Ministers’ Deputies

Volume 1 of the Annotated Agenda includes cases concerning which the Deputies are expecting information, i.e. Section 4 (Cases raising specific questions: individual measures, measures not yet defined or special problems), Section 5 (Supervision of general measures already announced) and Section 6.1 (Cases in which new information available allows the preparation of a draft final resolution).

Proposals concerning which items should be debated at the meeting will be circulated at a later stage in the Order of Business prepared on the basis of the criteria for non-debate contained in the guidelines approved at the 879th meeting (April 2004).

GENERAL QUESTIONS

a. Adoption of the Annotated Agenda

Action

The Deputies are invited to adopt the present annotated agenda.

b. State of ratification by member States of the European Agreement relating to persons participating in proceedings of the European Court of Human Rights, the Sixth Protocol to the General Agreement on privileges and immunities of the Council of Europe and Protocols No. 12, No. 13 and 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms

Action

The Deputies are invited to provide information on the state of signature and ratification of these texts. Tables showing the current state of signature and ratification appear in Addendum General Questions.

c. Preparation of the next meeting (906th (8-9 December 2004)) see Volume II and Addendum.

d. Responses in the event of slow or negligent execution or non-execution of judgments of the European Court of Human Rights

CM(2003)37-Rev 6 (to be issued)

Action

The Deputies are invited to resume consideration of this item in the light of the revised memorandum prepared by the Secretariat.

* e Request for declassification of the document : “Working methods of the Deputies’ Human Rights meetings - Chairman’s proposals” (CM/Inf(2004)8-Final)

Addendum General Questions

Action

The Deputies are invited to examine this item with a view to declassifying document DC/Inf(2004)8 Final.

* f Written Question No. 445 by Mr Wilkinson: “Implementation of a judgment of the European Court of Human Rights concerning the United Kingdom”

(CM/Del/Dec(2004)894/3.1f, CM(2004)85)

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 progress made in adopting or 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 decide case by case at which meeting consideration should be resumed.

SUB-SECTION 4.1 – SUPERVISION OF INDIVIDUAL MEASURES ONLY[2]

- 4 cases against Belgium

H46-638 26103/95 Van Geyseghem, judgment of 21/01/99 – Grand Chamber

H46-639 34989/97 Goedhart, judgment of 20/03/01, final on 20/06/01

H46-640 36449/97+ Stroek L. and C., judgment of 20/03/01, final on 20/06/01

These three cases concern infringements of the applicants’ right to defend themselves through legal assistance of their own choosing at different stages of criminal proceedings (1st instance, appeal and opposition (appeal on specific grounds of non-representation)) the Courts seised refused, because of the applicants failure to appear, to hear their lawyers or to take into account the pleadings filed by them on the merits (violation of Article 6§1 combined with Article 6§3c)).

The cases of Stroek and Goedhart also concern an infringement of the right of access to a tribunal because of the decisions of the Cour de cassation declaring the applicants’ appeal on points of law inadmissible because they had not complied with warrants for their arrest (violation of Article 6§1).

At the end of the proceedings, the applicants were all sentenced to fines and imprisonment. In the last two cases, an international arrest warrant was taken out against the applicants.

Individual measures: The Belgian authorities granted a pardon to Mr Stroek and Mr Goedhart which partly erased the consequences of their conviction, i. e. declared void the international arrest warrant taken out against them.

During the examination of these cases, the Belgian delegation also announced that a bill on reopening of proceedings following a judgement of the European Court of Human Rights was being studied. By letter of 03/12/2003, the delegation indicated that this bill had not been carried over into the next session of Parliament following its dissolution in April 2003. Contacts are in progress between the Secretariat and the Belgian authorities to examine possible individual measures to be taken in theses cases.

General measures: the judgment of the European Court in the Van Geyseghem case has been widely disseminated with a circular and the Cour de cassation quickly changed its case-law. By letter of 03/12/2003, the delegation indicated that the Code of Criminal Procedure had been amended by a Bill of 12/02/2003, so that it is now established that a lawyer may represent his client under all circumstances and that anyone may lodge an appeal on points of law, even if they are not in prison in accordance with a sentence.

H46-641 33400/96 Ernst and others, judgment of 15/07/03, final on 15/10/03

This case concerns searches carried out in 1995 in the homes and business premises of the applicants, four professional journalists and two associations of professional journalists. These searches were carried out as part of preliminary investigations in cases where no charge had been brought against the applicants (the cases concerned related to violations of professional secrecy, some of which seemed attributable to one or more members of the public prosecutor’s office).

The European Court found an infringement of the applicants’ right to freedom of expression (violation of Article 10), because the measures aimed at discovering their journalistic sources were not proportionate to the intended legitimate aims (among other things, preventing the disclosure of confidential information), particularly in the light of the inadequacy of the grounds for the searches and their massive character.

The Court also found an infringement of the applicants’ right to respect for their home and private life (violation of Article 8), because of the inadequacy of the grounds for the searches, the broad wording of the terms of the search warrants, the great number of objects seized and the absence of information to the applicants regarding the legal proceedings that made the operation necessary.

Individual measures: At the 863rd meeting (December 2003), information was asked for concerning why certain objects and documents were still in the hands of the judicial authorities. At the 879th meeting (April 2004), the delegation stated that the applicants’ lawyers had been asked if the objects and documents at issue had been returned. Their answer is awaited. It would also be useful to know what happened to the copies made of some of the documents and magnetic media (§ 116).

General measures (No examination at the present meeting): At the 863rd meeting (December 2003), the Belgian delegation stated that bills relating to the protection of journalists’ sources were under discussion before Parliament. It also recalled that this judgment, like all other judgments of the European Court, is published in the official languages on the internet site of the Ministry of Justice. At the same meeting, the dissemination of the judgment to investigating magistrates and to the police, together with a circular, was requested, as well as information on the progress of the discussion before Parliament.

- 1 case against Bulgaria

H46-728 50963/99 Al-Nashif and others, judgment of 20/06/02, final on 20/09/02

The case concerns the deportation of the first applicant, a stateless person, to Syria on 04/07/1999. The European Court considered that there had been a violation of the applicants’ right to family life, as the applicable legal provisions did not give sufficient guarantees against arbitrariness, the first applicant having been deported on the basis of considerations of national security exclusively within the discretionary power of the Ministry of the Interior (violation of Article 8). The Court further found that the applicants had not had access to an effective remedy in this respect (violation of Article 13). The case finally concerns the fact that the first applicant had, under the applicable law, been given no opportunity to challenge the lawfulness of his detention while awaiting deportation (violation of Article 5§4).

Individual measures: By letter of 02/12/2002, the applicant's lawyer indicated that he had introduced an application to reopen the judicial proceedings before the Supreme Administrative Court with a view to lifting the ban on his entry to Bulgaria. By decisions of 08/05/2003 (No. 4332) and 12/05/2003 (No. 4473), the Supreme Administrative Court quashed the judicial decisions challenged by the European Court and referred the applicant's complaint back to the Sofia City Court and to the District Court of Smolian for new examination. Further information on the outcome of these proceedings is awaited.

General measures: (No examination at the present meeting) At the 819th meeting (December 2002), the attention of the Bulgarian authorities was drawn to a number of problems in the legislation and regulations which were the basis of the violations found by the European Court in the present case (see in particular Article 46 of the Aliens Law). Indeed, Bulgarian law does not provide for judicial review of the lawfulness of aliens' detention in case of their expulsion on the grounds of national security (cf. Court's finding under Article 5§4), nor of the decision of expulsion itself when such reasons are evoked.

The Bulgarian authorities have thus been invited to bring domestic law in line with the Convention so as effectively to prevent new violations similar to those found in the present judgment. It was suggested that the experience of other countries which had been confronted with similar problems in the past be taken into account in planning and adopting the general measures in this case (e.g. Chahal against the United Kingdom, judgment of 15/11/1996, Resolution ResDH(2001)119).

At the 827th meeting (February 2003), the Bulgarian delegation informed the Committee that their authorities were carefully considering the above-mentioned issues. It added that the translation of the judgment of the European Court into Bulgarian had already been made.

It should be noted that the Administrative Supreme Court observed in its decision No. 4473 of 12/05/2003 that the amendments to the law on foreigners of 22/04/2003 did not change the current legal provisions in accordance with the requirements of the Convention.

On 08/06/2004 the Secretariat received a letter from the delegation containing the detailed comments of the Bulgarian authorities, in particular on the possibility of lodging of an application for reassessment with the Minister of Interior against measures of expulsion on the grounds of national security. Since this procedure does not correspond to the requirement of the Convention of an effective remedy before an independent authority having a minimum of competence and certain form of adversarial proceedings, the Bulgarian authorities have been invited to consider adopting further measures to abide by the judgment of the European Court. The Bulgarian delegation and the Secretariat are currently pursuing these issues.

In addition, information is awaited on the introduction into Bulgarian law of judicial review of the lawfulness of detention ordered in cases of expulsion on the grounds of national security. The confirmation of the publication of the judgment is also awaited.

- 4 cases against Croatia

H46-642 61237/00 Aćimović, judgment of 09/10/03, final on 09/01/04

H46-643 60533/00 Kastelic, judgment of 15/07/03, final on 15/10/03

H46-644 48778/99 Kutić, judgment of 01/03/02, final on 01/06/02

H46-645 58112/00 Multiplex, judgment of 10/07/03, final on 10/10/03

These cases concern the violations of the applicants’ right of access to a court to obtain a determination of their civil claims filed between 1993 and 1996 for damage caused by the members of the Croatian army or police during the Homeland War in Croatia (1992-1995) or resulting from terrorist acts. In 1996 and 1999, before the adoption of a final court decision at national level in these cases, legislation was adopted ordering all proceedings of this kind to be stayed until new provisions were enacted to regulate the matter.

The new legislation, which provides for the resumption of stayed proceedings, was adopted by the Croatian Parliament only on 14/07/2003 (violations of Article 6§1).

When the European Court delivered its judgments (more than 4 years, 5 years and 5 months, and 3 years and 7 months respectively) had elapsed and no new legislation had been passed in the meantime (violations of Article 6§1).

Individual measures: Acceleration of the proceedings pending at national level. The Croatian delegation has indicated that the examination of these proceedings must be resumed by the domestic courts ex officio and that this has already been done in the cases of Kutić and Kastelic. In this respect further information will be useful on the measures envisaged in order to ensure the monitoring of the examination of these cases at national level.

General measures: On 14/07/2003 the Croatian Parliament adopted the Act on the Responsibility of the Republic of Croatia for Damage caused by Members of the Croatian Army and Police during the Homeland War and the Act on the Responsibility of the Republic of Croatia for Damages resulting from Terrorist Acts and Public Demonstrations. These laws provide for the resumption of civil proceedings which had been stayed in accordance with the law of 1996 and 1999.

The judgment of the European Court in the case of Kutić was translated and published on the official Internet site of the government (www.vlada.hr/dokumenti.html), in the Collected Papers of the Zagreb Law School (issue n° 2/2003) and in the journal The Informer (issue n° 5022/2002). Moreover, it has been disseminated to the courts of the country. The judgment of the European Court in the case of Multiplex was published in the journal The Informer (issue n° 5176/2003).

Information is awaited on publication and dissemination of the judgment of the European Court in the Aćimović case to all civil courts drawing their attention to §§30, 33 and 34 of the judgment relating to the application of the new Act of 14/07/2003 on the responsibility of the Republic of Croatia for damage caused by members of the Croatian Army and Police during the Homeland War.

- 3 cases against France

H46-140 71846/01 Rachdad, judgment of 13/11/03, final on 13/02/04[3]

The case concerns a violation of the applicant’s right to a fair trial in that he had been convicted solely on the evidence of witnesses whom he had been unable to examine or have examined at any stage of the proceedings (violation of Article 6 §§ 1 and 3d).

Subsequent to the proceedings at issue, by a judgment of 02/12/1998, the Court of Appeal increased the applicant’s sentence to six years’ imprisonment and ordered his permanent exclusion from French territory.

Individual measure: The applicant has applied for the re-opening of the proceedings on the basis of Articles 626-1 et seq. of the Code of Criminal Procedure. In order to allow him to remain on French soil awaiting the outcome of these proceedings, a compulsory residence order has been made against the applicant, his application for the lifting of the permanent exclusion from French territory having been rejected. By telephone and by letter of 29/07/2004, the applicant told the Secretariat of his fears concerning the renewal of the compulsory residence order, which expires on 08/01/2005. Information is awaited in this respect.

General measures: Publication and dissemination of the European Court’s judgment to competent authorities.

H46-648 42405/98 C.D., judgment of 07/01/03, final on 21/05/03

The case concerns the excessive length of certain civil proceedings concerning the division of an inheritance (violation of Article 6§1).

The proceedings began on 04/10/1984 and 25/10/1984 and were still pending when the European Court delivered its judgment (at least eighteen years and three months, for two levels of jurisdiction).

Individual measures: Information is awaited on the state of the proceedings and, if they are still pending, on the measures taken or envisaged for their acceleration.

H46-649 55926/00 Loyen and others, judgment of 29/04/03, final on 29/07/03

This case concerns the excessive length of civil proceedings still pending before the appeal court of Douai when the European Court adopted its judgment (more than 8 years and 3 months for the two first applicants and more than 12 years and 6 months for the third) (violation of Article 6§1).

The case also concerns the absence, at the date of introduction of the application, of any effective remedy in this respect (violation of Article 13).

General measures: In connection with the second violation, the European Court noted that applications for compensation founded on the article L 781-4 of the Code of Judicial Organisation had, since the present case, acquired a sufficient degree of legal certainty to be considered an effective remedy (see the judgment of the Court in the case of Nouhaud and others of 09/07/2002 and the inadmissibility decision of the Court in the Mifsud case of 11/09/2002).

Individual measures: Information is awaited on the state of the proceedings and, if they are still pending, on the measures taken or envisaged for their acceleration.

- 1 case against Germany

H46-650 74969/01 Görgülü, judgment of 26/02/04, final on 26/05/04

The case concerns the violation in 2001 by the Naumburg Court of Appeal of the applicant’s right to respect for his family life, in proceedings relating to the applicant’s custody of and access to his child born out of wedlock in 1999 and living with a foster-family. With regard to custody, the European Court considered that the Court of Appeal’s decision not to give custody to the applicant failed to take into consideration the long-term effects on the minor child of a permanent separation from his biological father. With regard to the suspension of the applicant’s visitation rights, in respect of which states have a narrower margin of appreciation, the European Court found that the Court of Appeal’s decision was insufficiently reasoned and rendered any form of family reunion impossible, thus not fulfilling the positive obligation imposed by Article 8 to unite biological father and son (violations of Article 8).

Individual measures: In October 2002, the applicant filed a new application for custody of his son and for interim measures granting him visitation rights with the court of first instance, the Amtsgericht Wittenberg. In March 2004, the Amtsgericht Wittenberg decided in favour of the applicant, referring to the judgment of the European Court. However, by orders of 30/06/2004 and of 09/07/2004, the Naumburg Court of Appeal again decided not to give the applicant access to his child, thus rejecting the interim order of the court of first instance, and not to give him custody regardless of the judgment of the European Court. The Appeal Court does not consider itself bound by the judgment of the European Court, reasoning that only the German state, as a party to the Convention, can be bound. Thus it did not take into account the merits of the Court’s judgment. The Appeal Court decision is in principal final. Accordingly, on 17/07/2004 the applicant’s lawyer filed a complaint with the Federal Constitutional Court, also requesting interim measures.

It is recalled that according to the judgment of the European Court, under Article 46 of the Convention, the parties are obliged to adopt, if appropriate, individual measures to put an end to the violation found and as far as possible to erase the effects of this violation, which means that the applicant should at least have access to his child (§64 of the judgment).

By a letter of 22/07/2004 the Federal Constitutional Court informed the applicant’s lawyer that it had sent the constitutional complaint to the Naumburg Court of Appeal asking for an opinion to be given by 04/08/2004. Given this short deadline set by the Federal Constitutional Court it seems that the court will treat the matter with high priority.

General measures: In its letter of 12/07/2004, the respondent state informed the Secretariat that by letter of the Government Agent of 29/03/2004 the judgment of the European Court had been distributed to the courts and justice authorities directly concerned. Information on possible wider publication and dissemination is awaited once the Federal Constitutional Court has rendered its decision.

Even though in principle reopening of civil proceedings is not provided for by German civil law if a violation of the Convention has been found, in family law matters reopening is possible if the facts of a case have changed (§ 1696 BGB). In principle this provision could be used by courts to remedy the breach of the Convention found by the European Court. The issue is however whether this possibility is effective in practice.

- 1 case against Hungary

H46-651 57967/00 Kmetty, judgment of 16/12/03, final on 16/03/04

The case concerns the lack of an effective investigation capable of leading to the identification and punishment of those responsible, into the applicant’s arguable claim to have suffered ill-treatment at the hands of the police in December 1998 (violation of Article 3). The European Court emphasised that although an investigation had been carried out, it suffered from a number of shortcomings. In particular, the investigating authorities limited their scrutiny of the medical evidence to obtaining an ex post facto opinion, which did not address the issue of whether or not the applicant had his injuries on arrival at the police station. Moreover, although the applicant claimed to have identified two of the police officers concerned, no confrontation between the applicant and all the suspects was organised, although this could have contributed to the clarification of the events; nor did it appear that the suspected police officers were actually questioned during the investigation, thereby depriving the applicant of any opportunity to challenge the alleged perpetrators’ version of the events.

Individual measures: In the context of the new working methods adopted by the Committee on 05/04/2004, the Secretariat wrote to the Hungarian authorities on 07/07/2004 with a view to drawing up a plan of action for the execution of this judgment. Information was also requested concerning whether the applicant may request a fresh investigation into the relevant events.

General measures: (No examination at the present meeting) Publication and dissemination of the judgment of the European Court to the competent authorities; as regards other general measures, the Hungarian authorities have been invited to indicate the measures envisaged, with a view to their examination by the Committee at the 906th meeting (DH) (December 2004).

- 5 cases against Italy

H46-653 39676/98 Rojas Morales, judgment of 16/11/00, final on 16/02/01

The case concerns the unfairness of certain criminal proceedings against the applicant, which resulted in his being sentenced, in May 1996, to 20 years’ imprisonment and to pay a fine for drug dealing. The European Court found that the applicant’s fears concerning the impartiality of the tribunal were objectively justified by the fact that two of the judges who convicted him had already assessed the applicant’s responsibility in a previous judgment against one of the applicant’s co-defendants, on the basis of the same facts (violation of Article 6§1).

Individual measures: Information is expected on the adoption of appropriate measures, allowing the Court’s judgment to be mentioned in the applicant’s criminal record. In this connection, the Italian authorities had indicated in July 2001 that the Directorate General for criminal affairs of the Ministry of Justice had been solicited to consider a reform to the rules on criminal records.

The applicant has furthermore stated that he would not request a reopening of the proceedings pending the outcome of his request to be transferred to Chile to complete his sentence.

General measures (No examination envisaged at the meeting): By a judgment of October 1996 (No. 371), the Italian Constitutional Court declared the provisions of the Code of Criminal Procedure at issue unconstitutional, insofar as they did not provide the incapacity of a judge who had participated in other proceedings arising from the same facts against others persons in which the position of the accused has been take into account and evaluated.

In addition, the judgment of the European Court has been translated into Italian, sent out to the criminal courts and published in the Bulletin of the Ministry of Justice, No. 24 of 31/12/2003.

H46-655 37119/97 N.F., judgment of 02/08/01, final on 12/12/01

The case concerns in particular unlawful interference in the freedom of association of the applicant, a judge, on account of disciplinary sanction imposed on him in 1994 because of his membership, until October 1992, of a Masonic lodge. The European Court considered that the sanction was not “foreseeable” or “prescribed by the law” because the provisions at its basis (namely, Article 18 of Royal Decree No. 511 of 31/05/1946 combined with a 1990 directive of the Supreme Judicial Board (C.S.M.)) were not clear enough (violation of Article 11).

Individual measures: The applicant complained at the rejection of his applications for career promotion since 1997 on account of the impugned disciplinary sanction. Accordingly, on the basis of the judgment of the European Court, the applicant initiated proceedings before the administrative courts and before the disciplinary section of the Supreme Judicial Board (C.S.M.) so as have the consequences of the violation erased.

As regards the proceedings introduced before the administrative courts, the regional administrative court, by decision of 11/07/2002, quashed the decision of the C.S.M. of July 2000 refusing to grant the applicant a promotion as of 16/10/1997 because of the disciplinary sanction of 1994. The C.S.M. however appealed against this decision and the case is still pending before the Council of State. The Italian authorities have indicated that a Council of State decision in favour of the applicant would allow the consequences of the violation found to be erased, as the C.S.M. would then have to reconsider the applicant’s request for promotion. Information is expected on the outcome of the pending procedure.

As regards the revision proceedings before the disciplinary section of the C.S.M., aimed at obtaining retroactive promotion and the annotation of the Court’s judgment in his professional file, a first request was rejected on 30/07/2002 on the grounds that the European Court’s judgment could not be considered as a “new fact” and that Italian law does not allow reopening of proceedings on the basis of the findings of the European Court. The applicant’s request to have the Court’s judgment mentioned in his professional file was also rejected at the same occasion. Following the second request, filed on the basis of the decision of the regional administrative court of 11/07/2002 (see above), the C.S.M. on 02/04/03 partially revised its previous decision, by retroactively acknowledging the applicant’s promotion as of 16/10/2000. The applicant maintains however that the decision should apply as from 16/10/1997 (see applicant’s letter of 29/04/2003).

General measures: A new directive, clearly establishing the incompatibility of membership of Masonic associations with the exercise of judicial functions was issued in 1993 (after the applicant had ceased to be a freemason and the procedure against the applicant had already begun).

The Italian authorities indicated, by letter of 3/10/2003, that the judgment of the European Court had been brought to the attention of the competent judicial authorities. The judgment was also published in the legal journal Il Foro italiano, No. 11 of 2001.

H46-654 39748/98 Maestri, judgment of 17/02/04 - Grand Chamber

The case concerns an unlawful interference with the freedom of association of the applicant, a judge, on account of a disciplinary sanction imposed on him in 1995 because of his membership, until March 1993, of a Masonic lodge. The European Court considered that the sanction was not “foreseeable” or “prescribed by the law” because the provisions at its basis (namely, Article 18 of Royal Decree No. 511 of 31/05/1946 combined with a 1990 directive of the Supreme Judicial Board) were not clear enough (violation of Article 11).

The case is similar to the N.F. case (judgment of 02/08/2001, final on 12/12/2001) above.

Individual measures: The applicant maintains that his career has been at a standstill since the disciplinary section’s decision of 1995. He accordingly expressed before the European Court the request that the disciplinary proceedings be reviewed and drew attention to Article 37§6 of the 1946 Decree, which may allow for such a revision (see §45 of the judgment). The Court recalled that it was for the Italian Government to take appropriate measures to redress the effects of any past or future damage to the applicant's career as a result of the disciplinary sanction against him which the Court has found to be in breach of the Convention.

At the 879th meeting (April 2004), the Italian Delegation, referring to the individual measures undertaken in the framework of the abovementioned N.F. case, recalled that the Supreme Judicial Board (C.S.M.) might take the judgment of the European Court into account and erase the consequences of the violation found if it was seized with a new request for career promotion by the applicant.

On the other hand, as regards the revision of disciplinary procedures on the basis of the provisions mentioned by the applicant, the delegation recalled that the C.S.M. had established in 2002 that such revision would require a legislative amendment to make it possible to reopen domestic proceedings following the finding of a violation of the Convention. A draft law on this subject is before the Senate.

General measures: A new directive, clearly establishing the incompatibility of membership of masonic associations with the exercise of judicial functions was issued in July 1993 (i.e. after the applicant had ceased to be a freemason).

H46-656 41879/98 Saggio, judgment of 25/10/01, final on 25/01/02

The case concerns in particular the fact that no effective remedy was available to the applicant from 1995 onwards to claim payment of back pay from a company which had been placed under compulsory administration, or to contest the action of the liquidator because at that time judicial action was only possible after the list of debts had been established (violation of Article 13).

Individual measures: Information has been awaited since 2002 on measures envisaged to provide an effective remedy and bring to an end the violation found, as the applicant cannot recover his money as long as the compulsory administration proceedings, which have been pending since 1995, are not completed. Information would be particularly useful as regards means available to accelerate and complete the proceedings at issue. A letter on these issues was addressed to the Italian authorities on 15/04/2004.

General measures: New provisions entered into force in August 1999 (Legislative Decree No. 270/99), allowing any creditor henceforth to contest the action of a liquidator in compulsory administration proceedings started after the entry into force of the law, before domestic courts.

Furthermore, the judgment of the European Court was published in the Official Bulletin of the Ministry of Justice, No. 13 of 17/07/2002 and brought to the attention of the judicial authorities.

