, the Social Care Centre on 14/10/2008 appointed a guardian to represent the interests of the minor child in these proceedings. At the hearing held on 15/10/2008, the child's father was heard. Since the expert report had not been completed, the judge imposed fines on the Belgrade School of Medicine for non-compliance should it be verified that the court document describing the expertise task was duly served on them. The next hearing is scheduled for 17/11/2008.

E. Preparatory work:  On 08/10/2008, the Social Care Centre requested the enforcement judge to order the master of the school attended by the child to ensure conditions for work by the school psychologist with the child with a view to prepare her for future contacts with the applicant. The Social Care Centre also requested the court to order to the child's father and his partner to go to the Counselling Authority so that they can be prepared for future visits by the applicant.

F. Planning further actions: The Government Agent organised a meeting for all authorities involved in the present case on 07/10/2008, attended as well by the Deputy Minister of Justice. The attendees agreed upon the future measures to be taken by each of them in the next two months.

• Assessment: The Secretariat notes at the outset that the underlying child custody and maintenance proceedings have been brought to a conclusion as it was indicated by the European Court. Furthermore, it is noted that the national authorities are under the obligation to take all necessary steps to facilitate the execution of access orders as can reasonably be demanded in the special circumstances of each case. It appears that the Serbian authorities did take many different steps available under domestic law and demonstrated commitment in their efforts to make the child's father comply with the court's decisions. However, the measures taken so far have not made it possible for the applicant to have access to her child. In these circumstances, the Serbian authorities are expected to take further steps to accelerate the enforcement proceedings as well as the proceedings concerning the deprivation of parental rights initiated by the applicant.

• Information is therefore awaited on further measures taken to ensure that the applicant may exercise her access rights without further delay and on the outcome of the efforts made by the Serbian authorities in this context. Information is also awaited with regard to the acceleration of the enforcement proceedings, the ongoing criminal proceedings and the proceedings concerning the deprivation of parental rights initiated by the applicant.

General measures: The Serbian authorities provided the following information with respect to the general measures taken:

1) Excessive length of civil proceedings:

A. Measures taken so far

I. Legislative measures: The Serbian Constitution provides the right to a fair trial within reasonable time (Article 32). Similarly, the 2005 Civil Procedure Act prescribes that a court should decide on claims and motions of the parties within reasonable time (Article 10).

The Serbian authorities provided excerpts from a number of domestic case-files concerning family-law issues, including custody proceedings, corroborating the implementation in practice of this legislation as well as the 2005 Civil Procedure Act (§61 and 62 of the judgment) and the 2005 Family Law (§57 and 58 of the judgment) to avoid the excessive length of proceedings. The new measures introduced should help to tackle the problem of excessive length of proceedings. In particular, if normal service of documents is unsuccessful, documents should be posted on the court's own notice board and the service will be deemed duly accomplished. All family-related disputes involving children must be resolved urgently. First-instance courts should conclude proceedings after no more than two hearings, and second-instance courts must decide on appeals within 30 days. Maintenance suits are particularly urgent: a first hearing must be scheduled within 8 days of the filing of the claim and second-instance courts must decide on appeal within 15 days.

The Serbian authorities provided a comprehensive and detailed report (04/06/2008) on various measures taken or envisaged to accelerate civil proceedings, including further legislation adopted to this effect.

Mediation was introduced in 2005 by the Mediation Act as an alternative means of dispute resolution to further alleviate the workload of the courts. In 2006 a special law on training and education of members of the judiciary was adopted.

II. National Strategy of Judiciary Reform and Action Plan: The 2006 National Strategy of Judiciary Reform and Action Plan for Implementation of the Strategy were adopted. They are based on four principles: independence, transparency, responsibility and efficiency. The Strategy set a 6-year period for its implementation (2006-2012).

III. New courts: In accordance with the new court organisation, the Ministry of Justice secured sufficient funds for operation of the Appeals Courts and Administrative Court as from 01/01/2009. In particular, the new building where the supreme judiciary institutions will be housed should be completed in 2008 in Belgrade and should include 29 000 m² of space, with 500 offices and 40 courtrooms. Buildings are also secured for Appeals Courts in Novi Sad, Niš and Kragujevac.

B. Measures pending

I. Legislative measures: Amendments to the Civil Procedure Act are currently being drafted with a view to increasing the efficiency of judicial procedures and removing problems faced in practice when applying this law. The short-term priority includes the adoption of a set of laws concerning the judiciary, including draft laws on attorneys, public notaries, bar examinations, the National Judiciary Training Institute and free legal aid.

II. Backlogs: secondary legislation defines parameters for the number of cases to be resolved by a judge during a month. It is planned to introduce a weighting system in 2009 to measure better the efficiency of individual judges. The draft laws concerning the judiciary envisage that retired judges are hired in order to reduce the number of backlog cases. The number of pending cases has reached 700 823 in all jurisdictions. 142 554 of these have been pending over two years.

III. Training activities: The Judiciary Centre will be transformed into the National Judiciary Training Centre. It is envisaged that continuous training would be a requirement for appointments of judges. Special attention is paid to training on the Convention. Since 2006 training on case-management has also been provided.

IV. Efficiency of court organisation: An analysis on workload of courts and public prosecutors is currently under preparation. It will enable drafting of proposals for rationalisation of the court and prosecution network.

V. IT infrastructure: The Ministry of Justice is investing special efforts in IT technologies. All commercial courts will be automated in October 2008, while a complete IT communication judiciary network will be completed by 2012.

VI. Court Budget: The 2008 budget has allocated approximately 282 million euros for judiciary (approximately 253 million euros for courts). According to the judiciary-related draft laws, the High Judiciary Council should become direct administrator in the budget appropriations so far as salaries and operating costs of the courts are concerned. 

C. Outstanding issues 

Service of court documents: The Serbian authorities acknowledged (15/10/2008), however, that certain problems remain with regard to the widespread non-compliance with regulations concerning residence registration. Such practice is resulting in frequent inability to service court documents on the parties concerned.

•Assessment: It appears that the new legislative framework is capable of preventing length of proceedings. The detailed report provided by the Serbian authorities shows a positive trend and significant efforts to shorten the length of judiciary proceedings, including civil proceedings. The Strategy and Action Plan set forth a clear roadmap for increasing of efficiency in the judiciary sector. However, certain problems still persist, such as those related to service of court documents.

• Information is awaited on further developments in the implementation of the National Strategy of Judiciary Reform so far as the curbing of length of judiciary proceedings is concerned and on further progress in the adoption of a package of draft laws concerning the judiciary and the draft amendments to the Civil Procedure Act, including their copies. Information would be helpful on the developments regarding the all ongoing measures.

Information is also awaited on measures taken or envisaged to improve efficient service of documents in the context of the problems related to widespread non-compliance with residence regulations.

2) Violation of right to respect for family life (non-enforcement of a court decision): According to the 2004 Enforcement Procedure Act, courts must act urgently in all enforcement proceedings and decide on any enforcement application within 3 days. Any action by the court contrary to this provision shall be considered as “unprofessional conduct of a judge” within the meaning of the Judges' Act.

The 2004 Enforcement Procedure Act provides an initial period of 3 days for voluntary compliance with a child custody order. Beyond that, however, fines are imposed and, ultimately, if necessary, the child may be taken forcibly in co-operation with the social care authorities. Where, exceptionally, the life, health or proper development of a child is threatened, the child shall be removed and transferred to another person without laying down any period for voluntary enforcement or fining the party in default.

The Serbian authorities delivered to the Secretariat on 04/12/2007 excerpts from a number of domestic case- files evidencing application of the 2004 Enforcement Procedure Act and Criminal Code in child custody matters.

• Seminar: In co-operation with the Department for the Execution of Judgments of the European Court, the Serbian authorities organised a seminar in Belgrade on 25-26/09/2008 devoted to the application of Article 8 of the Convention in the context of the judgments of the European Court rendered in respect of Serbia. The seminar was attended by high-profile officials and members of various Serbian authorities concerned. At the end of the seminar, the participants agreed on a number of conclusions identifying the problems with respect to enforcement of domestic court decisions in family matters as well as setting out a number of proposals for further improvement. These conclusions are publicly available at the website of the Serbian Government Agent in Serbian (www.zastupnik.sr.gov.yu).

• Follow-up: The Serbian authorities acknowledged in their submission of 15/10/2008 that certain problems have been detected in the application of the Family Law and Enforcement Procedure Act in the enforcement of court decisions concerning family matters as well as concerning lack of co-ordination, communication and supervision between various national bodies. In this regard, the Ministry of Labour and Social Policy is considering preparing draft internal instructions concerning the powers of social care centres in accordance with the Family Act. These instructions will be distributed to all courts. It is also expected that the drafting of amendments to the Enforcement Procedure Act would be finalised by the end of October 2008. The authorities will take into consideration the discussions made during the seminar for further measures to be taken.

• Information is awaited on further developments in the implementation of the measures announced, in particular with regard to the measures outlined in the conclusions.

3) Lack of an effective remedy: The Constitutional Court Act has been adopted in 2007. It provides the possibility to lodge a complaint before the Constitutional Court in case of breach of the right to a trial within reasonable time, even if the other legal remedies have not been exhausted. The law has not determined a term within which a decision must be taken upon constitutional complaints. However, it has limited the time-limit within which state and other authorities, legal entities and natural persons are obliged to respond, specifying that they all must act within the term set by the court, which cannot be less than 15 days. It is noted that the Constitutional Court adopted its Rules of Operation in February 2008 (Official Gazette, No. 24/08). Additional bylaws of the Constitutional Court adopted in May 2008 completed the legislative framework required for its operation.

The Constitutional Court Act further provides that if an individual complaint before the Constitutional Court is upheld, the complainant may submit a claim for damages to the special Damages Commission. The Damages Commission must make a decision on the claim within 30 days failing which the applicant will be entitled to file a claim for damages before a court of law. In March 2008, members of the Damages Commission were appointed by the Minister of Justice and its Rules of Operation adopted (Official Gazette, No. 27/08).

The Serbian authorities further submitted that as of 21/10/2008 the Constitutional Court has dismissed around 200 constitutional complaints for procedural reasons, while it rejected 4 constitutional complaints. On 16/10/2008, the Constitutional Court upheld the first constitutional complaint. However, as of 01/10/2008 a total of 1 497 constitutional complaints have been filed. The Constitutional Court drafted the Guide on How to Prepare a Constitutional Complaint and a form to be filed by the applicants. Both are available on the website of the Constitutional Court (www.ustavni.sud.sr.gov.yu).

• Assessment: Notwithstanding the fact that relevant legislation was introduced, no evidence has been provided concerning the availability in practice of an effective remedy in compliance with the Convention's standards.

• Information is thus awaited on the implementation of the statutory provisions concerning complaints before Constitutional Court as well as their effectiveness in practice, including further information on the first experience of the Constitutional Court and Damages Commission in this regard.

In this respect, the authorities' attention is drawn to the Committee of Ministers' Recommendation Rec(2004)6 to member states on the improvement of domestic remedies and to measures adopted in this field by other countries (see e.g. Kudła against Poland, Interim Resolution ResDH(2007)28; Jóri against the Slovak Republic, Final Resolution ResDH(2005)67; Horvat against Croatia, Final Resolution ResDH(2005)60 and Lukenda against Slovenia (Section 4.2).

4) Dissemination: The State Agent promptly issued a press release on the European Court's judgment, which was widely reported in the Serbian press. He also forwarded the translation of the Court's judgment to the Supreme Court of Serbia with a request for further distribution to all domestic courts. During his visits to certain courts the State Agent delivered copies of the translated judgment to them. Finally, the judgment was distributed and discussed at a seminar organised on 14-15/06/2007 by the Department for Human and Minority Rights of the government and the State Agent in co-operation with the Council of Europe, attended by members of judiciary and state authorities.

5) Publication: The European Court's judgment was immediately translated and published in the Official Gazette of the Republic of Serbia No. 53 of 13/06/2007, as well as on the website of the State Agent (www.zastupnik.sr.gov.yu). A commentary on the judgment by the State Agent was published in the specialised legal magazine Paragraf, including its Internet edition, and in the journal Selected Case- Law (Izbor sudske prakse) No. 5/2007.

                        - cases of length of judicial proceedings

a. Family-related proceedings

3150/05            Jevremović, judgment of 17/07/07, final on 17/10/07

This case concerns the excessive length of paternity and maintenance proceedings (violation of Article 6§1).

The applicant’s parentage was confirmed by a Supreme Court judgment but the question of maintenance payment was still pending when the European Court rendered its judgment. The European Court recalled that particular diligence is required in all cases concerning civil status and capacity (§81).

The case also concerns the violation of the first applicant's right to respect of her family life due to the excessive length of the paternity proceedings, leaving her in a state of prolonged uncertainty concerning her identity (violation of Article 8).

Finally, the case concerns the lack of an effective remedy in domestic law concerning the excessive length of civil proceedings (violation of Article 13).

Individual measures: None (the proceedings are closed).

General measures:

1) Excessive length of family-related proceedings: See V.A.M. (Section 4.2).

2) Violation of right to respect of family life (excessive length of proceedings): See V.A.M. (Section 4.2).

3) Lack of an effective remedy: See V.A.M. (Section 4.2).

b. Commercial proceedings

28443/05           Samardžić and AD Plastika, judgment of 17/07/2007, final on 17/10/2007

The case concerns the excessive length of commercial proceedings (violation of Article 6§1). 

The European Court noted that the length of the proceedings was also due in part to the staying of the initial proceedings following the opening of bankruptcy proceedings against the second applicant as well as to remittals of the case for re-examination and to a prolonged inactivity of the first instance of a year and a half (§§44-45). In this connection, the European Court recalled that the remittal of a case for re-examination is usually ordered as a result of errors committed by lower instances and may disclose a deficiency in the procedural system (§44).

Individual measures:

• Information provided by the Serbian authorities (letters of 07/11/2008, 05/03/2008, 17/04/2008 and 22/10/2008): The bankruptcy proceedings against the second applicant are still pending. The draft distribution of assets is currently under preparation. In the civil proceedings involving the second applicant as plaintiff, the next hearing is postponed to 16/12/2008. It is expected that the case will be closed on that date.

• Information is awaited on the state of all pending proceedings related to this case and on measures to accelerate them.

General measures: See V.A.M. (Section 4.2) for excessive length of proceedings. The European Court noted that the 2005 Criminal Code incriminates “abuse of office”, “judicial malfeasance” and “official malfeasance” (§§18-19). Those offences may imply fines or prison terms for any official, including members of the judiciary, failing to act in the proceedings for long periods without justification.

• Information is awaited on the statutory provisions concerning remittal of cases for re-examination and measures taken or envisaged in this regard to avoid similar violations in the future as well as on the application of the 2005 Criminal Code.

c. Civil proceedings

30132/04           Ilić, judgment of 09/10/2007, final on 09/01/2008

38350/04           Popović, judgment of 20/11/2007, final on 20/02/2008

These cases concern the excessive length of civil proceedings (violations of Article 6§1).

The case of Ilić also concerns violation of the applicant’s right to peaceful enjoyment of his possession in the context of a special “protected tenancy regime” (violation of Article 1 of Protocol No.1). In this case, the Serbian authorities failed to enforce a final eviction order issued by a Belgrade municipality in the context of administrative proceedings. The order provided for the applicant’s repossession of his flat. Domestic courts have themselves held that the municipality was not only under a legal obligation to enforce the order at issue but also had sufficient funds and available flats to provide the applicant’s protected tenant with adequate alternative accommodation. Lastly, the domestic courts noted that there were no legal means by which the applicant could have compelled the municipality to honour its own eviction order (§74 in Ilić).

Finally, the case of Ilić also concerns a lack of effective remedy to expedite civil proceedings (violation of Article 13 taken together with Article 6§1).

Individual measures: None (the proceedings are closed). In the case of Ilić the eviction order has been enforced and the applicant regained possession of the apartment.

General measures:

1) Excessive length of civil proceedings: See V.A.M. (Section 4.2).

2) Violation of the right to peaceful enjoyment of possessions: 

• Information is awaited on measures taken or envisaged to prevent any future non-enforcement of eviction orders by municipal authorities in the context of the “protected tenancy regime” . It appears that awareness-raising measures would be particularly helpful in this regard.

3) Lack of an effective remedy: See V.A.M. (Section 4.2).

d. Labour proceedings

2637/05            Jovićević, judgment of 27/11/2007, final on 27/02/2008

41513/05           Mikuljanac, Mališić and Šafar, judgment of 09/10/2007, final on 09/01/2008

26642/05           Stevanović, judgment of 09/10/2007, final on 09/01/2008

These cases concern the excessive length of labour proceedings and lack of an effective remedy to expedite them (violations of Article 6§1 and Article 13). Reasons cited for protracted duration of these proceedings were re-assignments to different judges and/or protracted periods of court inactivity (§41 in Mikuljanac, Mališić and Šafar, §§58, 60 in Stevanović).

The European Court noted in particular that “the subject matter of the litigation was of primary importance to the applicants and required that the proceedings be dealt with ‘expeditiously’. Indeed, this requirement is reinforced additionally if the domestic law provides that reinstatement cases must be resolved with particular urgency“ (§41 in Mikuljanac, Mališić and Šafar).

Individual measures: None (the proceedings are closed).

General measures:

1) Excessive length of proceedings: See V.A.M. (Section 4.2). The European Court noted that under the 2005 Labour Act, employment-related disputes were to be resolved by the courts within 6 months (§§16-17 in Mikuljanac, Mališić and Šafar). Additionally, under Serbian law a reinstatement case may be resolved by a state-appointed arbitrator. Such proceedings, however, may only be instituted with the consent of both parties and must be concluded within 30 days following to the initial hearing (§35 in Stevanović).

• Information is awaited on application of these statutory provisions.

2) Lack of an effective remedy: See V.A.M. (Section 4.2).

• Publication and dissemination in all these cases: The European Court’s judgments have been translated into Serbian and published in the Official Gazette as well as on the website of the Government Agent (www.zastupnik.sr.gov.yu). The judgments were also published on a CD issued by the magazine Paragraf and on the Internet page of that magazine, with expert comments. The Government Agent forwarded the judgments to the Supreme Court of Serbia requesting its distribution to all courts in Serbia as well as to the High Commercial Court in the case of Samardžić and AD Plastika. He also made several public statements relating to the judgments. The Office of the Government Agent has published a book containing translations of judgments rendered by the European Court against Serbia.

- 1 case against the Slovak Republic

7510/04            Kontrová, judgment of 31/05/2007, final on 24/09/2007

This case concerns the authorities’ failure to take positive action to protect the life of the applicant’s two children (violation of Article 2).

Although the applicant’s family situation was known to the local police in view of her criminal complaint and her emergency calls concerning her husband’s threatening behaviour, the police did nothing to prevent him from shooting dead their two children on 31/12/2002. Ultimately the domestic courts found that the tragedy was a direct consequence of the failure of the police to act and on 14/03/2006 convicted the responsible officers of negligent dereliction of duty. However, the applicant’s complaint to the Constitutional Court seeking compensation for the non-pecuniary damage suffered was unsuccessful.

The European Court noted that in response to the applicant’s situation, under the applicable provisions of the Code of Criminal Procedure and service regulations, the police were obliged, among other things, to: register the applicant’s criminal complaint; launch an immediate criminal investigation and criminal proceedings against the applicant’s husband; keep a proper record of the emergency calls and advise the next shift of the situation and take action concerning the allegation that the applicant’s husband had a shotgun and had threatened to use it. In fact, however, one of the officers involved helped the applicant and her husband modify her criminal complaint of 02/11/2002 so that it could be treated as a minor offence calling for no further action.

As found by the domestic courts, the direct consequence of those failures was the death of the applicant’s children (violation of Article 2).

Moreover, the European Court found that the applicant did not have an effective remedy to apply for compensation for the non-pecuniary damage suffered (violation of Article 13 taken together with Article 2).

Individual measures: The European Court awarded the applicant just satisfaction for the non-pecuniary damage suffered (25 000 euros).

• Assessment: in these circumstances, no further measure appears to be necessary.

General measures:

1) Violation of Article 2: The European Court observed that, under section 2 (1) (a) and (b) of the Police Corps Act of 1993, it was one of the main tasks of the police to protect fundamental rights and freedoms, life and health. In this case the police failed to comply with the obligations stemming from this law, the Code of Criminal Procedure.

• Information provided by the Slovak authorities on 12/02/2008: The judgment was published in the journal Justičná Revue No. 12/2007. On 31/01/2008 the judgment was circulated to all regional courts under cover of a letter from the government Agent. The presidents of the regional courts have been asked to notify the judgment to all judges in regional and district courts within their jurisdiction. Under cover of another letter from the government Agent, the judgment was also sent to the chief of police, who has been asked to notify the judgment to all directors of district police offices.  

2) Violation of Article 13 taken together with Article 2: The European Court found that the action for protection of personal integrity under Articles 11 et seq. of the Civil Code did not provide the applicant with an effective remedy allowing her to obtain compensation for non-pecuniary damage. It noted that the development of the case-law relating to this protection dates from 2006 and concerns the decisions of courts at the lowest level of jurisdiction.