H46-198 35227/97 Frascino, judgment of 11/12/03, final on 11/03/04[4]

The case concerns an unlawful interference with the applicant’s right of property on account of the failure of the municipality of Naples to comply with a final and enforceable judgment of the Council of State of May 1991, which ordered the granting of a planning permission within 30 days (violation of Article 1, Protocol No. 1).

Individual measures: Information is expected on the measures undertaken by the City of Naples to give execution to the Council of State’s judgment of May 1991. In fact, at 09/05/2003, the applicant had not yet obtained the planning permission at issue, which was requested in 1969. In the framework of the new working methods adopted by the Deputies in April 2004, the Italian authorities were invited, by letter of 25/06/2004, to submit an action plan for the execution of this judgment, including a time-table for the implementation of the measures to be taken. At the date of preparing this document, the Secretariat had not received any reply.

General measures (No examination envisaged): In order to identify the general measures which might be needed to prevent new, similar violations, clarification would be useful as to why a final judgment could remain unexecuted for over 12 years, with no legal basis and in spite of the nomination of a superintendent ad acta charged to ensure the execution of the judgment.

The European Court’s judgment should furthermore be published and widely disseminated. In the framework of the new working methods adopted by the Deputies in April 2004, the Italian authorities were invited, by letter of 25/06/2004, to submit an action plan for the execution of this judgment, including a time-table for the implementation of the measures to be taken. At the date of preparing this document, the Secretariat had not received any reply.

- 1 case against Latvia

H46-657 48321/99 Slivenko, judgment of 09/10/03 - Grand Chamber

CM/Inf(2004)13

The case concerns the deportation of the applicants, former Latvian residents of Russian origin, to Russia. The first applicant, whose father was an officer in the Soviet army, had lived in Latvia all her life. The second applicant, the daughter of the first applicant, was born in Latvia and lived there until she was 18. In November 1994 the applicants’ registration (as “ex-USSR citizens”) in the Latvian residents’ register was annulled relying on the Latvian-Russian treaty of 1994 on the withdrawal of Russian troops. The applicants’ deportation was ordered in August 1996. They also lost the flat were they had lived. The applicants unsuccessfully challenged their removal from Latvia before the domestic courts. In July 1999 the applicants moved to Russia to join the first applicant’s husband and subsequently obtained Russian citizenship. The applicants’ deportation order prevented them from returning to Latvia for 5 years (this prohibition expired on 20/08/2001) and then limited their visits to 90 days a year.

The European Court found that the expulsion of the applicants could not be considered as necessary in a democratic society, in that they were at the material time sufficiently integrated into Latvian society and that their presence could not be construed as a threat to national security simply through belonging to the family of a retired Soviet soldier who was not himself considered to present such a danger and had remained in the country on retiring in 1986 (violation of Article 8).

Individual measures: At the 879th meeting (April 2004), the Latvian authorities proposed that the applicants be granted one-year renewable multiple-entry visas, which would extend their right to stay in Latvia from 90 to 180 days a year. Information is expected about the nature of the visa currently granted to the applicants. At the 885th meeting (June 2004) the Latvian delegation indicated that the government was considering various possibilities concerning the applicants’ status, and that decisions would be taken following that debate. The delegation also undertook to submit at the present meeting a memorandum on the measures under way or to be taken. At the beginning of August, several press agencies announced that the Supreme Court had decided to reopen the court proceedings in the applicants’ case. Information is awaited on this issue.

General measures (No examination envisaged at the present meeting): Information is awaited concerning publication and dissemination of the European Court's judgment to authorities competent for deportation matters so as to allow them to apply the principles established by the Court in future, similar cases. Further measures are being studied.

- 1 case against Lithuania

H46-877 53161/99 Meilus, judgment of 06/11/03, final on 06/02/04

The case concerns the excessive length of certain criminal proceedings. In November 1994 the applicant was suspected of fraud in a criminal case and, when the European Court delivered its judgment, the proceedings were still pending before the first instance court (almost 9 years, of which more than 8 years and 3 months fall within the Court’s jurisdiction). They involved three levels of jurisdiction and a referral following an appeal on a point of law (violation of Article 6§1).

Individual measures: Information is awaited on the measures adopted by the Lithuanian authorities with a view to accelerating the criminal proceedings, which were still pending before the first-instance court in June 2004.

General measures (No examination envisaged at the present meeting): By letter of 24/02/2004, the Lithuanian delegation informed the Secretariat that the new Code of Criminal Procedure, entered into force on 01/05/2003, imposes a 6-month time-limit for the pre-trial investigation and, subsequently, a 20-day time-limit for referring the case to a competent court for a first hearing. According to Section 215(1) of the new Code, upon the suspect’s complaint alleging an excessively long pre-trial investigation, the investigating judge may compel the competent prosecutor to complete or discontinue the investigation.

The judgment of the European Court was translated and published in the annual compendium Europos žmogaus teisių teismo sprendimai bylose prieš Lietuvos Respubliką (2003 01 01-2004 01 01) and disseminated with a press release to the criminal courts directly concerned and the General Prosecutor’s Office.

- 4 cases against Romania

H46-437 34647/97 Ruianu, judgment of 17/06/03, final on 17/09/03[5]

The 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 (violation of Article 6§1). The European Court concluded that, in spite of the applicant’s repeated requests, only one adequate attempt was 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.

Individual measures: The applicant has asked for the building at issue to be demolished, but the Romanian authorities indicated (by letter of 31 May 2004) that the time-limit for enforcing the decision having expired, the state authorities can no longer do this. In view of the European Court’s finding that the applicant has regularly requested enforcement (§67), and also in view of the authorities’ obligations given that it is they who exercise public authority concerning the enforcement stage (§71), this argument should not represent an obstacle to the enforcement of the domestic court decisions at issue. Moreover, the measure is also required by the Committee of Ministers’ practice in this kind of cases.

General measures (Not examined at this meeting): Information concerning general measures to ensure better enforcement of court decisions was requested at the 863rd meeting (December 2003). By a letter of 31/05/2004, the Romanian authorities provided some information concerning the means available in domestic law to ensure the enforcement of civil court decisions. Confirmation of the publication and dissemination of the judgment of the European Court is awaited.

H46-580 33343/96 Pantea, judgment of 03/06/03, final on 03/09/03

The case concerns the ill-treatment inflicted on the applicant by his fellow-prisoners in January 1995 during his detention on remand, in circumstances which engaged the state’s responsibility, and the shortcomings of the investigation carried out by the Romanian authorities into the facts of the case (violations of Article 3).

The case also concerns the illegality (acknowledged by the national courts) of the applicant’s detention on remand in July 1994, and the fact of his being kept in detention until April 1995 after the expiry of the warrant committing him to prison on 19 August 1994 (violations of Article 5§1).

The case furthermore concerns the fact that the applicant, whose detention was ordered by a prosecutor, was not brought rapidly before a judge (violation of Article 5§3).

In addition, the competent court took more than three months (December 1994 – April 1995) to rule on the applicant’s request to be freed from detention on remand (violation of Article 5§4). The case also concerns the fact that Romanian law did not provide the possibility to obtain compensation for illegal detention in the applicant’s situation (violation of Article 5§5).

Finally, the criminal proceedings instituted against the applicant on 07/06/1994, which were still pending before the court of first instance when the European Court rendered its judgment, lasted too long (violation of Article 6§1).

Individual measures: a) Concerning the violation of Article 6§1, information is awaited on the measures adopted by the Romanian authorities in view of accelerating the criminal proceedings brought against the applicant.

b) Concerning the possibility of launching a new investigation or remedying the shortcomings of the initial one in the light of the European Court’s findings under Article 3 of the Convention, the Romanian authorities indicated, during a meeting with representatives of the Secretariat held in June 2004, that the applicant’s fellow-prisoners, as well as the prison warders, could not be prosecuted any longer due to the expiry of the period of limitation for their criminal responsibility. Further information is expected concerning the period of limitation applicable in the present case.

General measures (Not examined at this meeting): The Romanian authorities have confirmed that the European Court’s judgment has been widely disseminated to courts, prosecutors and prison authorities. Additional information is awaited concerning its publication, as well as concerning the measures aimed at drawing the attention of the competent authorities to the violations of Articles 3 and 5 of the Convention, and in particular to the necessity to decide speedily on the detained persons’ requests to be released (e.g. through a circular letter summarizing the essential paragraphs of the judgments).

Concerning the violation of Article 6§1 of the Convention, information would be useful on the possibilities of establishing effective domestic remedies for the excessive length of domestic procedures.

Concerning the violations of Article 5 of the Convention, the constitutional and legislative changes (concerning the Code of Criminal Procedure) adopted in 2003 provide that detention during the pre-trial phase must be ordered by a judge, for a maximum of 30 days, with the possibility of prolonging it several times for the same period. After the case has been sent before a court, the lawfulness of the detention (still ordered by a judge), as well as the continuing existence of the reasons justifying it, must be reviewed every 60 days by the court. A decision to place a person in detention taken during the judgment phase may be challenged before the higher court, which must rule on this complaint within 3 days after receiving the file. The new law also provides the possibility of compensation for illegal detention in situations similar to that of the applicant.

H46-1096 29411/95 Anghelescu, judgment of 09/04/02, final on 09/07/02

H46-1109 38360/97 Popescu, judgment of 25/11/03, final on 25/02/04

These cases concern the Supreme Court’s annulment of final court decisions delivered at first instance establishing the validity of the applicants' titles to property that had been previously nationalised. The Supreme Court intervened following applications for nullity lodged by the Procurator General on the ground of Article 330 of the Code of Civil Procedure which allowed him at any moment to challenge final court decisions. The European Court considered that by acting in this way, the Supreme Court had failed to acknowledge the principle of legal certainty and accordingly violated the applicants’ right to a fair trial. It also took the view that the Supreme Court had infringed the applicants’ right of access to a tribunal in that it had not recognised courts’ jurisdiction over disputes concerning recovery of property (violations of Article 6§1). Finally, the European Court found that the Supreme Court’s decisions had violated the applicants’ right to respect for their possessions by annulling without justification and without compensation final court decisions recognising the applicants’ property rights to the apartments in question (violation of Article 1 of Protocol No. 1).

In the Anghelescu case, whilst the applicant had obtained restitution of the assets in question in 1999, two sets of domestic proceedings aimed at revoking his property right were still pending (before the Bucharest and Cluj regional courts) when the European Court delivered its judgment.

In the Popescu case, the state has not so far noted in the land register its property right flowing from the Supreme Court’s judgment and has not retaken possession of the assets at stake. However, the European Court noted that the judgment of the Supreme Court had not been quashed and continued to have legal effect, thus keeping the applicant in a state of uncertainty while waiting for the state to request its inclusion in the land register as the owner of the assets.

Individual measures: Concerning the Anghelescu case, the Romanian authorities have indicated that the revision proceedings before the Bucharest Regional Court were completed in April 2003 with a decision in the applicant’s favour.

Information is awaited on the advancement of the revision proceedings pending before the Cluj Regional Court (§§ 31 et 67) and the possibility of accelerating them.

As far as the Popescu case is concerned, by letter of 27/07/2004, information was requested on the measures envisaged to put an end to the uncertainty concerning the applicant’s property right. No reply has been received so far.

General measures: The cases present similarities to the “Brumărescu-type cases” (e.g. Boc v. Roumania, judgment of 17/12/2002, Section 6.1).

- 1 case against the Russian Federation

H46-968 58973/00 Rakevich, judgment of 28/10/03, final on 24/03/04

The case concerns the unlawfulness of the applicant’s enforced internment in a psychiatric hospital because the domestic procedure was not respected. The local court, which was seised by the hospital, did not order the applicant’s internment until 39 days after she had been interned, in comparison with the 5 days provided by law (violation of Article 5§1). The case also concerns the fact that the applicant could not contest the lawfulness of her internment before a court (violation of Article 5§4)

Individual measures: The Russian authorities are invited to inform the Committee whether the applicant is still detained in a mental hospital. If this is the case, information is expected as to whether the applicant is now entitled to take proceedings to challenge the lawfulness of her detention by a court, as required by Article 5§4 of the Convention.

General measures (No examination envisaged at the present meeting): By letter of 07/07/2004, the Russian authorities indicated that the government had been informed of the need to amend the impugned legislation with a view to allowing individuals detained in mental hospital to have a direct appeal to domestic courts to secure their release. The government is at present examining the possibility of setting up a special service for protection of patients placed in mental hospitals. In addition, the Supreme Court has been asked to draw the attention of domestic courts to the conclusions of the European Court.

Information is awaited concerning additional measures adopted or under way (and possibly an evaluation of their effectiveness) in order to prevent new, similar violations of the Convention, not least concerning the amendment of the legislation impugned by the European Court in its judgment. Confirmation of the publication and dissemination of the judgment to the criminal courts and prosecutors, possibly with a circular drawing their attention to the conclusions of the Court, is also awaited.

- 6 cases against the Slovak Republic

- Cases of length of civil proceedings

Item	Application	Case	Length of proceedings	Proceedings began on	Proceedings pending
H46-658-	53376/99	Beňačková, judgment of 17/06/03, final on 17/09/03	12 years and more than 1 month^{^[6]}	03/05/1991	Yes
H46-659	54996/00	Chovančík, judgment of 17/06/03, final on 17/09/03	26 years and more than 4 months^{^[7]}	08/02/1977	Yes
H46-660	53372/99	D.K., judgment of 06/05/03, final on 06/08/03	7 years and 2 months	15/01/1996	Yes
H46-661	60231/00	Klimek, judgment of 17/06/03, final on 17/09/03	9 years and more than 5 months	05/01/1994	Yes
H46-662	65567/01	Piskura, judgment of 27/05/03, final on 24/09/03	8 years and more than 4 months	29/12/1994	Yes
H46-663	57983/00	Slovák, judgment of 08/04/03, final on 08/07/03	8 years and 4 months	02/01/1995	Yes

These cases concern the excessive length of certain civil proceedings (violations of Article 6§1).

Individual measures: Acceleration of the proceedings pending at national level. Information concerning the state of these proceedings is awaited.

General measures: General measures have already been adopted to improve the efficiency of the judicial system and avoid new violations, particularly in the context of the examination of the Jóri case which appears in Section 6.2 (Act No. 501/2001 which reduces the number of cases in which second-degree courts are competent at first instance and aims to accelerate the adduction of evidence; Act No. 385/2000 which regulates the civil and disciplinary liability of judges for unjustified delays in their cases; Amendment of 2001 to the Constitution which provides for a constitutional petition for complaints of violations of human rights protected by international treaties).

The judgments of the European Court were published in Justičná Revue, issue No. 6‑7/2003 and 10/2003.

- 4 cases against Spain

H46-664 58496/00 Prado Bugallo, judgment of 18/02/03, final on 18/05/03

The case concerns judicially authorised interception of the applicant’s telephone communications at different periods in 1990 and 1991, following a criminal investigation by the police into drug trafficking (violation of Article 8). The European Court considered in particular that the legislation in force at the material time did not precisely define the nature of the offences which could give rise to telephone tapping, the conditions for drawing up formal reports of the intercepted conversations or the use and erasure of recordings.

Individual measures: Information was requested at the 871st meeting (February 2004) concerning whether the recordings at issue are in the possession of the authorities.

General measures: (No examination envisaged at the present meeting) At the 847th meeting (July 2003), the Spanish delegation stated that information would be provided concerning further legislative measures (on telephone tapping) envisaged in addition to the amendments already adopted following the judgment of the European Court in the Valenzuela Contreras case (Resolution DH(99)127). Information is expected in this respect.

The judgment of the European Court has been published in Spanish in the Official Journal of the Ministry of Justice No. 1954 of 01/12/2003. Written confirmation of the dissemination of the judgment of is awaited.

H46-665 68066/01 Gabarri Moreno, judgment of 22/07/03, final on 22/10/03

The case concerns the failure to take account of a mitigating circumstance when determining the sentence imposed on the applicant. In 1996 the applicant was convicted of heroin trafficking by the Madrid Audiencia Provincial and sentenced to 8 years and 1 day in prison and a fine. The Audiencia noted that he had been suffering from acute depression, a mental disorder which it accepted as a mitigating circumstance. The applicant appealed on the basis of this mitigating circumstance, claiming that the court should have delivered a more lenient sentence. The Supreme Court dismissed the applicant’s appeal on the ground that the reduction in sentence he had been given by the Audiencia had not been manifestly disproportionate given the gravity of the offence.

The European Court found that when the mitigating circumstance was taken into account, the applicant’s sentence under Spanish criminal law should have been of between 6 years and 1 day and 8 years’ imprisonment. The legal certainty requirement inherent in the lawfulness principle should have entailed the rectification of the sentence, but this was not done (violation of Article 7§1).

Having been in custody since 13/05/1995, the applicant was released on licence on 25/07/1999.

Individual measures: Following recent consultations between the Spanish delegation and the Secretariat, clarifications are expected concerning the specific measures envisaged to remedy the consequences for the applicant of the violation found by the European Court in this case.

General measures (No examination envisaged at the present meeting) The judgment of the European Court was published in the Official Journal of the Ministry of Justice, No. 1954 of 01/12/2003. Confirmation of its dissemination to the competent authorities is awaited.

H46-666 62435/00 Pescador Valero, judgment of 17/06/03, final on 24/09/03

The case concerns the lack of impartiality of a judge of the High Court of Justice which in 1999 had examined and dismissed the applicant’s appeal against his removal from an administrative post at the local university. It subsequently emerged that the judge presiding over the section of the court responsible for examining this appeal had been a visiting professor at the same university. The European Court found that the judge had had regular, close professional connections with the applicant’s opponents and that this could give rise to fears on the part of the applicant as to the judge’s impartiality (violation of Article 6§1).

Individual measures: Following recent consultations between the Spanish Delegation and the Secretariat, clarifications are expected concerning the specific measures envisaged to remedy the consequences for the applicant of the violation found by the European Court in this case.

General measures: (No examination envisaged at the present meeting) The judgment of the European Court was published in the Official Journal of the Ministry of Justice, No. 1959 of 01/12/2003. Confirmation of its dissemination to the competent authorities is awaited.

H46-450 55524/00 Stone Court Shipping Company S.A., judgment of 28/10/03, final on 28/01/04[8]

The case concerns the infringement of the applicant company’s right of access to a court on account of the Supreme Court’s particularly strict interpretation of its own rules of procedure resulting in 1997 in the rejection 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” court if the time-limit for appealing was due to expire the same day and the court with which the appeal had to be lodged was closed for business (violation of Article 6§1).

Individual measures: Following recent consultations between the Spanish delegation and the Secretariat, clarifications are expected concerning the specific measures envisaged to remedy the consequences for the applicant company of the violation found by the European Court in this case.

General measures (No examination envisaged at the present meeting): The Spanish authorities are invited to indicate whether any amendment to clarify the law governing proceedings at appeal is envisaged or whether there are any examples of changes in the case-law of the Supreme Court in response to the judgment of the European Court.

Publication and dissemination of the European Court's judgment to civil and commercial courts, to allow them to apply the principles established by the Court, particularly regarding access to a court in future, similar cases.

- 62 cases against Turkey

H46-667 28490/95 Hulki Güneş, judgment of 19/06/03, final on 19/09/03

The case primarily concerns the lack of independence and impartiality of the Diyarbakır State Security Court on account of the presence of a military judge (violation of Article 6§1) and the unfairness of the proceedings before that court: the applicant was sentenced to death (subsequently commuted to life imprisonment) mainly on the basis of statements made by gendarmes who had never appeared before the court. Furthermore, the applicant’s confessions, upon which the trial court had relied, had been obtained when he was being questioned in the absence of a lawyer and in the circumstances which led the European Court to find a violation under Article 3 (violation of Article 6§§1 and 3d). The case also concerns the ill-treatment inflicted on the applicant while in police custody in 1992 which the European Court found to be inhuman and degrading (violation of Article 3).

Individual measures: In view of the seriousness of the violation of the applicant's right to a fair trial, the adoption of specific individual measures aimed at erasing it as well as its consequences for the applicant is urgent. In this respect the case is similar to Sadak, Zana, Dicle and Doğan (Sub-section 4.3) and to those cases concerning the independence and impartiality of State Security Courts (Sub-section 4.1). The applicant cannot obtain reopening of the impugned proceedings under Law 4793 of 23/01/2003 as this law does not apply to proceedings which were pending before the Court at the date of its entry into force. A petition challenging the constitutionality of this law on account of the discriminatory character of its scope of application was rejected on 30/10/2003 by the Diyarbakır State Security Court. The applicant’s appeal to this decision was rejected on 19/11/2003 by the same court. The Government indicated that the applicant might start new proceedings following the amendment to Article 90 of the Constitution, which now provides that Turkey’s obligations under human rights treaties will prevail over the national law.

Information required: Information is awaited concerning the applicant's situation and the measures envisaged remedying the violation, notably in the light of the constitutional amendments of May 2004 abolishing state security courts and allowing judiciary to give direct effect to the Convention.

General measures: (No examination foreseen for this meeting)

1. Concerning the independence and impartiality of state security courts, the general measures were adopted by the Turkish authorities in the Çıraklar against Turkey case (DH99(555). Furthermore, State Security Courts were abolished following the constitutional amendments of May 2004. Information is awaited concerning the practical aspects of the implementation of this constitutional reform.

2. Concerning the ill-treatment inflicted on the applicant, the general measures are under way in cases concerning action of the Turkish security forces pending before the Committee.

3. Information is still awaited concerning publication and wide dissemination of the judgment to the competent authorities.

- Cases concerning freedom of expression

(Interim Resolutions ResDH(2001)106 and ResDH(2004)38)

CM/Inf(2003)43

H46-668 28635/95+ Aksoy Ibrahim, judgment of 10/10/00, final on 10/01/01

H46-491 23536/94+ Baskaya and Okçuoğlu, judgment of 08/07/99[9]

H46-671 27214/95 C.S.Y., judgment of 04/03/03, final on 04/06/03

H46-598 40153/98+ Çetin and others, judgment of 13/02/03, final on 13/05/03[10]

H46-672 23556/94 Ceylan, judgment of 08/07/99

H46-597 25723/94 Erdoğdu, judgment of 15/06/00[11]

H46-676 27215/95+ Gökçeli Yaşar Kemal, judgment of 04/03/03, final on 04/06/03

H54-677 22678/93 Inçal, judgment of 09/06/98

H46-678 33179/96 Karataş Seher, judgment of 09/07/02, final on 09/10/02

H46-680 43928/98 Karkin, judgment of 23/09/03, final on 23/12/03

H46-492 27528/95 Kızılyaprak, judgment of 02/10/03, final on 02/01/04[12]

H46-635 23144/93 Özgür Gündem, judgment of 16/03/00, Interim Resolution ResDH(2001)106[13]

H46-683 24914/94 Öztürk Ayşe, judgment of 15/10/02, final on 15/01/03

H46-684 22479/93 Öztürk, judgment of 28/09/99

H46-686 23927/94+ Sürek and Özdemir, judgment of 08/07/99

H46-687 24122/94 Sürek No. 2, judgment of 08/07/99

H46-457 25143/94+ Yurttaş, judgment of 27/05/04[14]

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 Articles 159 and 312 of the Criminal Code and 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 Öztürk Ayşe and Çetin and others specifically concern the seizure of a publication and a newspaper (violations of Article 10)[15].

Individual measures: Since June 1998, it has been repeatedly stressed in the Committee that any remaining consequences after the payment of just satisfaction, flowing from the applicants’ convictions contrary to Article 10, must be erased not least by striking out their criminal records and restoring their civil and political rights, if restricted as a result of the convictions.

On 23/07/2001, the Committee of Ministers adopted Interim Resolution ResDH(2001)106 (see CM/Inf(2003)43), which, among other things, “urges the Turkish authorities, without further delay, to take ad hoc measures allowing the consequences of the applicants’ convictions contrary to the Convention in the above mentioned cases to be rapidly and fully erased”.

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 (see the information available in this respect in the table appended to document CM/Inf(2003)43).

On 04/02/2003 a new law (No. 4793) entered into force allowing for the re-opening of domestic proceedings in all cases which have already been decided by the European Court and in all new cases which would henceforth be brought before the European Court. The provisions however exclude re-opening for all cases which were pending before the European Court at the date of entry into force of the law and had not yet been decided, as well as for cases resulting in friendly settlements.

On 10/02/2003, Law No. 4809 on suspension of proceedings and sentences concerning crimes committed through the press entered into force. Under certain conditions, this law provides that convictions related to freedom of expression might be erased, including their consequences. To date, no information has been received by the Secretariat concerning the application of either of these two laws to remedy the violations found in these cases. However, on 19/07/2003, Law No. 4928 abrogated Article 8 of the Anti-terrorism Act No. 3713.