• Information provided by the Slovak authorities on 12/02/2008: Sections 46, 287 and 288 of the Criminal Code (Act No.301/2005 Coll), which came into force on 01/01/2006 provide a legal basis for claiming compensation for non-pecuniary damages against the perpetrator of a criminal offence. No court fees are payable when bringing such a claim (Act No.71/1992 Coll. On Court fees).

The government Agent has organised a number of seminars on the possibility of filing an action for protection of personal integrity under Section 11 of the Civil Code, in association with the European Legal Centre EUROIURIS, the Academy of Justice and the Slovak Bar Association.

The authorities also provided information on one of the domestic judgments referred to in paragraphs 33-35 of the judgment of the European Court on domestic law and practice: a judgment of the Nitra District Court of 14/05/2006 (file no.10C 142/2002) in which the domestic court had awarded damages for non-pecuniary damage following a criminal offence became final on 18/10/2006. The authorities provided information on two further cases in which courts had awarded non-pecuniary damages for the protection of personal integrity: in a judgment of the Banská Bystrica District Court of 29/09/06, final on 02/08/06 (File no. 14C 172/05) and a judgment of the Košice Regional Court which was returned for re-examination by the Trebišov District Court (File No. 1Co 201/2005). In the latter case, the applicant was denied compensation by the Trebišov District Court but this was overturned on appeal to the Košice Regional Court.

• Information provided by the Slovak authorities on 18/03/2008: as from 01/07/2004 an applicant may also bring a claim for non-pecuniary damage against erroneous official conduct of public authorities (under Act 514/2003 Coll).

• Information provided on domestic case law is under assessment.

- 198 cases against Slovenia

                       - Cases of length of criminal proceedings and lack of an effective remedy

19611/04           Šubinski, judgment of 18/01/2007, final on 18/04/2007

28936/02           Acikgöz, judgment of 07/02/2008, final on 07/05/2008

These cases concern the excessive length of the criminal proceedings instituted against the applicants in 1998 and in 1987 respectively (violations of Article 6§1) and the lack of an effective remedy in this respect (violations of Article 13).

Individual measures: The domestic proceedings in the case of Šubinski were still pending before the Constitutional Court when the European Court delivered its judgment, while the domestic proceedings in the case of Acikgöz had been ended.

• Information provided by the Slovenian authorities in the case of Šubinski (14/01/2008): The proceedings before the Constitutional Court ended on 14/06/2007; the constitutional appeal filed by the applicant was rejected.

• Assessment: In view of the information provided, no further individual measure appears necessary.

General measures:

1) Violation of Article 6§1: The issue of excessive length of criminal proceedings has already been examined in the context of the case of Majarič (judgment of 08/02/2000, Section 6.2), in which the European Court found a violation of Article 6§1 due to the excessive length of criminal proceedings. In the Majarič case, the Slovenian authorities adopted measures to accelerate criminal proceedings, i.e. wide dissemination and publication of the European Court’s judgment, 1998 amendments to the Criminal Procedures Act (introducing settlement procedures) and training of judges.

• Information provided by Slovenian authorities (letters of 22/04/2008 and 20/10/2008):

A. Statistics: The proportion of criminal cases before local courts examined within a year attained 57,8% in 2007 as compared to 36,7% in 2000. However, backlogs increased in criminal cases before district courts as compared to 2000. The proportion of criminal cases before district courts examined within a year decreased in 2007 to 40,6% as compared to 51,8% in 2000. As far as the higher courtsare concerned, they examined 58% and 53% of all criminal appeals within 3 months in 2006 and 2007 respectively. As of 30/06/2008, there were 4 701 backlog criminal cases before local courts and 1 912 such cases before district courts. There was no backlog in higher courts at that date. It is to be noted that in 2001 there were 7 055 backlog criminal cases before local courts, while in 2006 there were 2 469 such cases before district courts.

B. IT project: The modernisation of the IT infrastructure in the criminal justice sector is under way. It aims to provide real-time, IT-supported monitoring of criminal procedures, criminal investigations and criminal judicial proceedings at first-instance courts; to substitute manually administered documents by modern IT systems; to implement IT-based tools to support the work of judges and members of the courts’ staff. The project will be implemented by 2009.

• Assessment: The information provided by the Slovenian authorities points to certain problems concerning backlogs in criminal cases, in particular before district courts. It also points to trends in average length of criminal proceedings which could be further improved.

• Information is awaited on further developments in measures taken or envisaged to reduce the length of criminal proceedings and backlogs, including on the completion of the IT project. Information is also awaited on dissemination and publication of both judgments of the European Court.

2) Violation of Article 13: These cases present similarities to those of the Lukenda group (Section 4.2) in which information is awaited under this heading.

• In addition, information is awaited on functioning of the legal remedy introduced (see the Lukenda group, Section 4.2) in the context of the length of criminal proceedings and on the statistical data corroborating its efficiency in practice. 

                        - 196 cases of length of judicial proceedings and of lack of an effective remedy

                        (See Appendix for the list of cases in the Lukenda group)

These cases concern the excessive length of civil proceedings between 1994 and 2004 (violations of Article 6§1). Most of these cases also concern the absence of an effective remedy in this respect, the European Court having found that the legal means invoked by the Slovenian government (administrative action, tort claim, request for supervision or a constitutional appeal) may not be regarded as effective remedies against the excessive length of proceedings (violations of Article 13).

In the Bauer, Cundrič and Golenja cases, the Court also noted that the judicial authorities should have acted especially rapidly given that the litigation at issue concerned industrial disputes.

Individual measures: Many of these cases were still pending when the European Court gave judgment. In one of them, Cundrič, which concerns an industrial dispute, the Court considered that special diligence was required.

• Information provided by the Slovenian authorities (letter of 31/07/2007, 22/04/2008 and 20/10/2008): In 54 of these cases, including the Cundrič case, the domestic proceedings have been ended. Information has been provided on the state of proceedings in 10 other pending cases. All relevant domestic courts have been informed about the priority to be given to such cases.

• Information is awaited concerning the state of proceedings and on measures taken or envisaged to accelerate them if they are still pending.

General measures: In the Lukenda judgment, under Article 46, the Court underlined that given the backlog existing before Slovenian courts, the length of judicial proceedings remained a major problem in that country.

In response to the Secretariat's letter of 27/03/2006, the Slovenian authorities provided an action plan for the implementation of measures aiming at avoiding further similar violations (letters of 06/06/2006, 04/10/2006, 27/03/2007 and 31/07/2007).

1) Violations of Article 6§1:

A. Background information: statistics on backlog and average length of civil proceedings in Slovenian courts (letter of 20/10/2008)

The Slovenian authorities have provided detailed statistical data about court backlogs for 1998-2007. During the last 7 years, court backlogs have been reduced by an average annual rate of 9%: in 2007 it was reduced by 11,8%. The number of backlog cases in local courts has decreased in 2007 by 10,5% compared to 2006 and by 51% compared to 2000. Local courts have reduced the number of unresolved civil claims from 53 000 in 1998 to 21 422 in 2007. The share of civil claims examined within a year attained 46.1% in 2007 as compared to 36,2% in 2000.

District courts are also continuously decreasing the time required for examination of a case. As a result, in 2007 the district courts managed to gain control over the flow of new cases, while the number of pending cases also decreased. Since 2000, the share of civil claims resolved in district courts has been constantly within a margin of 55%-60% of all claims. In 2006 higher courts examined 58,7% of all civil appeals within 6 months, while this share increased in 2007 to 66,4%. Labour and social courts examined 66.4% of all cases within one year, while only 3,4% cases were lasting over 3 years. The number can be considered a significant success taking into account that such cases constituted more than a quarter of all cases. The Higher Labour and Social Court decreased its backlog in 2007 by almost 56% as compared to 2006. At the end of 2007, a total of 471 cases remained pending. In addition, this backlog was reduced by 38,9% (from 628 to 384) cases since December 2007. The backlog of cases is monitored by the Supreme Court since 01/01/2008. The authorities noted that in 2007 there was the following number of backlog in civil cases: 10 414 before local courts, 6 322 before district courts and 1 503 before higher courts as compared to 28 137, 6 522 and 3 294 respectively in 2000.

B. Measures taken or under way

•  The "Lukenda Project": The Slovenian authorities have prepared a "Lukenda Project" on faster resolution of court procedures and reducing courts’ and state prosecutors' offices’ backlogs. The text of this project was sent to the Secretariat on 31/07/2007.

The implementation of the Lukenda Project does not by itself decrease the length of judicial proceedings. However, the project aims at reducing by half the number of backlog cases in courts, in the statistical context, by 31/12/2010, i.e. to 284 000 cases. In the substantive context, the period to examine a certain case by a specific court shall be determined in an agreement reached between the Supreme Court, the Judicial Council and the Ministry of Justice for each type of courts and each calendar year separately and the Court Rules were to be modified accordingly. The number of undecided cases shall not exceed 155,000 after 31/12/2010.

The Lukenda project moreover provides numerous complex avenues in order to increase the judiciary's efficiency and solve the problem of court backlogs. The most significant measures envisaged are the following:

- ensuring workplace conditions in accordance with the strategy of spatial development of the judicial system,

- additional provision and organisation of human resources or professional staff for a fixed period until 31/12/2010,

- stimulating the remuneration of court staff for their increased workload directed at eliminating court backlog,

- simplification of legislation and standardisation of judicial proceedings,

- computerisation of courts and judicial proceedings,

- additional training of judges and prosecutors,

- reorganisation and better management of courts.

• Increased employment of judicial staff and new premises for courts: The authorities have also provided information about the number of judicial staff. In 2006 there were 1 002 judges, 276 associates and 2 705 other judicial staff members. According to the budget foreseen for 2007 and 2008, the number of judges' posts is to increase by 90 and 15 respectively and that of other judicial staff members by 250 each year. The Ministry of Justice is also preparing complete documentation necessary for the acquisition of additional premises for courts.

• Measures to accelerate proceedings before labour courts: A new Labour and Social Courts Act entered into force on 01/01/2005 setting up specialist jurisdictions for social and labour litigation. This act also contains a specific provision for appeal proceedings in such cases (Article 30): in case of erroneous or incomplete finding of the material circumstances or an essential violation of procedural provisions, the appellate court may itself correct any irregularity in the first-instance judgment by collecting supplementary or new evidence or by other procedural acts.

•  Seminars for judges and State Attorneys: In September and October 2006, the Ministry of Justice, in cooperation with the Council of Europe, organised two seminars on the practice of the Convention bodies concerning Articles 6 and 13 of the Convention.

• Assessment: It may be observed from the statistical information provided by the Slovenian authorities that there is a steady decrease in the backlog cases in 2007 compared with previous years in all courts. These figures are indicative of a positive development in dealing with backlog cases. Furthermore, the increase of posts within the judiciary is helpful to solve the problem of backlog and excessive length of proceedings. The measures taken have yielded the first results as corroborated by the fact that the backlog cases have been reduced three times before local courts and twice before higher courts, while the district courts have slightly less performing statistics.

• Information is awaited on the further implementation of the "Lukenda Project"'. In particular, further updated statistical information on the backlog cases, the average length of civil proceedings and the implementation of the planned increase of posts within the judiciary would be helpful to further monitor the positive trends in this field. Information on any other measures taken or envisaged in this respect would be also appreciated (e.g. the measures taken concerning the introduction computer systems in courts and the remuneration of court staff, training etc.).

2) Violations of Article 13: In its judgment, the European Court encouraged the defendant state either to amend the existing range of legal remedies or to add new remedies so as to secure genuinely effective redress for violations of that right (§ 98).

A. Legislative measures: A new law on the Protection of the Right to Trial without Undue Delay was adopted on 26/04/2006 (published in the Official Gazette of the Republic of Slovenia, No 49/2006 of 12/05/2006) (the “2006 Act”) and took effect on 01/01/2007. This law provides the following remedies against excessive length of proceedings:

• Remedies for acceleration: The 2006 Act provides for two types of remedies:

1) a supervisory appeal with a proposal for expediting the hearing of a case (nadzorstvena pritožba): in case of excessive length of proceedings the applicant should first lodge such a complaint (Article 5). If the complaint is substantiated, the president of the court may order to the judge in charge of the case to perform certain procedural acts within a specified time-limit and/or to treat the case with priority.

2) a motion for a deadline for the purpose of specifying a time-limit (rokovni predlog): it may be lodged with the president of the higher court if a supervisory complaint has been rejected or has not been examined, or if the procedural acts ordered by the president of the court have not been performed (Article 8 Section 1). If this motion is substantiated, the president of the higher court may order to the judge in charge of the case to perform certain procedural acts within a specified time-limit and/or to treat the case with priority (Article 11§4).

• Remedies for compensation: The 2006 Act provides for the following remedies:

1) a claim for just satisfaction: just satisfaction may consist of a pecuniary compensation, a written statement of the State Attorney's Office that the party's right to trial without undue delay has been violated or the publication (on the court's website) of the judicial decision stating that the right to a trial without undue delay has been violated.

The pecuniary compensation amounts from 300 to 5 000 euros and is awarded following friendly proceedings before the Office of the State Attorney (Article 19 Section 1 of the law). These proceedings may be instituted within 9 months following the date on which a final judgment was delivered in the case.

2)  an action for damages in case no friendly agreement has been reached before the Office of the State Attorney (Article 20 Section 1): it shall be brought not later than 18 months following the date on which a final judgment was delivered in the case;

3) an action brought on the grounds of the Obligations Act: within 18 months following a final ruling an action for pecuniary damage caused by a violation of the right to a trial without undue delay may be brought on the basis these provisions (Article 21).

According to Article 23 of the law, the above mentioned compensations shall be paid from the state budget, and more precisely from the budget of the Office of the State Attorney.

• Scope of the application of the 2006 Act: The remedies provided in the 2006 Act are available to parties to court proceedings, participants of non-contentious proceedings and injured parties in criminal proceedings (Article 2). They may be also used before administrative courts and the Supreme Court, but not before the Constitutional Court.

• Information provided by the Slovenian authorities on the first experience of the functioning of these remedies in practice in 2007 (letter of 22/04/2008): In total 3 058 supervisory appeals were filed, out of which 964 were declared ill-founded and rejected while 118 were referred for examination to the president of the competent court. Furthermore, 468 supervisory appeals were dismissed while 1 275 were allowed by the presidents of the courts and the applicants received a notification that the court would perform the appropriate procedural action within a specified deadline. In total 835 motions for a deadline were also filed, out of which 603 were declared ill-founded, 146 were dismissed and 18 notions were allowed as reasonable and well-founded.

B. Assessment by the European Court:

• The 2006 Act: In its judgment in the Grzinčič case (judgment of 03/05/2007, final on 03/08/2007), the European Court was satisfied that the aggregate remedies provided by the 2006 Act in cases of excessively long proceedings pending at first and second instance is effective in the sense that the remedies are in principle capable of both preventing alleged violation of the right to a hearing without undue delay and of providing adequate redress for any violation that has already occurred (§ 98). There is no reason to doubt its effectiveness at this stage, but the Court's position may be subject to review in the future and the burden of proof as to the effectiveness of the remedies in practice remains upon the Slovenian Government (§ 108). The Court also stressed that national authorities should ensure that the 2006 Act is applied in conformity with the Convention as regards both future case-law and the general administration of justice (§109).

• Remedies before the Constitutional Court: In its judgment in the Tomažič case (judgment of 13/12/2007, final on 02/06/2008), the European Court noted that the 2006 Act does not provide any remedies in respect of proceedings before the Constitutional Court (§43). However, it is equally noted that some amendments to the Constitutional Court Act (Official Gazette, no. 51/07) were introduced in July 2007 with the aim of simplifying and shortening the procedure before that court. These changes are expected to have an effect in practice at the end of 2008 (§31).

• Information provided by the Slovenian authorities (letter of 20/10/2008): The Constitutional Court noted in its 2007 Annual Report that it is already clear that the statutory amendments failed to reduce the increasing number of insignificant cases brought before the Constitutional Court. On the other hand, it is stressed that the amendments introduced a selection procedure, allowing the Constitutional Court to dismiss the constitutional appeals non-compliant with the statutory requirements. The court emphasised that 1 300 pending cases exceed its capacity.

• Assessment: In accordance with the findings of the European Court, the remedies introduced by the 2006 Act are effective so far as the first and second instance courts are concerned. The Secretariat cannot make an assessment at this stage on the effectiveness of the remedies before the Supreme Court and the Constitutional Court. In addition, a large number of the Lukenda-type cases are pending before the European Court, including around 400 cases concerning the post-2006 Act facts.

• Additional information is awaited on the functioning of all remedies introduced in practice in the next period, in particular on remedies before the Supreme Court and before the Constitutional Court.

- 7 cases against Spain

1483/02            Panella Puig, judgment of 25/04/2006, final on 25/07/2006

This case concerns the violation of the presumption of the applicant's innocence. In 1992 the Constitutional Court overturned military proceedings which had resulted in the applicant's serving a prison term. The applicant lodged a request for compensation. This request was rejected by the Ministry of Justice and the administrative courts on the basis of doubts as to the applicant's guilt, his conviction having been set aside on account of a violation of the principle of the presumption of innocence in respect of the inadequacy of the evidence adduced against him (violation of Article 6§2).

The European Court found that that national authorities had applied Article 394(1) of the Structural Law on the Judiciary which provides that entitlement to compensation in respect of provisional detention is limited to those who are acquitted or those against whom proceedings have been definitively dropped because the accusations against them proved groundless. The Court found that in this respect the authorities had treated the applicant with excessive severity, as his request was not related to provisional detention but to the sentence he had served and since, in addition, he had not been acquitted nor the charges against him dropped. Reliance on Article 394(1) had led them to examine whether the applicant's responsibility for the alleged acts had been sufficiently established, and thus pronounce upon his guilt.

They might have applied Article 292, which covers more general situations of judicial error or dysfunction. The Court also underlined the fact that the applicant's conviction had already appeared on his criminal record even though it had been definitively set aside by the Constitutional Court.

Individual measures: The applicant's criminal record has now been erased.

• Information is awaited on the applicant's present situation particularly concerning whether it is possible to reopen the compensation proceedings.

General measures: Given that the national authorities had applied a wrong provision of the law, the publication and dissemination of the European Court's judgment to the relevant courts and authorities, with a circular or note explaining the problems found by the Court, would appear to be sufficient. 

• Information was received from the Spanish authorities on 02/04/2008 and is currently being examined.

                        - Cases concerning the right of access to a court

55524/00          Stone Court Shipping Company S.A., judgment of 28/10/03, final on 28/01/04

3321/04            De La Fuente Ariza, judgment of 08/11/2007, final on 08/02/2008

77837/01          Saez Maeso, judgment of 09/11/2004, final on 09/02/2005

25779/03          Salt Hiper, S.A., judgment of 07/06/2007, final on 12/11/2007

These cases concern a breach of the applicants’ right of access to a court on account of the inconsistent or particularly strict interpretation by the court of rules of procedure (violations of Article 6§1).

In the Stone Court Shipping Company S.A. case, the applicant company’s right of access to a court had been infringed on account of the Supreme Court’s particularly strict interpretation of its own rules of procedure resulting in 1997 in the rejection – confirmed by the constitutional Court in 1998 – of the applicant company’s appeal on a point of law as having been submitted out of time. Whilst the appeal had been lodged with the “on-duty” court the day before the date-limit expired, it was not communicated to the Registry of the Supreme Court until afterwards. The Supreme Court relied in its decision on provisions of domestic law to the effect that appeals could only be lodged with an “on-duty” judge if the time-limit for appeal was due to expire the same day and the court with which the appeal had to be lodged was closed for business.

In the Saez Maeso case, the applicant’s appeal against a decision of the University of Valencia not to grant him a diploma was dismissed by the High Court of Justice, after which the applicant took his case to the Supreme Court. On 10/06/1993 the Supreme Court declared his case admissible. On 26/06/2000 (seven years after the admissibility decision) the Supreme Court dismissed his appeal on a point of law on the ground of formal shortcomings at the admissibility stage, without inviting the applicant to submit observations within a definite time-limit. In April 2001 the Constitutional Court confirmed this decision. In the European Court’s view, the Supreme Court’s interpretation was excessively rigorous given that the new Law No. 29/1998 of 13 July 1998 provides that parties should be informed of possible grounds for inadmissibility.

In the case of Salt Hiper S.A., the the Supreme Court rejected the applicant company’s appeal on points of law as inadmissible in 2001 even though it had found it to be admissible five years earlier. The Constitutional Court confirmed the decision in February 2003. In the European court’s view, if the supreme Court had had reasons for finding the appeal admissible, it could not find to the contrary five years later without explaining the change in case-law or going through some kind of rectification procedure.

In the case of De la Fuente Ariza, a criminal judge, in proceedings against the applicant for alleged offences against the public treasury, decided to accept only some of the evidence adduced by the applicant. This decision of 7/04/2000 specified that it could not be appealed. The applicant nonetheless appealed to the Constitutional Court. The application was dismissed initially in 2000 on the ground that the criminal proceedings had not been completed and once again in June 2003 because he had not exhausted the remedies available against the decision in question. The European Court considered that to dismiss an appeal as premature and then subsequently on grounds of non-exhaustion, alleging that the applicant had not appealed against a decision explicitly stating that no appeal was possible, must at the very least be considered as a lack of legal security for the applicant.

Individual measures: The European Court awarded the applicants just satisfaction for the non-pecuniary damages except in De la Fuente Ariza, in which the applicants submit no claim. It would be useful if the government were to provide an assessment of the applicants’ individual situations so that the Committee of Ministers might assess the need for further possible individual measures.

• Information is awaited on the assessment of the situation of the applicants.

General measures:

• Information is awaited on examples of changes in the case-law of the Supreme Court or the Constitutional Court in response to the judgments of the European Court. Information on other possible measures taken or envisaged to prevent new, similar violations, including awareness-raising activities, would also be useful. In any event the authorities are invited to consider publishing the European Court’s judgments in these cases and ensure their wide dissemination to competent authorities to avoid similar violations of the Convention in the future.

423/03              Díaz Ochoa, judgment of 22/06/2006, final on 22/09/2006

41745/02           Lacárcel Menéndez, judgment of 15/06/2006, final on 11/12/2006

These cases concern violations of the applicants' right of access to a court (violations of Article 6§1).

In the Díaz Ochoa case, the applicant was not informed in 1992 of proceedings brought against him as co‑defendant before a labour tribunal, which resulted in his being ordered to pay certain sums. The applicant did not become aware of the proceedings until October 1998, when his wages were first attached in payment of the sums owed. He applied for an order setting aside the judgment against him on the ground that he had not been notified of the proceedings but his application was dismissed as being out of time. The applicant also applied for a review and lodged an amparo appeal, both without success.

The European Court drew attention to the highly unusual combination of events in this case insofar as the applicant had had no reason to suspect that proceedings had been brought against him, as his address was on the case file that had been before the judge on the merits. In addition, the courts seised to set aside the original order or at appeal had failed to remedy the situation caused by the applicant's absence from the main proceedings because of their unduly narrow construction of the law.

In the Lacarcel Menendez case, the applicant was owner of the flat in which she lived in Murcia, situated in an apartment block in multiple ownership. As she had not paid the joint maintenance costs, her co-owners took proceedings against her to obtain payment of a sum equivalent to 877 euros. In December 1995 the applicant was ordered to pay the amount due. In enforcement of this judgment, and at the co-owners' request, the applicant's apartment was seized and sold at auction.

In the intervening period, namely since 27/11/1995, two judges in Murcia, holding that the applicant was “presumed lacking in legal capacity”, authorised her detention in a psychiatric hospital and subsequently renewed that authorisation. In January 2000 the applicant was declared lacking in legal capacity and one of her sisters was appointed as her guardian. The sister applied for annulment of the proceedings which had resulted in the sale of the applicant's apartment. Her action was dismissed at first instance on the ground that, at the material time, the applicant had not been declared lacking in legal capacity by a final judgment. In addition, the Constitutional Court dismissed the amparo appeal submitted by the applicant's sister.

The European Court noted that, on account of her psychiatric state as “presumed lacking in legal capacity”, the applicant had been unable to suspect that proceedings were being brought against her. The manner in which the courts had examined her case had resulted in denying her effective access to a court. In addition, the courts which examined the action to have those proceedings declared void had failed to remedy this lack of participation in the main proceedings. The reasoning based on the non-retrospective nature of a declaration of incapacity seemed too formalistic and was incompatible with the applicant's placement, against her will, in a psychiatric hospital, on the orders of two other judges in the same city.

Individual measures: In both cases, the European Court awarded the applicants just satisfaction in respect of the non-pecuniary damages suffered.

1) Díaz Ochoa case:

The Spanish authorities indicated that the General Social Security Treasury, in whose favour partial seizure of the applicant’s salary had been ordered, decided on the 11/04/2008 to waive its right to do so (letter from the authorities dated 15/09/2008). Its decision was notified to the applicant on the 22/05/2008.

Later the Social Affairs Court quashed the initial decision of 1992 which ordered the applicant to pay the sums in respect of which the attachment order had been issued. Furthermore, the competent department of the General Social Security Treasury issued an ordinance on 20/06/2008 indicating that once the Social Affairs Court’s decision became final, the necessary measures concerning reimbursement of the sums attached would automatically be taken. The applicant’s counsel indicated in a letter dated 04/09/2008 that nothing had been done by the competent department to repay the sums, to pay interest due or to grant just satisfaction in respect of the harm sustained including costs and expenses.

• Information is awaited on further steps taken in favour of the applicant.

2) Lacárcel Menéndez case:

• Information is awaited on the applicant’s present situation and on measures which could be taken regarding her, if appropriate.

General measures: The problem of the excessively application of procedural rules by Spanish courts has been raised in several previous cases which have been closed or are still under consideration by the Committee, in particular on the assumption that the Spanish courts will give direct effect to the European Court case-law (see Pérez de Rada Cavanilles against Spain, judgment of 28/10/1998, Resolution ResDH(2001)84, and Stone Court Shipping Company S.A. against Spain, Section 4.2).

However, the measures that have been adopted do not appear to redress the particular problems raised in the present cases.

• The Spanish authorities are therefore invited to provide information on the measures taken or envisaged to prevent new, violations similar to those observed in the present cases. In any case, publication of the Court's judgments and their dissemination to the relevant courts would appear necessary.

- 1 case against Sweden

62332/00          Segersted-Wiberg and others, judgment of 06/06/2006, final on 06/09/2006

The case concerns unjustified interference with the applicants' right to respect for their private life in that the security service conserved certain information concerning their former political activities under the 1998 Police Data Act (violation of Article 8).

The European Court considered that this information was provided by law and pursued a legitimate aim, i.e. the maintenance of order and the prevention of offences and the protection of national security. It nonetheless found that, while this interference was not disproportionate in respect of the first applicant, this was not the case with regard to the others.

The case also concerns unjustified interference of the freedoms of expression and association of all the applicants except the first (violations of Articles 10 and 11).

The European Court considered that to keep on file personal data related to political opinion, affiliations and activities that had been deemed unjustified for the purposes of Article 8§2 ipso facto constituted an unjustified interference with the rights protected by Articles 10 and 11.

Finally the case concerns the absence of any effective remedy with respect to these violations (violation of Articles 13). The European Court noted in a previous case that the Parliamentary Ombudsman and Chancellor of Justice could receive individual complaints and had a duty to investigate them in order to ensure that the relevant laws had been properly applied. However, neither of them is empowered to render a legally binding decision nor did they have specific responsibility for inquiries into secret surveillance or into the gathering and filing of information by the Secret Police. In the meantime, a number of steps had been taken to improve the remedies, in particular the establishment of the Records Board (empowered to monitor on a day-to-day basis the Secret Police's intelligence gathering and filing, and compliance with the Police Data Act) and the Data Inspection Board. The Court noted that the Records Board had no competence to order the destruction of files or the erasure or rectification of information kept in the files. The Data Inspection Board had wider powers but the Court had received no information indicating the effectiveness of the Data Inspection Board in practice.

Individual measures:

• Information provided by the Swedish authorities (in April 2008): The information in question has been eliminated from the records of the Swedish Security Service and is therefore neither searchable nor accessible to Swedish Security Service personnel.

General measures:

            1) Violation of Article 8:

• Information provided by the Swedish authorities: The judgment of the European Court has been sent out to the Supreme Administrative Court, all administrative courts of appeal, the parliamentary Ombudsman and the Chancellor of Justice with a memorandum on 15/01/2007 analysing the judgment. Relevant officers from the Swedish Security Service have also received information about the implications of the judgment for the activities of the Swedish Security Service. The judgment is available on the government’s human rights website, www.manskligarattigheter.gov.se, along with a detailed account of the judgment.

• Assessment: No further measure seems necessary.

            2) Violation of Articles 10 and 11:

• Assessment: As publication and dissemination of the European Court’s judgments are also sufficient measures in this respect, no further measure appears necessary.

            3) Violation of Article 13:

• The Swedish authorities were invited to provide information on the functioning the Data Inspection Board and/or on the possible introduction of another effective remedy.

• Information provided by the Swedish authorities (April 2008): A new agency, the Swedish Commission on Security and Integrity Protection, has been established, partly as a response to the European Court’s judgment in this case. This Commission started operating in January 2008 in order to supervise the use of secret surveillance by crime-fighting agencies and the processing of personal data by the Swedish Security Service. Its mandate and operation are regulated by law. The Commission has taken over the functions previously held by the Records Board.

However, it has also acquired a new supervisory and control function aimed at improving individual access to a national legal remedy in cases involving secret surveillance and processing of personal data by the Swedish Security Service. Thus, at the request of an individual the Commission is required to check whether they have been subject to secret surveillance by the Swedish Security Service under the Police Act and whether it was lawful. If the Commission decides that processing of personal data has taken place without legal basis or in violation of procedures, it must report the matter to the Data Inspection Board. The latter may then intervene, and if it turns out to be impossible to remedy the situation in any other way, or if the matter is urgent, the Board may prohibit the controller of personal data, i.e. the Swedish Security Service, from continuing to process the personal data in any other way other than storing it and may attach a conditional financial penalty to this prohibition. As a last resort, the Board may apply to the county administrative court for erasure of such personal data which has been processed in an unlawful manner. The Board must always initiate supervision procedures in the event of a complaint from an individual. In recent years there have only been a couple of such complaints per year. In cases, however, in which the Board has found, following a complaint, that incorrect processing of personal data has occurred within the police service, the authority keeping the records has promptly remedied the situation or else appealed against the Board’s decision. The Board has therefore not needed to take any further-reaching measure other than ordering the police to discontinue certain processing, eliminate certain data or take other similar measures.

Further, if the Commission on Security and Integrity Protection considers that a legal offence may have been committed, it must notify the Swedish Prosecution Authority, and if the Commission considers that the state’s responsibility may arise, it must report to the Office of the Chancellor of Justice, the authority which deals with claims against the state for damages.

As of 1/01/2007 a new provision governing appeals was introduced in the Personal Data Act, stating that decisions directly affecting an individual taken under this Act by a public authority may be appealed to a general administrative court. The provision also applies to the processing of personal data by the Swedish Security Service, and means among other things that an appeal may be made to a general administrative court against a decision by the Swedish Security Service not to correct or eliminate personal data that the complainant asserts is being processed in contravention of active legislation.

Work is currently in progress at the Ministry of Justice to modernise the legislation regulating processing of personal data by the Police Service. The new provisions provide clearer and more detailed regulation of the area of elimination of data. For certain types of personal data a considerably shorter period before elimination, as compared to the current legislation, is envisaged. The proposal will also require the Swedish Security Service to take a special decision if data need to be kept longer than the ten-year limit for elimination. The legislative proposal described above is planned for presentation in the autumn of 2008.

• Assessment: The violations in this case resulted from the continued storage of information which concerned the applicants and had been released to them, which the European Court found was a disproportionate interference with their rights. As regards in particular the powers of the Data Inspection Board, the European Court concluded that it had not been shown in practice that the Board is an effective remedy in this context, even though it could in theory apply to the county administrative court to have records erased.

• Information would be appreciated showing the effectiveness of the Data Inspection Board’s powers concerning requests for erasure of information kept on record by the Security Service, or the effectiveness of any other remedy on this question. Information about the progress of the proposed legislative amendments to the Police Data Act would also be appreciated, as well as a copy of the envisaged or proposed amendments.

- 162 cases against Turkey

38187/97           Adalı, judgment of 31/03/2005, final on 12/10/2005

The case concerns the lack of an effective investigation into the death of the applicant’s husband, who was shot in front of his house in Nicosia (i.e. in the part situated to the north of the “green line”) on 6/07/96 (violation of Article 2 and 13).

The European Court found the following shortcomings in the investigation:

-               the failure of the investigating authorities to take fingerprints on the terrace or inside the applicant’s home and the absence of real coordination or monitoring of the scene of the incident;

-               the insufficient ballistic examination, in particular the failure to compare the cartridges found with those classified in the police archives in Turkey;

-               the failure of the investigating authorities to take statements from some key witnesses (although additional witness statements were taken in 2002, after the application in this case had been communicated to the government);

-               the failure of the authorities to inquire sufficiently into the motives behind the killing of the applicant’s husband, and

-               the lack of public scrutiny of the investigation as a result of no information being provided to the deceased’s family, in particular the lack of transmission of the autopsy and ballistics reports.

The case also concerns an interference with the applicant’s freedom of association on account of a refusal of permission to cross from the northern part to the southern part of Cyprus to attend a bi-communal meeting on 20/06/1997 (violation of Article 11).

Individual measures:

• Information provided by the Turkish authorities: An additional inquiry into the death of Mr Adalı was carried out, following a letter of 24/03/2006 by the Prosecutor General to the police authorities ordering them to initiate an additional investigation taking into account the shortcomings identified by the European Court in its judgment. All elements pointed out by the Court as deficient in the initial investigation which led to the violation, were considered and re-examined in the new inquiry. It appears that collecting new fingerprints turned out to be objectively impossible, given the long period elapsed since the events, the environmental changes affecting the place and the fact that external persons have been at the crime scene. During the initial investigation, the ballistics report had already been checked against data in the police archives in Turkey and the results taken in consideration, even if the corresponding report could not be found subsequently. The victim’s mobile telephone was sought but not found. As regards the investigation of the motives of the killing of the applicant’s husband, the competent authorities have examined all allegations advanced without obtaining conclusive results. The documents and results of all investigations carried out in connection with this case have been submitted to the Prosecutor General; the applicant never requested either the autopsy or the ballistics reports. It should be noted that two of the key witnesses not questioned at the time of the facts - Mr Ceylan and Mr Demirci – have been heard during the additional investigation opened in 2002 (under No CTKC/440/1996). The third important witness – Mr Mendi – was heard by the European Court (§§163-174 of the judgment).  Having carried out the additional investigative acts considered necessary by the European Court, the authorities concluded that it had not been possible to obtain new documents, information or testimony on the basis of which criminal charges could be brought against any person. On the other hand, they underline that as no period of limitation applies in this case, any new element could at any moment as the case may be, give rise to an appropriate follow-up.

• Assessment: The deficiencies of the investigation identified by the European Court have been examined in the framework of the additional investigation carried out since the judgment. That said, it remains to be clarified whether the applicant has been informed of this new inquiry carried out after the European Court’s judgment.

• Additional information is therefore awaited from the authorities.

General measures:

1) Violations of Article 2 and 13:

• Information provided by the Turkish authorities: they stressed that the shortcomings in the investigation found by the Court emanated from the practice and not from the legislation in place. The authorities provided a copy of the Coroners Law and of the Law on Criminal Procedures of the “TRNC”. They indicated in particular that investigations of deaths are conducted ex officio by investigating magistrates and under their exclusive control. As regards the involvement of victims’ families into the investigations carried out, Article 14 of the Coroners Law states that every interested party may appear at an inquest. In addition, Article 29 of the Act on the Law Office was amended on 13/03/2006 to the effect that the Attorney General, if he finds it necessary, may supervise or direct investigations carried out by the General Directorate of the Police Forces and may give orders in this respect. Consequently, the role of the Attorney General in police investigations has become more important.

The judgment of the European Court has been translated into Turkish, posted on the Internet and disseminated to all jurisdictions via the channels of the Prosecutor General’s Office. In addition, an article entitled “The Ilkay Adalı Case and Aspects of the Right to Life” has been published in the Lefkoşa Bar Journal in order to raise awareness of the requirements of the Convention as regards effective investigations of the authorities entrusted with applying the law.

• Assessment: Dissemination of the European Court’s judgment to police and prosecution authorities and judges being essential for preventing new similar violations, clarification will be appreciated about the website address on which it has been posted. It would also be useful to receive a copy of the official letter(s) with which the judgment was sent to all relevant authorities.

            2) Violation of Article 11:

• Measures adopted: The necessary measures have been taken in the framework of the case of Djavit An (Final Resolution CM/ResDH(2008)59). The “Council of Ministers of the TRNC” adopted several decisions following the judgment of the European Court in that case, in order to provide a legal basis regulating the crossing of the “green line” in both directions. Under the terms of decision No. E-762-2003 the crossing from the north to the south is carried out after presentation of an identity card or a passport and the computerised record of the passage of persons and vehicles. Each person may carry personal effects. Moreover, the provisions according to which the passage is carried out on a day trip basis and the return must take place before midnight were repealed by a decision of the “Council of Ministers of the TRNC” No. T-820-2004.

The Deputies, 1.             took note of the arguments presented by the Cypriot authorities in their memorandum circulated on 28 November 2008; 2.             invited the Turkish authorities to provide clarification as to whether the applicant has been informed of the results of the additional inquiry carried out after the European Court’s judgment; 3.             noted that no limitation period applies to this type of crimes and any new element brought to the attention of the Attorney General could lead potentially to a reopening of the investigation; 4.             also invited the Turkish authorities to provide the necessary clarification concerning the dissemination of the judgment; 5.             decided to resume consideration of this case at the latest at their 1059th meeting (2‑4 June 2009) (DH), in the light of further information to be provided on individual and general measures.

40073/98           Bilgin Ihsan, judgment of 27/07/2006, final on 27/10/2006

This case concerns the failure on the part of the national authorities to protect the right to life of the applicant’s father in the planning and manner of execution of an armed operation carried out by village guards in the south-east of Turkey in 1994. A criminal investigation was initiated and the village guards were charged with manslaughter. Following a decision by the Administrative Council, the charges were dropped on the ground that the village guards should be considered as “civil servants” and that, therefore, no prosecution should be brought against them.

The European Court first noted that there appeared to be no indication of instructions, either written or oral, given to village guards in the context of their duties, particularly with regard to the arrest of suspects. It also noted that the village guards did not benefit from the necessary equipment, such as infra-red binoculars or walkie-talkies, to be able to identify the suspect without any doubts. The European Court thus found that, in the circumstances of the case, the use of force by the village guards was not absolutely necessary in self‑defence.

The case also concerns the inadequacy of the investigation. The European Court reiterated the principle that, for an investigation into an alleged unlawful killing by state agents to be effective, it was necessary for the persons in charge of the investigation to be independent of those implicated. In the present case, the investigator, who was a gendarmerie officer, was subordinated to the same local hierarchy as the guards whose conduct he was required to investigate (violation of Article 2).

Lastly, the case concerns the absence of any effective remedy at the applicant’s disposal, in particular as a result of the fact that the administrative councils could not be considered capable of carrying out effective investigations (violation of Article 13).

Individual measures: It may be noted that in accordance with the Committee of Ministers' well-established practice, the respondent state has a continuing obligation to conduct effective investigations, a fortiori in case of a finding of a violation of Article 2 (see in particular Interim Resolution ResDH(2005)20 in the case of McKerr and others against the United Kingdom, the case of Scavuzzo-Hager and others against Switzerland, the cases concerning the action of security forces in the Russian Federation).

• Information is awaited on measures taken or envisaged by the Turkish authorities to ensure a fresh investigation into the incidents in the light of the shortcomings identified by the European Court.

General measures: Turkish authorities have provided an action plan setting out the general measures taken in the framework of this case. The plan is currently being examined by the Secretariat.

- Cases concerning the excessive use of force in quelling a prison riot and lack of an effective investigation

35962/97           Gömi and others, judgment of 21/12/2006, final on 21/03/2007

36672/97           Kurnaz and others, judgment of 24/07/2007, final on 24/10/2007

These cases concern the lack of an effective investigation into the death of the applicants' relatives in the case of Gömi and others (procedural violation of Article 2) and of injuries caused to a number of the applicants in 1995-96 following raids to quell prison riots and to rescue hostages from the rioters (procedural violation of Article 3). The Kurnaz and others case also concerns the injuries that Mr Kurnaz sustained during the raid (substantive violation of Article 3).

In the case of Gömi and others, the European Court found that it was not in a position to establish beyond reasonable doubt that the use of lethal force by the warders, gendarmes and police officers was disproportionate to the aim pursued, namely “quelling a riot” and/or “in defence of any person against violence”. However, as to the investigation into the deaths, the Court considered that the Turkish authorities had not acted with sufficient promptness and reasonable diligence. With regard to the alleged ill-treatment, the Court saw no grounds for criticising the authorities for the measures taken in this case. However, it held that there had been a violation of Article 3 in relation to some of the applicants on account of the lack of an effective investigation by the authorities to establish the facts.

In the case of Kurnaz and others, the European Court found that there was no proof in the case-file that the prison authorities had seriously attempted to restore order or that the operation had been properly organised or monitored so as to minimise the risk of serious bodily harm to the detainees. The Court therefore concluded that the force used against the applicant had been excessive. The Court further noted that the case-file did not refer to the outcome of the proceedings against the gendarmes and that the investigation carried out by administrative councils hierarchically dependent on the governors could not be regarded as independent.

Individual measures: In accordance with the Committee of Ministers' well-established practice, it is recalled that respondent states have a continuing obligation to conduct effective investigations, a fortiori in case of a finding of a violation of Article 2 (see in particular Interim Resolution ResDH(2005)20 in the case of McKerr and others against the United Kingdom, the case of Scavuzzo-Hager and others against Switzerland, the cases concerning the action of security forces in the Russian Federation).

• Information is awaited on measures taken or envisaged by the Turkish authorities to give proper redress to the applicants.