At its 885th meeting (June 2004) the Committee welcomed this measure (see Interim Resolution ResDH(2004)38) and decided that “cases involving applicants convicted on the basis of former Article 8 of the Anti-terrorism Law will be closed upon confirmation that the necessary individual measures have been taken”.

On 07/07/2004 the Turkish authorities informed the Secretariat of the erasure of the convictions of some of the applicants convicted under former Article 8 of the Anti-terrorism Law from their criminal records. These cases will appear in Section 6.1 at the present meeting for closure.

General measures: Following the adoption of Interim Resolution ResDH(2004)38, setting out measures already taken and the outstanding issues, the Committee will examine the general measures in these cases at a future meeting not later than six months hence.

- Friendly settlements in cases against Turkey concerning freedom of expression and containing undertakings of the Turkish Government

Interim Resolution ResDH(2001)106

CM/Inf(2003)43

H46-691 32985/96 Altan, judgment of 14/05/02 - Friendly settlement

H46-692 27529/95 Caralan, judgment of 25/09/03 - Friendly settlement

H46-693 37048/97 Demirtaş Nurettin, judgment of 09/10/03 - Friendly settlement

H46-694 37721/97 Erkanlı, judgment of 13/02/03 - Friendly settlement

H46-695 35076/97 Erol Ali, judgment of 20/06/02 - Friendly settlement

H46-458 42436/98 Gerger No. 2, judgment of 09/03/04 - Friendly settlement[16]

H46-696 27209/95+ Kiliç Özkan, judgment of 26/11/02 - Friendly settlement

H46-697 25753/94 Özler, judgment of 11/07/02 - Friendly settlement

H46-698 26976/95+ Sürek Kamil Tekin No. 5, judgment of 16/07/02 - Friendly settlement

H46-699 32455/96 Zarakolu, judgment of 27/05/03 - Friendly settlement

H46-700 37059/97 Zarakolu Ayşenur No. 1, judgment of 02/10/03 - Friendly settlement

H46-701 37061/97 Zarakolu Ayşenur No. 2, judgment of 02/10/03 - Friendly settlement

H46-702 37062/97 Zarakolu Ayşenur No. 3, judgment of 02/10/03 - Friendly settlement

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 and 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(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 settlements, in order rapidly and fully to erase the consequences of the applicants’ conviction. The Turkish authorities indicated, by letter of 02/06/2003, that the applicant’s criminal records in the Erkanlı case had been erased, as a result of the application of Law No. 4809 (entered into force on 10/02/2003) on suspension of proceedings and sentences concerning crimes committed through the press which, under certain conditions, provides the possibility to erase convictions related to freedom of expression and their consequences. Information is awaited on the current situation of other applicants, notably those convicted by application of former Article 8 of Anti-terrorism Law.

General Measures: Following the adoption of Interim Resolution ResDH(2004)38, setting out measures already taken and the outstanding issues, the Committee will examine the general measures in these cases at a future meeting not later than six months.

- Cases concerning the independence and impartiality of State Security Courts

H46-459 52665/99 Akkaş Çağlar, judgment of 23/10/03, final on 24/03/04[17]

H46-460 59234/00 Al and others, judgment of 13/11/03, final on 24/03/04[18]

H46-461 46388/99 Bozkurt Bilal and others, judgment of 04/12/03, final on 24/03/04[19]

H46-703 38389/97 Can Mahmut, judgment of 27/11/03, final on 27/02/03

*H46-704 41580/98+ Çavuş and Bulut, judgment of 23/10/2003, final on 24/03/2004

H46-462 47757/99 Çavuşoğlu and others, judgment of 04/12/03, final on 04/03/04

H46-463 51416/99 Dalgıç, judgment of 23/10/03, final on 24/03/04[20]

H46-464 47654/99 Duran Osman, judgment of 04/12/03, final on 04/03/04[21]

H46-465 44267/98 Dursun and others, judgment of 04/12/03, final on 04/03/04[22]

H46-466 53895/00 Erdoğan Mesut, judgment of 23/10/03, final on 24/03/04[23]

H46-467 46106/99 Eren, judgment of 23/10/03, final on 24/03/04

H46-468 52744/99 Ergül and Engin, judgment of 23/10/03, final on 24/03/04

*H46-705 53431/99 Gençel, judgment of 23/10/2003, final on 24/03/2004

H46-706 47296/99 Günel, judgment of 27/11/03, final on 27/02/03

H46-493 53968/00 Güneş İsmail, judgment of 13/11/03, final on 13/02/04[24]

H46-469 48263/99 Kirman, judgment of 27/11/03, final on 27/02/03[25]

H46-707 51289/99 Özülkü, judgment of 27/11/03, final on 27/02/03

H46-708 48617/99 Özyol, judgment of 23/10/03, final on 24/03/04

H46-470 53014/99 Peker, judgment of 23/10/03, final on 24/03/04[26]

H46-471 48054/99 Sarıoğlu, judgment of 04/12/03, final on 24/03/04

*H46-709 50118/99 Şimşek, judgment of 23/10/2003, final on 24/03/2004

H46-472 50119/99 Süvarioğulları and others, judgment of 23/10/03, final on 24/03/04

H46-473 48134/99 Taş Yeşim, judgment of 04/12/03, final on 04/03/04

H46-710 49517/99 Taşkın Hüseyin, judgment of 04/12/03, final on 04/03/04

H46-474 57561/00 Toprak, judgment of 08/01/04, final on 08/04/04[27]

H46-475 42738/98 Tuncel and others, judgment of 27/11/03, final on 24/03/04[28]

H46-476 51053/99 Tutmaz and others, judgment of 23/10/03, final on 24/03/04[29]

H46-711 55951/00 Uçar and others, judgment of 27/11/03, final on 27/02/03

H46-712 52661/99 Yavuz Kenan, judgment of 13/11/03, final on 13/02/04

*H46-713 50743/99 Yılmaz Hayrettin Barbaros, judgment of 23/10/2003, final on 24/03/2004

These cases concern the violation of the applicants’ right to a fair trial by an independent and impartial court on account of the presence of a military judge on the bench of the State Security Courts which tried and convicted them (violations of Article 6§1).

Individual measures: The European Court also found that in cases where an applicant had been convicted by a court that was not independent and impartial within the meaning of Article 6§1, the most appropriate form of redress would be to ensure that in due course the applicant is granted a retrial by an independent and impartial tribunal.

The provisions of Law No. 4793 of 04/02/2003 allowing the reopening of domestic proceedings do not apply to these cases. Information is awaited on the measures to be taken by Turkey fully to ensure proper redress for the applicants.

Required information: Information is awaited concerning the applicants’ situation and the measures envisaged remedying the violation, notably in the light of the constitutional amendments of May 2004 abolishing state security courts and allowing the judiciary to give direct effect to the Convention (Article 90 of the Constitution).

General measures: These cases present similarities to that of Çıraklar against Turkey (judgment of 28/10/1998) which was closed by a final resolution, DH(99)555, following the legislative and constitutional amendments changing the composition of State Security Courts and ending the functions of military judges and military prosecutors in these courts. On 07/05/2004, the Parliament approved a constitutional amendment abolishing State Security Courts.

H46-456 32984/96 Alfatli and others (requérant Mahmut Memduh Uyan), judgment of 30/10/03, final on 24/03/04

The case concerns the excessive length of criminal proceedings in particular before the Ankara Martial Law Court (jurisdiction of which was abolished by a Law of 26/12/1994) and also partly before ordinary criminal courts (violation of Article 6§1). The proceedings, of which the Court took account as from 28/01/1987 (the date of Turkey’s recognition of the right of individual petition) began in February 1985 and were ended in December 1995.

In the meantime, the applicant, who was sentenced to death by the Martial Law Court, was released in February 1995 while the proceedings were pending before the Court of Cassation.

The case also concerns the independence and impartiality of the Ankara Martial Law Court on account of the presence of two military judges and an army officer on the bench (violation of Article 6§1).

Individual measures: The European Court has expressed the view that in cases in which it finds that an applicant has been convicted by a court which was not independent and impartial within the meaning of Article 6§1, the most appropriate form of redress is to ensure that the applicant is in due course granted a retrial by an independent and impartial tribunal.

The provisions of Law No. 4793 of 04/02/2003 on reopening domestic proceedings do not apply in this case. Information is awaited on the measures to be taken by Turkey in order fully to ensure proper redress for the applicant.

In a letter of 01/06/2004 the applicant informed the Secretariat that he was willing to apply for the reopening of the domestic proceedings.

General measures: The case presents similarities to other cases of excessive length of criminal proceedings and independence and impartiality of Martial Law Courts such as that of Şahiner and others against Turkey, which was closed by final resolution ResDH(2002)86 following the adoption of general measures by the Turkish authorities.

- 3 cases against the United Kingdom

H54-714 19187/91 Saunders, judgment of 17/12/96, Interim Resolution DH(2000)27

H46-715 29522/95 I.J.L., G.M.R., and A.K.P., judgment of 19/09/00, final on 19/12/00, and judgment of 25/09/01 (Article 41), final on 25/12/01

Addendum 4

These cases concern the violation of the applicants’ right not to incriminate themselves and thus their right to a fair trial in that, at the trial that led to their criminal conviction in 1990 for offences under business criminal law, the prosecution made use of statements given earlier under legal compulsion to Department of Trade and Industry Inspectors (violations of Article 6§1).

General measures: The 1999 Youth Justice and Criminal Evidence Act limited the possibility to make use of evidence obtained under legal compulsion against accused persons. The reform took effect as from April 2000.

Individual measures: The applicants in the case of I.J.L., G.M.R. and A.K.P have complained to the Committee of Ministers of the decisions of domestic courts denying them the possibility of reopening their trial. They have accordingly asked for the law to be changed to allow courts to quash convictions found by the European Court to be in violation of the Convention, even if the source of such violation is a provision of primary legislation. Alternatively, they request the adoption of ad hoc measures (such as an executive pardon, the repayment of the fines, etc.) based on the idea that, in view of the passage of time, the interests of justice do not call for the charges against them to be maintained. In support of these demands, they stress in their letter of 20/09/2002 the particularly heavy consequences they continue to suffer as result of the impugned criminal convictions imposed on them, including the fact that these convictions seriously affect their personal and business reputations, involve certain regulatory prohibitions limiting their ability to conduct some financial activities and have imposed the payment of substantial fines of up to several millions of pounds.

The position of the United Kingdom government, as it has been developed since the 798th meeting (June 2002), may be summarised as follows: all has been done that was required by the Court’s judgment, i.e. payment of just satisfaction and legislative reform to prevent recurrence of the violations found. Even if reopening of proceedings was a desirable measure in certain circumstances, the Convention did not require such a measure in all circumstances, and in particular not in respect of cases such as the applicants’.

Citing the House of Lords’ judgment, the UK delegation indicated that restitutio in integrum could not be achieved in these cases, since it was impossible to speculate on what would have been the outcome of the trial in the absence of the impugned evidence. Recalling the position of the Court of Appeal, that a retrial would be inappropriate in the light of the significant time elapsed since the events and the applicants’ age and state of health, the delegation stated that in the specific circumstances of the case, any further measures, such as quashing the convictions, would place the applicants in a better position than they were before the violation found by the European Court, which would go beyond the UK’s obligations under Article 46 of the Convention (Addendum 4).

Moreover, a requirement to reopen or to quash the applicants’ convictions could risk opening the way to numerous revision requests in respect of cases in which there had been, or might have been, a violation of a Convention right at trial many years ago, which would risk undermining the “controlled introduction” of the Convention rights into domestic law achieved through the Human Rights Act; it was therefore not envisaged to give retrospective effect to the Human Rights Act.

The United Kingdom’s position was supported by certain other delegations, which among other things stressed the importance of the principle of non-retroactivity of law and the fact that the domestic courts had examined the applicant’s request for reopening.

The applicants’ response may be summarised as follows: they have opposed the closure of the case, stressing, in addition to the arguments already mentioned, the fact that the Court of Appeal had concluded that were it not for the evidence collected in breach of the Convention, their conviction could not be upheld as safe. Summaries of their position are included in Addendum 4.

- Follow-up by the Parliamentary Assembly: On 29/04/2004, the Committee received a written question by Mr Wilkinson, in which he inquired about the way in which the Committee “will ensure that measures are rapidly taken so that the situation of the applicants in the IJL case is rectified and restitutio in integrum is provided to each of them, in the light of the unfair trial which they have suffered.”

- The developments in the re-opening proceedings may be summarised as follows: Following the judgments of the European Court, the applicants’ cases were referred to the Court of Appeal for a new examination by the Criminal Cases Review Commission, as the latter had found that there was a real possibility that the Court of Appeal might not uphold the convictions because of the decisions of the European Court.

In its decision of 21/12/2001, the Court of Appeal indicated among other things that “…if we concluded that we were bound to give effect to the Strasbourg Court’s decision that the trial was unfair by examining anew the safety of the convictions, we would not uphold the convictions on the basis that they are safe in any event.” (§47 of the Court of Appeal’s decision). However the Court of Appeal did not find itself so bound: courts were required to apply the law as existing at the time of the events, unless there was a subsequent contrary indication of the legislator. On this specific issue, the Human Rights Act made no changes since it had no retrospective effect. The Court of Appeal added that it did not share the opinion that, in the circumstances of the case, Article 46 of the Convention required such a re-examination; it added that, even if this were the case, the applicable legislation prevented it from giving effect to such international obligation. (idem, especially §§ 50-53). Neither did the Court of Appeal uphold any other ground of appeal. Accordingly, it concluded that the convictions were safe and dismissed the appeal (§86).

The applicants sought leave to appeal to the House of Lords. In its judgment of 14/11/2002 (http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd021114/lyons-1.htm), the House of Lords unanimously upheld the decision of the Court of Appeal and in particular confirmed that courts were obliged to examine the safety of convictions according to the law as it stood at the time of the trial (see §§ 16,17,18, 29, 34, 59, 82, 96, 100 of the judgment of the House of Lords). In the present case, the law applicable at the relevant time admitted answers given under compulsory questioning as evidence. The House of Lords also confirmed that the law incorporating the Convention (the Human Rights Act, entered into force on 02/10/2000) has not been retrospective and has preserved parliamentary supremacy (§ 81). Lord Bingham added (§ 19) that it was neither necessary nor desirable for the House of Lords to consider what full reparation might be required in a case such as this in which the interests of justice would not appear to require a retrial in view of the lapse of time, the partial serving of prison sentences and the age and health of some of the appellants – it was rather for the European Court or for the Committee of Ministers to deal with these issues.

- The second application to Strasbourg: on 08/07/2003, the European Court rejected as inadmissible a second application (No. 15227/03) lodged by the applicants, complaining among other things of a new violation of Article 6 flowing from the decision of domestic courts not to exclude the impugned evidence from the review of safety of their convictions. The European Court found that the review proceedings did not give rise to any new violation of Article 6 since they formed part of an ongoing judicial process rooted in the original determination of the charges against the applicants. The Court also found that it should rather deal with the application under Article 46 of the Convention. The Court noted in this respect that a finding of a violation of the Convention imposes on the respondent state a legal obligation, not just to pay the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and, as far as possible to redress its effects. As far as the individual measures were concerned in the present case, the Court noted this is a matter of ongoing discussion between the Committee of Ministers and the United Kingdom authorities. The Court indicated that it was not called upon to assume any role in this dialogue by directing the state to adopt a specific measure such as to open a new trial or to quash a conviction or by finding a violation of the Convention on account of its failure to take either of these courses of action. Nevertheless, the Court stressed the fact that these considerations were not intended to detract from the importance of ensuring that domestic procedures are in place which allow cases to be revisited in the light of findings of violation of Article 6, since such procedures represent an important aspect of the execution of the Court’s judgments and indicate a state’s commitment to the Convention.

The Secretariat is currently studying the latest submissions by the applicants’ representatives.

H46-716 48539/99 Allan, judgment of 05/11/02, final on 05/02/03

The case concerns a breach of the applicant’s right to respect for his private life, in that the police carried out surveillance using covert devices within his cell. The European Court considered that this interference was not provided for by law at the time as there was no legal system governing the use of secret listening devices (violations of Article 8). The case also concerns the fact that there was no effective remedy against this interference (violation of Article 13).

The Court also found a breach of the applicant’s right to remain silent and not to incriminate himself and thus of his right to a fair trial in that evidence admitted during trial had been obtained by a police informer in such a manner that it might be regarded as having been obtained against the applicant’s will (violation of Article 6§1).

The applicant was sentenced in 1998 to life imprisonment.

Individual measures: In September 2002, the case was referred by the Criminal Cases Review Commission to the Court of Appeal. The United Kingdom authorities indicated on 06/09/2004 that the Court of Appeal, which had heard the case on 25/05/2004, had handed down its judgment on 20/08/2004, and that it had quashed the applicant’s conviction. A copy of the judgment of the Court of Appeal, or the precise references to it in published form, would be welcome.

General measures: (No examination at the present meeting): As regards Article 8 and Article 13, the case present similarities to Khan against the United Kingdom (judgment of 12/05/2000) which is at present in Sub-section 6.2 following the general measures already adopted: notably the Regulation of Investigatory Powers Act 2000 (“RIPA”) which now constitutes the statutory basis for the installation of a covert listening device in cells (sections 26(3) and 48(1)) and establishes an Investigatory Powers Tribunal to deal with complaints about covert devices surveillance and the use of informants by the police.

The judgment of the European Court has been published in the European Human Rights Reports at (2003) 36 EHRR 143.

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

- 2 cases against Austria

H46-718 32636/96 A.T., judgment of 21/03/02, final on 21/06/02

The case concerns the lack of a public hearing in two sets of proceedings (1995-1996) concerning the applicant’s compensation claims under the Media Act following the publication of statements against him in the weekly publication News (violation of Article 6§1).

General measures: On 16/07/2004 the respondent state informed the Secretariat that the drafting of the new Media Act (which includes an amendment of Article 8a providing for a hearing in accordance with the case- law of the European Court) is in its final stages and that in autumn it is scheduled to be forwarded to the Parliament for examination. Information on the finalisation of the legislative procedure is awaited. The judgment of the European Court was published (in ÖIMR-Newsletter 2002/No.2, 57-60 and in Österreichische Juristenzeitung 2002, 469-470) and disseminated to all relevant courts and authorities in order that relevant conclusions could be drawn.

H46-719 39394/98 Scharsach and News Verlagsgesellschaft, judgment of 13/11/03, final on 13/02/04

The case concerns a disproportionate interference with the applicant’s freedom of expression on account of a judicial decision of 1996 sentencing Mr Scharsach to a suspended fine for defamation, under Article 111 of the criminal code, and ordering the applicant company to pay damages, under Article 6 of the Media Act. This decision followed the publication, in the weekly magazine published by the applicant company, of an article by M. Scharsach qualifying certain politicians as «old closet Nazis» (Kellernazi) for not having dissociated themselves from the extreme right. Contrary to the Austrian courts, the European Court considered that the allegations at issue, taken in their context, did not amount to a statement of facts but to value judgment on a subject of public interest, not exceeding the limits of permissible criticism. The Court accordingly found that the applicants’ conviction was not necessary in a democratic society (violation of Article 10).

Individual measures: Mr Scharsach’s conviction can be annulled through the reopening of the proceedings, under section 363a of the code of criminal procedure. The Court has, on the other hand, ordered the compensation, as just satisfaction, of the fines paid as a result of the convictions at issue in this case.

General measures: As with all other judgments of the European Court against Austria concerning criminal law, the judgment was automatically transmitted to all presidents of all higher courts, to bring the judgment to the attention of all judicial authorities in their area of competence. Furthermore, judgments of the European Court are accessible to all judges and state attorneys through the internet database of the Austrian Federal Chancellery. A summary of the judgment was also published in German in the database of the Austrian Institute of Human Rights. Insofar as the conviction impugned by the European Court in this case might raise doubts about the effectiveness of the case-law change of 1993 indicated in the framework of the execution of the cases of Lingens (judgment of 08/07/86, resolution DH(87)2), Oberschlick (judgment of 23/05/91, resolution DH (93)60), Schwabe (judgment of 28/08/92, resolution DH (94)23) and of a series of other similar cases, information was requested on any further measure envisaged to prevent new violations.

- 3 cases against Belgium

H46-720 37370/97 Strategies and Communications and Dumoulin, judgment of 15/07/02, final on 15/10/02

The case concerns the length of criminal proceedings (investigation phase) which began on 24/04/1996, when searches were carried out at the company’s head office and the applicant’s home. The case was still in the hands of the investigating judge and had lasted 6 years and 2 months when the European Court rendered its judgment (violation of Article 6§1).

The case also concerns the absence of an effective remedy in this respect (violation of Article 13). In this respect, the European Court notes that the law of 12/03/1998, which entered into force on 02/10/1998 and amended Article 136 of the Criminal Investigation Code, introduced a remedy under domestic law enabling the accused to complain of the length of a criminal investigation. However, the Court noted that Article 136 of the Criminal Investigation Code raised issues in domestic law which had not yet been resolved (§55 of the judgment). Consequently, the Court found that Article 136 had not acquired sufficient legal certainty to constitute a remedy within the meaning of Article 13 of the Convention.

Individual measure: Information is awaited concerning the state of the proceedings and, if there are still pending, their acceleration.

General measure: Information is also awaited concerning measures taken to give Article 136 of the Criminal Investigation Code the necessary degree of legal certainty.

H46-721 51564/99 Čonka, judgment of 05/02/02, final on 05/05/02

The case concerns the facts surrounding the expulsion from Belgium of the applicants, Slovakian nationals of Romany origin and asylum seekers. Summoned to the police station under the pretext of completing the files concerning their application for asylum, the applicants were in fact arrested, taken to a closed transit centre and then deported to Slovakia. The European Court found that it was not compatible with Article 5 for administrations to make a conscious decision to deceive people – even people in an irregular situation – so as to deprive them more easily of their liberty in the context of a summons (violation of Article 5§1). The conditions of their detention did not permit them to lodge an appeal on the legality of their detention (violation of Article 5§4). The circumstances under which the applicants were deported, at the same time as about 70 other asylum seekers, did not take into account the genuine and individual situation of each of those concerned, leading to a violation of Article 4 of Protocol 4. Finally, the remedies against expulsion, particularly application for suspension which may be brought before the Conseil d’Etat makes the implementation of a remedy too uncertain to satisfy the requirements of Article 13 (violation of Article 13 of the Convention combined with Article 4 of Protocol No. 4).

General measures: The judgment of the European Court has been published on the internet site of the Ministry of Justice.

Concerning the violation of Article 5§4 and Article 4 of Protocol No. 4 (facts surrounding the detention and expulsion), the dissemination of the judgment to the competent authorities, together with a circular letter, would be desirable.

Concerning the violation of Article 5§4 (possibility of appeal against detention), the Belgian authorities have indicated that a Royal Decree adopted on 02/08/2002 provides that, upon arrival in a detention centre managed by the Aliens’ Office, occupants receive an information booklet explaining, inter alia, the avenues of appeal against detention, the possibility of introducing a complaint concerning the circumstances of the detention and possibility of receiving legal assistance. By law, this booklet is available at least in the three national languages and in English (Article 17). According to the Belgian authorities, it also exists in some fifteen other languages. Furthermore, the director of the centre, their deputy or a staff member appointed by the director must explain to detainees the reasons for their detention, the legal provisions and regulations applying to their situation, and the possible remedies against the decision. This must be done in a language that the detainee understands, with the help of an interpreter if necessary (Article 17).

Detainees have the right to receive legal assistance. The director of the centre makes sure that detainees can request the legal assistance provided for by law (Article 62).

Detainees have the right to call their lawyer, free of charge, each day between eight o’clock in the morning and ten o’clock in the evening. Lawyers may contact their clients by telephone at any time. Telephone contact by phone between a detainee and his or her lawyer may not be forbidden (Article 63). According to the Belgian authorities, detainees in centres may also send papers by fax to their lawyer, if they expressly request this. Finally, lawyers and the interpreters assisting them have access to the centre each day at least from eight a.m. to ten p.m., if they have a client there and can provide a valid professional card. Lawyers’ visits may not be forbidden (Article 64).

Concerning the violation of Article 13 combined with Article 4 of Protocol No. 4 (access to appeals against expulsion), the Belgian authorities have informed the Secretariat of the adoption by the Ministry of the Interior, on 19/07/2002, of a directive concerning the execution of orders to leave the territory taken against certain unsuccessful asylum seekers. The directive, notified to the Director General of the Aliens’ Office, lays down the rule that “in the case of introduction of applications for stays under the emergency procedure before the Conseil d’Etat of an order to leave the territory taken against an unsuccessful asylum seeker, the order to leave the territory will not be executed as long as the Conseil d’Etat has not ruled on this emergency stay of execution.” Furthermore, they indicated that a draft royal decree currently under discussion should modify the rules of procedure applicable to proceedings concerning decisions related to access to territory, residence, establishment and removal of foreigners, taking into account the present judgment. A copy of the relevant provisions of the draft is awaited.