General measures: In a letter dated 11/09/2007, the Turkish authorities mentioned various legislative changes made in the context of the group of cases against Turkey concerning the actions of security forces. The provisions referred to included in particular Articles 94, 95 and 96 of the new Criminal Code No. 5237 regarding the crime of torture and ill-treatment, amended Article 2 of the Law No. 4483 on the prosecution of civil servants for crimes committed during the performance of their duties, and Article 161 of the new Code of Criminal Procedure regarding the authority of public prosecutors to launch proceedings against members of the security forces (for a detailed presentation of these measures, see Interim Resolution CM/ResDH(2008)69 adopted at the 1035th meeting (September 2008).

In addition, the authorities pointed out Article 85 of Law no. 5275, regulating the conditions that apply to prison visits and meetings with detained persons.

Finally, the authorities informed the Secretariat that on 20/08/2002 the Ministry of Justice (Prison Department) had addressed a circular to prosecutors recommending that they display diligence and vigilance in the application of the EU harmonisation laws.

• Assessment: The new legislative framework referred to by the authorities concerning, in particular, the crime of torture and ill-treatment is welcome. On the other hand, it may be noted that the disproportionate use of force in quelling a prison riot might call for specific measures, such as training of security forces on physical confrontation with incarcerated persons, among others.

• Therefore, information is awaited on general measures specifically designed to ensure that the force to be used in possible clashes with prison inmates are within the acceptable limits set by the requirements of the Convention.

On a separate note, both judgments have been translated and distributed to the relevant judicial authorities. Copies of them are also made available on the Ministry of Justice website at the following links:

www.inhak-bb.adalet.gov.tr/aihm/karar/kemalgomi20022008.doc;

www.inhak-bb.adalet.gov.tr/aihm/karar/kurnazvedigerleri.doc.

32597/96           Dinç Halit and others, judgment of 19/09/2006, final on 19/12/2006

The case concerns the killing of the applicants’ relative, a staff-sergeant, as a result of shots fired by a certain sergeant A.A during an illegal passage by a group of smugglers over the Turkish-Syrian border in 1994. The criminal proceedings initiated against A.A are still pending before the Military Courts.

The European Court noted first that the instruction given by the regimental commander to open fire without warning in their duty to control the border in the evening was found to be justified by the Military Court of Cassation. According to the Court, this legal framework fell short of the required level of protection by law in European democratic societies today and, consequently, the Turkish military authorities had not done all that could reasonably be expected of them to protect people from the use of potentially lethal force and to avoid the risk to life engendered by military operations in the border zone. The Court also found that the authorities had failed to carry out an effective investigation in that the deficiencies in the initial stage of the investigation made it impossible, after twelve years of proceedings, to identify beyond reasonable doubt those responsible for the death of the applicants’ relative. The Court lastly found that the applicants did not have any effective remedy for their grievances under the Convention (violations of Articles 2 and 13).

Individual measures: It may be noted that in accordance with the Committee of Ministers' well-established practice, the respondent state has a continuing obligation to conduct effective investigations, a fortiori in case of a finding of a violation of Article 2 (see in particular Interim Resolution ResDH(2005)20 in the case of McKerr and others against the United Kingdom, the case of Scavuzzo-Hager and others against Switzerland, the cases concerning the action of security forces in the Russian Federation).

• Information is awaited on measures taken or envisaged by the Turkish authorities to ensure a fresh investigation into the incident in the light of the shortcomings identified by the European Court. Information is also awaited concerning the outcome of the proceedings before the domestic courts.

General measures:

• Information is awaited on the measures taken or envisaged by the Turkish authorities with a view to preventing new, similar violations. At the outset, the publication and dissemination of the judgment to the relevant authorities appear necessary.

The Secretariat sent an initial-phase letter to the Turkish authorities. Their reply is awaited.

39437/98          Ülke, judgment of 24/01/2006, final on 24/04/2006

                       Interim Resolution CM/Res/DH(2007)109

The case concerns the degrading treatment of the applicant as a result of his repeated convictions and imprisonment for having refused to perform military service (violation of Article 3).

The applicant was called up in August 1995, but refused to do his military service on the ground that he had firm pacifist convictions, and he burned his call-up papers in public at a press conference. In January 1997 the applicant was sentenced to six months' imprisonment and a fine.  Between March 1997 and November 1998 the applicant was convicted on eight occasions of “persistent disobedience” on account of his refusal to wear military uniform. During that period he was also convicted on two occasions of desertion, because he had failed to rejoin his regiment. In total, the applicant served 701 days of imprisonment.

The European Court first noted that on each occasion the applicant was freed having serving his sentence, he was once again sentenced and imprisoned for refusing to perform his military service and to wear his uniform. If the applicant persists in refusing to perform his compulsory military service, he has to live the rest of his life with the risk of being sent to prison.

The Court further noted that there was no specific provision in Turkish law governing the sanctions for those who refused to perform military service on conscientious or religious grounds. The only relevant applicable rules were provisions of the Military Criminal Code, which made any refusal to obey the orders of a superior an offence. In the Court's opinion, that legal framework was evidently not sufficient to provide an appropriate means of dealing with situations arising from the refusal to perform military service on account of one's beliefs. The numerous prosecutions already brought against the applicant and the possibility that he is liable to prosecution for the rest of his life amounted almost to “civil death” which was incompatible with the punishment regime of a democratic society within the meaning of Article 3.

Individual measures: The applicant is at present in hiding and is wanted by the security forces for execution of his sentence. He has no official address and has broken off all contacts with the administrative authorities.

In response to the specific measures requested by the applicant, the European Court indicated that it was primarily for the state concerned to choose, subject to supervision by the Committee, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention.

            1) Events after the judgment of the European Court became final: On 12/07/2007 the applicant's representatives informed the Secretariat that the applicant had been summoned on 09/07/2007 to present himself in order to serve his outstanding sentence resulting from a previous conviction (This information was communicated to delegations on 03/08/2007, DD(2007)440). Several NGOs, both in and outside Turkey, have shown their interest and conveyed their concerns for the applicant's situation.In the meantime, the applicant's request for a stay of execution of his sentence was rejected by the Eskişehir Military Court on 27/07/2007. In its decision the court referred to the decision taken by the Committee at its 997th meeting (June 2007) and to the undertaking of the Turkish authorities at that meeting concerning the draft law that was under preparation in order to find a solution to the applicant's situation. However, according to the court, the undertaking of the Turkish authorities could not lead to a stay of execution of the applicant's sentence because the content of the law under preparation - including whether or not it contained provisions that would apply for or against the applicant's case - was unknown. The court, therefore, sentenced the applicant to 17 months and 15 days' imprisonment on the basis of his previous convictions. The applicant lodged a petition of objection with the Military Court of Cassation on 03/08/2007. The case is still pending before that court.

            2) Interim resolution adopted at the 1007th meeting (October 2007): In the absence of any information on individual measures taken, despite the declaration of the Turkish authorities that a draft law was being prepared which was intended to cover the individual measures necessary in this case (see below), the Committee decided to adopt Interim Resolution (CM/ResDH(2007)109) urging Turkey without further delay to take all necessary measures to put an end to the violation of the applicant's rights under the Convention and to adopt rapidly the legislative reform necessary to prevent similar violations of the Convention. The Committee further decided to examine the implementation of this judgment at each human rights meeting until the necessary urgent measures are adopted.

General measures:

• Information provided by the Turkish authorities (997th meeting): A draft law was being prepared by the competent Turkish authorities aiming to prevent new violations of Article 3 similar to that found in the present case and that this draft law would be transmitted to the Prime Minister's Office for submission to Parliament. This law, once adopted, will prevent repetitive prosecutions and convictions of those who refuse to perform military service for conscientious or religious reasons on grounds of “persistent disobedience” of military orders. According to the Turkish authorities, this draft law is intended to remedy all negative consequences of the violation for the applicant.

The Turkish authorities also gave information on the publication and dissemination of the judgment to the relevant authorities. The judgment of the European Court also received wide media coverage.

At the same meeting the Committee invited the Turkish authorities to submit a copy of this draft law and encouraged them to take the necessary steps to ensure its rapid adoption by the Parliament. No information on the adoption of this law, including its draft, has been received so far.

The Deputies, 1.             recalled Interim Resolution CM/ResDH(2007)109 adopted in October 2007, in which the Committee urged the Turkish authorities “to take without further delay all necessary measures to put an end to the violation of the applicant's rights under the Convention and to adopt rapidly the legislative reform necessary to prevent similar violations of the Convention”; 2.             noted with grave concern that, despite the above Interim Resolution and the Committee’s repeated calls on Turkey to take the necessary measures, the applicant's situation remains unchanged and that he is still facing the risk of imprisonment on the basis of a previous conviction; 3.             recalled the European Court's finding in this case that the possibility that the applicant is liable to prosecution for the rest of his life amounted almost to “civil death” which was incompatible with the punishment regime of a democratic society within the meaning of Article 3; 4.             decided to resume examination of this case at their 1051st meeting (17‑19 March 2009) (DH), in the light of a second interim resolution unless the Turkish authorities provide information to the Committee on the measures required.

46827/99          Mamatkulov and Askarov, judgment of 04/02/2005 - Grand Chamber

16348/05           Mostafa and others, judgment of 15/01/2008, final on 15/04/2008

The case of Mamatkulov and Askarov concerns the applicants' extradition to Uzbekistan on 27/03/1999 following a decree issued by the Turkish Cabinet on 19/03/1999 despite the European Court's request for interim measures (Rule 39) indicating on 18/03/1999 to the government that “it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to extradite the applicants to Uzbekistan until the Court had had an opportunity to examine the application further at its forthcoming session on 23 March”. Both applicants, who were charged in Uzbekistan with murder and a terrorist bomb attack on the Uzbek President, were convicted by the Uzbek courts on 28/06/1999 and sentenced to 20 and 11 years' imprisonment respectively.

Pending their extradition, the applicants complained before the European Court that there were substantial grounds for believing that they would be subjected in Uzbekistan to treatment proscribed by Article 3. They further complained under Article 6 of the unfairness of the extradition proceedings in Turkey and of the criminal proceedings in Uzbekistan.

On 19/04/1999 the Turkish government informed the Court that it had received assurances from the Uzbek authorities that the applicants' property would not be liable to general confiscation and that the applicants would not be subjected to acts of torture or sentenced to capital punishment. The Uzbek authorities further noted that the Republic of Uzbekistan was a party to the United Nations Convention against Torture and accepted and reaffirmed its obligation to comply with the requirements of the provisions of that Convention.

The European Court, reiterating Contracting states' undertaking to refrain from any act or omission that might hinder the effective exercise of an individual applicant's right of application, found that a failure by a Contracting state to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant's complaint and as hindering the effective exercise of his or her right (violation of Article 34). The Court also found that, as a result of Turkey's failure to comply with its obligation under Article 34, it was prevented from assessing the applicants' complaints under Articles 3 and 6 of the Convention.

The case of Mostafa and others also concerns interference with the effective exercise of the applicants’ right of individual petition to challenge an extradition as a result of the authorities’ failure to comply with an interim measure indicated by the European Court under Rule 39 (violation of Article 34).

The applicant family, of Iraqi nationality, arrived in Turkey in 2000. After the United Nations High Commissioner for Refugees in Ankara denied them refugee status, the Ministry of the Interior decided to extradite them on 6/08/2005.

Having received a petition alleging potential violations of Articles 2 and 3 in the event of extradition, the European Court indicated to the authorities on 4/05/2005 that under Rule 39 it was desirable in the interests of the parties and the proper conduct of the proceedings not to extradite the applicants pending its decision on the case. However, on 11/05/2005 they were deported to northern Iraq where they currently live. In March and September 2007, the applicants corresponded with the Court’s Registry claiming that they had faced political and other problems after the extradition and solicited the Court’s assistance so as to be able to immigrate to Europe. The European Court found the applicants’ allegations manifestly ill-founded (§27 of the judgment). However, it held that the applicants’ removal to Iraq hampered the proper examination of their complaints.

Individual measures and payment of just satisfaction:

            1) Mamatkulov and Askarov case: the Turkish authorities paid the amount of just satisfaction awarded by the Court into escrow because the applicants' representatives were unable to provide a valid power of attorney to the authorities (one applicant’s name was false as he used a counterfeit passport and the other applicant’s name was not spelled correctly). In a letter of 09/03/2007 the applicants' representatives informed the Secretariat that they were unable to withdraw the just satisfaction from the escrow account because it was impossible for them to meet with their clients in Uzbekistan due to security concerns. On 30/10/2007, the Secretariat inquired whether the Turkish authorities could obtain declarations from the applicants designating persons who could either withdraw the amounts in escrow or give valid powers of attorney to the applicants’ representatives in Turkey who in turn could withdraw those amounts.

At the 1035th meeting (September 2007), the Turkish delegation informed the Committee of Ministers that they had followed the Secretariat’s suggestion and that the Turkish ambassador in Uzbekistan contacted Mr Mamatkulov’s wife. Mrs. Mamatkulov then tried to obtain such a declaration from her husband but her attempt proved unsuccessful because of the restrictions imposed by the prison authorities. The Turkish authorities could not contact the other applicant, Mr Askarov, and sending a notary directly to the prison was not a practicable option. The authorities are currently exploring other options.

• Information is awaited in writing as to any developments in this regard.

2) Mostafa and others case: the applicants did not submit any request in respect of just satisfaction.

General measures: It should be noted that failure to comply with an interim measure in the context of a deportation, constitutes an irreversible hindrance to the effective exercise of the right of individual petition of the deported applicants. For this reason, it is all the more important to implement general measures to prevent such future violations.

At the 1035th meeting (September 2007), the Turkish delegation informed the Committee of Ministers that all competent authorities had been duly notified and informed of their obligation under the Convention to abide by the Court’s decisions indicating interim measures. The Tuirkish authorities expressed that they had, ever since, complied with each and every interim measure indicated by the European Court under Rule 39, except for the unfortunate incident in the case of Mostafa and others. The measures implemented otherwise proved effective. The judgment was also published and widely disseminated to all relevant authorities.

• Assessment: The measures taken so far are welcome. Nevertheless, at the 1035th meeting, the Committee of Ministers invited the Turkish authorities to provide further information on additional measures envisaged to prevent similar violations in the future.

• Further information is therefore awaited.

28290/95           Güngör, judgment of 22/03/2005, final on 22/06/2005[65]

48939/99           Ôneryıldız, judgment of 30/11/2004 - Grand Chamber

The case concerns a methane explosion which occurred in April 1993 in Ümraniye, Istanbul at a rubbish tip, causing a landslide and killing 9 close relatives of the applicant and destroying his house and movable property.

The applicant's house was situated in a slum quarter where dwellings had been built without authorisation on land surrounding the rubbish tip which had been used jointly by four district councils under the authority and responsibility of Istanbul City Council. An expert report drawn up in May 1991 drew the authorities' attention to, among other things, the fact that no measures had been taken at the tip in question to prevent an explosion of the methane generated by the decomposing refuse. However, no measures had been taken by the authorities.

After the explosion, criminal and administrative investigations had been carried out into the case and the mayors of Ümraniye and Istanbul were brought before the courts with the authorisation of the Administrative Council to prosecute. In April 1996 both mayors were convicted of "negligence in the performance of their duties" under Article 230 of the Criminal Code and were fined and sentenced to the minimum three-month term of imprisonment. Their sentences were subsequently commuted to fines, the enforcement of which was suspended. The applicant subsequently brought compensation proceedings, holding the authorities liable for the death of his relatives and the destruction of his property. In November 1995 the authorities were ordered to pay the applicant the equivalent at the material time of 2 077 euros and 208 euros for non-pecuniary and pecuniary damages. Those amounts have not been paid to the applicant.

As to the responsibility borne by the state for the deaths, the European Court found that the Turkish authorities knew or ought to have known that there was a real and immediate risk, at least after the notification of the report of May 1991, to a number of persons living near the Ümraniye municipal rubbish tip and that they had failed to take necessary and sufficient measures to protect the lives of those individuals (violation of Article 2).

As to the responsibility borne by the state as regards the nature of the investigation, the Court found that the national courts had failed to carry out an adequate investigation into the death of the applicant's close relatives capable of securing the full accountability of the authorities or the effective implementation of provisions of domestic law guaranteeing respect for the right to life, in particular the deterrent function of criminal law. In this respect, the Court criticised the fact that the Administrative Council dropped the charges against the Ministry of the Environment and the Government authorities and sought to limit the charge to "negligence" under Article 230 of the Criminal Code, which did not relate to life-endangering acts or to the protection of the right to life (violation of Article 2).

Having regard to the above reasons, the Court also found that the Turkish authorities had failed in their positive obligation to take the necessary steps to avoid the destruction of the applicant's house (violation of Article 1 of Protocol No. 1).

Lastly, the Court found that the administrative proceedings had not provided the applicant with an effective remedy either in respect of the state's failure to protect the lives of his relatives or the destruction of his household goods, since the amounts awarded by domestic courts had never been paid (violation of Article 13).

Individual measures: The damage caused by the violations, including the unpaid sums awarded by domestic courts, has been covered by the just satisfaction awarded by the European Court.

General measures: The Turkish authorities submitted the following information on 10/06/2005 and 08/04/08 in reply to the Secretariat's letter of 01/03/2005 requesting a plan of action for the execution of this judgment:

1. Following the explosion, the Ümraniye tip has been covered with earth by decision of the local council which has also installed air ducts on it. Furthermore, a rehabilitation project has been put into force by the Istanbul Metropolitan Municipality, which has planted trees on the area of the former site of the tip and has had a sport grounds laid down.

2. The new Criminal Code, which came into force on 01/06/2005, sanctions both intentional and unintentional disposal of hazardous substances in a way that might cause damage to the environment. Any person disposing such hazardous substances shall be liable to terms of imprisonment ranging from two months to two years. The Code also provides that the terms of imprisonment shall be increased if the disposal of hazardous substance leaves permanent damage to human health and to the environment.

3. Article 257 of the new Code provides that any public official acting contrary to the requirements of public duty in a way that might constitute damage to the public or cause damage to individuals shall be liable to a term of imprisonment from one year to three years'. If the public official neglects his or her duty or carries it out with delay, he or she shall be liable to a term of imprisonment from six months to two years.

4. The full text of the Regulation on Solid Waste of 1991 with subsequent amendments has been submitted to the Secretariat by the Turkish authorities.

5. A strategic plan for solid waste management in Istanbul, guided by the environmental regulations of the European Union, was prepared and put into practice.

6. With respect to the prevention of slums, Articles 154 and 184 of the new Penal Code which came into force on 1/06/2005 provides criminal penalties against those who occupy, use, alter, construct unauthorised buildings on, change the boundaries of, or prevent the use of places belonging to the public. Any person who encourages these activities by providing utilities to such illegal occupations shall also be criminally liable.

7. The judgment of the European Court was published and distributed. It is available on the websites of the Ministry of Justice and the Court of Cassation.

Regarding the violation of Article 13, the measures taken to ensure the executive’s respect for domestic court decisions are being examined within the Kılıç Ahmet group of cases (section 4.2).

• Information awaited: Having regard to the Court's finding concerning the ineffectiveness of the investigation carried out at the domestic level following the explosion, the Turkish authorities are expected to clarify as to what measures they have taken or envisage taking so that a system of effective investigation capable of securing full accountability of state agents could be provided (including the issue of ensuring prosecutions even where administrative authorisations are required to prosecute).

70417/01           Avcı and others, judgment of 27/06/2006, final on 27/09/2006

2778/02 Yıldırım Hüseyin, judgment of 03/05/2007, final on 03/08/2007

These cases concern degrading treatment inflicted on the applicants during their detention in prison (violations of Article 3).

In the case of Avci and others, the applicants were attached to their beds by the ankle while in an intensive care unit in a coma. In view of the state of their health and the lack of any real risk of their absconding, the Court considered that the restraint measure had been disproportionate to the security requirements.

In the Yıldırım Hüseyin case, the applicant was suffering from paralysis during his detention. Despite the applicant’s physical incapacity and medical reports indicating that he was unsuited to incarceration, he was kept in detention on remand for almost three years (violation of Article 3

The case of Avci and others also concerns the violation of the applicants’ right to an effective remedy in the face of the decision not to prosecute the responsible gendarmes (violation of Article 13).

Individual measures:

1) Avcı and others: The Turkish authorities responded on 11/05/2007 to the Secretariat's initial phase letter submitting that no investigation had been initiated by the Izmir Public Prosecutor.

2) Yıldırım Hüseyin: the applicant was pardoned on the basis of Art 104 b of Constitution in June 2004.

• Information is still awaited on measures that the Turkish authorities envisage to remedy the shortcomings in the investigations carried out against the allegedly responsible gendarmes.

General measures: The Turkish authorities first referred to the Regulation on the Administration of Prisons, Execution of Sentences and Security Measures. Secondly, they submitted information on a protocol signed between the Ministry of Interior and Ministry of Health on 30/10/2003 concerning the conditions of hospitalization of detainees in hospitals, the security measures to be taken in hospitals and the conditions for creating prison health units in hospitals. However, neither the regulation nor the protocol seems to contain any provisions on restraint measures.

• Information is awaited on measures taken or envisaged by the authorities to prevent new, similar violations.

26050/04           Gürbüz, judgment of 10/11/2005, final on 10/02/2006

24040/04           Kuruçay, judgment of 10/11/2005, final on 10/02/2006

7454/04            Uyan, judgment of 10/11/2005, final on 10/02/2006

22913/04           Yıldız Tekin, judgment of 10/11/2005, final on 10/02/2006

In all these cases, the European Court considered that there would be violations of Article 3 if the authorities decided to re-imprison the applicants, who had previously been freed for health reasons, unless there had been a significant change in their medical capacity to endure such hardship. All the applicants had initially been sentenced to various terms of imprisonment for membership of terrorist organisations. While serving their sentences, the applicants were diagnosed as suffering from Wernicke-Korsakoff Syndrome (encephalopathy consisting in the loss of certain cerebral functions, resulting from a deficiency of vitamin B1 (thiamine)) as a result of being on hunger-strike.

The European Court found that the initial diagnosis of Wernicke-Korsakoff Syndrome was confirmed by various medical tests, including the findings of a panel of experts appointed by the Court, and that the applicants’ condition was judged to be incompatible with detention. Moreover, the applicants presented major cerebellar impairment which could be considered irreversible.

In addition, in the case of Yıldız Tekin, the Court found that the applicant’s re-imprisonment between 21/11/2003 and 27/07/2004 had amounted to inhuman and degrading treatment in view of his state of health (violation of Article 3).

Individual measures:

• Information provided by the Turkish authorities (08/06/2006): All the applicants’ prison sentences were suspended: on 28/04/2004 in the Gürbüz case, on 11/03/2005 in the case of Yıldız Tekin and on 15/09/2004 in the Uyan case. The suspensions were issued for an unlimited period of time, to remain continuously valid unless the applicants were to recover from Wernicke-Korsakoff Syndrome (subject to forensic reports to that effect) and thus become fit to serve their sentences. Accordingly, there is no risk of the applicants’ being re-imprisoned for as long as they suffer from the syndrome. The applicant in the case of Günnaz Kuruçay is at large and the conviction against her is still valid.

The Turkish authorities further indicated on 24/07/2006 that following the entry into force of the new Criminal Code in June 2005, the applicants applied to domestic courts requesting the adjustment of their sentences in accordance with the new legislation which provides lower sentences for the crimes of which they had been convicted.

On 21/08/2007, the authorities also informed the Secretariat that the Istanbul 10th Assize Court had given a new decision on 21/02/2007 regarding the execution of Tekin Yıldız’s sentence. The court decided that, in view of the period already spent in detention, the applicant was considered to have served the entirety of his sentence. Accordingly, the applicant is no longer under threat of a potential arrest warrant.

• Assessment: Under these circumstances, no further individual measure seems necessary.

General measures: In the light of the conclusions of the European Court’s fact-finding mission in Turkey concerning 53 other similar cases, the Court found it necessary to assist the government by indicating the measures that it considered appropriate to fulfil its obligations under Article 46 of the Convention. In the Court’s opinion, the main problem was related to the practice of judges in issuing “arrest warrants” for convicted persons while they were released provisionally for health reasons. It appeared from the case-files that the arrest warrants were issued in the following instances: (i) when a detainee is required to be re-examined by the Institute of Forensic Medicine (e.g. in the case of Uyan); (ii) when assessing the situation of a detainee after the expiry of the suspension of his sentence or (iii) when a decision to re-imprison a detainee has to be given following a negative opinion of the Institute of Forensic Medicine (e.g. in the case of Gürbüz). As far as the first two instances are concerned, the negative consequences of issuing arrest warrants and the re-imprisonment of detainees for failure to undergo a medical examination may be overcome by issuing of a “judicial invitation” or a “summons to appear”, which are possible under the Criminal Code. In the third instance, the Court observes a procedural shortcoming on account of the impossibility for a detainee to challenge the findings of a negative report against him as a result of the application of Article 15 of Law No. 2659 on the Institute of Forensic Medicine.

• Information provided by the Turkish authorities (24/07/2006):

The Law on Execution of Sentences and of Security Measures (Law No. 5275) provides that prisoners who refuse nutrition for whatever reason shall be informed by prison doctors of the negative consequences, including the physical and psychological damage inherent in such a refusal. Social services shall ensure that prisoners are encouraged not to refuse nutrition. In case of persistent refusal, their diet shall be determined by prison doctors. Prisoners who persistently refuse nutrition and whose health deteriorates as a result, shall be given medical care in prisons or in hospitals (if necessary) whether or not they so wish, provided that their conditions pose a fatal threat to their health.

In any event, all measures indicated aimed at the protection of the health of the prisoners shall be carried out under the supervision of the medical staff.

• Assessment: The information submitted by the Turkish authorities appears to be useful in showing that Turkish law now provides additional safeguards for the protection of the health of prisoners, in particular those who decide to go on hunger strike.

• Information is awaited, however, on whether or not the practice of issuing “arrest warrants” for convicted persons while provisionally released for health reasons is still applied.

29986/96           A.D., judgment of 22/12/2005, final on 22/03/2006

The case concerns the applicant's arrest, ordered by a lieutenant-colonel for disobeying military orders while the applicant was serving as a sergeant in the armed forces in 1994. The applicant's arrest and his detention for 21 days were based on Article 171 of the Military Criminal Code, which authorises lieutenant-colonels to order such disciplinary sanctions in cases of disobedience. The applicant’s request for appeal was rejected because according to Article 21 of Law on Supreme Military Administrative Court (Law No. 1602) disciplinary sanctions are not subject to judicial review.

The European Court noted that the applicant had been detained on the orders of his superior officer who, exercising his authority within the military hierarchy reported to other higher authorities and was thus not independent of them. Reiterating that the deprivation of a person's liberty should only be ordered by a competent court offering judicial guarantees, the Court found that disciplinary proceedings before a military superior did not provide the judicial guarantees required (violation of Article 5§1(a)). 

General measures:

• Information provided by the Turkish authorities: In their reply of 27/09/2006 to the Secretariat’s initial- phase letter of 06/06/2006 the Turkish authorities gave the following information:

1. Article 171 of the Military Criminal Code was amended on 26/03/2006 to reduce the penalty for disobedience from 21 to 7 days’ detention.

2. The judgment of the European Court was translated into Turkish and sent out to the relevant authorities. The Turkish translation of the judgment is also available at the website of the Court of Cassation (http://www.yargitay.gov.tr/aihm/pdf/29986_96pdf).

At the 1013th meeting (December 2007) the Turkish authorities indicated that an amendment had been proposed to change Article 171 of the Military Criminal Code.

• Information is awaited on the progress achieved in the adoption of this draft law.

                       - Cases concerning the independence and impartiality of military disciplinary courts

39429/98           Bayrak, judgment of 03/05/2007, final on 24/09/2007

27341/02           Veyisoğlu, judgment of 26/06/2007, final on 26/09/2007

These cases concern the lack of independence and impartiality of military disciplinary courts in proceedings against the applicants under Articles 56 and 38 of Law No. 477 (violations of Article 6§1). The applicants were sentenced to 75 and 40 days' imprisonment respectively.

The European Court found that the members of the military disciplinary court were under the orders of the military hierarchy and their term of office was limited to 1 year. Furthermore the European Court noted in İrfan Bayrak judgment that the superior (appeal) court offered no appropriate guarantees to remedy these deficiencies.

Individual measures: The applicants are no longer detained.

General measures: On 13/02/2008, the Turkish authorities indicated that preparatory work was under way for the necessary measures to be adopted.

• Information is awaited on measures taken to prevent new, similar violations.

1448/04            Zengin Hasan and Eylem, judgment of 09/10/2007, final on 09/01/2008

The case concerns the refusal of the authorities to exempt a state school pupil, whose family was of the Alevi faith, from mandatory lessons on religion and morals (violation of Article 2 of Protocol No. 1.

The applicants, Hasan Zengin and his daughter Eylem Zengin are followers of Alevism, a branch of Islam which has deep roots in Turkish society and history. Its religious practices differ from those of the Sunni schools in certain aspects such as prayer, fasting and pilgrimage. At the time the application was lodged, Eylem Zengin was a seventh grade pupil at a state school, and as such, she was obliged to attend classes in religious culture and ethics, which are compulsory subjects for Turkish primary and secondary schools under Article 24 of the Turkish Constitution and Article 12 of National Education Law No. 1739.

In 2001, Mr Zengin submitted requests to the Directorate of National Education and before the administrative courts for his daughter to be exempted from these lessons, pointing out in particular that no teaching was provided in those classes on his daughter’s faith. The requests for exemption were dismissed, most recently on appeal before the Supreme Administrative Court in April 2003.

In the course of the proceedings, the European Court examined the Ministry of Education’s guidelines for lessons in religious culture and ethics and the relevant school textbooks. This examination revealed that the syllabus in primary schools and the first cycle of secondary school as well as textbooks gave greater priority to knowledge of Islam than to that of other religions and philosophies. Although the Court explained that this in itself could not be viewed as indoctrination, it was appropriate to examine whether the information or knowledge was disseminated in an objective, critical and pluralist manner, given that attendance at these classes was likely to influence the minds of young children. The Court established that the Alevi faith had features distinct from the Sunni understanding of Islam which was taught in schools. In the “religious culture and morals” lessons, the religious diversity which prevailed in Turkish society was not taken into account. In particular, pupils received no teaching on the confessional or ritual specificities of the Alevi faith, although the proportion of the Turkish population belonging to it was very large. Certain information about the Alevis was taught in the 9th grade, but, in the absence of instruction in the basic elements of this faith in primary and secondary school, this was insufficient to compensate for the shortcomings in the teaching. Accordingly, the instruction provided in these classes could not be considered to meet the criteria of objectivity and pluralism, enabling pupils to develop a critical mind with regard to religious matters, nor to respect the religious and philosophical convictions of the parent of a pupil who belonged to the Alevi faith, on the subject of which the syllabus was clearly lacking.

The Court further examined whether appropriate means existed in the Turkish education system to ensure respect for parents’ convictions. The class in question was a compulsory subject, but a possibility for exemption had existed since 1990 for children of Turkish nationality whose parents belonged to the Christian or Jewish religion, provided they affirmed their adherence to one of those religions. According to the government, this possibility for exemption could be extended to other convictions if such a request was submitted. Nonetheless, whatever the scope of this exemption, the fact that parents were obliged to inform the school authorities of their religious or philosophical convictions made this an inappropriate means of ensuring respect for their freedom of conviction. In the absence of any clear text, the school authorities always had the option of refusing such requests. In consequence, the exemption procedure was not an appropriate method and did not provide sufficient protection to those parents who could legitimately consider that the subject taught was likely to give rise in their children to a conflict of allegiance between the school and their own values. No possibility for an appropriate choice had been envisaged for the children of parents who had a religious or philosophical conviction other than that of Sunni Islam, where the procedure for exemption was likely to subject those parents to a heavy burden and to the necessity of disclosing their religious or philosophical convictions.

Individual measures: Ms Zengin is now of college age and no longer attends a state secondary school.

• Assessment: under these circumstances, no further individual measure seems necessary.

General measures: The Court concluded that, with regard to religious instruction, by failing to meet the requirements of objectivity and pluralism and to provide an appropriate method for ensuring respect for parents’ convictions, the Turkish educational system was inadequate. The violation found originated in a problem related to implementation of the syllabus for religious instruction in Turkey and the absence of appropriate methods for ensuring respect for parents’ convictions. In consequence, the Court considered that bringing the Turkish educational system and domestic legislation into conformity with Article 2 of Protocol No. 1 would represent an appropriate form of compensation.

• The Turkish authorities are invited to present an action plan for the execution of this judgment, taking into account the European Court’s specific indication of an appropriate general measure.

• Publication and dissemination of the European Court’s judgment to the relevant authorities are also expected, so as to draw their attention to their Convention requirements as they arise from the judgment.

25321/02           Ülger, judgment of 26/06/2007, final on 26/09/2007

The case concerns a violation of the applicant’s rights of access to a court and to peaceful enjoyment of his possessions.

In March 2001, a labour court, in a dispute between the applicant and his employer,  handed down a judgment favourable to the applicant and ordered the employing company to pay outstanding court fees, which it failed to do. In order to initiate enforcement proceedings, the applicant asked for the judgment to be served on him. However, the court informed him that under Article 28(a) of the Law on Charges, this was not possible until all outstanding court fees had been paid. The court thus invited the applicant to pay all the fees if he wished to obtain a copy of the judgment, explaining that he would later be reimbursed at the enforcement phase. The applicant could not do so as he lacked the necessary means at the time; therefore he was unable to obtain enforcement of the judgment.

The European Court found that by shifting to the applicant the full responsibility to deposit the court fees, the state failed in its positive obligation to organise an effective system of enforcement of judgments (violations of Article 6§1 and of Article 1 of Protocol No. 1°.

Individual measures: The European Court awarded the applicant just satisfaction in respect of pecuniary damages equivalent to the amount due under the domestic judgment, as well as non-pecuniary damages and costs and expenses.

• Assessment: Under these circumstances, no other individual measure seems required.

General measures:

• Information is awaited on the possibility of amending Article 28(a) of the Law on Charges to bring it in line with the Convention’s requirements, or any other measure taken or envisaged by the authorities to prevent similar, future violations.

70516/01           Dağtekin and others, judgment of 13/12/2007, final on 13/03/2008, rectified on 21/05/2008

The case concerns the unfairness of civil proceedings brought by the applicants to complain of the fact that the Ministry of Agriculture had renounced the applicants’ leasehold of agricultural land situation in the South-East, a measure taken in 1997 following a security enquiry. The courts rejected the applicants’ appeal even though the Ministry refused to disclose the documents on the basis of which the lease had been renounced.

The European Court held that the conclusions of the security investigation were not revealed to the applicants or the courts, and that the applicants had been deprived of sufficient safeguards against any arbitrary action on the part of the authorities (violation of Article 6§1).

Individual measures:

• Information is awaited on possible individual measures envisaged or taken to remedy the violation found.

General measures: Under the last sentence of Article 22§3 of Law no 2577 on administrative procedure, no defence submission by the administration is taken into account by the courts if it is based on information or documents withheld on grounds of national security or vital interests of the state.

• Assessment: This provision appears to be in line with the Convention’s requirements as it excludes this type of defence from administrative proceedings.

• Information is awaited on the publication and dissemination of the European Court’s judgment to the judicial authorities.

50939/99           Bakan, judgment of 12/06/2007, final on 12/09/2007

The case concerns an administrative court’s refusal of the applicants’ petition for legal aid on the ground that at that stage of the proceedings and in the light of the evidence submitted to it, the applicants’ action for compensation for the death of a relative was ill-founded.

The court thus asked the applicants to pay, within 30 days, court fees amounting to about 170 euros. In November 1998 the court ruled the application not duly lodged on account of their failure to pay the court fees.

The European Court observed that the amount to be paid in court fees represented a considerable sum for the applicants, who no longer had any source of income following the death of their relative. It noted in particular that the refusal of the request for legal aid had totally deprived the applicants of the possibility of taking their case to court. In the light of those considerations, and in particular of the fact that the restriction came at the initial stage of the proceedings, the Court found that the state had not discharged its obligation to regulate the right of access to a court in a manner compatible with the requirements of Article 6§1.

Individual measures: The Court awarded the applicants significant just satisfaction in respect of their damages.

• Assessment: Under these circumstances, no other individual measure seems required.

General measures:

• Information is awaited on measures taken or envisaged by the authorities to prevent similar future violations.

- Cases mainly concerning the freedom of assembly and the use of force to break up illegal but peaceful demonstrations

74552/01           Ataman Oya, judgment of 05/12/2006, final on 05/03/2007

32124/02+         Aldemir Nurettin and others, judgment of 18/12/2007, final on 02/06/2008

25/02               Balçık and others, judgment of 29/11/2007, final on 29/02/2008

68263/01           Şahin and others, judgment of 21/12/2006, final on 21/03/2007

These cases concern violations of the applicants’ right to freedom of assembly and excessive use of force to break up unlawful but peaceful demonstrations.

In the case of Oya Ataman concerns a violation of the applicant’s right to freedom of assembly in that in 2000 the authorities used force to break up, an unlawful but peaceful demonstration by 40-50 people, including the applicant. The applicant had organised the demonstration in Istanbul, in the form of a march followed by a statement to the press, to protest against a certain government plan. When the demonstrators refused to break up, the police dispersed them, thereby preventing the statement to the press from taking place.

The European Court established that the gathering was unlawful. However, it explained that an unlawful situation could not justify an infringement of freedom of assembly. The Court drew attention to the fact that there was no evidence to suggest that the demonstrators had represented any danger to public order, apart from possibly disrupting traffic. The rally had ended with the group's arrest within half an hour only. The Court was particularly struck by the authorities' impatience in seeking to end the demonstration organised under the authority of a human rights association. In the Court's view, where demonstrators did not engage in acts of violence it was important for the public authorities to show a degree of tolerance towards peaceful gatherings. In those circumstances, the Court considered that the police's forceful intervention had been disproportionate and had not been necessary for the prevention of disorder (violation of Article 11).

Likewise, in the case of Nurettin Aldemir and others, the European Court found a violation of the applicants’ right to freedom of assembly on the basis of similar facts (violation of Article 11).

The case of Şahin and others concerns excessive use of force by the police (violation of Article 3) and the ineffectiveness of investigation into the applicants' complaints against police officers (violation of Article 13). In 1998, an allegedly unlawful demonstration took place in Istanbul. When the security forces intervened to break it up, clashes occurred in which demonstrators attacked police officers with batons and stones, resulting in the arrest of 261 people (including the applicants) and the injury of 36 police officers.

The applicants complained to the prosecutor's office that they had sustained injuries due to excessive use of force by the police. Upon examination, the prosecutor's office decided to discontinue the investigation, ruling that the intervention was legitimate and that the applicants' injuries (various bruising) did not disclose disproportionate use of force. The applicants' appeal to an assize court was rejected on the same grounds.

The European Court found that there was domestic legal framework on dispersing demonstrations, laying down acceptable limits to the force that could be used. However, in this case, this framework had proved ineffective as the prosecutor was convinced that the police intervention was necessary and proportionate to the aim pursued.

In the case of Balçık and others the European Court found violations of Articles 3 and 11 on the basis of similar facts.

Individual measures:

• Assessment: Given the circumstances of the cases of Oya Ataman and Nurettin Aldemir and others, no individual measure seems necessary in those cases.

• Information is awaited on any individual measure taken or envisaged by the authorities in the cases of Şahin and others and Balçık and others.

General measures:  

• Information provided by the Turkish authorities (11/09/2007) in the context of Şahin and others: Concerning the amendments to the legislation applicable: Law No. 2911 governing public meetings and demonstrations now contains a detailed description of what constitutes “unlawful” public meetings or demonstrations. Among other things, these provisions include the carrying of firearms, explosives, batons or sharp or penetrative tools; the brandishing of posters, placards and signs associated with illegal organisations or groups; the holding of a public meeting or demonstration other than on the date and time or place notified.

Should a public meeting or demonstration begin as legal but become unlawful (as in the cases listed above), Article 23 of the law now requires the police officer in charge to seek authorisation from the governor before taking action to disperse the gathering. In the case of resistance or aggression by demonstrators against the police or aggression against third parties, the police may intervene using force without further warning. If there are persons among the demonstrators who are carrying guns or other dangerous objects, they will be removed from the group, after which the public meeting or demonstration could continue. The police who intervene must try to strike a balance between individual rights to participate in a public meeting or demonstration, and the prevention of abuses of those rights.

Under Article 25 of the Regulation on police intervention by use of force, in order to disperse an unlawful public meeting or demonstration the police must first warn the group, using loud-speakers, that they must disperse peacefully and that otherwise force shall be used. The same article provides that the use of force must observe the principle of proportionality. Hence minimum force should be used, which then could be increased incrementally, if necessary. Article 4 of the same regulation contains a parallel provision of proportionality when describing “use of force”.

The Turkish authorities also confirmed that the judgment of the European Court has been translated and sent out to judicial authorities, as well as the Ministry of the Interior. The Turkish translation of the judgment is also available on the website of the Ministry of Justice at

<http://www.inhak-bb.adalet.gov.tr/aihm/karar/guzelsahinvedigerleri.doc>.

On 21/04/2008, in the context of the case of Oya Ataman, the Turkish authorities provided information which is being assessed by the Secretariat.

The judgment of the European Court has been published and disseminated. A copy was also posted on the Ministry of Justice website at www.inhak-bb.adalet.gov.tr/aihm/karar/oyaataman10032008.doc as well as on the Court of Cassation website at www.yargitay.gov.tr/aihm/upload/74552-01.pdf.

74611/01+         Dilek and others, judgment of 17/07/2007, final on 30/01/2008, rectified on 28/04/2008

The case concerns the infringement of the applicants’ freedom of assembly and association, in that they were ordered by domestic courts to pay damages to the administration for taking part in a trade union action.