H46-722 32576/96 Wynen, judgment of 05/11/02, final on 05/02/03

This case concerns an infringement of the applicants’ right to a fair trial before the Cour de cassation in that their complementary observations were declared inadmissible because they were handed in late. The European Court considered that Article 420 bis of the Code of Criminal Investigation (Code d’instruction criminelle) which applied to the plaintiff in appeal, requiring plaintiffs to file pleadings within two months of the registration of the application on the general list whereas no comparable deadline applies to defendants, is in breach of the principle of the equality of arms (violation of article 6§1).

General measures: The judgment of the European Court has been published on the internet site of the Ministry of Justice. By letter of 14/04/2003, the delegation of Belgium furthermore informed the Secretariat that a solution for a general measure was currently under study. Information on that point as well as on dissemination of the Court’s judgment is expected.

- 6 cases against Bulgaria

H46-723 41488/98 Velikova, judgment of 18/05/00, final on 04/10/00

H46-724 38361/97 Anguelova, judgment of 13/06/02, final on 13/09/02

These cases concern breaches of the right to life, since it has been concluded beyond reasonable doubt that the applicants’ relatives died as a result of injuries inflicted on them while they were detained in police custody on charges of theft (violations of Articles 2 and/or 3). The cases also concern the lack of effective investigation by the Bulgarian authorities into the deaths of the applicants' relatives (violations of Articles 2 and 13). 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) and the unlawfulness of his detention as it was not based on a written order as required by domestic law and was not properly recorded in the police custody register (violation of Article 5§1).

General measures: 1. As regards the violations of Article 2 and/or 3 (right to life and lack of medical care): Having regard to the conclusions of the European Court in §§68-76 of the Velikova judgment, the attention of the Bulgarian authorities was drawn in particular to need for training for the police. The delegation indicated that in 2001, following the judgment in the case of Velikova, a total of 500 police officers attended 5 seminars on the requirements of the Convention and of the CPT to be respected in the exercise of their duties; other similar education and training activities were carried on in 2002. In 2000 a specialised Human Rights Committee was set up at the National Police Directorate whose main functions are to organise human rights training of the managing and executive police staff and to take concrete measures to prevent cases of police ill-treatment. In May 2002 an important high-level working meeting was held in Sofia to discuss various measures adopted or being taken by the enforcement authorities to improve protection against ill-treatment. At the beginning of 2002 a new declaration form was introduced, containing information relating to the basic rights of the detained person (right to be assisted by a lawyer, to be examined by a doctor, to inform third parties about the detention).

The declaration is filled in immediately upon the detention in order to make police action transparent and provable. Furthermore, a Code of Police Ethics was introduced by order of the Minister of Interior in October 2003. The provisions of this code were drawn up in co-operation with the Council of Europe and in accordance with Recommendation R(2001)10 of the Committee of Ministers on the European Code of Police Ethics.

Additional information concerning the training activities for the police carried on in 2003-2004 and planned for 2005-2006 was received the 07/09/2004. This information is being examined.

2. As regards the violations of Articles 2 and 13 (lack of effective investigation): during the first examination of the Velikova case (December 2000), it was stressed in particular that certain administrative measures for awareness-raising (instructions to examining magistrates and prosecutors drawing their attention to §§78-79, 82-84 and 89 of the judgment; a circular to judges stressing their powers to supervise investigations) could help prevent similar shortcomings in criminal investigations. Furthermore, information showing the effectiveness of civil, administrative and criminal remedies against ill-treatment in police custody, including relevant statistics concerning the results of the investigations and the number of convicted persons, was requested.The Bulgarian authorities have provided the following information:

- the legislative amendments adopted on 27/04/2001 provide for judicial review of prosecutors’ decisions to close criminal proceedings and enable courts to send files back to prosecutors with instructions to carry out specific investigations (Article 237 of the Code of Criminal Procedure); the authorities furthermore recalled that Bulgarian criminal procedure does not oblige prosecutors to seek any authorisation to investigate alleged offences by police officers;

- the case-law of Bulgarian courts is constantly developing so as better to take the Convention and the European Court's case-law into account; this has been demonstrated by a number of domestic judgments which refer directly to the Convention and to the judgments of the European Court; this development results in increased judicial control over prosecutors' decisions concerning detention in police custody or detention on remand. The delegation provided the Secretariat with two recent interpretative judgments (No. 1 of 25/06/2002 and No. 2 of 2002) of the Supreme Court of Cassation and several judgments of domestic courts which refer directly to the Convention and to the European Court's judgments concerning in particular Article 5 and 6 of the Convention. Furthermore, the Bulgarian authorities indicated that a number of ECHR training activities had been organised for the judiciary in 2002 and 2003, notably with the participation of the Centre for the training of judges (set up in 1999) in co-operation with the Council of Europe.

Statistics relating to the criminal investigation of cases of allegations of police violence have also been provided. In 2002 the Ministry of Interior received information on 146 cases, the files in 12 cases were sent to the Military Prosecutor’s Office, and 21 disciplinary sanctions were imposed. For the first nine months of 2003 the Ministry of Interior registered 246 complaints concerning police violence. Six of these complaints were transmitted to the Military Prosecutor’s Office. One person was convicted and ordered to pay an administrative fine. In the other cases for the moment only disciplinary sanctions have been imposed on the responsible police officers.

None the complaints transmitted to the prosecutor relates to a case concerning the use of violence by a police officer against a person held in custody.

- the Velikova judgment has been translated and disseminated by the Ministry of Justice to the Director of the National Police, to the General Prosecutor and to the Director of the special investigation service to be distributed to all officials from their respective administration with a circular letter drawing their attention to the Court’s findings. This judgment was published on the internet site of the Ministry of Justice www.mjeli.government.bg and distributed to all judges by the Centre for training of judges.

3. As regards the violations of Article 5§1 in the Anguelova case (illegal detention): the delegation has sent the Secretariat the text of the existing rules governing detention in police custody. Pursuant to Article 72§1 of the Law on the Ministry of Interior and Article 54§1 of the Rules implementing this law issued by the Minister of the Interior, a written order must be issued for the detention of a person by the police. The order is filed in a special register (Art. 54§5 of the Rules). The detained person may contest the legality of his or her detention before the competent court which shall pronounce its decision immediately (Art. 70§3 of the law on the Ministry of Interior).

- Cases concerning excessive length of criminal proceedings

Item	Application	Case	Length of proceedings	Pending cases	Proceedings began on
H46-725	37104/97	Kitov, judgment of 03/04/03, final on 03/07/03	1st set of proceedings – about 8 years, 11 months (2 degrees of jurisdiction and new examination before the 1st instance court )	Yes, partially	27/05/1993
H46-725	37104/97	Kitov, judgment of 03/04/03, final on 03/07/03	2nd set of proceedings – about 4 years, 5 months (at the stage of preliminary investigation)	No	27/03/1995
H46-726	35825/97	Al Akidi, judgment of 31/07/2003, final on 31/10/2003 rectified on 16/10/2003	5 years, 6 months (3 degrees of jurisdiction)	No	10/09/1993
H46-727	35436/97	Hristov, judgment of 31/07/2003, final on 31/10/2003	5 years, 6 months (3 degrees of jurisdiction)	No	10/09/1993
H46-133	37335/97	S.H.K, judgment of 23/10/03, final on 23/01/04	More than 5 years, 1 month	No	23/08/1996

These cases concern the excessive length of the criminal proceedings instituted against the applicants (violations of article 6§1).

The applicants in the cases of Al Akidi and Hristov (together with the applicants in the cases of Ilijkov and Mihov, see sub-section 6.2) were all co-accused in criminal proceedings concerning a fraudulent VAT refund. Their cases concern the excessive length of the applicants’ detention on remand between 1993 and 1997 in view of the insufficient reasons to justify it (violations of Article 5§3).

The case of Hristov also concerns the non-adversarial nature of the proceedings before the Supreme Court in respect of the applicant’s requests for release (violation of Article 5§4) and the lack of effective judicial review of the lawfulness of his detention on remand (violation of Article 5§4).

Individual measures: Acceleration of the proceedings pending at national level in the case of Kitov. Information concerning the state of these proceedings is awaited.

General measures: As regards the violations of Article 6§1: information was requested concerning the measures envisaged or adopted as regards the length of criminal proceedings, as well as on available remedies in this respect.

The delegation has indicated that that the new provision of the Article 239a of the Code of Criminal Procedure adopted in June 2003 provides the possibility for a defendant to ask for the transfer of his or her case to a court competent for the merits once a period of 1 or 2 years, according to the gravity of the charges, has elapsed since the beginning of the preliminary investigation. 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. It would be useful to know whether this procedure is applicable when a criminal case is referred back at the stage of the preliminary investigation after examination by the first- or second-instance court.

As the remedy mentioned above relates only to the possibility of acceleration of the examination of the criminal case when it is at the stage of the preliminary investigation, information would be useful concerning the possible introduction in Bulgarian law of an effective remedy against the excessive length of criminal proceedings pending at the trial stage.

In addition, information is awaited concerning administrative or other measures envisaged relating to the length of the criminal proceedings.

The publication and 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.

As regards the violations of Article 5§3 (excessive length of the detention on remand) and of Article 5§4 (lack of effective judicial review of the lawfulness of this detention on remand), these cases 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.

As regards the violations of Article 5§4 (non-adversarial nature of proceedings before the Supreme Court) the Hristov case presents similarities to that of Ilijkov, (Section 6.2).

- 12 cases against Croatia

- Cases of length of civil proceedings

H46-729 51585/99 Horvat, judgment of 26/07/01, final on 26/10/01

H46-730 54727/00 Cerin, judgment of 15/11/01, final on 15/02/02

H46-731 58115/00 Čuljak and others, judgment of 19/12/02, final on 19/03/03

H46-732 48771/99 Delić, judgment of 27/06/02, final on 27/09/02

H46-733 52634/99 Futterer, judgment of 20/12/01, final on 20/03/02

H46-135 73564/01 Muženjak, judgment of 04/03/04, final on 04/06/04

H46-735 45435/99 Radoš and 4 autres, judgment of 07/11/02, final on 07/02/03

H46-736 49706/99 Rajak, judgment of 28/06/01, final on 12/12/01

H46-737 56773/00 Rajčević, judgment of 23/07/02, final on 06/11/02

H46-738 63412/00 Sahini, judgment of 19/06/03, final on 19/09/03

H46-739 47863/99 Šoć, judgment of 09/05/03, final on 09/08/03

These cases, except the Šoć case, concern the excessive length of civil proceedings, which began between 1975 and 1995 and lasted between 3 and 25 years[30] (violations of Article 6§1). In the Čuljak and others case one set of proceedings was stayed in accordance with the law of 29/10/1999 providing that all proceedings concerning actions for damages resulting from acts of members of the Croatian army or police committed during the war in Croatia were to be stayed pending the enactment of new legislation on the subject.

The cases of Horvat, Delić and Radoš and others also concern the lack of an effective remedy in domestic law since the formal institution of proceedings upon a complaint lodged with the Constitutional Court depended on the discretion of the latter. In the Šoć case, the European Court held that the applicant had had no effective domestic remedy available to challenge the length of 2 sets of civil proceedings, which started in 1994 and 1997 and ended in 2002, as the request pursuant to Section 63 of the 2002 Constitutional Court Act does not apply to proceedings that have already come to an end (violations of Article 13).

Individual measures: Acceleration of the proceedings pending at national level in the cases of Horvat, Cerin, Futterer, Delić, Radoš and others and Čuljak and others. Information concerning the state of these proceedings is awaited.

General measures: As regards the violation of Article 6§1, an Act amending the Act on Civil Procedure was adopted on 14/07/2003. This law aims at strengthening procedural discipline and accelerating civil proceedings. This legislative reform is part of the “Strategy for the Reform of the Judicial System”, adopted by the Croatian government and setting the short-term and long-term objectives for overall judicial reform. The strategy is intended to be implemented before the end of 2007. Further information on the relevant provisions of this new law, as well as information concerning further measures envisaged or already adopted within the framework of the reform of the legal system, is awaited.

As regards the violation of Article 6§1 in the Čuljak and others case due to the stayed civil proceedings, this case presents similarities to the case of Multiplex (sub-section 4.1).

As regards the violation of Article 13, a new Act amending the Act on the Constitutional Court entered into force on 15/03/2002. In the case of Radoš and others and in the admissibility decisions in the cases of Slaviček (decision of 04/07/2002), Nogolica (decision of 05/09/2002), Plaftak and others (decision of 03/10/2002), Jeftić (decision of 03/10/2002) and Sahini (decision of 11/10/2002), the European Court found that the new Section 63 of this law provided an effective remedy in respect of complaints concerning excessive length of proceedings. It should be noted that in the Šoć case the Court considered that this provision does not represent an effective remedy in respect of the length of civil proceedings that had already come to an end.

The judgments of the European Court in the cases of Horvat, Cerin, Futterer, Rajak and Delić have already been translated, and disseminated to domestic courts. They have also been published on the official internet site of the Government www.vlada.hr/dokumenti.html and in legal journals.

The judgment of the European Court in the Šoć case was also published on the internet site of the Croatian government.

Publication and dissemination of the Muženjak judgment to all civil courts, drawing their attention in particular to §§ 52 – 54 of the judgment (relating to the Court’s conclusions concerning the special importance of the subject matter of the proceedings for the applicant) have been requested.

H46-734 66485/01 Napijalo, judgment of 13/11/03, final on 13/02/04

The case concerns the infringement of the applicant’s freedom of movement due to the seizure of his passport by the customs authorities for more than two years for the non-payment of a fine imposed to him at a border checkpoint in February 1999 (violation of Article 2 of Protocol No 4). The Court could not find any justification for the customs authorities’ refusal to return the applicant’s passport as well as for the Zagreb Municipal Court’s dismissal of his application for an interim measure, as no proceedings had been instituted against him for any customs offence.

The case also concerns the excessive length of the proceedings brought by the applicant before the civil courts seeking the return of his passport. The proceedings began on 02/03/99 and ended on 10/09/02 (more than 3 years and 6 months) (violation of Article 6§1).

General measures: As regards the violation of Article 6§1, this case presents similarities to the cases of the Horvat group (sub-section 4.2). As regards the violation of Article 2 of Protocol No 4: information is awaited on the legal provisions governing the conditions under which the passport of a person can be seized and restored, if necessary, by the authorities. Publication and wide dissemination of the judgment of the European Court to customs authorities, police authorities and the competent courts drawing their attention to the national authorities’ obligations under the Convention following the judgment (§§79-81) have also been requested.

- 2 cases against Cyprus

H46-740 44730/98 Serghides and Christoforou, judgment of 05/11/02, final on 05/02/03 and of 10/06/2003, final on 24/09/2003[31]

The case concerns the deprivation without compensation in 1979 of part of the first applicant’s land following a street-widening scheme of the Municipality of Nicosia (violation of Article 1 of Protocol 1).

The case also concerns a double violation of Article 6§1: (a) the excessive length of proceedings before the Supreme Court, from November 1989 to February 1998 (more than 8 years for two levels of jurisdiction); and (b) the violation of the applicant’s right of access to a court in order to determine the lawfulness of the action complained of. The Supreme Court at first instance in 1993 dismissed the applicant’s claim as being out of time even though she had never received notification of the expropriation of part of her land. Furthermore the same court, seised at appeal in 1998, dismissed her appeal, having found that she had no locus standi on the ground that the applicant had donated the disputed property to her children, despite the fact that this donation could not include the expropriated part.

Individual measures: The European Court awarded just satisfaction to the applicant, in particular in respect of the pecuniary damage suffered.

General measures: With regard to the first violation of Article 6§1, information is awaited on possible measures to accelerate proceedings before the Supreme Court. Information is also awaited on the dissemination and publication of the judgment of the European Court.

As regards the violation of Article 1 of Protocol No. 1, the case-law of the Supreme Court in 2001 (case of Catheleen Georgallides) has clearly established in Cypriot law that every individual has the right to reasonable compensation in cases of expropriation, irrespective of the method of expropriation. Finally, as regards the second violation of Article 6§1, the direct effect of the European Convention in Cypriot law will ensure conformity with the Convention.

H46-741 30873/96 Egmez, judgment of 21/12/00

CM/Inf/DH(2004)5-Rev4

The case mainly concerns the inhuman treatment inflicted upon the applicant by state officials during his arrest before being admitted to hospital in Larnaca (violation of Article 3) and the absence of an effective remedy in this respect (violation of Article 13). On 01/12/1995, the Attorney General filed at the Nicosia District Court a nolle prosequi in the applicant’s case, in accordance with Article 113.2 of the Constitution. The applicant was released on the same day. On 04/12/1995, the Nicosia District Court discharged the applicant.

Individual measures: The applicant’s lawyer wrote to the Secretariat on 19/04/2001 and on 26/09/2002 raising several questions about the need to adopt individual measures in this case. He asked in particular whether the Attorney General had instituted criminal proceedings against the officers involved and, if not, what reasons had been given.

By letter of 14/10/2003, the Secretariat was informed that by decision of the Attorney General of 30/04/2003, an independent criminal investigator had been appointed in the Egmez and Denizci cases (information already transmitted by letter of 19/03/2003 and included in CM/Inf(2003)30). The investigation is at present under way and it is expected that the criminal investigator will meet the applicant in the near future to interview him and take his statement.

Nevertheless, in light of the questions remaining as to the procedural safeguards surrounding the investigation (see “General measures” section below), information would be useful concerning the current state of progress of the investigation.

General measures: As in the Denizci and others case (Section 5.1) the Cypriot authorities have informed the Committee of Ministers that the judgment of the European Court has been disseminated to all institutions concerned (judiciary and police/security forces, Attorney General’s Office, Ombudsman, Cyprus Bar Association). The Ministries of Justice and the Interior have requested that appropriate instructions be prepared and distributed to all state officials in order to avoid any future cases of ill-treatment. Instructions prepared by the Attorney General have also been distributed to all authorities concerned. In addition, the judgment has received extensive media coverage in Cyprus. Furthermore, the full text of the judgment has been translated and published on the web-site of the Cyprus Bar Association (http://www.cyprusbarassociation.org). The exact reference of the judgment as published in the Cyprus Law Journal would also be useful.

Amendments to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Ratification) Acts of 1990 and 1993 came into force on 13/12/2002. In addition to the criminal offence of committing torture, which already existed, these amendments make it a criminal offence for any person to submit another person to inhuman, cruel or degrading treatment or punishment, and the sanctions imposed against members of the police force committing such offences are now heavier. In addition, in order to avoid impunity in such cases, where ill treatment of this kind is alleged to have been committed in a police station and there is no other reasonable explanation for injuries sustained and also insufficient evidence to instigate criminal proceedings against an identified police officer, the officer in charge of the station will be held criminally responsible.

The Committee has asked whether, as far as the violation of Article 13 is concerned and in the light of §§71 and 99 of the Court’s judgment, the Cypriot authorities envisage adopting specific measures to guarantee that similar violations do not recur.

In response to a request by the Cypriot delegation at the 863rd meeting (December 2003), the Secretariat informed the delegation in its letter of 18/12/2003 of the outstanding issues related to the violations found in the present case, concerning in particular the procedural safeguards surrounding investigations. The Cypriot authorities provided further information in this respect in a note handed to the Secretariat on 09/02/2004 as well as in letters of 27/05/2004 and 07/07/2004. Copies of the circulars referred to in the letter of 07/07/2004 would be useful: namely, the circulars to be issued by the Attorney General’s Office instructing its members, first, to inform victims/complainants in writing, where a decision is made not to prosecute the alleged perpetrators of serious abuse, of the reasons for which the decision was made; and second, that a criminal investigation will remain open in cases where the complainant withdraws his or her complaint or wishes it not be pursued further, as well as in cases where such complainants are not present in Cyprus.

All the information received to date from the Cypriot authorities concerning the present case, the questions raised by the applicants’ representatives and the present evaluation of the situation are included in the Memorandum prepared by the Secretariat (see CM/Inf/DH(2004)5-rev4).

- 4 cases against the Czech Republic

H46-742 41486/98 Bořánková, judgment of 07/01/03, final on 21/05/03

H46-743 53341/99 Hartman J. and J., judgment of 10/07/03, final on 03/12/03

These cases concern the excessive length of civil proceedings (violations of Article 6§1). In the first case, the proceedings which began in 1985 and ended in 2000, lasted more than 14 years (4 degrees of jurisdiction) of which 7 years and 10 months were after the European Convention’s entry into force with respect to the Czech Republic.

In the second case, in respect of the first applicant, proceedings began in 1992 and ended in 2002 (almost 10 years). In respect of the second applicant, proceedings began in 1995 and ended in 2000 and 2002 respectively (almost 5 years, and 6 years and 3 months respectively). The Hartman case also concerns the fact that the remedies available in the domestic legal order (hierarchical appeal and constitutional complaint) could do nothing to accelerate the pending proceedings or compensate for their excessive length (violation of Article 13).

General measures: At the 847th meeting (July 2003), the Czech delegation indicated that information would be provided about measures envisaged to ensure the reasonable length of civil proceedings.

As regards the violation of Article 13 in the case of Hartman, at the 871st meeting (February 2004), information was requested about measures envisaged to ensure an effective remedy for complaints of excessive length of civil proceedings in the light of the Court’s findings indicating a structural problem. Information is expected on these points.

The judgments of the European Court have been translated and published on the website of the Ministry of Justice (www.justice.cz). Confirmation of the dissemination of the judgments of the European Court is awaited.

H46-744 48568/99 Schmidtová, judgment of 22/07/03, final on 03/12/03

The case concerns the excessive length of certain proceedings before administrative and judicial authorities concerning the restitution of some immovable property which had been nationalised in 1945 (violation of Article 6§1). The proceedings started before the Brno Land Register in February 1993 and were still pending before the Brno Regional Tribunal when the European Court delivered its judgment (10 years and 3 months).

Individual measures: At the 871st meeting (February 2004), information was requested concerning whether the proceedings are still pending.

General measures: At the same meeting, information was requested about measures envisaged to ensure reasonable length of administrative and judicial proceedings given the considerable number of similar applications pending before the Court. In addition, it would be helpful to have information on the existence of effective domestic remedies for the excessive length of administrative and judicial proceedings. Publication and dissemination of the judgment of the European Court have also been requested.

H46-745 29010/95 Credit and Industrial Bank, judgment of 21/10/03

The case concerns the infringement of the applicant company’s right of access to a court with the power to review the legitimacy of administrative and judicial decisions taken in 1993 by the Czech National Bank imposing compulsory administration on the grounds that the applicant bank’s financial situation had been unsatisfactory (violation of Article 6§1).

Individual measures: At the 863rd meeting (December 2003), the government was asked to indicate whether the applicant company might apply for reopening of the impugned proceedings or lodge a fresh complaint before domestic courts challenging the substantive reasons for which the compulsory administration had been imposed on it in 1993. The government stated that the National Bank had withdrawn the applicant’s banking licence on 31/09/1995 and that the Prague Commercial Court had declared the applicant bank bankrupt on 02/10/1995. It also noted that the Bank Act of 1992 (as amended in 1994), would not be applicable to compulsory administration proceedings completed in the past. The government is thus of the opinion that re-opening or a fresh examination would not be possible in the present case.

General measures: By letter of 09/02/2004, the government indicated that the legislation applicable at the relevant time (i.e. the Bank Act of 1992 and the Code of Administrative Procedure of 1967) has been amended and now provides effective remedies enabling a bank to have the reasons for the imposition of compulsory administration examined by a court. Further clarifications concerning the new provisions and a copy of the relevant legal texts are awaited.

The judgment of the European Court has been translated and published on the website of the Ministry of Justice (www.justice.cz). Confirmation of its dissemination is awaited.

- 14 cases against France

H46-747 36378/97 Bertuzzi, judgment of 13/02/03, final on 21/05/03

This case concerns a violation of the applicant's right of access to a tribunal in order to claim (in 1995) for damages against a lawyer whom he considered not to have represented him properly in previous proceedings, and hence of his right to a fair trial (violation of Article 6§1). Although he had been given legal aid, the applicant did not have the assistance of a lawyer, because of the successive withdrawals of various lawyers officially assigned to him. The European Court found that the competent authorities should have taken the steps necessary to give effect to the decision to grant legal aid, in order to allow the applicant to have an effective defence. Indeed, according to this decision, even if the representation by a lawyer was not compulsory in this case (a civil matter) it was nevertheless of the utmost importance. In June 1997, the President of the Bar informed the applicant that the decision to grant him legal aid had lapsed.

Individual measures: According to the applicant’s present lawyer, the applicant does not wish to resume the proceedings at issue.