The applicants are civil servants working as toll-booth cashiers on the Bosphorus Bridge in Istanbul and are all members of a public-sector workers’ trade union. In March 1998 and February 1999, they left their work stations for a period of three hours as part of a “go-slow” protest, with the result that motorists were able to drive past the toll barriers without having to pay. The relevant administration brought actions against them for damages caused by lost tolls. Under Article 12§2 of Law No. 657, which provides that civil servants are liable for damages or losses they cause to the relevant administration intentionally or by negligence, the Turkish courts ordered the applicants to pay various amounts in damages.

The European Court noted that the legal basis for the application of Article 12§2 of Law No. 657 was Articles 26§2 and 27 of the same law, according to which it is forbidden for civil servants deliberately to resort to “go-slows” or to strike. Insofar as the measure had been intended to prevent disruption of the proper running of the public service, it pursued legitimate aims including the prevention of disorder. However, the following circumstances of the case did not justify a finding of tort or illegitimate action in the applicants’ trade union action. First, the go-slow protest had been agreed by the trade union and the authorities concerned had received advance warning. By taking part, the applicants had exercised their freedom of peaceful assembly. In addition, the decisions of the Turkish courts holding the applicants civilly liable had been given on account of their participation in the collective action organised by their trade union in order to defend their working conditions. Lastly, the Turkish government did not offer an explanation as to how the trade union would have been able to defend civil servants’ rights by other peaceful means, given the blanket prohibition of collective action. In those circumstances, holding the applicants civilly liable had not been “necessary in a democratic society” (violation of Article 11).

Individual measures: The European Court awarded the applicants just satisfaction in respect of pecuniary damages in an amount corresponding to what they had been ordered to pay the administration.

• Assessment: given the circumstances of the case, it appears that no other consequence remains to be eliminated or remedied for the applicants.

General measures: The violation found in this case resulted from the domestic courts’ interpretation of Article 12§2 of Law No. 657 so as to characterise a peaceful trade union action with advance notice, as tort or illegitimate action. However, such interpretation may be changing, in line with the requirements of the Convention: the European Court noted that in December 2004, the Supreme Administrative Court of Turkey ruled that “the participation of a high-school teacher in a union activity, and his resulting absence without advance notice from his post at the school could not be subject to disciplinary punishment, nor withholding of 1/30th of his salary, on the grounds that this absence without notice could not be considered unjustified” (§36 of the judgment). This reasoning is particularly welcome as it departs from the judgments against the applicants in the present case.

• Information is awaited on more examples, if any, of domestic case-law in line with the Convention’s requirements regarding trade union actions. In addition, the publication and dissemination of the present judgment to the relevant administrative and judicial authorities are expected. Information on any other general measures taken or envisaged is also expected.

- Cases mainly concerning freedom of expression – military conviction for incitement to abstain from compulsory military service

47533/99           Ergin No. 6, judgment of 04/05/2006, final on 04/08/2006

56827/00           Düzgören, judgment of 09/11/2006, final on 09/02/2007

65344/01           Onaran, judgment of 05/06/2007, final on 05/09/2007

70335/01           Yurdatapan, judgment of 08/01/2008, final on 08/04/2008

The Ergin No. 6 case concerns a violation of the right to freedom of expression of the applicant, the editor-in-chief of a newspaper, in that he was fined in 1999, by a military court, under Article 155 of the former Criminal Code for having published statements which were considered to incite to abstention from military service, which is compulsory in Turkey. Similarly, the cases of Düzgören, Onaran and Yurdatapan concern the conviction of the applicants by military courts for distributing leaflets in support of a conscientious objector.

The European Court noted that the actions concerned did not incite to hatred or violence nor aim to provoke immediate desertion and concluded that the convictions were not “necessary in a democratic society” (violations of Article 10).

The European Court also found that the military courts which tried the applicants, entirely composed of military judges, could not be regarded as independent and impartial jurisdictions (violation of Article 6§1).

Individual measures:

            1) Case of Ergin No 6: Confirmation has been received that the applicant's conviction was erased from his criminal record.

            2) Cases of Düzgören Onaran and Yurdatapan:

• Confirmation is expected of the erasure of all consequences of the violation found, namely the removal of the applicants' convictions from their criminal records.

General measures: On 11/10/2006 the Secretariat addressed a letter to the Turkish authorities, inviting them to present an action plan for the execution of the case Ergin no. 6. The authorities submitted an action plan on 12/01/2007.

            1) Violation of Article 10: a new Criminal Code was adopted in June 2005, but does not appear to have decriminalised non-violent expression of opinions on conscientious objection. Article 318 of the new Criminal Code still makes it a crime to incite to abstain from or discourage performance of military service although it now requires an active element, in that, to be a crime, the incitement or encouragement should be capable of accomplishing its aim. Nevertheless, this provision does not seem to require any of the elements that the European Court has referred to, i.e, “incitement to hatred or violence” or “aim to provoke immediate desertion”. Furthermore, §34 of the judgment underlined that the article concerned in the case of Ergin No. 6 was published in a newspaper and was intended for the public at large. This, according to the Court, was an indication that the article could not be considered an incitement to immediate desertion. The second paragraph of Article 318, on the contrary, makes it an aggravating factor to incite to abstention through the medium of press or other media.

• Accordingly, information is expected on the legislative changes or other general measures that the authorities have taken or envisage in order to bring the relevant provisions in conformity with the Convention.

The European Court's judgments were translated and sent out with a circular to the judiciary, so that the relevant courts could take into account of the Convention's requirements when applying domestic law on incitement to abstention from military service.

            2) Violation of Article 6: Law No. 4963, which entered into force in July 2003 (i.e. after the facts at the origin of these cases), provides that military courts no longer have jurisdiction over civilians accused under former Article 155 of the Criminal code. A new Law (No. 5530), which entered into force on 5/07/2006, introduces further limits to the jurisdiction of military courts over civilians. It now appears that the only exception that remains is a “military” crime (one that is described as such under the Military Penal Code as opposed to the general Penal Code) committed by a civilian in conspiracy with a military person (Article 12 of Law No. 353 as amended by Law No. 5530.

• Assessment: With regard to the trial of civilians by military courts, the above measures appear sufficient.

56566/00           Kaplan Yaşar, judgment of 24/01/2006, final on 24/04/2006

This case concerns an unjustified interference with the freedom of expression of the applicant, a journalist, in that charges were brought against him in 1998, under Article 95 of the military criminal code, for having published articles which were considered by the military court to undermine soldiers’ trust in their hierarchy.

Given the high level of protection to be given to political expressions and the fact that the applicant’s articles did not insult or criticise any specific person, the Court concluded that the criminal action against the applicant had been a disproportionate interference with his right to freedom of expression, the more so since he was also subjected to 42 days’ pre-trial detention (violation of Article 10).

Individual measures: By virtue of Law No. 4454 on the suspension of procedures and execution of sentences related to crimes committed through the press, which entered into force on 3/09/99, the applicant’s conviction was set aside on 31/12/2003. Any other consequence of the violation is covered by the just satisfaction awarded by the European Court.

General measures: The case presents some similarity with other cases against Turkey concerning violations of freedom of expression (see the Inçal group of cases, Section 4.2). It is, however, the first case dealing with the interpretation of the Military Criminal Code.

            1) Legislative measures: The Turkish authorities have indicated that following the European Court’s judgment extensive amendments adopted on 5/07/2006 to the Code on the Establishment and Criminal Procedure of the Military courts. Article 4 of the amendments provides that most offences committed by civilians in time of peace – including that at the origin of the Yasar Kaplan case – shall be tried by civil courts. Furthermore, Article 53 of the amendments provides a right to a retrial in cases where the European Court finds that decisions of military courts violate the Convention.

• Assessment: The information provided is being evaluated by the Secretariat.

            2) Publication and dissemination: The judgment of the European Court has been translated into Turkish and circulated to the appropriate authorities, including the Turkish Ministry of Justice and the Turkish General Staff.

• The confirmation of publication is also awaited.

28582/02           Asan, judgment of 27/11/2007, final on 27/02/2008

This case concerns a violation of the applicant’s freedom of expression due to the seizure of his book following an order of the Istanbul State Security Court dated 21/01/2002, on the basis of a number of legal provisions including Additional Article 1§2 of the Law on the Press, No. 5680 (violation of Article 10).

The European Court expressed doubts as to the predictability of the seizure measure, in particular as the Law on the Press as applicable at the material time invoked no less than 40 articles of the Penal Code which meant that the order was far from clear. The Court further noted that the publication in question was a work of historical, cultural, ethnographic and linguistic research with no political intent, and that the seizure measure had been applied to the second edition, the first having been published without interference.

The Court therefore found that the interference was not necessary in a democratic society.

Individual measures: In a judgment dated 12/08/2003, the State Security Court acquitted the applicant on the ground that Article 8 of Law No. 3713, under which he had been judged, had been repealed. The seizure was lifted at the same time.

• Assessment: no further individual measure appears necessary.

General measures: The Law on the Press was amended in June 2004: Article 25 of the new law, No. 5187 on seizures, distribution bans and sale of printed publications provides greater clarity as it now only invokes ten specific Penal Code provisions and provides that such measures can only be applied where an investigation or a prosecution has been opened.

• Information is accordingly awaited as to whether the new provisions are capable of preventing new, similar violations. Information is also awaited on the publication and dissemination of the European Court’s judgment to competent authorities and courts to raise their awareness of the requirements of the Convention as interpreted by this judgment.

The Deputies decided to resume consideration of this item at the latest at their 1059th meeting (2‑4 June 2009) (DH), in the light of information to be provided on general measures.

75510/01           Artun and Güvener, judgment of 26/06/2007, final on 26/09/2007, rectified on 12/11/2007

This case concerns a breach of the applicants’ freedom of expression through the press. The applicants, a journalist and the chief editor of the daily Milliyet, had been sentenced to a year and 4 months’ imprisonment, on the basis of Article 158 of the former Criminal Code, for having denigrated the President of Republic. The execution of the sentence of Meral Artun was stayed and the other applicant’s sentence was commuted to a fine of about 1 665 euros.

The European Court considered that the restrictions imposed on the applicants were not necessary in a democratic society (violation of Article 10).

Individual measures:  The European Court awarded just satisfaction in respect of non-pecuniary damage.

• Information is awaited concerning the erasure of consequences of the applicants’ convictions, not least from their criminal records.

General measures:

• Information is awaited on the provisions of new Criminal Code concerning the penalties provided for defamatory statements against the President of Republic.

• The Turkish authorities provided information on 7/4/2008 concerning general and individual measures, which is being examined by the Secretariat.  

35839/97          Pakdemirli, judgment of 22/02/2005, final on 22/05/2005

The case concerns the disproportionate amount of the damages awarded against the applicant in defamation proceedings against him (violation of Article 10). The proceedings were brought against the applicant in 1995 (at the material time a Member of Parliament and the vice-president of the opposition party) by the President of the Republic on account of a speech he made in which he described the President, among other epithets, as a liar and slanderer. The President sought compensation for defamation and insults to him both in person and in his capacity as President of the Republic under Article 49 of the Code of Obligations. In July 1995 the Ankara Civil Court of First Instance ordered the applicant to pay the equivalent of approximately 55 000 euros in damages. Following the dismissal of his request for leave to appeal, the applicant paid the sums he had been ordered to pay, which corresponded at the time, with interest, to the equivalent of approximately 60 000 euros.

The European Court observed that, in determining the amount of the damages, the Turkish courts had applied the criterion of “the parties’ socio-economic status” laid down in Article 49 of the Code of Obligations in a way which departed from the normal practice and without taking into account the principle of proportionality laid down in Article 4 of the Civil Code, using it not to preserve a balance between the parties’ respective situations, but to fix the amount of damages to be awarded as high as possible. In addition, while fixing the amount of compensation, the domestic courts based themselves on the absence of the criminal proceedings which would have been applicable if the applicant had not been covered by parliamentary immunity and thus turned the damages awarded into a form of civil fine. Furthermore, the assessment of the civil penalty had been made not in the light of the wrong suffered by the claimant but by way of over-protecting the status of President of the Republic.

The European Court therefore concluded that the award that the applicant was ordered to pay could not be regarded as “necessary in a democratic society” and that it was not proportionate to the aim pursued by the national legislation.

Individual measures: The European Court awarded a global sum of 35 000 euros for both pecuniary and non-pecuniary damages, thus compensating the disproportionate nature of the penalties imposed by the domestic courts.

General measures:

• Information is expected on possible measures that Turkish authorities envisage to ensure that domestic courts strike a fair balance in determining the amounts of compensation in defamation cases where highly political public figures are involved. At the outset publication and wide dissemination of the judgment of the European Court would appear necessary.

48176/99          Turhan, judgment of 19/05/2005, final on 19/08/2005, rectified on 30/03/2006

The case concerns civil defamation proceedings brought against the applicant in 1993 (resulting in a final decision in 1998) by the then Minister of State who claimed that certain remarks in the applicant’s book constituted an attack on his reputation.

The European Court noted that the contested remarks were value judgments on an issue of public interest, that their truthfulness was therefore not susceptible of proof and that they were based on information which was already known to the general public. Accordingly, the European Court found that the domestic courts had not convincingly established any pressing social need to subordinate the applicant’s right to freedom of expression to the protection of a public figure’s reputation. Neither has it appeared that the applicant’s statements had affected the Minister’s political career or his professional or private life (violation of Article 10).

Individual measures: The European Court awarded just satisfaction in respect of both pecuniary and non‑pecuniary damages, thus compensating the applicant for the damages imposed by the domestic courts.

General measures:

• Information is expectedon measures envisaged to remedy the problems highlighted by the European Court (i.e. interpretation of defamation provisions, including the distinction between value judgments and factual statements, in cases involving public figures). In any event the publication and wide dissemination of the judgment of the European Court would appear necessary.

                       - Cases concerning freedom of expression – broadcasting legislation

64178/00+         Özgür Radyo-Ses Radyo Televizyon Yayın Yapım Ve Tanıtım A.Ş., judgment of 30/03/2006, final on 30/06/2006

6587/03            Nur Radyo Ve Televizyon Yayıncılığı A.Ş., judgment of 27/11/2007, final on 02/06/2008, rectified on 03/03/2008

11369/03          Özgür Radyo-Ses Radyo Televizyon Yayın Yapım Ve Tanıtım A.Ş., judgment of 04/12/2007, final on 02/06/2008

These cases concern violations of the  freedom of expression of the applicants, broadcasting companies, due to warnings and licence suspensions imposed in 1998, 1999 and 2000 by the Turkish broadcasting regulatory authority (RTÜK) under Articles 4 a), g) and j) of Broadcasting Law No. 3984, concerning defamation and incitement to violence and to separatism. Unlike the RTÜK and the Turkish administrative courts, the European Court considered that the statements at issue did not incite to violence or hate and covered questions of general interest. It furthermore took into account the fact that the applicant companies had quoted the sources of the statements, which had already been published by other media without being prosecuted. Furthermore, the Court considered that the penalties had been disproportionately severe and therefore not necessary in a democratic society (violation of Article 10).

Individual measures: In both of the Özgür Radyo cases, the Court awarded the applicant company just satisfaction in respect of the non-pecuniary damages sustained but not in respect of pecuniary damage, as the applicant company did not submit elements allowing such damage to be quantified. In the case of Nur Radyo, the Court did not award any damages.

• Assessment: No further individual measure appears to be needed.

General measures: These cases concern the Turkish broadcasting system and the interpretation given by RTÜK and administrative courts to Article 4 of Law 3984.

• In the light of the many significant legislative and other measures taken in the last few years to improve freedom of expression in Turkey (see the Inçal group, Section 4.2), information is needed on the impact, if any, of such measures on the current application of the provisions at the origin of this case.

• Information provided on the amendments to the broadcasting law as well as the provisions concerning sanctions introduced by Law No. 4756 in May 2002: In the light of these amendments, a suspension of licence is considered as a last resort. The first sanction available is a warning or the obligation of the broadcasting company to present apologies. If the broadcasting company continues to violate the provisions of the broadcasting law as stated in Article 4 of Law No. 4756, the programme in question may be suspended. If such violation is repeated, progressive administrative fines may be imposed. However this mechanism of gradually increasing sanctions does not apply if the violation concerns the provisions defined in the items a), b), and c) of the §2 of Article 4. In this case, if there is a repeated violation the broadcast shall be suspended for an indefinite period and the broadcasting licence revoked.

• Assessment: the information submitted is being evaluated by the Secretariat.

The authorities indicated that the judgment of the European Court in the Özgür Radyo case had been translated and published on the internet site of Ministry of Justice.

• Information is still awaited on the dissemination of the European Court’s judgments with a circular to administrative courts and the RTÜK.

34797/03           Ulusoy and others, judgment of 03/05/2007, final on 24/09/2007

This case concerns the refusal by the Prefect of Ankara to authorise the production of a stage play in Kurdish, by a decision based on the provisions of Article 17 of Law No. 2911, Article 8 of Law No. 3713, Article 11 of Law No. 5442 and Article 1 of Law No. 2559.

The European Court considered that such refusal based on these provisions was not “necessary in a democratic society” (violation of Article 10). The European Court noted that Turkish law does not indicate with sufficient clarity the scope of the discretionary power of authorities concerning preliminary restrictions and that the legislation concerned does not offer adequate safeguards to prevent possible abuses in the application of such restrictions.

Individual measures: The European Court awarded just satisfaction in respect of non pecuniary damage.

• Assessment: no further individual measure seems necessary.

General measures:

• The authorities’ reply to the initial phase letter of the Secretariat on 12/12/2007 is awaited.

                        - 79 cases mainly concerning freedom of expression

                        Interim Resolutions ResDH(2001)106 and ResDH(2004)38; CM/Inf/DH(2003)43

                        (See Appendix for the list of cases in the Inçal group)

                        CM/Inf/DH(2008)26

These cases all relate to unjustified interferences with the applicants' freedom of expression, in particular on account of their conviction by state security courts following the publication of articles and books or the preparation of messages addressed to a public audience (convictions under former Articles 159 and 312 of the Criminal Code and former Articles 6, 7 and 8 of Anti-terrorism Law).

In the Özgür Gündem case, the Court also concluded that the search operation conducted in the applicant newspaper's premises had not been necessary in a democratic society and that the respondent government had failed to comply with its positive obligation to protect the applicant newspaper in the exercise of its freedom of expression. Furthermore, the cases Alinak, Öztürk Ayşe and Çetin and others specifically concern the seizure of publications (violations of Article 10).[66]

Individual measures: Since June 1998, the necessity of adopting individual measures has been repeatedly stressed in the Committee. On 23/07/2001, the Committee of Ministers adopted Interim Resolution ResDH(2001)106 (see CM/Inf/DH(2003)43). In addition, updated information on the current situation of the applicants and on the concrete follow-up given to Interim Resolution ResDH(2001)106 have been regularly requested.

• Measures taken: The Turkish authorities indicated (see also CM/Inf/DH(2003)43 and Interim Resolution ResDH(2004)38) that measures had been taken in order to ensure the erasure of convictions and of all their consequences :

- ex officio in cases concerning convictions under Article 8 of the Anti-terrorism Law No. 3713, following the abrogation of this provision on 19/07/2003 (by Law No. 4928), which also provided that any information on criminal records should be erased ex officio (in conformity with Article 8 of the Law on Criminal Records, as amended by Law No. 4778 of 2/01/2003), thereby automatically lifting any restrictions on applicants' civil and political rights.

- under certain conditions, in cases related to freedom of expression in general (Law No. 4809 2003 on suspension of proceedings and sentences concerning crimes committed through the press);

Furthermore, reopening of domestic proceedings is possible (on the basis of Law No. 4793 of 2003), in all cases which had already been decided by the European Court before 04/02/2003 and in all new cases brought before the European Court after that date. Re-opening is not possible in cases which were pending before the European Court on 04/02/2003, as well as for cases resulting in friendly settlements.

For a detailed assessment of the individual measures taken and outstanding issues in these cases, as well as for the list of cases in which confirmation of the erasure of any remaining consequences of the violations are expected, see CM/Inf/DH(2008)26 declassified at the 1028th meeting (June 2008).

General measures: The question has been raised since 1998 of the need to adapt Turkish law to the requirements of the Convention so as to avoid further violations similar to those found. In particular, attention has been drawn to the need to assess the proportionality of restrictions on freedom of expression in the light of the presence of an “incitement to violence”. Furthermore, since 1999, the Turkish authorities have been invited to introduce a general criterion of truth and public interest into the Anti-Terrorism Law and to amend or abrogate Article 6 of this law; to review minimum penalties in crimes related to freedom of expression; to adopt specific measures aimed at ensuring the protection of freedom of expression

• Measures taken: For a detailed assessment of the general measures taken and outstanding issues in these cases see CM/Inf/DH(2008)26.

On 17/09/2008 the Turkish authorities provided information on a number of decisions of public prosecutors not to bring prosecutions under the recently modified Article 301 of the Turkish Criminal Code. The Secretariat is currently studying these decisions.

- 9 Friendly settlements concerning freedom of expression and involving undertakings by the Turkish government

                       Interim Resolutions ResDH(2001)106 and ResDH(2004)38; CM/Inf/DH(2003)43

                        (See Appendix for the list of cases in the Inçal group)

                        CM/Inf/DH(2008)26

These cases all relate in particular to alleged unjustified interferences with the applicants’ freedom of expression, on account of their conviction by state security courts following public speeches or the publication of articles, drawings or books (complaints under Article 10 and 6§1).