General measures: The judgment of the European Court has been published on the official internet site www.legifrance.gouv.fr, section actualité européenne. At the 847th meeting (July 2003) information was requested concerning the other measures already adopted or envisaged to avoid new, similar violations.

H46-748 49636/99 Chevrol, judgment of 13/02/03, final on 13/05/03

This case concerns the refusal in 1995 of a request submitted by the applicant (who holds an Algerian doctorate of medicine) to be included, in accordance with the “Evian Agreement”, on the roll of the local medical professional body in the Département of Bouches-du-Rhône. The Conseil d’Etat, as is its constant practice, held itself to be bound by the negative opinion of the Minister of Foreign Affairs with regard to the applicability of the international treaty at issue in the case, considering the assessment of the reciprocity condition contained in Article 55 of the Constitution which provides that treaties or agreements duly ratified or approved have, upon publication, a higher degree of authority than domestic laws, provided the other party applies the same rule (violation of Article 6§1).

The European Court held that, under these conditions, the applicant did not have access to a court having sufficient competence to examine all the legal or factual questions relevant to the determination of the dispute.

Individual measures:

Concerning the applicant’s situation: By Ministerial Decree of 22/01/1999, the applicant was authorised to practice medicine in France and her name was placed on the roll of the professional body. In 2003, following the European Court’s judgment, the applicant applied to have the case re-examined by the Conseil d’Etat. This was dismissed by decision of 11/02/2004.

Concerning the applicant’s requests: Following a first letter (20/04/2004) in which the applicant complained the Conseil d’Etat’s refusal to re-examine the case, this matter was discussed at the 885th meeting (June 2004). It emerged from that discussion that this refusal did not seem to go against the execution of the Court’s judgment, in particular taking into account that, since 1999, the applicant does have the right she had applied for in the proceedings at issue before the Court (to practice medicine in France). In a second letter (25/08/2004) the applicant set out the arguments which in her view militated in favour of the re-opening of her case. Accordingly, she emphasised that, although she has had the right to practice medicine in France since 1999, the respondent state has not “remedied the consequences, not least the financial consequences, of the failure to recognise her degree in medicine” (that is, when she applied for such recognition).

In this instance, the prejudice suffered is due in her view to the fact that she did not receive revenue for the years during which the proceedings to obtain recognition were under way. What is more, the applicant also raises the fact that, despite her motions to this end before the European Court, no sum was granted in respect of pecuniary damages as the Court “did not wish to speculate concerning the conclusions which the Conseil d’Etat might have reached if it had not based itself solely on the ministerial view…”

The French authorities’ reaction to the letter of 25/08/2004 is awaited.

General measures: An example of a change in the jurisprudence of the Conseil d’Etat, or another general measure in order to give effect to the judgment of the European Court, is awaited. The judgment of the European Court has been published and commented on in several law journals. It has also been published in the section Actualité européenne of the Legifrance database (www.legifrance.com).

It is recalled that, with regard to the closely related question of the interpretation of an international treaty of which the content is ambiguous or uncertain (as distinct from the question of the applicability, concerned in this case), the Conseil d’Etat has modified its practice since 1990 (case of G.I.S.T.I., judgment of 29/06/1990) in that, whilst it may seek the opinion of the executive power, it does not consider itself as being bound by it (cf. in this respect, the case of Beaumartin against France, judgment of 24/11/1994, concerning a lawsuit which ended before this change had been made).

H46-749 35683/97 Vaudelle, judgment of 30/01/01, final on 06/09/01

The case concerns the unfairness of criminal proceedings following which the applicant, in respect of whom a supervision (curatelle) order was made in March 1995, was condemned in absentia in October 1995: the applicant had not responded to the summons which had been duly delivered to him and his supervisor (curateur) had not been informed of the prosecution of the applicant (violation of Article 6).

The Court found that there was no reason why an individual who is acknowledged to be incapable of defending his civil interests and is entitled to assistance for that purpose should not also to be given assistance to defend himself against a criminal charge.

Individual measures: It should be noted that:

- the right to apply for re-examination of the criminal judgment following the European Court’s judgment (Article 626-1 ff of the Code of Criminal Procedure) was not validly resorted to by the applicant or his representative;

- the sentenced pronounced on the applicant in 1995 has been served;

- the applicant requested no just satisfaction before the European Court in respect of pecuniary damages with regard to the damages which he was sentenced to pay. A fortiori, no execution measure is needed with regard to the damages in question.

Accordingly, no individual measures are necessary in this case.

General measures: At the 775th meeting (December 2001) information was requested concerning the measures that France envisages to avoid new, similar violations. The French Delegation stated that the judgment has been published in several law journals (including Le Dalloz No. 27-2002; La Semaine Juridique, édition générale, No.19-2001). Further information is awaited concerning the evaluation by France of the general measures to be adopted to execute the present judgment. In the Secretariat’s view, it follows from this judgment that measures are needed to ensure that persons who on account of their mental disabilities are not fully capable of acting for themselves (in particular where they benefit from civil protective regimes) are always assisted or represented to defend themselves against criminal accusations.

H46-751 40472/98 Tricard, judgment of 10/07/01, final on 10/10/01

This case concerns an infringement of the applicant’s right of access to a tribunal (violation of Article 6§1). The applicant is domiciled (and actually lives) in French Polynesia and was a party to criminal proceedings in metropolitan France. The Court of Cassation dismissed his appeal on a point of law on the grounds that it was out of time, in application of Articles 568 and 271, paragraph 3, of the Code of Criminal Procedure. According to these articles and the relevant case-law, the time-limit for lodging such an appeal was of five clear days following date upon which the notification of the contested decision was sent. But in the present case, the applicant received the notification seven days after it had been sent, i.e. after the expiration of the appeal time-limit, because of the time needed to deliver post to French Polynesia.

Individual measures: The applicant could have asked for the re-opening of the appeal on basis of Articles 626-1 to 626-7 of the Code of Criminal Procedure.

General measures: Supplementary comments by the French authorities on the causes of the violation – whether or not they arise from a material error – are needed to form an accurate view of the need for new general measures and the form they might take.

First, it is recalled that, at the 854th meeting (October 2003), the French delegation stated that the ministries of justice and of the overseas territories were in discussion concerning the action to take in consequence of the judgment. It would be useful to know the outcome of these conversations.

With regard to the causes of the violation found in this case, the French delegation has stated that the Court of Cassation made an error in this case, as it should have asked the applicant to find an address in metropolitan France, as required by Article 116§6 of the Code of Criminal Procedure which was not respected in this case (letter of 15/04/2004). Thus, given the rapid delivery of post in metropolitan France, the notification would have arrived in sufficient time to enable the applicant lodge his appeal on points of law within the time-limit laid down. Accordingly, the dissemination of the judgment (now done) to all appeal court judges designated as “Human Rights correspondents” is, in the delegation’s view, a sufficient execution measure and the case might be closed.

It is true that Article 116§6 of the Code of Criminal Procedure provides that a person under judicial examination who does not reside in metropolitan France is required to declare an address in metropolitan France for procedural reasons. It is nonetheless notable that in the Tricard case (see §13 of the judgment) the European Court found that the article at issue did not oblige a person in the applicant’s situation to declare such an address. Accordingly it would seem that the violation is not actually due to a material error and thus new, similar violations could occur unless sufficient general measures were taken to prevent it. The Secretariat and the French delegation are actively pursuing means to clarify these questions.

H46-752 36436/97 Piron, judgment of 14/11/00, final on 14/02/01

The case concerns the excessive length of certain proceedings before administrative courts, concerning civil rights and obligations regarding consolidation of parcels of land. The proceedings began in 1965 and were still pending when the Court issued its judgment (for about 35 years)[32] (violation of Article 6§1). The case also concerns an infringement of the applicant’s right to the peaceful enjoyment of her possessions, as she had been deprived of a part of her property in consequence of the same proceedings, without obtaining adequate compensation (i.e. for being deprived of her property and for damages resulting from the length of this privation) within a reasonable time (violation of Article 1 of Protocol No. 1).

Individual measures: By letter dated 12/04/2003, the French delegation stated that, following the cancellation on 29/03/2002 by the Conseil d’Etat of the decision of 27/06/2000 on the applicant’s compensation by the competent authority (commission nationale de réaménagement foncier), the latter re-examined the case on 16/12/2003 and, in a motivated decision taken in the light of the report of a new expert and the oral observations of the applicant, increased the compensation from 28,730.85 to 93,741 euros. The decision indicates that the new amount takes into consideration “among other things the abnormal delay since the first decision of justice concerning the dispute (…), and the subsequent loss of productivity”.

On 12/05/2004, the applicant’s lawyer indicated that he intended to appeal against this decision. Information is awaited in this respect.

General measures: By letter of 10/10/2003, the delegation indicated that a Promotion of the Development of Rural Areas Bill was in the process of being drafted. This Bill simplifies and decentralises land-use development processes, provides for the abolition of the relevant national authority and makes it easier to obtain compensation where it is impossible to alter the division of land. Information is awaited as to the progress of the bill, as well as details on the improvements foreseen concerning the speed of treatment of questions related to consolidation of parcels of land.

H46-753 56243/00 Chaineux, judgment of 14/10/03, final on 14/01/04

This case concerns the excessive length of certain proceedings concerning civil rights and obligations before labour courts (violation of Article 6§1). The proceedings began in 1996 and ended in 2001 (nearly 4 ½ years for 2 degrees of jurisdiction).

The European Court recalled its case-law according to which labour disputes have to be resolved particularly promptly, as they concern issues of major importance for people’s professional situation.

General measures: Information was requested at the 879th meeting (April 2004) concerning the possible measures adopted or envisaged to avoid new, similar violations.

H46-646 46096/99 Mocie, judgment of 08/04/03, final on 08/07/03

This case concerns the excessive length of two sets of proceedings concerning civil rights and obligations before administrative courts (violations of Article 6§1). The first set of proceedings began in 1988 and was still pending when the European Court delivered its judgment (14 years and 10 months); the second began in 1990 and ended in 1998 (almost 8 years). The Court underlined that in view of the applicant’s lack of means and the deterioration of his health, his claims for benefits were vital to him and the authorities should have been particularly diligent in dealing with them.

Individual measures: Acceleration of the proceedings still pending. Information is awaited in this respect.

General measures: According to the European Court, it is important that this kind of situations be resolved particularly speedily; thus, publication and dissemination of the judgment was asked for at the 854th meeting (October 2003) with the intention that it be taken into account by the relevant authorities.

Furthermore, this case presents similarities with that of Sapl and with the other cases concerning the length of proceedings before the administrative courts, in Sub-section 6.2 following the measures announced by the defendant state, in particular: passing of Law No. 2002-1138 of 09/09/2002, providing inter alia for recruitment of staff, the creation of new courts and budgetary resources and procedural measures to enable administrative courts both to reduce their backlogs more quickly and reduce the flow of incoming cases.

H46-647 50331/99 Julien Ferdinand, judgment of 08/04/03, final on 08/07/03

This case concerns the excessive length of certain proceedings concerning civil rights and obligations before labour courts (violation of Article 6§1). The proceedings began in 1991 and were still pending when the European Court rendered its judgment (more than 11 years and 4 months for 2 levels of jurisdiction).

Individual measures: Acceleration of the proceedings still pending. Information is expected on this point.

General measures: According to the Court, it is important that this kind of situations be resolved with exceptional promptness; thus, publication and dissemination of the judgment to the competent authorities was asked for at the 854th meeting (October 2003).

- Cases concerning of length of civil proceedings

Item	Application	Case	Length of the proceedings	Case pending	Proceedings began on
H46-754	42407/98	C.R., judgment of 23/09/2003, final on 23/12/2003	Commercial proceedings: almost 8 years and 4 months (1 degree of jurisdiction)	No	23/08/1989
H46-754	42407/98	C.R., judgment of 23/09/2003, final on 23/12/2003	Civil liability proceedings : 9 years and 7 months (4 degrees of jurisdiction)	Yes	01/02/1994
H46-758	55875/00	Signe, judgment of 14/10/2003, final on 14/01/2004	Approximately 10 years and 7 months (3 degrees of jurisdiction)	No	08/07/1988
H46-153	53425/99	Dumas, judgment of 23/09/03, final on 24/03/04[33]	More than 12 years and 2 months	Yes	12/07/1991
H46-755	55829/00	Huart, judgment of 25/11/03, final on 25/02/04	11 years and 10 months	No	24/01/1989
H46-756	49531/99	Lutz No.2, judgment of 17/06/03, revised on 25/11/03, final on 25/02/04	3 years, 9 months and 18 days before the Court of Cassation	No	19/12/1994
H46-757	51887/99	Nicolle, judgment of 25/11/03, final on 25/02/04	13 years, 9 months and 9 days (3 degrees of jurisdiction)	No	27/02/1985

These cases concern the excessive length of certain civil proceedings (violations of Article 6§1).

The Lutz case also concerns the fact that at the time when the application was lodged, no effective remedy was available in this respect (violation of Article 13).

Individual measures: In the cases of C.R. (applicant’s letter of 13/02/2004) and Dumas, acceleration of the proceedings still pending.

General measures: Information was requested at the 879th meeting (April 2004) on measures adopted or envisaged to avoid new, similar violations.

Concerning the violation of Article 13 in the Lutz case, the European Court recalled that in the Nouhaud case (judgment of 09/07/2002) it had considered that an application for compensation under Article L 781-1 of the Code of Judicial Organisation had, since the facts at the origin of the present case, acquired sufficient legal certainty to be considered an effective remedy.

- 12 cases against Greece

H46-759 46355/99 Tsirikakis, judgment of 17/01/02, final on 10/07/02 and of 23/01/03, final on 09/07/03 (Article 41)

H46-760 48392/99 Hatzitakis, judgment of 11/04/02, final on 11/07/02

*H46-54 51534/99 Karagiannis and others, judgment (merits) of 16/01/03, final on 16/04/03

*H46-40 51356/99 Nastou, judgments of 16/01/03, final on 16/04/03 (merits) and of 22/04/04, final on 22/07/04 (just satisfaction)

These cases concern violations of the applicants’ right to the peaceful enjoyment of their possessions, in the context of certain expropriation proceedings (violations of Article 1 of Protocol No. 1).

In the Tsirikakis case, the violation concerns the protracted, persistent uncertainty (since 1984) experienced by the applicants about both the amount of compensation fixed, which had been seriously depreciated by the passage of time until 1998, when the applicants withdrew the expropriation compensation which had been placed on deposit in 1983. The case also concerns the fate of the non-expropriated part of the applicants’ land, given that the state, which had contested their ownership since 1982, had declared the whole property (a small island near the island of Evia) to be public property.

In the Hatzitakis case, the violation concerns the fact that the applicant could not obtain the compensation determined by the courts for the expropriation of his property in 1997, with a view to installing a radar for Thessaloniki airport, because of the excessive length of the procedure concerning the recognition of his entitlement to compensation. As there was no land registry covering that region of Greece, the authorities had been unable to give an immediate answer to the question of whether the state had any property rights over the land and they had to resort to this complex procedure. In September 2001, the applicant’s entitlement to compensation was recognised and he was able to obtain it at any moment.

In the case of Karagiannis and others, the violation relates to the occupation without expropriation of the applicants’ land in Marathon by the National Navy Fund since 1967 and the to fact that after the expropriation in 1999, the Athens First Instance Court, when fixing the compensation in 2001, did not take into account the land deprivation that began in 1967.

Finally, in the Nastou case, the violation concerns the lack of any kind of compensation for the expropriation, in 1973, of the applicants’ land in an Athens suburb, to build a school.

The first, third and fourth cases also concern the excessive length of civil proceedings concerning judicial recognition of the applicants’ ownership: in the first case more than 13 years, and in the third and fourth cases more than 17 years after Greece’s recognition in 1985 of the right of individual petition (violations of Article 6§1).

Individual measures: On 30/04/2004 the Secretariat wrote to the respondent state (concerning all the Greek cases relating to violations of Article 1 of Protocol No. 1) requesting information on the state of the proceedings before national courts concerning the recognition of land ownership in the Tsirikakis and the Nastou cases. A reply is awaited.

Except for the Karagiannis case (the judgment on just satisfaction is awaited) the applicants in all cases have been awarded just satisfaction by the European Court.

General measures: As regards the violation of Article 1 of Protocol No. 1, the respondent state has recalled that a new Code of Expropriation has been adopted (Law 2882/2001); concrete information is awaited, on the current application of this law and the extent to which it contributes to avoiding similar violations. As especially regards the first two cases the Secretariat, in its 30/04/2004 letter asked the respondent state for information about the creation of a Land Registry in Greece as well as about possible interim measures. A reply is awaited.

As regards the violations of Article 6§1, information is awaited on the current application and effects of Law 2915/2001 on the acceleration of civil proceedings.

All four judgments of the European Court have been published on the official web site of the State Legal Council (www.nsk.gr). Information on possible publication in more widely-read law journals/sites is awaited. The first two judgments have been disseminated to the competent judicial authorities. Information on the dissemination of the two other judgments is awaited.

H46-761 41666/98 Kyrtatos, judgment of 22/05/03, final on 22/08/03

The case concerns a triple violation of Article 6§1:

(a) The failure of the local authorities to respect two decisions adopted in 1995 by the Supreme Administrative Court, at the application of a Greek environmental organisation and the applicant, annulling the building permits for two buildings in a swamp area which is a natural habitat for protected species on Tinos island and obliging the local authorities to demolish the buildings; (b) The excessive length of certain civil proceedings instituted by the applicants against their neighbour for trespassing on their property. These proceedings began in January 1991 and when the European Court delivered its judgment they were still pending at appeal (more than 12 years for two levels of jurisdiction); (c) The excessive length of certain proceedings before administrative courts instituted by the applicants against an administrative decision ordering the demolition of their house on the ground that it had been built without a building permit. These proceedings began in October 1994 and, when the European Court delivered its judgment, they were still pending at appeal (more than 8 years and 3 months for one level of jurisdiction).

Individual measures: Information is awaited on the demolition of the buildings at issue, as required by a special committee of the Supreme Administrative Court in 1997. As to the domestic judicial proceedings, they have ended in favour of the applicants (the civil proceedings by judgment 176/2003 of the Aegean Court of Appeal and the proceedings before administrative courts by judgments 1674 and 1675/2000 of the Piraeus Administrative Court of Appeal).

General measures: As regards the first violation of Article 6§1, Article 95§5 of the revised (2001) Constitution and Law 3068/2002 (in force since November 2002, complemented by Presidential Decree 61/2004) have established a specific judicial monitoring system for the administration’s compliance with judicial decisions. As regards the second violation of Article 6§1, Law 2915/2001 on the acceleration of civil proceedings has been in force since September 2001. Concrete information is awaited on the implementation and effects of Laws 3068/2002 and 2915/2001 in Greek legal practice. As regards the third violation of Article 6§1, on 01/03/2004 the respondent State informed the Secretariat that in order to further accelerate the proceedings before the administrative courts, a draft Bill has been under way amending the Code of Administrative Procedure. This reform is scheduled to be completed by the end of 2004. Further information on this issue is awaited. In the meantime, Article 22 of Law 3226/2004, regarding the above Code, introduced certain provisions on this purpose (notably reinforcement of the system of examination at the same trial of applications based on the similar legal and factual basis). The judgment of the European Court has been published on the official website of the State Legal Council (www.nsk.gr) and disseminated to the competent judicial authorities.

H46-762 50824/99 Azas, judgment of 19/09/02, final on 21/05/03

H46-763 55794/00 Efstathiou and Michaïlidis and Cie Motel Amerika, judgment of 10/07/03,

final on 10/10/03

H46-764 58642/00 Interoliva Abee, judgment of 0/07/03, final on 10/10/03

H46-765 58634/00 Konstantopoulos AE and others, judgment of 10/07/03, final on10/10/03

H46-768 61582/00 Biozokat A.E., judgment of 09/10/03, final on 09/01/04

These cases concern violations of the applicants’ right of property (violations of Article 1 of Protocol 1), in that the application of an “irrebuttable presumption” (Article 1 of Law No. 653/1977) according to which the building of a road is profitable to the adjoining owners, led to an automatic reduction of the applicants’ compensation for land expropriated for the building of the road. The presumption was declared “rebuttable” by a change in domestic case-law in 1999. However, the European Court found this change insufficient, since the applicants were obliged to engage in lengthy judicial proceedings for damages, separate from the expropriation procedure, to prove that their properties were in fact at a disadvantage and thus obtain additional compensation. Some of the applicants in the Azas case have lodged proceedings of this kind which were pending when the European Court delivered its judgment.

In the Azas case, the violation of Article 1 of Protocol 1 is also due to the fact that the maximum amount imposed by law for the reimbursement of lawyers’ fees did not reflect the actual amount of the fees due, so that the applicants had had to bear part of the fees.

Individual measures: On 30/04/2004 the Secretariat wrote to the respondent state requesting information on the progress of the domestic proceedings in the Azas case. A reply is awaited.

General measures: As regards the common aspect of the cases, the new Law 2971/19/12/2001 adopted the change already made in domestic case-law following the Court’s judgments in the cases of Katikaridis, Tsomtsos and Papachelas (ResDH(2002)105, ResDH(2002)103, ResDH(2002)104 respectively). Article 33 of the above taw provides that the presumption is no longer “irrebuttable”. It also provides specific, short proceedings – which do not suspend the expropriation procedure – to enable persons subject to expropriation to rebut the presumption.

By the letter of 30/04/2004, referring to all five cases, the Secretariat, considering the European Court’s approach to a single procedure ensuring a global evaluation of the consequences of an expropriation (Azas judgment §§48, 52, 54), asked the respondent state for information as to whether new legislative amendments are envisaged or whether examples of the application of the new Article 33 can be provided demonstrating that it establishes an efficient procedure satisfying the European Court’s requirements. A reply is awaited.

As regards the reimbursement of lawyers’ fees, the new Code of Expropriations (Law 2882/06/02/2001, Article 18§4, as amended by Law 3130/28/03/2003) has abrogated the imposition of a maximum amount of legal fees payable. Information is awaited on whether persons who follow the new procedure under Article 33 will have to bear the legal costs.

Finally, information is awaited on the dissemination and publication of the judgments of the European Court.

H46-767 59506/00 Papageorgiou Georgios, judgment of 09/05/03, final on 09/08/03

The case concerns the excessive length of criminal proceedings. The proceedings lasted more than 9 years and ended in November 1999 (violation of Article 6§1). The case also concerns the refusal of the domestic courts to order production of the originals of essential documents for the defence of the applicant who was sentenced to 3 years and 6 months’ imprisonment for deception (violation of Article 6§§1 and 3d).

Individual measures: Article 525§1.5 of the Code of Criminal Procedure, as modified by Law 2865/2000 (which entered into force on 19/12/2000), allows individuals as well as the Prosecutor to request the reopening of the domestic proceedings following a judgment of the European Court finding a violation of a right concerning either the fair character of the procedure or the substantive provision applied. Consequently, the applicant has the right to request the reopening of the domestic proceedings.

General measures: With regard to the first violation, Law 3160/2003 on the acceleration of criminal proceedings was enacted on 30/06/2003. Information is awaited on the actual effect of this legislation on the length of proceedings. With regard to the second violation, the judgment has been disseminated to the criminal courts and published on the official web site of the State Legal Council (www.nsk.gr). Information is awaited on the possible publication of the judgment in widely distributed Greek law journals.

H46-769 55828/00 Satka and others, judgment of 27/03/03, final on 27/06/03

The case concerns the fact that the 88 applicants have not been able to use their land in the area of Thessaloniki since 1991: the adoption of successive decrees amending the regional development plan which classified the land concerned as being for public use, as well as the conduct of the local authorities preventing the applicants from using their land, showed that the authorities’ aim was to appropriate the properties without bringing expropriation proceedings within a reasonable length of time or paying compensation to the applicants (violation of Article 1 of Protocol No.1).

The case also concerns the local authorities’ refusal to pay the applicants the expropriation compensation fixed by the courts in 1996 and 1997, as well as the repeated interventions by central and local authorities rendering ineffective a judicial decision of 2000 (and an earlier one of 1953) revoking the expropriation of the applicants’ land (violation of Article 6§1).

The question of just satisfaction has been reserved as a whole.

Individual measures: The Secretariat wrote to the Greek authorities on 30/04/2004, requesting information on measures envisaged to dissipate the applicants’ uncertainty as regards the situation of their property (i.e. a possible new expropriation, lifting of the restrictions, etc). A reply is awaited.

General measures: In the same letter concrete information was asked for on the actual application and effects in Greece of Law 3068/2002 on the administration’s compliance with judicial decisions. Concrete information is also awaited on the actual application and effects in Greece of Law 2882/2001 on land expropriations. Finally, information is awaited on the wide dissemination and a possibly wider publication of the European Court’s judgment. It been published on the site of the State Legal Council (www.nsk.gr).