The European Court took note of the Friendly settlements reached between the parties. The Turkish Government undertook to pay a sum of money to the applicants, to implement all necessary reform of domestic law and practice in order to bring the Turkish law into conformity with the requirements of the Convention in the area of freedom of expression and to adopt the individual measures set out in Interim Resolution ResDH(2001)106, adopted on 23/07/2001(appended to CM/Inf/DH(2003)43), in order rapidly and fully to erase the consequences of the applicants’ conviction. These cases are comparable with the “freedom of expression” cases against Turkey mentioned above.

Individual measures:

• Information is expected on the current situation of the applicants as well as on the measures envisaged, in conformity with the undertakings included in the friendly settlement, in order rapidly and fully to erase the consequences of their convictions.

The information available concerning the situation of the applicants’ criminal records is reproduced in Addendum 4

General Measures: See above (“freedom of expression” cases against Turkey).

                       - Cases concerning the monitoring of prisoners’ correspondence

6289/02            Tamer Fazıl Ahmet, judgment of 05/12/2006, final on 05/03/2007

77097/01           Ekinci and Akalın, judgment of 30/01/2007, final on 30/04/2007

73520/01           Kepeneklioğlu, judgment of 23/01/2007, final on 23/04/2007

39862/02           Koç Ali, judgment of 05/06/2007, final on 05/09/2007

9460/03            Tan, judgment of 03/07/2007, final on 03/10/2007

These cases concern the violation of the applicants' right to respect for their private life due to the unjustified interference by the prison authorities with their correspondence during their imprisonment (violation of Article 8).

In the case of Tamer Fazıl Ahmet, the applicant sent several letters to his lawyer while in prison from December 2000 to May 2001. He complained that the prison authorities either refused to forward the letters or deleted passages from them. The prison authorities also destroyed a letter which the applicant had intended to send to a newspaper with a view to its publishing an article he had written to protest against F‑type prisons. In the other two cases, the prison authorities similarly withheld or monitored the applicants’ letters to their lawyers.

Considering the extent to which the applicants' correspondence had been monitored and the lack of adequate and effective safeguards against abuse, the European Court considered that the interference with their right to respect for their correspondence was disproportionate and thus could not be regarded as “necessary in a democratic society”.

Individual measures:  It is understood from the European Court's judgment that the applicants are no longer in prison. Accordingly, no individual measure is necessary.

General measures:

• Information is awaited on measures taken or envisaged to avoid new, similar violations. In any event, publication of the European Court's judgment and dissemination to all authorities concerned (in particular prison authorities) would seem appropriate.

- Cases concerning the lack of compensation following annulment of titles to plots of land in the framework of the coastal law regime

37451/97           N.A. and others, judgment of 11/10/2005, final on 15/02/2006 and of 09/01/2007, final on 23/05/2007

36166/02+         Asfuroğlu and others, judgment of 27/03/2007, final on 09/07/2007

35973/02+         Aslan and Özsoy, judgment of 30/01/2007, final on 30/04/2007

1262/02            Doğrusöz and Aslan, judgment of 30/05/2006, final on 23/10/2006

16480/03+         Katayıfçı and others, judgment of 17/07/2007, final on 17/10/2007, rectified on 13/12/2007

75606/01           Miçooğulları Mehmet Ali, judgment of 10/05/2007, final on 24/09/2007

40217/02+         Moğul, judgment of 09/01/2007, final on 09/04/2007

36531/02           Özdemir Adil, judgment of 10/05/2007, final on 10/08/2007

18367/04           Taci and Eroğlu, judgment of 10/05/2007, final on 10/08/2007, rectified on 13/11/2007

29128/03          Tozkoparan and others, judgment of 17/07/2007, final on 10/12/2007, rectified on 17/06/2008

1250/02 Tuncay, judgment of 12/12/2006, final on 23/05/2007

21850/03           Yurtöven, judgment of 17/07/2007, final on 17/10/2007

These cases concern the absence of compensation in proceedings brought by the Treasury for the annulment of the registration of property belonging to the applicants and in the N.A. case the demolition of the hotel that was being built on it, ordered by court decisions of June 1987 and December 1989 respectively. These decisions relied on that fact that the plots of land in question was located on the seashore and could not be privately acquired. The applicants had tried in vain to obtain damages for the loss of their property.

The European Court found that the decisions of the domestic courts as to the deprivation of ownership of the land, which was located on the shoreline and was thus part of the beach, a public area open to all, fulfilled a legitimate purpose. However, the fact that the applicants had not received any compensation for the transfer of their property to the Treasury and for the demolition of the hotel amounted to a violation of Article 1 of Protocol No. 1.

Individual measures: In all of these cases, the Court awarded just satisfaction in respect of pecuniary damages suffered by the applicants.

• Assessment: no further individual measure seem necessary.

General measures:

• Information provided by the Turkish authorities: In their reply of 27/09/2006 to the Secretariat's initial- phase letter of 06/06/2006, the Turkish authorities stated that a draft law amending the Coastal Law is currently being prepared and that the Committee will be duly informed of the relevant text when ready.

The judgment of the European Court in the precedent case of N.A. and others has been translated into Turkish and has been brought to the attention of the authorities.

On 06/03/08, the authorities stated that the preparatory work for the draft law was still under way.

• Information is awaited on the progress of the adoption of the draft law and on its contents. 

- Cases concerning the inability of foreigners to inherit property in Turkey due to alleged lack of reciprocity requirement

45628/99          Apostolidi and others, judgment of 27/03/2007, final on 24/09/2007 and of 24/06/2008, final on 24/09/2008

19558/02+        Nacaryan and Deryan, judgment of 08/01/2008, final on 02/06/2008

These cases concern the unlawfulness of the interference in the right to the peaceful enjoyment of possessions of the applicants, all Greek nationals.

In the case of Apostolidi and others, the applicants inherited a flat in Beyoğlu, Istanbul in 1990 from their aunt, a Turkish national. Relying on an inheritance certificate issued by a civil court, they registered the flat in their name in the land register. This inheritance certificate was annulled, however, in 2001 after another heir, of Turkish nationality, claimed title to the flat. The courts found that Turkish nationals could not acquire immovable property in Greece by inheritance and therefore the condition of reciprocity provided in Article 35 of the Land Code had not been met. Upon the annulment of the applicants' inheritance certificate, the plaintiff Turkish heir's claim to title was also granted and the flat was subsequently registered in his name.

Without questioning the condition of reciprocity as such, the European Court found that it had not been established that there was any restriction in Greece preventing Turkish nationals from acquiring real property by inheritance. Official documents, such as a 1995 report by the Turkish Ministry of Justice, showed that Turkish nationals had acquired immovable property in Greece by inheritance. Consequently, the interference was not sufficiently foreseeable (violation of Article 1 of Protocol No. 1).

The European Court also found that the civil proceedings concerned, which lasted 10 years, had been excessively long (violation of Article 6§1).

In the case of Nacaryan and Deryan, the European Court found a violation of Article 1 of Protocol No. 1 on the basis of similar facts to those in the Apostolidi case.

Individual measures:

1) Apostolidi and others case: The civil proceedings have ended.

In addition, in its judgment on just satisfaction, the European Court held that Turkey had to restore the applicants’ respective shares in the flat in question and have the property re-registered in their names in the land register within three months of the date on which the judgment became final. It also awarded the applicants jointly just satisfaction in respect of pecuniary damage and costs and expenses.

• Information is awaited in this respect.

2) Nacaryan and Deryan case: The European Court found it appropriate to reserve the question of just satisfaction, taking into account any possible agreement between the authorities and the applicants.

General measures: The European Court did not hold that the reciprocity rule contained in Article 35 of the Land Code was as such incompatible with the Convention. However, the violation resulted from the domestic courts' mistaken characterisation of the Greek law to the effect that reciprocity had not existed.

• Information is therefore awaited on any general measures taken or envisaged by the authorities, in particular the publication and dissemination of the judgment to judicial authorities. An initial phase letter was sent to the Turkish authorities on 07/12/2007. No information has been received so far.

As regards the length of proceedings, general measures are examined in the context of the Ormancı group (Section 5.1).

- Cases concerning the failure or substantial delay by the administration in abiding by final domestic judgments

38473/02           Kılıç Ahmet, judgment of 25/07/2006, final on 25/10/2006

5325/02+          Aygün and others, judgment of 20/11/2007, final on 20/02/2008

35075/97           Baba, judgment of 24/10/2006, final on 24/01/2007

74069/01+         Çiçek and Öztemel and 6 other cases, judgment of 03/05/2007, final on 03/08/2007, rectified on 23/10/2007

2620/05            Çoban and others, judgment of 24/01/2008, final on 24/04/2008

28152/02           Demirhan, Görsav and Çelik, judgment of 05/06/2007, final on 05/09/2007

77361/01           Dildar, judgment of 12/12/2006, final on 12/03/2007

31277/03           Kranta, judgment of 16/01/2007, final on 16/04/2007

45559/04           Şahin Abidin, judgment of 18/12/2007, final on 18/03/2008

27402/03           Sevgili, judgment of 18/12/2007, final on 18/03/2008

37054/03+         Tok and others, judgment of 20/11/2007, final on 20/02/2008

14710/03           Yerebasmaz, judgment of 10/10/2006, final on 10/01/2007

These cases concern the violation of the applicants' right to a fair trial, as well as the right to the peaceful enjoyment of their possessions in certain cases, on account of the failure by administrative bodies to enforce judicial decisions awarding them compensation and other pecuniary awards (violations of Article 6§1 and Article 1 of Protocol No. 1).

The Kılıç Ahmet case also concerns the excessive length of the proceedings before administrative courts (violation of Article 6§1).

Individual measures:

1) Non-enforcement of domestic judgments: In the case of Kılıç Ahmet, the government provided a copy of a declaration signed by the applicant indicating that on 06/11/2006 he had received the full amount of compensation awarded by the domestic court, including interest. In the case of Yerebasmaz, the domestic judgment has been enforced: the relevant administration issued an order of payment and the full amount was made available to the applicant. Similarly, in the case of Çiçek and Öztemel and 6 other cases, confirmation was received on 11/02/08 that the sums owed in respect of domestic judgments have either been paid to the applicants’ representatives or deposited on escrow accounts in the applicants’ names. In the cases of Tok, Baba, Dildar, Kranta, and Yerebasmaz the just satisfaction awarded by the European Court in respect of pecuniary damages were paid to the applicants. 

• Information is awaited on the enforcement of the domestic judgment in the cases of Aygün and others, and Demirhan, Görsav and Çelik, Çoban, Şahin Abidin and Sevgili.

2) Length of administrative proceedings (case of Kılıç Ahmet): No individual measure is required as the proceedings are closed.

General measures:

1) Non-enforcement of judgments: The applicants were unable to secure the enforcement of the domestic judgment given in their favour due to the obstacles existing in the current Turkish legislation. In this respect, an individual or a private entity cannot legally seize the property of a municipality allocated to a public service, with a view to obtaining satisfaction of a judgment.

• Information is therefore awaited concerning the measures taken or envisaged to prevent similar violations, in particular ensuring the effective and timely enforcement of domestic court decisions.

• Information provided by the Turkish authorities (08/04/08): Since the European Court’s judgment in this case, the new Penal Code came into force. Article 257 of the Code makes it a crime for public officials to fail to discharge their duties, by omission or delay.

• Assessment: While this provision is welcome, it is unlikely to prevent new, similar violations since the root cause of the violations established in these cases was not the public officials’ failure to discharge their duties but the lack of sufficient public funds and the immunity of administrative bodies’ property from enforcement proceedings (attachment, foreclosure etc).

• Information is accordingly awaited on general measures capable of allowing future creditors of administrative bodies to obtain judgment debts granted in their favour. In this regard, the Turkish authorities may wish to take into account the examples of other countries confronted with similar problems in the past in planning and adopting general measures (see, for example, the cases of Hornsby against Greece or Heirs of Dierckx against Belgium). 

2) Length of administrative proceedings (in the case of Kılıç Ahmet): General measures are being examined within the context of the Ormancı group (Section 5.1).

33663/02           Mörel, judgment of 14/06/2007, final on 14/09/2007

The case concerns a violation of the applicant’s right to the peaceful enjoyment of his possessions due to the courts’ dismissal of the applicant’s application for additional compensation for expropriation on the ground that it was filed out of time, although the expropriation was not properly notified.

In 1988, the authorities decided to expropriate the applicant’s property. However, they failed to identify its owner as the property tax declarations could not be located and that the title deed office records indicated its original owner and was thus outdated. As direct notification was not possible, the expropriation was announced in local newspapers as well as over loudspeakers throughout the town, pursuant to Article 10 of Law on Expropriation No. 2942. In 1996, when he became aware of the expropriation, the applicant lodged an additional compensation claim. He relied on a principle of Turkish law that a prescription period would not run in the absence of proper notification. However the courts held that the manner in which the expropriation was notified was justifiable and thus the prescription period had elapsed.

The European Court concluded that the authorities did not show due diligence in notifying the applicant of the expropriation of the land and that the courts should have entertained the exception that he invoked. The Court therefore held that the applicant had been deprived of his property without adequate compensation (violation of Article 1 of Protocol No. 1).

Individual measures: The Court awarded the applicant significant just satisfaction in respect of pecuniary damage.

• Assessment: Under these circumstances, no other individual measure seems required.

General measures:

• Information is awaited on measures taken or envisaged by the authorities, in particular publication and dissemination of the Court’s judgment to the relevant authorities, to prevent similar, future violations.

40998/98           Islamic Republic Of Iran Shipping Lines, judgment of 13/12/2007, final on 13/03/2008

The case concerns the seizure in October 1991 of a ship flying the Cypriot flag as well as its cargo on suspicion of arms smuggling. The ship was chartered by the applicant, an Iranian shipping company.

The European Court noted that in December 1991, following an investigation into the matter, the Turkish Ministry of Foreign Affairs confirmed that in fact the cargo transported by the applicant belonged to Iran and that its seizure could not be justified by national security concerns. The Court therefore considered that it had been unjustified to impound the vessel until December 1992, when ship and cargo were restored. It also took the view that the refusal of national courts to compensate the applicant company for the damage sustained imposed a disproportionate burden upon it (violation of Article 1 of Protocol No. 1).

Individual measures: The vessel and its cargo were released and the European Court noted that the applicant received pecuniary damages in subsequent arbitration proceedings (§ 115 of the judgment).

• Assessment: under these circumstances, no further individual measure seems required.

General measures:

• Information is awaited on measures taken or envisaged by the authorities, in particular the publication and dissemination of the judgment to judicial authorities.

- 356 cases against Ukraine

32478/02          Shevchenko, judgment of 04/04/2006, final on 04/07/2006[67]

72286/01           Melnik, judgment of 28/03/2006, final on 28/06/2006[68]

38722/02           Afanasyev, judgment of 05/04/2005, final on 05/07/2005[69]

16437/04           Kobets, judgment of 14/02/2008, final on 14/05/2008

75520/01           Kozinets, judgment of 06/12/2007, final on 06/03/2008, rectified on 27/02/2008

- Cases mainly concerning inhuman and/or degrading treatment in detention resulting from overcrowding, unsatisfactory hygiene and sanitation conditions or inadequate medical care, as well as lack of an effective remedy[70]

54825/00           Nevmerzhitsky, judgment of 05/04/2005, final on 12/10/2005

72277/01           Dvoynykh, judgment of 12/10/2006, final on 12/02/2007

65550/01           Koval, judgment of 19/10/2006, final on 12/02/2007

2570/04            Kucheruk, judgment of 06/09/2007, final on 06/12/2007

39458/02           Tkachev, judgment of 13/12/2007, final on 13/03/2008

                       - Cases concerning the poor conditions of the applicants' detention[71]

39042/97          Kuznetsov, judgment of 29/04/03

41220/98          Aliev, judgment of 29/04/03, final on 29/07/03

40679/98          Dankevich, judgment of 29/04/03, final on 29/07/03

41707/98          Khokhlich, judgment of 29/04/03, final on 29/07/03

39483/98          Nazarenko, judgment of 29/04/03, final on 29/07/03

38812/97          Poltoratskiy, judgment of 29/04/03

15825/06          Yakovenko, judgment of 25/10/2007, final on 25/01/2008

61406/00          Gurepka, judgment of 06/09/2005, final on 06/12/2005[72]

17707/02          Melnychenko, judgment of 19/10/2004, final on 30/03/2005[73]

23543/02          Volokhy, judgment of 02/11/2006, final on 02/02/2007[74]

7577/02            Bochan, judgment of 03/05/2007, final on 03/08/2007[75]

22750/02           Benderskiy, judgment of 15/11/2007, final on 15/02/2008[76]

29458/04+         Sokurenko and Strygun, judgment of 20/07/2006, final on 11/12/2006[77]

13156/02          Ponomarenko, judgment of 14/06/2007, final on 14/09/2007[78]

37878/02           Tserkva Sela Sosulivka, judgment of 28/02/2008, final on 28/05/2008[79]

34786/03           Balatskyy, judgment of 25/10/2007, final on 25/01/2008[80]

6725/03            Lizanets, judgment of 31/05/2007, final on 31/08/2007[81]

                       - 267 cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments[82]

                       (See Appendix for the list of cases in the Zhovner group)

                       CM/Inf/DH(2007)30 (revised in English only) and CM/Inf/DH(2007)33

47148/99           Novoseletskiy, judgment of 22/02/2005, final on 22/05/2005[83]

77703/01           Svyato-Mykhaylivska Parafiya, judgment of 14/06/2007, final on 14/09/2007[84]

11901/02           Panteleyenko, judgment of 29/06/2006, final on 12/02/2007[85]

15007/02           Ivanov, judgment of 07/12/2006, final on 07/03/2007[86]

803/02              Intersplav, judgment of 09/01/2007, final on 23/05/2007[87]

                       - Cases of length of civil proceedings and of absence of an effective remedy[88]

41984/98          Naumenko Svetlana, judgment of 09/11/2004, final on 30/03/2005

33983/02          Artemenko, judgment of 07/06/2007, final on 07/09/2007

22431/02          Baglay, judgment of 08/11/05, final on 08/02/06

10569/03          Barskiy, judgment of 05/07/2007, final on 05/10/2007

20339/03          Blidchenko, judgment of 29/11/2007, final on 29/02/2008

9962/05            Borshchevskaya, judgment of 25/10/2007, final on 25/01/2008

4078/03            Chukhas, judgment of 12/07/2007, final on 12/10/2007

24131/03          Chuyan, judgment of 15/11/2007, final on 15/02/2008

9755/03            Dolgikh, judgment of 28/06/2007, final on 28/09/2007

61679/00          Dulskiy, judgment of 01/06/2006, final on 01/09/2006

55870/00          Efimenko, judgment of 18/07/2006, final on 11/12/2006

22775/03          Fandralyuk, judgment of 31/01/2008, final on 30/04/2008

20746/05          Fedorchuk, judgment of 15/11/2007, final on 15/02/2008

17026/05          Gitskaylo, judgment of 14/02/2008, final on 14/05/2008

39161/02          Golovko, judgment of 01/02/2007, final on 01/05/2007

39946/03          Inkovtsova, judgment of 26/07/2007, final on 26/10/2007

69435/01          Karimov, judgment of 31/01/2008, final on 30/04/2008

23853/02          Karnaushenko, judgment of 30/11/2006, final on 28/02/2007

21047/02          Kiselyova, judgment of 22/11/2007, final on 22/02/2008

13242/02          Konovalov, judgment of 18/10/2007, final on 18/01/2008, rectified on 27/02/2007

11084/03          Kozlov, judgment of 12/07/2007, final on 12/10/2007

23786/02          Krasnoshapka, judgment of 30/11/2006, final on 28/02/2007

22600/02          Kucherenko, judgment of 26/07/2007, final on 26/10/2007

10437/02          Kukharchuk, judgment of 10/08/2006, final on 10/11/2006

12347/02          Lastovka, judgment of 06/09/2007, final on 06/12/2007

18345/03          Lebedeva, judgment of 20/12/2007, final on 20/03/2008

56918/00          Leshchenko and Tolyupa, judgment of 08/11/05, final on 08/02/06

9724/03            Litvinyuk, judgment of 01/02/2007, final on 09/07/2007

43482/02          Makarenko, judgment of 01/02/2007, final on 01/05/2007

43382/02          Morgunenko, judgment of 06/09/2007, final on 31/03/2008

36545/02          Moroz and others, judgment of 21/12/2006, final on 21/03/2007

39404/02          Mukhin, judgment of 19/10/2006, final on 19/01/2007, rectified on 9/01/2007

12803/02          Ogurtsova, judgment of 01/02/2007, final on 23/05/2007

25681/03          Panchenko, judgment of 05/07/2007, final on 05/10/2007

31780/02          Panteleeva, judgment of 05/07/2007, final on 10/12/2007

70767/01          Pavlyulynets, judgment of 06/09/2005, final on 06/12/2005

18957/03          Rudysh, judgment of 15/11/2007, final on 31/03/2008

15002/02          Serdyuk, judgment of 20/09/2007, final on 20/12/2007

39970/02          Shanko, judgment of 26/07/2007, final on 26/10/2007

31105/02          Shinkarenko, judgment of 07/06/2007, final on 24/09/2007

23926/02          Silin, judgment of 13/07/2006, final on 13/10/2006

36655/02          Smirnova, judgment of 08/11/2005, final on 08/02/2006

49430/99          Strannikov, judgment of 03/05/2005, final on 03/08/2005

9616/03            Svistun, judgment of 21/06/2007, final on 21/09/2007

72551/01          Teliga and others, judgment of 21/12/2006, final on 21/03/2007

3572/03            Tsykhanovskyy, judgment of 06/09/2007, final on 31/03/2008

28746/03          Vyrovyy, judgment of 12/07/2007, final on 12/10/2007

42207/04          Yavorska, judgment of 15/11/2007, final on 15/02/2008

                       - Cases of length of criminal proceedings and of absence of an effective remedy[89]

66561/01          Merit, judgment of 30/03/2004, final on 30/06/2004

14183/02          Antonenkov and others, judgment of 22/11/2005, final on 22/02/2006

31585/02           Benyaminson, judgment of 26/07/2007, final on 26/10/2007

25444/03           Kalinichenko, judgment of 26/07/2007, final on 26/10/2007

7324/02            Kobtsev, judgment of 04/04/2006, final on 04/07/2006

14809/03          Mazurenko, judgment of 11/01/2007, final on 11/04/2007

26277/02           Nosalskiy, judgment of 12/07/2007, final on 12/10/2007

31580/03           Safyannikova, judgment of 26/07/2007, final on 26/10/2007

11336/02          Yurtayev, judgment of 31/01/2006, final on 01/05/2006

- 5 cases against the United Kingdom

44362/04           Dickson, judgment of 04/12/2007 – Grand Chamber

This case concerns a violation of the right to respect of the family life of the applicants, a prisoner serving a life sentence and his wife, due to the Home Secretary’s refusal to grant their request to use artificial insemination (violation of Article 8). The Minister’s refusal, which was founded on the relevant policy, was subsequently endorsed by judicial decisions.