- 13 cases against Hungary

H46-770 60037/00 Németh, judgment of 13/01/04, final on 09/02/04

This case concerns the excessive length of certain criminal proceedings (violation of Article 6§1). The proceedings began on 02/10/1992 and ended on 14/03/2000 (7 years and 5 months, of which 7 years and 4 months fall within the European Court’s jurisdiction).

General measures: The confirmation of the publication of the judgment of the European Court and its dissemination to public prosecutors and criminal courts is expected. Information would be appreciated about the present situation at national level concerning the length of criminal proceedings.

Cases concerning the length of proceedings concerning civil rights and obligations including before the labour courts

Item	Application	Case	Jurisdiction and length of proceedings	Cases pending	Proceedings began on
H46-771	36186/97	Tímár, judgment of 25/02/03, final on 09/07/03	Civil courts – 11 years and 6 months[34] (2 degrees of jurisdiction and review proceedings before the Supreme Court)	No	06/02/1990
H46-781	42961/98	Simkó, judgment of 08/04/03, final on 08/07/03	Civil courts – 5 years and 6 months[35] (2 degrees of jurisdiction)	No	09/10/1992
H46-775	43657/98	Lévai and Nagy, judgment of 08/04/03, final on 24/09/03	Labour courts – more than 10 years (2 degrees of jurisdiction and proceedings of review before the Supreme Court)	Yes	04/03/1993
H46-778	52724/99+	Nyírő and Takács, judgment of 21/10/2003, final on 11/11/2003	Labour courts – 12 years and 12 years ½ [36] (2 degrees of jurisdiction and proceedings of review before the Supreme Court)	Yes	16/12/1991
H46-772	59562/00	Earl, judgment of 20/01/04, final on 20/04/04	Civil courts - More than 10 years and 1 month (1 degree of jurisdiction)	Yes	08/11/1993
H46-773	58887/00	Károly, judgment of 02/12/03, final on 24/03/04	Labour courts, more than 6 years and 6 months (3 degrees of jurisdiction)	No	28/08/1995
H46-774	47355/99	Kerékgyártó, judgment of 16/12/03, final on 24/03/04	2 sets of civil proceedings, 7 years and 6 years and 4 months respectively (3 and 2 degrees of jurisdiction respectively)	No	07/07/1993 11/10/1994
H46-776	62730/00	Lovász, judgment of 20/01/04, final on 20/04/04	Civil courts - 7 years and 3 months (2 degrees of jurisdiction)	Yes	17/09/1996
H46-777	55539/00	Militaru, judgment of 12/11/03, final on 12/02/04	Civil courts – 8 years (2 degrees of jurisdiction)	No	13/10/1995
H46-779	59094/00	Sesztakov, judgment of 16/12/03, final on 16/03/04	Civil courts, 7 years et 9 months (2 degrees of jurisdiction)	No	07/07/1993
H46-780	53844/00	Sikó, judgment of 04/11/03, final on 04/02/04	Civil courts – 9 years and 6 months[37] (2 degrees of jurisdiction)	No	30/12/1991
H46-782	57966/00	Vass, judgment of 25/11/03, final on 24/03/04	Civil courts - 8 years and 9 months (3 degrees of jurisdiction, referral to the first instance court)	Yes	12/01/1995

These cases concern the excessive length of proceedings concerning civil rights and obligations including before the labour courts (violations of Article 6§1).

The European Court recalled its case-law according to which industrial conflicts must be resolved particularly promptly.

Individual measures: acceleration of the proceedings pending at national level.

General measures: as regards the violation of Article 6§1, the Government indicated that the reform of the judicial system in Hungary was under way including the creation as of 01/07/2003, of three High Courts, which could contribute efficiently to the reduction of the workload of the Supreme Court and to the examination of cases within a reasonable time. As regards the effective remedy against excessive length of civil proceedings the Ministry of Justice has prepared a draft proposal allowing parties to complain in order to require the responsible court to continue proceedings without delay. Additional information is awaited on the manner of which the courts lately created will contribute to reduce the workload of the Supreme Court, as well as on the progress of the draft proposal concerning the effective remedy. It would be interesting to have also information on the outlook for the creation of a compensatory remedy aiming at allowing at national level the compensation of damage caused by the excessive length of judicial proceedings, as well as on further general measures already adopted or envisaged by the Hungarian authorities to prevent new violations similar to those found by the European Court in these cases.

The judgments of the European Court in the first four cases were published on the website of the Ministry of Justice www.im.hu. The judgments in the cases of Tímár and Simkó and Lévai and Nagy were also published in the human rights quarterly “Acta Humana” and were sent to the Office of the National Judicial Council in order to be disseminated to civil and labour courts.

- 1 case against Iceland

H46-783 39731/98 Sigurđsson, judgment of 10/04/03, final on 10/07/03

The case concerns the lack of impartiality of the Icelandic Supreme Court which in 1997 rejected the applicant’s appeal in compensation proceedings brought against the National Bank of Iceland on account of the importance and closeness of the financial relationship between one of the Supreme Court judges and her husband and the Icelandic National Bank (violation of Article 6 §1).

His first petition was rejected in July 1997 on the ground that he had not referred to any new fact or adduced any new evidence having a bearing on the merits of the case and that there had been no reason for believing that the judge in question had not been impartial.

The applicant’s second petition was rejected in November 1997 on the ground that a party may apply only once for re-examination of a case (violation of Article 6 §1).

Individual measures: Given the nature of the violation found by the European Court in this case, reopening of the impugned proceedings would seem to be the best means to achieve the restitutio in integrum required by the Convention. The applicant has informed the Secretariat of his intention to request the institution of new proceeding. However, according to Article 169 (2) of the Code of Civil Procedure, No. 91/1991, a party may only apply to re-open a case once.

General measures: The judgment of the European Court has been translated and disseminated to the Icelandic judicial authorities. The Icelandic version has also been published on the website of the Ministry of Justice (www.dkm.is). The Secretariat has written to the Icelandic authorities requesting information on the general measures envisaged. The authorities’ reply is awaited.

- 150 cases against Italy

H46-785 31127/96 E.P. No. 3, judgment of 06/11/99, revised on 03/05/2001 (Article 41)

The case concerns the total and irreversible interruption of contact between the applicant and her daughter from 1988 onwards. The child, who was then seven years old and had lived until then in Greece with her mother, was removed from the mother’s care a few days after her arrival Italy, as the applicant presented psychological problems that could impair her daughter’s development. From then on, all contact between the applicant and her daughter was denied and the latter was first placed in public care and then declared available for adoption in 1989. The European Court found that the national authorities had failed to take all necessary steps to ensure that the chances of the applicant and her daughter re-establishing their relationship should not be definitively compromised (violation of Article 8). Moreover, the Court found that the overall length of the proceedings, namely seven years, had been excessive, account being taken of the “particular dispatch” required in matters concerning children’s custody (violation of Article 6§1).

Individual measures: No measure was required, particularly since in 1999, before the Court’s judgment was delivered, the applicant died and her daughter came of age.

General measures: As regards the violation of Article 8, information is expected on the awareness-raising measures envisaged in order to ensure that the social services take into account the critical remarks made by the European Court concerning dysfunctions occurring when children are taken into public care in Italy (see also the Scozzari case, judgment of 13/07/2000). As regards similar measures required in respect of the judiciary, the Superior Judicial Council (CSM) indicated, in a decision forwarded on 30/10/2003 by the Italian delegation, that the European Court’s judgments concerning placing children in public care would be included in a seminar on human rights in the Strasbourg and Luxembourg Courts’ case-law, destined for judges of civil courts and scheduled for May 2004. Details about this measure have been requested.

As regards the violation of Article 6 found in this case, it should be recalled that it is linked to the more general problem of the functioning of the Italian judicial system (see Interim Resolution ResDH(2000)135). Information has been requested about any special measures taken to ensure that cases requiring prompt settlement, like this one, are dealt with more rapidly. In this context, the Italian delegation has indicated that, in July 2000, the CSM had drawn the attention of civil judges to the need to take all appropriate measures to avoid delays in the treatment of cases, particularly those which, like the present case, require exceptional diligence.

H46-786 25498/94 Messina Antonio II, judgment of 28/09/00, final on 28/12/00

Interim Resolution ResDH(2001)178

The case relates to the monitoring of the applicant’s correspondence during his detention (violation of Article 8) as well as the lack of effective remedies against the restrictions resulting from the special prison regime (Section 41bis of the Prison Administration Act n° 354/75) to which he was subject (violation of Article 13). In a previous judgment of 26/02/1993, the European Court had already found inter alia a violation of Mr Messina’s right to respect of his correspondence during his detention (see Resolution DH(94)62).

As regards the violation of Article 8, this case is similar to the cases of Diana and Domenichini (judgments of 1996). As regards available remedies to check the lawfulness of the imposed restrictions, the Court found that appeals to the Sentence Execution Courts were not an effective remedy on account of the systematic non-respect by these courts of legal deadlines for decision.

General measures:

- As regards the violation of Article 13: The new Law No. 279, which entered into force on 24/12/02, set out in detail the conditions under which the Minister of Justice, by motivated decrees, may impose restrictions. It extended the duration of decrees and provided that any decree should be explicitly motivated when it re-imposes restrictions after a decision of the sentence execution court lifting them, even partially. When the restrictions are no longer justified, they may be lifted ex officio or through an administrative complaint, dismissal of which may be appealed before the sentence execution court.

However, the law brought about no change to ensure respect for the legal deadline of 10 days for the sentence execution court to decide on the lawfulness of restrictions. At the 785th meeting (June 2004), the Italian delegation admitted that the legislation lacked clarity in this respect and stated that the Court of Cassation had held in a recent judgment that courts must decide the issue of lawfulness of restrictions – even after the expiry of the 10-day time-limit. It would not appear, nonetheless, that this new case-law has fully solved the problem highlighted by the European Court under Article 13, due not least to the length of time which may elapse between detainees’ complaints and court decisions. Clarifications on this point are therefore awaited.

The judgment of the European Court has been translated, published in the legal journal Documenti Giustizia and communicated to the authorities concerned.

- As regards the violation of Article 8, the measures are examined in the framework of the cases Diana and Domenichini (to be examined at the 906th meeting, 8-9 December 2004).

H46-787 56298/00 Bottaro, judgment of 17/07/03, final on 17/10/03

H46-788 32190/96 Luordo, judgment of 17/07/03, final on 17/10/03

H46-199 47778/99 Bassani, judgment of 11/12/03, final on 11/03/04[38]

H46-789 44521/98 Peroni, judgment of 06/11/03, final on 06/02/04

H46-790 52985/99 S.C., V.P., F.C., M.C. and E.C., judgment of 06/11/03, final on 06/02/04

These cases concern disproportionate restrictions of the applicants’ rights in the context of bankruptcy proceedings. In order to protect the rights of others, the Italian law on bankruptcy (Royal Decree No. 267 of 16/03/1942) provides that bankrupts are, inter alia, deprived of their right to administer and dispose of their possessions, that their correspondence should be monitored, that they are prohibited from bringing judicial proceedings and prevented from leaving their place of residence without judicial permission. Although such restrictions are not open to criticism in themselves, they become less necessary with time. Thus, when the length of the bankruptcy proceedings is excessive, as in these cases (between 12 and 24 years) they upset the balance between the general interest in payment of a bankrupt’s creditors and the interest of the individual.

The European Court accordingly found violations of the applicants’ right to the peaceful enjoyment of their possessions (violations of Article 1 of Protocol No. 1), their right of access to a court (violation of Article 6§1), their freedom of movement (violation of Article 2 of Protocol No. 4) and their right to respect for their correspondence (violations of Article 8). Furthermore, no effective remedy was available as regards the last of these rights (violation of Article 13 in Bottaro case).

Individual measures: Information is expected as regards the acceleration of the proceedings in cases of Bottaro and S.C., V.P., F.C. and E.C., which have been pending for more than 12 years, and the lifting of the impugned restrictions which are still imposed on the applicants in both these cases and in Bassani case. The need for these measures was recalled in the Secretariat’s letters of 01/03/2004 and 25/06/2004 to the Italian delegation.

General measures: A draft reform of the bankruptcy law is being examined by the Italian parliament (draft law No. 1243/S); the Italian authorities have been invited, by letter of 01/03/2004, to indicate:

- to what extent the adoption of this draft law will remedy the different violations found and, in particular, ensure a reasonable length of bankruptcy proceedings and ensure that bankrupts’ rights are not subject to disproportionate restrictions;

- the expected time-frame for the reform of the bankruptcy law to enter into force;

- statistical data on the average length of bankruptcy proceedings and the proportion of such cases out of the overall number of civil proceedings.

The Secretariat has not yet received any information concerning these issues. The Luordo and Bottaro judgments have been published in Italian in the Ministry of Justice’s Bulletin, No. 1 of 15/01/2004 and have been brought to the attention of the competent authorities.

*H46-114 52763/99 Covezzi and Morselli, judgment of 09/05/03, final on 24/09/03

The case concerns a violation of the applicants’ right to the respect of their family life on account of the length of certain proceedings (between 1998 and 2000) before a youth court concerning the removal of their four children (then aged 11, 9, 7 and 4), their placement in public care and the withdrawal of the applicants’ parental authority. The case also concerns the failure to involve the applicants adequately in the decision-making process with a view to taking a prompt final decision concerning their parental rights (violation of Article 8).

Individual measures: The adoption of individual measures does not appear necessary in this case: the Court found no breach of the Convention as regards the emergency care order made in respect of the applicants’ children and the manner in which it had been implemented, the failure to hear the applicants before its implementation, the placement of the children or the lengthy suspension of contacts between the children and the applicants, who had been convicted of sexually abusing the children. On the other hand, the applicants, who have submitted no request for adoption of individual measures before the Committee of Ministers, may at any time seise the domestic courts in order to obtain a reassessment of the need of the measures taken in their respect.

General measures: Information is expected as regards the measures envisaged in order to prevent new violations similar to that found in this case. In particular, the Italian authorities have been invited:

- to specify whether, in the framework of the new law No. 149 of 2001 on adoption and placement of children, parents’ involvement is now ensured throughout the emergency care procedure including renewal of emergency care orders;

- to forward any relevant information as regards the reform, currently under consideration, of the youth courts system;

- to indicate the measures envisaged to draw the attention of social services staff to the Court’s findings in this case.

The Italian authorities also indicated that the European Court’s judgment had been published in the Official Bulletin of the Ministry of Justice, No. 1 of 15/01/2004 and that it would be included in the training and awareness-raising programme for youth courts in May 2004.

H46-238 15918/89 Antonetto, judgment of 20/07/00, final on 20/10/00[39]

The case concerns the non-execution by the municipality of Turin, for more than fourteen years and despite five judicial execution orders, of a judgment of the Council of State of 17/10/1967 ordering the total or partial demolition of a multi-storey block of residential flats built next to the applicant’s house (violation of Article 6§1). The case also concerns a breach of the applicant’s right to respect for her property in that the refusal to execute these judicial decisions was without legal ground until 1988 (when Law no 68, regularising illegal buildings, entered into force) (violation of Article 1 of Protocol 1).

Individual measures: The European Court awarded the applicant a sum in compensation for the loss of value to her house in consequence of the construction of the block of flats.

General measures: The issue of non-execution of judicial decisions has also arisen, inter alia, in the Immobiliare Saffi group of cases (see Section 4.2) and requires the respondent State’s particular attention. As a consequence, information is awaited on measures envisaged with a view to effectively remedying the problem in question. In this context, the following general measures have been examined by the Committee:

(a) Adoption of legislative measures for ensuring the effective compliance of the national and local authorities as well as civil servants with final judicial decisions (§ 29 of the judgment in fine). The Committee would draw the attention of the respondent State to the experience of other countries where similar problems have been addressed in order to comply with the case law of the European Court;

(b) Providing for compensation, if necessary by the State, to aggrieved individuals in cases of protracted non-execution for, inter alia, financial losses caused by non-execution (§§34 and 43 of the judgment). Thus, State and civil servants’ civil liability could also be envisaged. Italian case law has recognised the right to compensation in cases of administrative illegal actions (Court of Cassation judgment 500/99), as well as the right to compensation in cases of unreasonable delays in the execution of judicial decisions, by virtue of the “Pinto law” (89/01) on excessive judicial proceedings (Court of Cassation judgment 14885/02). Information is awaited on the actual effects of the above case law and whether the respondent State or municipal authorities have granted compensation to aggrieved individuals.

Finally, information is awaited on the publication and dissemination of the judgment of the European Court.

H46-507 33202/96 Beyeler, judgments of 05/01/00 (fond) and of 28/05/02 (Article 41)[40]

The case concerns a breach of the applicant’s right to respect for his property due to the conditions under which, in 1988, the respondent state exercised its pre-emptive right to a painting the applicant had acquired in 1997 (violation of Article 1 of Protocol No. 1). The applicant, a Swiss art dealer, bought a Van Gogh painting in Italy in1977 through an Italian art dealer acting as his intermediary for 600 million ITL ($ 377 054,85). Contrary to Italian law, the applicant did not declare his purchase of the painting until 1983 when he wanted to sell it through an intermediary for $ 2,1 million. From 1983 until 1988 the applicant negotiated with the respondent state, mainly about the exercise of the latter’s pre-emptive right. Finally, in 1988, the applicant sold the painting for $ 8,5 million to a foundation. The respondent state then exercised its pre-emptive right with respect to the sales contract negotiated in 1977 and on the basis of the sale price at that date, on account in particular of the irregular conditions applying to the notification of the sale. The European Court found that from 1983 to 1988, the respondent state left the applicant in uncertainty regarding its intention to exercise its right of pre-emption. The Court held, inter alia, that the considerable latitude left to the authorities under the applicable provisions, as interpreted by the domestic courts, and the lack of clarity in the law on pre-emption had made the situation even more uncertain, to the applicant’s detriment (see §§ 109 – 110), thus finding a violation of Article 1, Protocol 1.

Just satisfaction: In its judgment of 28/05/2002, the Court considered that the nature of the breach found did not allow of restitutio in integrum. However, it awarded the applicant, as just satisfaction, a total sum of 1 355 000 euros, to be paid before 28/08/2002.

General measures: The attention of the Italian authorities was drawn to paragraphs 109-110 of the judgment of the European Court, as regards the lack of clarity of the provisions on pre-emption (Law No. 1089 of 1939). Information is expected on the measures envisaged to remedy these shortcomings. The judgment was published in Il foro italiano, 2000 No. 3.

- Cases relating to the failure to enforce judicial eviction orders against tenants

H46-791 22774/93 Immobiliare Saffi, judgment of 28/07/99

H46-792 66441/01 A.G. No. 4, judgment of 09/10/03, final on 09/01/04

H46-793 22534/93 A.O., judgment of 30/05/00, final on 30/08/00

H32-794 20177/92 Aldini, Interim Resolution DH(97)413 du 17/09/97

H46-201 30878/96 Alfano, judgment of 11/12/03, final on 11/03/04[41]

H46-242 38011/97 Aponte, judgment of 17/04/03, final on 17/07/03[42]

H46-795 35550/97 Auditore, judgment of 19/12/02, final on 19/03/03

H46-796 66920/01 Battistoni, judgment of 31/07/03, final on 31/10/03

H46-202 64258/01 Bellini, judgment of 29/01/04, final on 29/04/04[43]

H46-41 64098/00 Bellini Franco No. 2, judgment of 11/03/2004, final on 11/06/2004[44]

H46-203 37110/97 Bertuccelli Marco, judgment of 04/12/03, final on 04/03/04[45]

H46-797 65413/01 Bonamassa, judgment of 02/10/03, final on 02/01/04

H46-798 62849/00 Brienza, judgment of 16/10/03, final on 16/01/04

H46-243 34999/97 C. Spa, judgment of 03/04/03, final on 03/07/03[46]

H46-799 35428/97 C.T. No. 2, judgment of 09/01/03, final on 09/04/03

H46-800 63947/00 Calosi, judgment of 16/10/03, final on 16/01/04

H46-204 61665/00 Calvanese and Spitaletta, judgment of 04/12/03, final on 04/03/04[47]

H46-42 59636/00 Calvo, judgment of 11/03/2004, final on 11/06/2004[48]

H46-244 28724/95 Capitanio, judgment of 11/07/02, final on 11/10/02[49]

H46-801 45006/98 Capurso, judgment of 03/04/03, final on 03/07/03

H46-802 48842/99 Carbone Anna, judgment of 22/05/03, final on 22/08/03

H46-205 31925/96 Carignani, judgment of 11/12/03, final on 11/03/04[50]

H46-803 35777/97 Carloni and Bruni, judgment of 09/01/03, final on 09/04/03

H46-804 34819/97 Cau, judgment of 15/11/02, final on 15/02/03

H46-805 56717/00 Cavicchi and Ruggeri, judgment of 30/10/03, final on 30/01/04

H46-806 34412/97 Ciccariello Franca, judgment of 09/01/03, final on 09/04/03

H46-245 30879/96 Ciliberti Raffaele, judgment of 15/11/02, final on 15/02/03[51]

H46-807 36268/97 Clucher No. 2, judgment of 17/04/03, final on 24/09/03

H46-808 45356/99 Conti Lorenza, judgment of 10/07/03, final on 03/12/03

H46-809 63938/00 Cucinotta Rosario and Giovanni, judgment of 30/10/03, final on 30/01/04

H46-810 32589/96 D.V. No. 2, judgment of 15/11/02, final on 15/02/03

H46-811 61667/00 D’Aloe and others, judgment of 13/11/03, final on 13/02/04

H46-812 33113/96 D’Ottavi, judgment of 17/07/03, final on 17/10/03

H46-813 37117/97 De Benedittis, judgment of 17/04/03, final on 17/07/03

H46-814 59634/00 De Gennaro, judgment of 31/07/03, final on 31/10/03

H46-815 41427/98 Del Beato, judgment of 03/04/03, final on 03/07/03

H46-816 36254/97 Del Sole, judgment of 17/07/03, final on 17/10/03

H46-206 37511/97 Di Matteo, judgment of 11/12/03, final on 11/03/04[52]

H46-511 34658/97 E.P. No. 4, judgment of 09/01/03, final on 09/04/03[53]

H46-817 30883/96 Esposito Paola, judgment of 19/12/02, final on 19/03/03

H46-207 58413/00 Fabbri, judgment of 04/12/03, final on 04/03/04[54]

H46-246 48145/99 Fabi, judgment of 17/04/03, final on 17/07/03[55]

H46-818 63523/00 Federici C. and L., judgment of 09/10/03, final on 09/01/04

H46-208 62764/00 Federici Mario and others, judgment of 04/12/03, final on 04/03/04[56]

H46-819 39735/98 Fegatelli, judgment of 03/04/03, final on 03/07/03

H46-820 63408/00 Ferroni Rossi, judgment of 31/07/03, final on 31/10/03

H46-821 60464/00 Fezia and others, judgment of 31/07/03, final on 31/10/03

H46-822 33909/96 Fiorani, judgment of 19/12/02, final on 19/03/03

H46-823 34454/97 Fleres, judgment of 19/12/02, final on 19/03/03

H46-824 32577/96 Folli Carè, judgment of 15/11/02, final on 15/02/03

H46-247 33376/96 Folliero, judgment of 19/12/02, final on 19/03/03[57]

H46-209 48171/99 Fossi and Mignolli, judgment of 04/03/04, final on 04/06/04[58]

H46-248 31740/96 G. and M., judgment of 27/02/03, final on 27/05/03[59]

H46-825 43580/98 G.G. No. 6, judgment of 03/04/03, final on 09/07/03

H46-826 22671/93 G.L. No. 4, judgment of 03/08/00, final on 03/11/00

H46-827 59635/00 Gamberini Mongenet, judgment of 06/11/03, final on 06/02/04

H46-828 59454/00 Gatti and others, judgment of 31/07/03, final on 31/10/03

H46-210 63417/00 Gelsomini Sigeri S.r.L., judgment of 18/12/03, final on 18/03/04[60]

H46-249 32662/96 Geni Srl, judgment of 19/12/02, final on 19/03/03[61]

H46-829 53233/99 Ghelardini and Brunori, judgment of 09/10/03, final on 09/01/04

H46-830 28272/95 Ghidotti, judgment of 21/02/02, final on 21/05/02

H46-831 31663/96 Giagnoni and Finotello, judgment of 19/12/02, final on 19/03/03

H46-211 62842/00 Giuliani, judgment of 04/12/23, final on 04/03/04[62]

H46-212 63514/00 Giunta, judgment of 04/12/03, final on 04/03/04[63]

H46-832 32006/96 Gnecchi and Barigazzi, judgment of 15/11/02, final on 15/02/03

H46-833 32374/96 Guidi I. and F., judgment of 19/12/02, final on 19/03/03

H46-834 32766/96 Immobiliare Sole Srl, judgment of 19/12/02, final on 19/03/03

H46-835 34442/97 Indelicato Antonio, judgment of 06/11/03, final on 06/02/04

H46-836 64151/00 Kraszewski, judgment of 31/07/03, final on 31/10/03

H46-837 32392/96 L. and P. No.1, judgment of 15/11/02, final on 15/02/03

H46-251 33696/96 L. and P. No. 2, judgment of 19/12/02, final on 19/03/03[64]

H46-250 32542/96 L.B. No. 3, judgment of 15/11/02, final on 15/02/03[65]

H46-838 41610/98 L.M. No. 7, judgment of 03/04/03, final on 03/07/03

H46-839 62020/00 La Paglia, judgment of 31/07/03, final on 31/10/03

H46-840 63336/00 Lari, judgment of 09/10/03, final on 09/01/04

H46-213 52071/99 Leonardi Anselmo, judgment of 04/12/03, final on 04/03/04[66]

H46-214 60659/00 Lerario, judgment of 04/12/03, final on 04/03/04[67]

H46-215 64254/01 Liguori, judgment of 11/12/03, final on 11/03/04[68]

H46-252 36149/97 Losanno and Vanacore, judgment of 17/04/03, final on 17/07/03[69]

H46-841 21463/93 Lunari, judgment of 11/01/01, final on 11/04/01

H46-842 32391/96 M.C. No. 11, judgment of 19/12/02, final on 19/03/03

H46-843 31923/96 M.P., judgment of 19/12/02, final on 19/03/03

H46-844 42343/98 Malescia, judgment of 03/04/03, final on 03/07/03

H46-253 31548/96 Maltoni, judgment of 15/11/02, final on 15/02/03[70]

H46-845 60388/00 Marigliano, judgment of 31/07/03, final on 31/10/03

H46-846 35088/97 Marini E., C., A.M., R. and S., judgment of 09/01/03, final on 09/04/03

H46-847 31129/96 Merico, judgment of 15/11/02, final on 15/02/03

H46-848 58408/00 Miscioscia, judgment of 31/07/03, final on 31/10/03

H46-43 61995/00 Montanari, judgment of 11/03/2004, final on 11/06/2004[71]

H46-849 58191/00 Mottola, judgment of 22/05/03, final on 22/08/03

H46-216 62848/00 Nicolai, judgment of 27/11/03, final on 27/02/04[72]

H46-850 35024/97 Nigiotti and Mori, judgment of 17/04/03, final on 17/07/03

H46-851 24650/94 P.M. No. 1, judgment of 11/01/01, final on 5/09/01

H46-512 34998/97 P.M. No. 2, judgment of 17/04/03, final on 17/07/03[73]

H46-852 15919/89 Palumbo, judgment of 30/11/00, final on 01/03/01

H46-853 37008/97 Pannocchia, judgment of 17/04/03, final on 17/07/03

H46-254 46161/99 Pepe Giuseppa, judgment of 17/04/03, final on 17/07/03[74]

H46-217 60431/00 Petitta, judgment of 04/12/03, final on 04/03/04[75]

H46-218 63543/00 Petrini Fernando, judgment of 27/11/03, final on 27/02/04[76]

H46-44 59273/00 Picone, judgment of 11/03/2004, final on 11/06/2004[77]

H46-219 57635/00 Poci, judgment of 04/12/03, final on 04/03/04[78]

H46-45 60391/00 Pollifrone, judgment of 11/03/2004, final on 11/06/2004[79]

H46-854 59367/00 Pozzi, judgment of 04/12/03, final on 04/03/04

H46-855 59539/00 Pulcini, judgment of 17/04/03, final on 17/07/03

H46-856 67412/01 Ragone, judgment of 02/10/03, final on 02/01/04

H46-220 67796/01 Recchi, judgment of 04/12/03, final on 04/03/04[80]

H46-857 32385/96 Ricci Onorato, judgment of 17/07/03, final on 17/10/03

H46-221 55388/00 Rispoli, judgment of 30/10/03, final on 30/01/04[81]

H46-858 50293/99 Robba, judgment of 09/10/03, final on 09/01/04

H46-255 36249/97 Rosa Massimo, judgment of 17/04/03, final on 17/07/03[82]

H46-859 55725/00 Rosati, judgment of 17/07/03, final on 17/10/03

H46-860 30530/96 Rossi Luciano, judgment of 15/11/02, final on 15/02/03

H46-861 59538/00 Sabatini and Di Giovanni, judgment of 02/10/03, final on 02/01/04

H46-862 32644/96 Sanella, judgment of 19/12/02, final on 19/03/03

H46-863 59537/00 Savio Delfino, judgment of 16/10/03, final on 16/01/04

H46-256 31012/96 Savio, judgment of 19/12/02, final on 19/03/03[83]

H46-864 56924/00 Scalera, judgment of 13/11/03, final on 13/02/04

H46-222 61282/00 Scamaccia, judgment of 04/12/03, final on 04/03/04[84]

H46-223 63414/00 Scaravaggi, judgment of 04/12/03, final on 04/03/04[85]

H46-865 33227/96 Scurci Chimenti, judgment of 19/12/02, final on 19/03/03

H46-224 58607/00 Serafini, judgment of 16/10/03, final on 16/01/04[86]

H46-866 47703/99 Serni, judgment of 09/10/03, final on 09/01/04

H46-46 65120/01 Siena Antonio, judgment of 11/03/2004, final on 11/06/2004[87]

H46-225 64449/01 Soc. De.ro.sa., judgment of 04/12/03, final on 04/03/04[88]

H46-226 40465/98 Sorrentino Prota, judgment of 29/01/04, final on 29/04/04[89]

H46-227 61666/00 Spalletta, judgment of 04/12/03, final on 04/03/04[90]

H46-867 31223/96 T.C.U., judgment of 15/11/02, final on 15/02/03

H46-868 23424/94 Tanganelli, judgment of 11/01/01, final on 11/04/01

H46-869 47758/99 Tassinari, judgment of 16/10/03, final on 16/01/04

H46-870 62000/00 Tempesti Chiesi and Chiesi, judgment of 31/07/03, final on 31/10/03

H46-228 62844/00 Todaro, judgment of 04/12/03, final on 04/03/04[91]

H46-509 35637/97 Tolomei, judgment of 09/01/03, final on 09/04/03[92]

H46-871 33252/96 Tona, judgment of 15/11/02, final on 15/02/03

H46-257 33204/96 Tosi, judgment of 15/11/02, final on 15/02/03[93]

H46-872 33692/96 Traino, judgment of 17/07/03, final on 17/10/03

H46-873 30972/96 V.T., judgment of 15/11/02, final on 15/02/03

H46-229 66373/01 Vietri, judgment of 04/12/03, final on 04/03/04[94]

H46-874 48730/99 Voglino, judgment of 22/05/03, final on 22/08/03

H46-258 36377/97 Zannetti, judgment of 17/04/03, final on 17/07/03[95]

H46-875 35006/97 Zazzeri, judgment of 19/12/02, final on 19/03/03

These cases mainly concern the sustained impossibility for the applicants to secure the enforcement of judicial decisions ordering their tenants’ eviction principally on account of the implementation of legislation providing for the suspension or staggering of evictions. The European Court concluded that a fair balance had not been struck between the protection of the applicants’ right to property and the requirements of the general interest (violations of Article 1 of Protocol No. 1). In most of these cases, the Court also concluded that, as a result of the legislation at issue rendering eviction orders nugatory, the applicants had been deprived of their right to have their disputes decided by a court, contrary to the principle of the rule of law (violation of Article 6§1).

106 further cases similar to these, having led to the conclusion of friendly settlements have been examined to date by the Committee of Ministers.

Individual measures: Information is expected on measures envisaged in order to allow the applicants in the cases of Esposito Paola (30883, judgment of 19/12/2002), M.P. (31923, judgment of 19/12/2002), Marini (35088, judgment of 09/01/2003), C.T. II (35428, judgment of 09/01/2003), Carbone Anna (48842, judgment of 22/05/2003), Indelicato Antonio (34442, judgment of 06/11/2003) et Antonio Siena (65120, judgment of 11/03/2004), to recover possession of their apartments and thus put to an end the violations found. In the other cases, the applicants recovered their apartments between 1992 and 2003, i.e. between 4 and 17 years after the eviction orders had been issued.

General measures: The following general measures have been considered by the Committee with a view to remedying the structural problems at the basis of violations found in the present cases:

(a) Finding effective alternative measures (instead of continuous legislative interventions suspending or staggering evictions) for tackling the public-order problems in the housing sector (see §§73-74 of judgment in Immobiliare Saffi), especially in densely populated cities. Law 431/98 on renting and repossession of housing has to some extent liberalised the renting system and provided for measures to increase the housing offer. However, this law appears to be insufficient, given the continuous flow of new cases brought to the European Court and the number of new violations found. Additional general measures would therefore appear necessary and all the more urgent given that the Constitutional Court held on 24 May 2004 (Judgment No. 155) that continuous legislative interventions to delay the enforcement of judgments are unconstitutional;

(b) Adoption of legislative measures to ensure effective compliance of the administration and civil servants with final judicial decisions: Law 431/98 inter alia sets conditions and deadlines for the enforcement of judicial eviction decisions. However, this law has not proved effective as it is still difficult in Italy to have eviction decisions enforced. The Constitutional Court judgment of 05/10/2001 (333/01), which annulled a restriction of the right to have a judicial eviction order executed, may be an important step towards solving the outstanding problems, but the real effect and practical implications of this judgment remain to be clarified.

(c) Providing for compensation, if necessary by the state, to landlords in cases of protracted non-execution for financial losses caused by non-execution. Thus, state and tenants’ civil liability could also be envisaged (§57 of the judgment). Italian case-law has recognised the right to compensation in cases of illegal administrative acts (Court of Cassation judgment 500/99), as well as the right to compensation in cases of unreasonable delay in the execution of judicial eviction orders, by virtue of the “Pinto Law” (89/01) on excessive judicial proceedings (Court of Cassation judgment 14885/02). Information is awaited on the actual effects of the above case-law and whether the respondent state has granted compensation to aggrieved landlords.

Finally, as regards publication, the Secretariat has only been informed of the publication of Immobiliare Saffi judgment in the academic law journal Rivista internazionale dei diritti dell’uomo (No. 1/2000, pp. 252-265).

At the time of issuing these notes, a draft interim resolution was being prepared for discussion at the present meeting. This draft will be distributed separately as soon as it is ready.

- 1 case against Latvia

H46-876 58442/00 Lavents, judgment of 28/11/02, final on 28/02/03

The case concerns a number of violations concerning, first the pre-trial detention of the applicant, a former Chairman of the Board of the largest Latvian bank (Banka Baltija) which had gone bankrupt, and secondly the criminal proceedings brought against him before the Latvian courts.

The European Court found the following shortcomings:

- the composition of the Riga Regional Court of had been contrary to domestic law (violation of Article 6§1);

- the lack of impartiality of this court due to public statements made by its President suggesting the applicant's guilt (violation of Article 6§1);

- a violation of the presumption of innocence due these statements (violation of Article 6§2);

- the lack of effective judicial supervision of the applicant's detention on remand, given the unlawfulness of the composition of the aforementioned court and the fact that it was not impartial (violation of Article 5§4);

- the excessive length of this detention on remand which lasted roughly four and half years (violation of Article 5§3);

- the excessive length of the criminal proceedings which lasted more than five and half years and which are still pending at appeal (violation of Article 6§1);

- the continuing monitoring of the correspondence between the applicant and his family and his lawyers on the basis of Article 176 of the Code of Criminal Procedure, which lacks the precision required by the Convention (violation of Article 8);

- the total refusal of family visits during part of his detention, a measure deemed unnecessary in a democratic society (violation of Article 8).

Individual measures: On 27/01/2003 the applicant was released pending trial and placed under police supervision. On 13/02/2003 the Senate of the Latvian Supreme Court quashed the judgment of the Riga Court of first instance of 19/12/2001 and referred the case back to that court for re-examination with a new bench of judges. By letter of 16/03/2004, the Latvian authorities informed the Committee that the final judgment in the applicant’s case is expected in mid-September of this year. Information about the current state of the proceedings is awaited.

General measures: As regards the violation of Article 5§3 (excessive length of the applicant’s detention on remand), the Latvian authorities have indicated that the new draft law on criminal procedure, adoption of which is expected in September of this year, sets out stricter rules for imposing and extending detention on remand. By simplifying certain stages of the investigation proceedings, the new draft law is also expected to reduce the workload of the criminal courts, which presently appears to be the main cause of the excessively long pre-trial detention. Information concerning the entry into force of this new law, the new draft Code of Criminal Procedure and the draft law on detention on remand is still awaited.

As to the violation of Article 8 due to the monitoring of the applicant’s correspondence, the authorities indicated that the new draft law on criminal procedure and the new regulation on the internal rules of provisional detention centres provide stricter conditions for monitoring of correspondence during pre-trial investigation. Information concerning the legislative amendment of the impugned provisions (Article 176 of the Code of Criminal Procedure) is still awaited.

Concerning the violation of Article 8 due to the refusal of family visits during part of the applicant’s detention, on 29/04/2003, the Latvian Government adopted the Regulation on the internal rules of the provisional detention centres, which provides inter alia that the administration of such establishments should allow a detainee to contact his family or other persons. A copy of the text of the relevant provisions is awaited.

In addition, by a decision of 19/12/2001, the Latvian Constitutional Court declared unconstitutional any form of interference with the subjective rights of an individual solely on the basis of a ministerial order. Clarification was sought concerning the effects of this decision.

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. Further information concerning the training of Latvian judges and prosecutors is awaited.

The judgment of the European Court was translated into Latvian and published in the Official Gazette on 12/02/2003. Information concerning the dissemination of the Court’s judgment is expected.

- 1 case against Malta

H46-880 55263/00 Kadem, judgment of 09/01/03, final on 09/04/03[96]

- 1 case against Moldova

H46-879 45701/99 Metropolitan Church of Bessarabia and others, judgment of 13/12/01, final on 27/03/02

The case concerns the failure of the Government to recognise the Metropolitan Church of Bessarabia. The European Court concluded that this non-recognition constituted an interference with the applicants’ right to freedom of religion (notably because the absence of recognition deprived it of 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 claims at domestic level (violation of Article 13).

Individual measures: Following the 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.

According to the information provided by the Moldovan authorities in October 2003, a number of the Church’s sub-divisions have been registered (30 parishes and 4 monasteries). It also disposed at the time of more than 120 rectories with almost 160 priests.

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 authorities 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 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 02/02/2004, the Supreme Court, sitting as court of first instance, allowed the applicant Church’s complaint and cancelled the government’s decision of 26/09/2001. On 14/04/2004, the Enlarged Board of the Supreme Court dismissed the appeal lodged by the representative of the applicant Church against the reasoning of this decision and upheld its decision of 02/02/2004. This decision would appear to preserve the possibility for the applicant Church to have effective access to a court to claim property entitlements in any subsequent proceedings.

By letter of 10/02/2004, the applicant Church informed the Committee that it had encountered some obstacles with the registration of its parishes with the competent authority (State Service for Religious Affairs) mainly because these parishes had the same names as parishes of another religious denomination and due to the alleged refusal of certain local authorities to issue the parishes with the formal certificates required for their registration. As regards the first issue, by letter of 08/03/2004, the Moldovan authorities provided explanations as to the legal obstacles to registering entities with a name identical to another entity. As to the second issue, they stated that measures would be taken to solve the problem, provided that the parishes concerned brought the matter to the attention of the competent authority.

General measures: The Moldovan authorities have informed the Committee of Ministers that the original version of the judgment of the European Court and its official translation into Moldovan were published on 09/07/2002 in the Official Journal of Moldova.

The Moldovan authorities also indicated that the Moldovan legislation on religious denominations was amended 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.

A new draft law was submitted to the Committee in March 2003, an analysis of which showed that it still did not solve all outstanding problems. This analysis, together with an expert study carried out by the independent experts mandated by the Council of Europe to conduct a broader legal study of the draft at the request of the Moldovan authorities, was sent to the Moldovan authorities on 17/04/2003.

Following the examination of the case at the 841st meeting (June 2003), the Chairman invited the Moldovan authorities to intensify their efforts, in consultation with the Secretariat, to revise the draft law so as to ensure its compatibility with the Convention and thus resolve the remaining issues raised by this case.

On 14 and 15/07/2003, a working meeting was held at the Moldovan Ministry of Justice with the participation of the Secretariat, experts as well as representatives of different religious denominations. The problems of the draft law were examined in detail and concrete solutions were proposed.

A second version of the draft law was submitted by the Moldovan authorities shortly before the 854th meeting (October 2003). While it contained a number of improvements, some outstanding issues remained. A third version of the draft law was accordingly submitted by the Moldovan authorities on 05/01/2004.

A second working meeting on the draft law was held in Chisinau on 26 and 27/01/2004 with the participation of the Secretariat and Council of Europe experts.

On 06/07/2004, the Moldovan authorities submitted a fourth revised draft. A preliminary examination of the revised draft law indicates that it still fails to respond to certain outstanding issues raised at the meetings held at the Moldovan Ministry of Justice in 2003 and 2004. In particular, the provisions concerning state interference with the freedom of religion still do not adequately reflect the requirement of proportionality and the draft still lacks clarity as regards the registration procedure to be followed by religious denominations. This analysis was shared by an independent expert who had carried out previous studies in relation to the draft law at the request of the Moldovan authorities. The texts of this analysis and expert opinion were transmitted to the Moldovan authorities on 16/07/2004. Information on further progress in drafting and adoption of the draft law is awaited.

- 77 cases against Poland

H46-882 31583/96 Klamecki No. 2, judgment of 03/04/03, final on 03/07/03

The case concerns the excessive length of the applicant’s detention on remand (between November 1995 and March 1998) in the absence of “sufficient” and “relevant” reasons to justify it, as well as the fact that the detention was ordered by a public prosecutor, thus infringing the applicant’s right to be promptly brought before a “judge or other officer authorised by law to exercise judicial functions” (violations of Article 5§3).

The case also concerns the non-adversarial character of the procedure for reviewing the lawfulness of the applicant’s detention, since neither the applicant nor his counsel were given the possibility to participate (violation of Article 5§4). Finally, the case deals with the routine and discretionary censorship by the Polish authorities, by virtue of the relevant legislation, of all the applicant’s correspondence (personal letters and letters addressed to lawyers, public authorities or Strasbourg organs), as well as with the restrictions on the applicant’s contact with his wife between August 1996 and August 1997 (violations of Article 8).

General measures: At the 863rd meeting (December 2003) and by letter of 10/02/2004, the Polish delegation indicated that the Code of Execution of Criminal Sanctions had been amended in September 2003. Under the new law, correspondence of convicted persons with, inter alia, their lawyers or the Strasbourg organs cannot be censored or stopped, but can only form the object of supervision conducted by opening the letters in the presence of the convicted person, in cases where there is a reasonable risk that the letters might contain prohibited objects. As far as detainees are concerned, the new provisions provide that their correspondence may be supervised by the organ at whose disposal they remain (a public prosecutor or a court).

The delegation also mentioned the Minister of Justice’s draft rules (not yet in force) on the internal functioning of common courts of law, which provides that the correspondence of both detainees and convicted persons with the international organs dealing with human rights, the state organs or the Ombudsman shall be sent directly to the addressee without being censored.

With regard to the rights to be brought promptly before a judge, to be involved in proceedings to challenge the lawfulness of detention and to uncensored correspondence with state authorities and the Strasbourg organs, this case presents similarities to that of Niedbała (judgment of 04/07/2000), closed by Resolution ResDH(2002)124, following the reform of the Code of Criminal Procedure and the Code of Execution of Criminal Sentences). Concerning the length of detention on remand, the case presents similarities to that of Trzaska (judgment of 11/07/2000 – see below).

Information awaited:

a) More information is awaited concerning the possibility under the new Code of Execution of Criminal Sanctions to interfere with the right to correspondence of persons placed in detention on remand.

b) Information is also awaited concerning the legal provisions governing the restrictions which may be imposed on contacts of detainees on remand with their families. Moreover information is awaited concerning the publication of the judgment of the European Court and its dissemination to the competent authorities.

H46-885 25196/94 Iwánczuk, judgment of 15/11/01, final on 15/02/02

The case concerns the infliction of degrading treatment on the applicant while detained on remand, in that he verbally abused during a strip search which took place on 19/09/1993 in Wroclaw prison in front of a group of prison guards (violation of Article 3). The case also concerns unjustified delays before releasing the applicant on bail (violation of Article 5§3) and the excessive length of criminal proceedings (8 and a half years), which are still pending (violation of Article 6§1).

Individual measures: By letter of 01/06/04 the Polish delegation indicated that the criminal proceedings have been terminated. Further details are expected concerning the date of the final judgment.

General measures:

- As regards the violation of Article 3, the Polish authorities have been asked what measures they envisage to define more precisely the grounds and conditions for body-searching detainees. By letter of 28/11/2003 the Polish delegation indicated that on 31/10/2003 the Ministry for justice had adopted a new regulation governing the safety of the entities of the penitentiary system.

On 01/07/04 the Secretariat received the text of the relevant provisions relating to the conditions of search of detained persons. The examination of this new regulation shows that it does not introduce more guarantees against the risk of abuses related to the search of detained persons compared to the provisions in force at the relevant time. In fact, the ordinance of the Ministry of justice of 31/10/03 contains a non-exhaustive list of cases in which the detainees will be subjected "in particular" to a body search (Article 94 of the ordinance), for example, "before leaving or coming back in the cell". However, no provision provides that the body search must be considered only when it proves to be necessary and justified by security reasons. Consequently, additional information would be useful concerning the measures envisaged in order to guarantee that prison authorities will apply this new regulation in conformity with the criteria establish by the European Court in this case.

- As regards the violation of Article 6§1 the present case presents similarities to the Kudła case (judgment of 26/10/2000) (Sub-section 4.2).

- As regards the violation of Article 5§3 publication and dissemination of the European Court’s judgment to competent authorities have been requested. The Court’s judgment has been published so far in the Bulletin of the Council of Europe, issue No. 3 of 2002. Information is awaited concerning its publication on the internet site of the Ministry of Justice. The judgment was also disseminated by the Ministry of Justice to prison authorities and courts (letters of 22/01/2003 and 04/07/2003).

- Cases of length of pre-trial detention

H46-886 25792/94 Trzaska, judgment of 11/07/00

H46-887 33492/96 Jabłoński, judgment of 21/12/00

H46-888 33079/96 Szeloch, judgment of 22/02/01, final on 22/05/01

H46-889 27504/95 Iłowiecki, judgment of 04/10/01, final on 04/01/02

H46-890 28358/95 Baranowski, judgment of 28/03/00

H46-891 34097/96 Kreps, judgment of 26/07/01, final on 26/10/01

H46-892 34052/96 Olstowski, judgment of 15/11/01, final on 15/02/02

These cases, except the Baranowski case, concern the excessive length of the applicants’ detention on remand between 1991 and 1997, given that the grounds relied upon by the domestic courts in support of the detention could not be deemed, as required by the case-law of the European Court, “relevant and sufficient” and since “special diligence” was not displayed in the conduct of the proceedings (violations of Article 5§3).

The cases of Trzaska, Jabłoński, Iłowiecki and Baranowski also concern the domestic courts' failure to examine promptly the applicants’ requests for release. In the Trzaska case, the European Court also found that the proceedings to review the lawfulness of the applicant’s detention on remand were not adversarial (violations of Article 5§4).

All the cases, except the Baranowski case, also concern the excessive length of the criminal proceedings brought against the applicants (violations of Article 6§1).

Individual measures: Acceleration of the proceedings has been requested in the Iłowiecki and Olstowski cases, which are still pending at national level. The Polish delegation has indicated that the proceedings in the Olstowski case ended on 03/02/2004 ant that the Ministry of Justice has asked the President of the competent court of appeal to supervise progress in the proceedings in the Iłowiecki case.

General measures: As regards the violations of Article 5§3: The grounds for placement and maintenance in detention on remand were modified with the entry into force on 01/09/98 of the new Code of Criminal Procedure. Detention on remand may be ordered if there is a strong probability that the accused has committed an offence and, cumulatively, if there is a risk of his or her absconding, obstructing the proceedings or, in certain cases, re-offending. According to Article 258§2 of the Code of Criminal Procedure, an accused may be detained on remand if he or she risks a long term of imprisonment (if the charges relate to offences punishable by at least 8 years of imprisonment or if a court of first instance sentenced the accused to a minimum of 3 years of imprisonment). The maximum period of detention on remand before the case is referred to a court is limited to 3 months; in exceptional cases, to 12 months.