The European Court considered that the national authorities had failed to ensure a fair balance between the interests of society in general and those of the applicants, noting first that the matter was of crucial importance to the applicants, who had been a couple since 1999 and married since 2001. Artificial insemination represented the only real possibility they had to have a family, given the wife’s age at the earliest date upon which the husband might expect to be freed. It also considered that the denial of the possibility of having children should not be the inevitable consequence of imprisonment, in particular in view of the importance of reintegration. It finally noted that concern for the interests of children should not extend to preventing parents from conceiving children for the sole reason that one of them is detained.

The Court noted that the policy, as set out, effectively excluded any real balance between the public and private interests involved. Moreover, as it was not enshrined in primary legislation, these issues had never been weighed or assessed by Parliament (see §83).

Individual measures: The European Court noted that on 19/12/2006, the applicant was transferred to an open prison and would in principle be eligible for unescorted home leave. The United Kingdom government indicated that Mr Dickson had had three periods of unescorted home leave between 11/12/2007 and 22/02/2008. He will continue to be eligible for such periods as long as he keeps to the conditions of the licence and there is no change to the risk assessment in his case. On 19/08/2008, the applicant’s lawyer confirmed that, in these circumstances, the Dicksons no longer require access to assisted conception because Mr Dickson is in an open prison and has home leave.

• Assessment: No further individual measure seems necessary.

General measures: The judgment of the European Court was published in the following law reports, journals and newspapers: European Human Rights Reports (2008 46 E.H.R.R.41), Family Court Reports [2007] 3.F.C.R.877, Family Law Journal [2008] Fam. Law 211, New Law Journal (2007) 157 NLJ 1766 and The Times Law Reports (The Times, 21 December 2007).

In addition, the judgment was sent out to Ministers and senior officials in December 2007, as well as to all prison governors, directors of private prisons and area managers and to the Northern Ireland Prison Service and Scottish Prison Service in February 2008.

• Information provided by the UK authorities (May and July 2008): As amended, the policy on assessing applications for permission to access assisted conception facilities by prisoners, which has taken the form of a non-exhaustive list of criteria, is issued to all new applicants and/or any other person who wishes to see it. The criterion included in the old policy that applications will only be granted in very exceptional circumstances has been removed. It has been indicated that, in compliance with the judgment, the Secretary of State will apply a proportionality test when taking a decision and balance the individual circumstances of the applicant against the criteria in the policy and the public interest. Decisions made under the policy may be challenged in judicial review proceedings. The United Kingdom authorities also confirmed that the policy would not be put on a legislative basis.

The new policy is the subject of scrutiny by the Joint Committee on Human Rights, a cross-party Parliamentary Committee of both Houses. In its annual report for 2007-2008 on the execution of domestic and European Court judgments against the UK “Monitoring the Government’s Response to Human Rights Judgments: Annual Report 2008” (HL Paper 173 HC 1078 published on 31/10/08) the Committee set out their detailed concerns about whether the changes to the policy are sufficient to execute the European Court’s judgment (see §§ 29-43 of the Report).

• The United Kingdom’s comments on the conclusions of the Joint Committee would be very useful.

45508/99           H.L., judgment of 05/10/2004, final on 05/01/2005

The case concerns the 1997 detention in a psychiatric institution of the applicant – who was compliant but, suffering from autism, did not have legal capacity to consent to his admission and stay in hospital – as an “informal patient” under s131(1) of the Mental Health Act 1983, itself based on the common law doctrine of necessity.

The Court observed that as a result of the lack of procedural regulation and limits applicable to informal patients, the hospital's health care professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit: this left effective and unqualified control in their hands. While the Court did not question the good faith of those professionals or that they acted in what they considered to be the applicant's best interests, it found that the absence of procedural safeguards surrounding the admission and detention of compliant incapacitated persons failed to protect against arbitrary deprivations of liberty on grounds of necessity and, consequently, failed to comply with the essential purpose of Article 5§1 of the Convention (violation of Article 5§1).

The Court further concluded that it had not been demonstrated that the applicant had had available to him at the relevant time a procedure for the review of his continued detention that complied with the requirements of Article 5§4. Judicial review, even based on the expanded (“super-Wednesbury”) principles applicable in human rights cases prior to the entry into force of the Human Rights Act 1998, would not have allowed an adequate examination of the merits of the clinical views as to the persistence of mental illness justifying detention; nor had it been shown that the other possibilities referred to by the Government would have allowed for such an examination (violation of Article 5§4).

Individual measures: None: the applicant was discharged from hospital on 12/12/1997.

General measures:

            1) Legislative change: On 23/03/2005, in response to the judgment of the European Court, the Department of Health published a consultation document with a view to bringing forward proposals for appropriate safeguards. The preferred approach in the document was the one of “preventive care”, involving a new system of admission/detention procedures for persons who have to be deprived of their liberty so that care and treatment can be provided in their best interests. Under such a system, the power to deprive a person of liberty would be exercisable by specified persons or bodies, in defined circumstances, on the basis of objective medical evidence. It would incorporate guarantees such as requirements to specify the reason for deprivation of liberty, limits on the length of time, involvement of relatives, carers and advocates, provision for regular reviews and access to court for review of the lawfulness of detention

- England and Wales:

• Information provided by the United Kingdom authorities (09/10/2008): The Mental Health Act 2007 came into force on 19/07/2007. The measures relevant to this case are the Deprivation of Liberty Safeguards (DOLS). These are set out in Section 50 and Schedules 7,8 and 9 to the Mental Health Act 2007. The Mental Health Act 2007 was used to insert the DOLS into the Metal Capacity Act 2005 and it is intended that the DOLS will come into force in April 2009. There is also a DOLS code of practice, which is a supplement to the Mental Capacity Act 2005 and which came into force on 03/01/2008. 

- Northern Ireland:

• Information provided by the United Kingdom authorities on (09/10/2008): The review in Northern Ireland is called the Bamford Review. The review was put back to June 2008 and has now gone out to consultation. The consultation closed on 03/10/2008. Subsequently, following analysis, a document will be produced to outline the way forward on reforming and modernising mental health and learning disability services in Northern Ireland.It is acknowledged that legislative reform is required in respect of mental health and mental capacity legislation. In the light of consultation responses, further consideration is now being given to how best this might be achieved (including the time-frame), recognising the potential interrelationship between mental capacity and mental health legislation. Any changes in legislation arising from the European Court’s judgment will be considered as part of this process. At present the common-law doctrine of necessity still applies in Northern Ireland. The earliest that legislative reform could be enacted is 2011.

- Scotland: The Scottish Executive has stated that no amendment was required to the Adults with Incapacity (Scotland) Act 2000. The Scottish Executive amended the Social Work (Scotland) Act 1968 in order to clarify the law on provision of community care services to adults with incapacity, through the Adult Support and Protection (Scotland) Act, which received Royal Assent on 21/03/2007. Section 64, which amends section 13 of the 1968 Act, came into force on 22/03/2007.

            2) Guidance: On 10/12/2005, the Department of Health issued advice to local authorities and those responsible for the provision of health care in England and Wales, setting out steps that should be taken in the interim to avoid further breaches of the Convention.

On 30/03/2007, the Scottish Executive issued the document: Guidance for Local Authorities: Provision of Community Care Services to Adults with Incapacity.

            3) Publication: The judgment of the European Court was published in the European Human Rights Reports (2005) 40 E.H.R.R. 32; Butterworths Human Rights Cases: 17 B.H.R.C 418; (2005) Lloyd's Rep. Med. 169; Butterworths Medico-legal Reports: (2005) 81 B.M.L.R 131; and in The Times on 19/10/2004.

• Information is required on the entry into force, function and approach of the Deprivation of Liberty Safeguards. It is also noted that whilst the process of legislative change is underway in Northern Ireland, the doctrine of necessity still applies and this position will not change until 2011 at the earliest. Information on any interim measures or guidance given to authorities following the European Court’s judgment would be welcomed.

26494/95          J.T., judgment of 30/03/00 - Friendly settlement

The applicant, who was forcibly detained in a psychiatric institution until 1996, complained of the legislation (Mental Health Act 1983) under which she was unable to change the person appointed “nearest relative” - in her case her mother with whom she was in conflict (complaint under Article 8).

Individual measures: The applicant was discharged from the psychiatric institution in 1996. There was no undertaking by the government in respect of individual measures.

General measures: Under the terms of the friendly settlement, the Government committed itself to undertaking legislative reform to amend the legislation at issue in this case (Mental Health Act 1983), with a view to allowing committed psychiatric patients to contest the status of "nearest relative" before a court if the patient submits reasonable objections to a person acting in such capacity.

            - England and Wales: The Mental Health Bill was adopted by Parliament on 04/07/2007 and received Royal Assent on 19/07/2007. Sections 23 to 26 of the Mental Health Act 2007 are relevant to the J.T. case. In particular, section 24 enables patients to apply to a court to discharge or vary an order appointing a person as “nearest relative”. The court must be of the opinion that the person appointed is a “suitable person”.

            - Northern Ireland: Under Articles 36-37 of the Mental Health (Northern Ireland) Order 1986, which mirror the wording of sections 29-30 of the Mental Health Act 1983, a patient cannot apply to a court to change the person appointed as “nearest relative”.

Following the Review of Mental Health and Learning Disability, a report was published on 16/08/2007. This report will be submitted to the Department of Health, Social Services and Public Safety for their consideration.

The section relevant to the J.T. case is “A Comprehensive Legal Framework for Mental Health and Learning Disability”, which states that the proposed legislative framework should include the introduction of a “nominated person” to replace the “nearest relative” (§ 6.6), and that a person should be capable of refusing the involvement of a previous carer, and that in such situations, the appointment of another “nominated person” should be facilitated (§ 6.35).

• Information provided by the United Kingdom authorities on (09/10/2008): The review in Northern Ireland is called the Bamford Review. The review was put back to June 2008 and has now gone out to consultation. The consultation closed on 03/10/2008. Subsequently, following analysis, a document will be produced to outline the way forward on reforming and modernising mental health and learning disability services in Northern Ireland.It is acknowledged that legislative reform is required in respect of mental health and mental capacity legislation. In the light of consultation responses, further consideration is now being given to how best this might be achieved (including the time-frame), recognising the potential interrelationship between mental capacity and mental health legislation. Any changes in legislation arising from the European Court’s judgment will be considered as part of this process. At present the common-law doctrine of necessity still applies in Northern Ireland. The earliest that legislative reform could be enacted is 2011.

- Scotland: Scotland has its own legislation in this area (The Adults with Incapacity (Scotland) Act 2000 and the Adult Support and Protection (Scotland) Act 2007). According to the Secretariat's assessment, it would not appear to give rise to circumstances similar to those in the J.T. case.

• Further information is awaited on the progress of the legislative changes in Northern Ireland. It is noted that the process for legislative change is underway in Northern Ireland. However, the soonest any changes could be adopted would be in 2011, some 11 years after the friendly settlement. In light of this, information on any interim measures and guidance to authorities on how to apply the current case law would be welcome.

74025/01          Hirst No. 2, judgment of 06/10/2005 - Grand Chamber

The case concerns the fact that the applicant, who was serving a prison sentence following a criminal conviction, had been barred from voting (violation of Article 3 of Protocol No. 1).

The European Court noted in particular that the ban imposed by the Representation of the People Act 1983 applied automatically to convicted prisoners irrespective of the length of their sentence, of the nature or gravity of their offence or of their individual circumstances. The Court concluded that such a general restriction on a vitally important right had to be seen as falling outside the wide margin of appreciation allowed to contracting states in this field, and thus incompatible with the Convention.

Regarding the existence or not of any consensus among contracting states on the subject, the Court noted that there remained a minority of states in which a blanket restriction on the right of convicted prisoners to vote was imposed or in which there was no provision allowing prisoners to vote.

Individual measures: On 25/05/2004, the applicant was released from prison on licence. He may therefore vote.

General measures:

            1) The Action Plan: On 07/04/2006, the United Kingdom authorities supplied an action plan for the execution of this case. The UK authorities committed themselves to undertaking consultation to determine the measures required to implement the judgment (written ministerial declaration of 02/02/2006). A consultation paper setting out the principles, context and options should have been distributed and responses to that paper should be collected by September 2006. Between September 2006 and February 2007, analysis of those responses should take place, and if appropriate, further consultation should take place and the drafting of a second document containing the preferred option and detailed implementation issues. Further analysis should then take place, and if appropriate, the drafting and publication of another document might take place between March and June 2007. If legislation is chosen as the method of executing the judgment, then the drafting of legislation will commence at that time. Draft legislation would then be introduced from October 2007 onwards, its timing being subject to parliamentary business.

a) The First Consultation Paper: The consultation paper on “Voting Rights of Convicted Prisoners Detained within the United Kingdom” was published on 01/12/2006. It sets out, inter alia, a summary of the European Court’s judgment, the relevant international documents, the practice of the Council of Europe member states and the proposals that the government believes merit careful consideration:

            i) retaining the ban (the Consultation Paper notes that this is the preference of some people and the government but recalls the European court’s finding that retaining a blanket ban falls outside the margin of appreciation of contracting states; however, comments are invited on it);

            ii) enfranchising prisoners serving less than a specified term;

            iii) allowing those responsible for sentencing to decide; and

            iv) enfranchising all tariff-expired life sentence prisoners.

The paper does not set out full enfranchisement as a realistic option, as the government is opposed to it.  Proposals were also made specifically concerning prisoners found guilty of election offences and convicted offenders and non-offenders detained in mental hospitals.

            b) Information from civil society: It should be noted that on 03/04/2007, the Committee of Ministers received a communication from a non-governmental organisation, the AIRE Centre, under Rule 9. That communication notes that despite the government’s indication that it would engage in a proper debate, it states in the Consultation Paper that it remains wholly opposed to full enfranchisement. Although the Consultation Paper offers the option of retaining the blanket ban (and welcomed receiving the views of those who agree with this position), it excludes from consideration the possible option of abolishing disenfranchisement of prisoners altogether.

            c) The response of the UK authorities: The United Kingdom government recalls that the Consultation Paper did state that views on total disenfranchisement were welcome but nonetheless made it clear, as noted above, that retaining the total ban is outside the margin of appreciation given by the Convention, and is therefore not an actual proposal.  When expressing its belief that an offence serious enough to warrant a term in prison should entail a loss of voting rights while in prison, the government was simply repeating what its position was prior to and throughout the Court proceedings in this case.

However, government recognises its obligation to comply with the judgment and has set out a range of options to achieve this. The United Kingdom government does not interpret the judgment as creating an obligation to enfranchise all prisoners, and has indicated its opposition to such an option, which is why it is omitted from the list of possible options for change in the consultation document. The government indicates that to amend UK law will require primary legislation, and that proposals and resulting draft legislation would be laid before, and thoroughly debated in, both Houses of Parliament.

            2) The revised Action Plan: A revised Action Plan was provided along with a revised timetable anticipating the introduction of draft legislation around May 2008. The first stage of consultation ended on 07/03/2007. On 25/10/2007, the authorities of the United Kingdom indicated that the government was still considering the responses to the Phase 1 Consultation paper.

On 14/04/2008 the United Kingdom authorities stated that they wished to undertake a second, more detailed consultation on how voting rights might be granted to serving prisoners. The authorities acknowledged the delay to the timetable. However, they consider it essential that changes to the law extending the franchise to those held in custody are considered in the wider context of the development of policy on the franchise and the rights that attach to British Citizenship.

The decision to hold a second consultation follows the paper published by the authorities in July 2007 called the Governance of Britain and the subsequent Goldsmith Review published on 11/03/2008, which recommends a number of changes to voting rights.

The United Kingdom authorities intend to submit further information in the near future on the form and timing of a second consultation and following its outcome, confirm that legislation to implement the final approach will be brought forward as soon as Parliamentary time allows.

• Information provided by the UK authorities (on 14/10/2008): the UK authorities confirmed that they remain committed to a second consultation and again acknowledged the delay in the timetable for the second consultation. They stated that information on the form and timing of the consultation would be submitted shortly.

In its recently published annual report (Monitoring the Government’s Response to Human Rights Judgments: Annual Report 2008) the UK Parliament’s Joint Committee of Human Rights criticised the delay in implementing this case (see §§62 and 63 of the report). The Joint Committee stated that any further delay may result in the next UK election taking place in a way that fails to comply with the Convention.

• Information is required on a regular basis on the progress made in the consultation process and the follow-up to that process.

66746/01          Connors, judgment of 27/05/2004, final on 27/08/2004

The case concerns a breach of the applicant's right to respect for his private and family life and his home on account of the eviction of the applicant and his family from a local authority gypsy caravan site in August 2000. The European Court found that their eviction was not attended by the requisite procedural safeguards, in that there was no requirement for the local authority to establish proper justification for the serious interference with the applicant's rights. The eviction therefore could not be regarded as justified by a “pressing social need” or proportionate to the legitimate aim being pursued (violation of Article 8).

Individual measures: The European Court awarded just satisfaction to the applicant in respect of non-pecuniary damages consequent upon the denial of the opportunity to obtain a ruling on the merits of his claims that the eviction was unreasonable or unjustified.

• Assessment: under the circumstances, no further additional measure appears necessary.

General measures: The government intends to implement the Connors judgment by legislation, i.e. the Housing and Regeneration Bill.

            1) Legislation: On 15/09/2008 the United Kingdom authorities confirmed that the Housing and Regeneration Bill is now an Act, having received Royal Assent on 22/07/2008. The Act provides changes to the Mobile Homes Act 1983 extending the provisions and protections in that Act to Gypsy and Traveller sites. The amendments to the Mobile Homes Act will be brought into force via secondary legislation.

On 25/09/08 the United Kingdom authorities published a consultation paper (at http://www.communities.gov.uk/publications/housing/implementingmobilehomesact). The consultation paper relates to proposals for consequential amendments to the Mobile Homes Act 1983 in respect of local authority Gypsy and Traveller sites, and transitional provisions. It is expected that the secondary legislation which brings into force the relevant section of the Housing and Regeneration Act 2008 (which will include these consequential amendments and transitional provisions) will be made in the first half of 2009.

            2) Interim guidance: On 17/05/2007 the government published for consultation a draft guidance on management of gypsy and traveller sites, including interim guidance to local authorities on summary possession and the implementation of the Connors judgment. The consultation period ended on 22/08/2007. The draft recommends that authorities avoid asserting a right to summary possession, and encourages them to provide additional protection to licensees.

            3) Other relevant measures: In addition to these measures, the United Kingdom authorities drew attention first, to the Housing Act 2004, which allows judges to suspend eviction orders against residents of local authority sites on certain terms (for example on condition that there is no further anti-social behaviour). Second, they indicated that the nature of judicial review has changed since the Human Rights Act came into force. In R (Wilkinson) v Broadmoor Hospital RMO [2002] 1 WLR 419, the Court of Appeal held that there should be cross-examination of witnesses to determine the factual matters at issue and that, on this basis, the judicial review procedure would be compatible with Article 6 of the Convention.

            4) Publication: The judgment of the European Court was published in the European Human Rights Reports at (2005) 40 EHRR 9.

• Information is awaited on the progress of the consultation and secondary legislation to be made pursuant to the Housing and Regeneration Act in England and Wales.