On 04/06/2004 the Ministry of Justice sent a letter to all the Presidents of Courts of Appeal together with an analysis of the case-law of the European Court concerning the requirements relating to the reasons for placing and keeping of a person in detention pending trial. It was underlined in particular that the reason evoked in paragraph 2 of Article 258 of the Code of Criminal Procedure cannot justify keeping someone in detention for a long period of time.

Moreover, the Ministry of Justice has sent out circulars, drawing the attention of courts and public prosecutors to the reasoning required for decisions prolonging detention on remand.

- As regards the violation of Article 5§4 (prompt examination of appeals against detention pending trial), the Polish delegation indicated that under the terms of Article 252§3 new Code of Criminal Procedure, any appeal against a preventive measure (including placing and keeping someone in detention pending trial) must be examined promptly. Article 254§1 provides that applications requesting lifting or modification of preventive measures must be decided by a prosecutor at the preliminary investigation stage, or by a judge when the criminal proceedings are at the trial stage, within three days. Bilateral contacts are in progress between the Secretariat and the Polish delegation to examine possible additional measures to guarantee that the time-limits indicated are respected in future.

- As regards the violation of Article 5§4, in respect of the lack of fairness of the procedure to review the lawfulness of the applicant’s detention on remand, the Trzaska case presents similarities to that of Niedbała (judgment of 04/07/2000), closed by Resolution ResDH(2002)124, following a legislative reform of criminal procedures which took effect from 01/09/1998.

- As regards the violations of Article 6§1, the cases present similarities with a number of other cases concerning the length of judicial proceedings pending before the Committee of Ministers for supervision of general measures (see in particular Podbielski, Styranowski, Kudła and Lisiak (sub-section 4.2)).

The first five judgments were published in the Bulletin of the Council of Europe Information Centre and disseminated to the competent authorities. The Olstowski judgment was also published on the newly created internet site of the Ministry of Justice, www.ms.gov.pl. The Ministry of Justice has informed the presidents of all courts of appeal of this publication and asked them to disseminate the judgment to district courts and all judges.

- Cases of length of criminal proceedings – Effective remedy

H46-893 30210/96 Kudła, judgment of 26/10/00 - Grand Chamber

H46-894 37443/97 Lisiak, judgment of 05/11/02, final on 05/02/03

H46-411 43316/98 B.R., judgment of 16/09/03, final on 16/12/03[97]

H46-895 42096/98 Skawińska, judgment of 16/09/03, final on 24/03/04

H46-416 38663/97 Panek, judgment of 08/01/04, final on 08/04/04[98]

CM/Inf/DH(2004)31

These cases concern the excessive length of criminal proceedings against the applicants, which began between 1991 and 1994 (respectively more than 9 years, 11 years and 1 month, more than 9 years and 2 months, more than 7 years and 10 months and 6 years and 5 months)[99] (violations of Article 6§1). The proceedings in the B.R. case were still pending before the first-instance court when the European Court delivered its judgment.

The Kudła case also concerns the excessive length (2 years, 4 months) of the applicant’s detention on remand on charges of fraud and forgery (violation of Article 5§3) and the lack of effective remedies to enforce, at national level, the right to a hearing “within a reasonable time” (violation of Article 13).

Individual measures: Acceleration of the proceedings has been requested in the B.R. case, which is still pending at national level. Information concerning the state of these proceedings is awaited.

General measures: As regards the violation of Article 5§3 due to the excessive length of the detention on remand, the case of Kudła presents similarities to those of Trzaska and others against Poland (sub-section 4.2).

As regards the violation of Article 6§1, by letter of 02/07/2003 and in a memorandum of 05/12/2003, the Polish Delegation indicated a number of legislative measures taken to accelerate criminal proceedings in the framework of the 1997 Code of Criminal Procedure, in particular the most recent amendments which came into effect on 01/07/2003. According to the most important provisions, courts may longer refer cases back to the preliminary proceedings in order to conduct further investigations; increased possibilities of closing criminal proceedings by way of settlement are provided and preparatory proceedings and those concerning several co-defendants are simplified.

Additional information concerning the measures adopted or envisaged by the Polish authorities was received on 01/04/2004. These measures include in particular the creation in 2004 of 300 additional posts for judges and assessors, 900 posts for assistants, 300 posts for associate judges, and 300 posts for law clerks. The function of associate judges and law clerks was introduced in Poland in 2001 by the Law on the organisation of common courts with an aim of reducing work of the judges of the various administrative tasks which did not require their examination. In addition, a process of reflexion is under way within the courts, not least with the assistance of the Association of Polish judges "Iustitia", on the improvement of the working methods and the management of cases. The Ministry of Justice is also involved in analysing the causes of delay in judicial proceedings in the framework the of exercise of its competence of administrative supervision of courts’ work.

This information was supplemented with statistical data, which shows that the number of cases examined by domestic courts increased for the first half of 2003 compared with the same period in 2002. According to these statistics, in 2003 the average duration of proceedings before first-instance criminal courts was between 3.9 and 4.5 months and before appeal courts between 1.2 and 3.3 months.

As regards the violation of Article 13, during the first examination of the Kudła case (732nd meeting, December 2000), the Committee noted the scope of this judgment: for the first time the Court had applied Article 13 of the Convention in order to affirm that contracting states must provide effective domestic remedies to resolve the problem of excessive length of proceedings. The Committee also took note of the fact that the remedies required in this regard by Article 13 could be both compensatory and preventive (§159 of the judgment).

At the 854th meeting (October 2003), the Polish delegation submitted a memorandum concerning:

- a draft law of 20/08/2003 providing an effective remedy against the excessive length of judicial proceedings;

- a draft law of 08/04/2003 on amendments to the Civil Code concerning the civil liability of the State Treasury for actions or omissions of public authorities; and

- a decision of the Constitutional Court of 04/12/2001, which might open a way to making civil claims against state officials on the grounds of excessive length of judicial proceedings.

During consultations with the Polish delegation in September and October 2003, the Secretariat stressed the importance and the positive development of these reforms and presented certain observations concerning the two drafts. They principally concern the non-application of the draft law on an effective remedy against the excessive length of judicial proceedings to the length of the preliminary investigation, the limitation of compensation in cases of unjustified delay to 10 000 zlotys (about 2 200 euros) and the limited competence of the court the complaint was lodged with to “recommend” to the court examining the merits to take the appropriate measures to remedy the situation.

By letters of 01/04/2004 and 21/05/2004 the Polish delegation presented additional information regarding further progress of the draft law and the modifications made in the text of the draft on effective remedy (see CM/Inf/DH(2004)31). For instance, according to a new transitional provision introduced in March 2004, any person who had lodged an application with the European Court concerning a complaint relating to the excessive length of domestic proceedings may complain against the length of the impugned proceedings before the competent domestic court within 6 months following the entry into force of the law on effective remedy, unless the European Court has adopted a decision on the admissibility of the application.

On 17/06/2004 the Polish Parliament adopted the draft law. Its entry into force was expected in early September 2004. Confirmation of the entry into force of these two laws and information on other possible general measures adopted or envisaged are expected.

The Secretariat is preparing a draft interim resolution in cooperation with the Polish delegation concerning the structural measures adopted with a view to dealing with the problem of the excessive length of judicial proceedings, as well as the creation of effective domestic remedies in this respect.

- Cases of length of civil and administrative proceedings

H54-896 27916/95 Podbielski, judgment of 30/10/98

H54-897 28616/95 Styranowski, judgment of 30/10/98

H46-898 38328/97 Bejer, judgment of 04/10/01, final on 04/01/02

H46-899 39597/98 Biskupska, judgment of 22/07/03, final on 03/12/03, rectified on 11/09/03

H46-900 38665/97 Bukowski, judgment of 11/02/03, final on 11/05/03, rectified on 10/07/03

H46-901 27918/95 C., judgment of 03/05/01

H46-902 71893/01 Cegielski, judgment of 21/10/03, final on 21/01/04

H46-903 52037/99 Ciborek, judgment of 04/11/03, final on 04/02/04

H46-904 13557/02 D.M., judgment of 14/10/03, final on 14/01/04

H46-417 71894/01 Dybo, judgment of 14/10/03, final on 14/01/04[100]

H32-905 24559/94 Gibas, Interim Resolution DH(97)242

H46-418 75872/01 Gidel, judgment of 14/10/03, final on 24/03/04[101]

H46-906 48001/99 Goc, judgment of 16/04/02, final on 16/07/02

H46-907 53698/00 Górska, judgment of 03/06/03, final on 03/09/03

H46-419 73003/01 Grela, judgment of 13/01/04, final on 13/04/04[102]

H46-908 29695/96 Gronuś, judgment of 28/05/02, final on 28/08/02

H46-909 46034/99 Gryziecka and Gryziecki, judgment of 06/05/03, final on 06/08/03

H46-55 35656/97 Hulewicz, judgment of 30/03/2004, final on 30/06/2004[103]

H46-910 77831/01 I.P., judgment of 14/10/03, final on 14/01/04

H46-56 60225/00 Jablonská, judgment of 09/03/2004, final on 09/06/2004[104]

H46-911 29691/96 Jedamski, judgment of 26/07/01, final on 26/10/01

*H46-58 35577/97 Kaszubski, judgment of 24/02/2004, final on 07/07/2004[105]

H46-912 52518/99 Koral, judgment of 05/11/02, final on 21/05/03

H46-420 6214/02 Kranz, judgment of 17/02/04, final on 17/05/04[106]

H46-913 77746/01 Kroenitz, judgment of 25/02/03, final on 24/09/03

*H46-59 51515/99 Krzak, judgment of 06/04/2004, final on 07/07/2004[107]

H46-914 37437/97 Kubiszyn, judgment of 30/01/03, final on 30/04/03

H46-421 77757/01 Łobarzewski, judgment of 25/11/03, final on 25/02/04[108]

H46-915 43779/98 Mączyński, judgment of 15/01/02, final on 15/04/02

H46-916 52168/99 Majkrzyk, judgment of 06/05/03, final on 06/08/03

H46-917 22072/02 Małasiewicz, judgment of 14/10/03, final on 14/01/04

H46-918 76446/01 Malinowska Henryka, judgment of 14/10/03, final on 14/01/04

H46-919 35843/97 Malinowska, judgment of 14/12/00, final on 14/03/01

H46-920 40887/98 Maliszewski, judgment of 06/05/03, final on 06/08/03

H46-422 42083/98 Mianowski, judgment of 16/12/03, final on 16/03/04[109]

H46-921 74816/01 Orzeł, judgment of 25/03/03, final on 25/06/03

H46-61 53029/99 Pachnik, judgment of 30/03/2004, final on 30/06/2004[110]

H46-922 36250/97 Parciński, judgment of 18/03/01, final on 18/03/02

H46-923 51429/99 Paśnicki, judgment of 06/05/03, final on 06/08/03

H46-924 42042/98 Peryt, judgment of 02/12/03, final on 24/03/04

H46-925 40330/98 Piechota, judgment of 05/11/02, final on 05/02/03

H46-926 39619/98 Piłka Andrzej and Barbara, judgment of 06/05/03, final on 06/08/03

H46-927 29455/95 Pogorzelec, judgment of 17/07/01, final on 12/12/01

H46-928 77759/01 Porembska, judgment of 14/10/03, final on 14/01/04

H46-929 77597/01 R.O., judgment of 25/03/03, final on 25/06/03

H46-930 41033/98 R.W., judgment of15/07/03, final on 15/10/03, rectified on 11/09/03

H46-931 38804/97 Rawa, judgment of 14/01/03, final on 14/04/03

H46-932 37645/97 Sawicka, judgment of 01/10/02, final on 01/01/03

H46-933 52468/99 Sienkiewicz, judgment of 30/09/03, final on 30/12/03

H46-934 42078/98 Sitarek, judgment of 15/07/03, final on 15/10/03, rectified on 11/09/03

H46-935 40694/98 Sobański, judgment of 21/01/03, revised on 23/01/03, final on 09/07/03, rectified on 17/09/03

H46-936 25693/94+ Sobczyk, judgment of 26/10/00, final on 26/01/01

H46-937 49349/99 Sobierajska-Nierzwicka, judgment of 27/05/03, final on 27/08/03

H46-938 40835/98 Szarapo, judgment of 23/05/02, final on 23/08/02

H46-939 48684/99 Uthke, judgment of 18/06/02, final on 18/09/02

H46-940 39505/98 W.M., judgment of 14/01/03, final on 14/04/03

H46-941 65660/01 W.Z., judgment of 24/10/02, final on 24/01/03

H46-942 32734/96 Wasilewski, judgment of 21/12/00, final on 06/09/01

H46-943 41431/98 Wierciszewska, judgment of 25/11/03, final on 25/02/04

H46-944 33082/96 Wojnowicz, judgment of 21/09/00, final on 22/01/01

H46-945 33334/96 Wylęgły J. and J., judgment of 03/06/03, final on 03/09/03, rectified on 04/06/03

H46-946 34158/96 Zawadzki, judgment of 20/12/01, final on 27/03/02

H46-883 33870/96 Fuchs, judgment of 11/02/03, judgment of 11/05/03

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

In the Górska case, the European Court found that, having regard to the applicant’s age (she was born in 1919), special diligence was required from the Polish authorities in handling the case. Also, in the Kroenitz case the Court indicated that the litigation was of crucial importance for the applicant (born in 1903) due, inter alia, to her age and disability.

As far as the Orzeł case is concerned, the Court indicated that the proceedings (which dealt with a compensation claim for medical malpractice) were of considerable importance for the applicant since they were intended not only to result in compensation but also to enable the applicant to receive the best medical treatment.

The Fuchs case dealt with administrative proceedings concerning a building permit granted to one of the applicant’s neighbours and the enforcement of a demolition order of a building, both sets of proceedings being still pending at the date of the European Court’s judgment.

Individual measures: The Polish authorities have provided information on the stage reached by the proceedings in the above mentioned cases, as well as on the measures aiming at the acceleration of the Kroenitz and Orzeł cases (the first case was placed under the administrative supervision of the president of the court and of the ministry of justice; in the second one, the president of the Katowice court was urged by the ministry of justice to give priority to the applicant’s case). The authorities have also provided information concerning the developments in the administrative proceedings in the Fuchs case.

Moreover, information has been given on the state of the proceedings in the Sobczyk, Sobierajska- Nierzwicka, Goc, Ciborek, Mączyński, Wasilewski and Biskupska cases, as well as on the acceleration measures adopted in the Ciborek, Goc, Cegielski, Małasiewicz, Pachnik, Sobierajska-Nierzwicka, Wojnowicz and Wasilewski cases. Moreover, The Polish government also confirmed that the proceedings were concluded in the Paśnicki case (while also indicating that a disciplinary penalty was imposed on one of the judges who had dealt with the case), as well as in the Gronuś, Sienkiewicz, Rawa, Parciński, Piłka and Uthke cases.

Information is awaited on the acceleration of the proceedings in the Gorska case, as well as on whether the impugned building has been demolished in the Fuchs case.

General measures: The Secretariat, in cooperation with the Polish delegation, is preparing a draft interim resolution on structural measures adopted to deal with the problem of excessive length of judicial proceedings and to create effective domestic remedies in this respect.

- 23 cases against Portugal

H46-427 48206/99 Maire, judgment of 26/06/03, final on 26/09/03[111]

The case concerns a violation of the right of the applicant (a French national) to respect for his family life due to the failure of the Portuguese authorities to enforce a French judicial decision of 1996 awarding him the custody of his son, born in 1995 (violation of Article 8). Following this decision, the child’s mother (a Portuguese national) took the child with her to Portugal where they lived in a situation of illegal displacement for a period of 4½ years. In the meantime, the Portuguese authorities applied before the domestic courts for judicial restitution of the child, invoking the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1983 Convention of judicial co-operation between France and Portugal concerning the protection of minors. In 1999, the competent domestic court ordered the child’s placement in the Institute of Social Reintegration; this decision was never executed because of the mother’s illegal behaviour. In 2001, the Portuguese authorities, given the passage of time and the child’s settlement in his new environment, asked the competent court to suspend this decision. The court ordered the child’s examination by child psychiatrists. When the European Court delivered its judgment, these proceedings were still pending. At the same time, the competent court, at the Portuguese authorities’ request, provisionally awarded custody to the mother. When the European Court delivered its judgment, these proceedings were also still pending. In 2002, the applicant was granted visitation rights.

Individual measures: Information is awaited about the outcome of the hearing of 20/05/2004 regarding parental responsibility. The Secretariat has been informed that the applicant no longer exercises his visitation rights.

General measures : Information is awaited on possible measures envisaged for the effective, swift execution of judicial decisions regarding return of abducted children, especially when the abductor repeatedly refuses to abide by the law (§§74 and 76 of the judgment). In this context, the Secretariat notes that relevant recommendations are found in Parliamentary Assembly Resolution 1291 (2002). Information is also awaited on possible wider dissemination and publication of the judgment of the European Court, which has been translated and is available on the Attorney General’s website (http://www.gddc.pt/direitos-humanos/index-dh.html).

The Secretariat is currently preparing a memorandum on abduction of children by one of their parents and the implementation of judicial decisions regarding children’s custody, issues raised in the present and other pending cases

- Cases of excessive length of judicial proceedings

a. Cases before civil courts

H46-578 54926/00 Costa Ribeiro, judgment of 30/04/03, final on 30/07/03^{^[112]}

H46-947 53997/00 Dias Da Silva and Gomes Ribeiro Martins, judgment of 27/03/03, final on 27/06/03

H46-948 53534/99 Esteves, judgment of 03/04/03, final on 03/07/03

H46-949 56345/00 Ferreira Alves No. 2, judgment of 04/12/03, final on 04/03/04

H46-950 53937/00 Ferreira Alves, Limited, judgment of 27/02/03, final on 27/05/03

H46-951 49671/99 Ferreira da Nave, judgment of 07/11/02, final on 07/02/03

*H46-1500 56110/00 Frotal-Aluguer de Equipamentos S.A., judgment of 04/12/03, final on 04/03/04

H46-952 49279/99 Koncept-Conselho em Comunicação e Sensibilização de Públicos, Lda, judgment of 31/10/02, final on 31/01/03

H46-953 52412/99 Marques Nunes, judgment of 20/02/03, final on 20/05/03

H46-954 54566/00 Moreira and Ferreirinha, Lda and others, judgment of 26/06/03, final on 26/09/03

H46-955 55081/00 Neves Ferreira Sande e Castro and others, judgment of 16/10/03, final on 16/01/04

H46-956 34422/97 Oliveira Modesto and others, judgment of 08/06/00, final on 08/09/00

*H46-1501 57323/00 Pena, judgment of 18/12/03, final on 18/03/04

H46-426 48187/99 Rosa Marques and others, judgment of 25/07/02, final on 25/10/02^{^[113]}

H46-425 44298/98 Tourtier, judgment of 14/02/02, final on 14/05/02^{^[114]}

b. Cases before criminal courts

H46-957 48956/99 Gil Leal Pereira, judgment of 31/10/02, final on 31/01/03

H46-958 50775/99 Sousa Marinho and Marinho Meireles Pinto, judgment of 03/04/03, final on 03/07/03

H46-577 52657/99 Textile Traders, Limited, judgment of 27/02/03, final on 27/05/03[115]

c. Cases before administrative courts

H46-423 52662/99 Jorge Nina Jorge and others, judgment of 19/02/04, final on 19/05/04[116]

H46-579 55340/00 Sociedade Agrícola do Peral and other, judgment of 31/07/03, final on 31/10/03[117]

d. Case before family courts

H46-959 51806/99 Figueiredo Simoes, judgment of 30/01/03, final on 30/04/03

e. Cases before labour courts

H46-960 53795/00 Farinha Martins, judgment of 10/07/03, final on 10/10/03

In these cases, violations of Article 6§1 were found on account of the excessive length of judicial proceedings before civil, criminal, administrative, family and labour courts.

Individual measures: Acceleration of the proceedings was requested as regards the cases of Oliveira Modesto and Others, Dias Da Silva and Gomes Ribeiro Martins, Esteves, Costa Ribeiro, Frotal-Aluguer de Equipamentos S.A. and Sociedade Agrícola do Peral and Other. Information concerning the state of these proceedings is awaited.

General measures: By letters of 18/12/2003 and 14/04/2004, the Portuguese delegation informed the Committee of the following measures adopted to improve the efficiency of the judicial system:

- The adoption of laws to simplify and accelerate administrative proceedings in specific fields (Law 13/2002 approving the new Statute of the administrative and fiscal tribunals and Law 15/2002 approving the Code of procedure applicable in the administrative and fiscal tribunals). In particular, these laws provide for the creation and establishment of ten new administrative district tribunals (tribunais administrativos de circulo), with competences previously held by the Supreme Administrative Court and the Central Administrative Tribunal, as well as the transformation of the Central administrative Court into a Court of Appeal;

- A reform of enforcement proceedings through the assignment of certain functions to a specialised enforcement officer (e.g. summons, publications, sale of seized goods). In particular, the new legislation (Legislative Decree 38/2003) sets out stricter rules and time-limits as regards enforcement proceedings. By simplifying certain stages of these proceedings, the new legislation is expected to ensure reasonable length of enforcement proceedings;

- A reform of bankruptcy proceedings aimed at commencing insolvency and bankruptcy cases in reasonable time (Law 39/2003);

- The adoption of a law regulating the jurisdiction of justices of peace and “mediation services”, to promote settlement of disputes by means of conciliation between the parties (Law 78/2001);

- The adoption of laws increasing the number of judges. In particular, these laws provide for the establishment in courts of special sections to deal with pending or delayed cases, exceptional shortening of magistrates’ traineeships, the temporary assignment of lawyers with recognised professional experience as judges in courts of first instance, the recruitment of judges’ assistants (Law 3/2000, Legislative Decree 179/2000, Legislative Decree 330/2001 and Law 7-A/2003);

- The adoption of a law transposing European Directive 2000/35/CE on combating late payment in commercial transactions into the domestic legal order, which aims at relieving judges’ workload in this field (Law 32/2003).

In addition, the judgments of the European Court have been published on the website of the Office of Documentation and Comparative Law of the General Prosecutor’s Office (www.gdds.pt).

Additional information concerning the measures under way or adopted by the Portuguese authorities was received on 16/06/2004. These measures concern in particular the creation of fourteen administrative and fiscal tribunals, which are connected to a new computer network. Eight new justices of the peace have been created, while another four (sitting in Lisbon, Seixal, Oliveira de Bairro and V.N de Gaia) had their territorial jurisdiction extended. The competent authorities are pursuing the recruitment and training of new judges and the development of computer systems for the judiciary. New draft laws to establish an “Institute of access to justice” and an interdepartmental commission for adoptions were tabled before the Parliament. Numerous amendments of the Criminal Code, the Code of Criminal Procedure and the Bankruptcy Code are presently under way.

Additional information is awaited concerning the effects of the aforementioned reforms on the length of judicial proceedings notably before the criminal, family and labour courts. Further information is expected concerning in particular the effectiveness of these measures, as well as on measures envisaged or adopted to allow the victims of excessive length of judicial proceedings to obtain compensation before domestic courts and/or acceleration of the pending proceedings. The Portuguese delegation was also asked to provide information concerning the entry into force of the legislation described above and a summary (in English or French) of the relevant legislative provisions. Finally, statistical data in relation to these measures would be useful.

- 5 cases against Romania

H46-961 28114/95 Dalban, judgment of 28/09/99 - Grand Chamber

The case concerns the applicant’s conviction for criminal libel in 1994, under Article 206 of the Criminal Code, for having published articles in which he exposed a series of frauds allegedly committed by a senior official and a member of parliament. The European Court found a disproportionate interference with the applicant’s freedom of expression on account of the fact that, although Article 207 of the Romanian Criminal Code admits the adduction of evidence supporting the truthfulness of the declaration at issue when it has been made in order to protect a legitimate interest, the Romanian courts had not allowed the applicant to prove the truth of his allegations but, inter alia, found it established that these were untrue since a non‑indictment decision had been issued by the prosecutor’s office against the public official at issue concerning the same allegations (violation of Article 10).

General measures: Since December 1999, the attention of the Romanian authorities has been drawn to the problems posed in particular by Section 206 of the Criminal Code regarding freedom of expression, and the question was raised of the state of advancement of the reforms envisaged in this field. In May 2002, certain provisions of the Criminal Code concerning defamation were modified by an emergency order. In a report of December 2002 of the Parliamentary Assembly of the Council of Europe, it was regretted that this draft reform did not fully respect the requirements of the Council of Europe and the opinion was expressed that it would rather had been advisable to cancel from the criminal code all provisions related to libel, insult and defamation. A new Criminal Code was adopted on 29 June 2004 and will come into force a year after the date of its adoption. According the new code, insult is no longer a criminal offence. As for defamation, imprisonment has been removed as a punishment and the possible use of the defence of truth has been widened, particularly by introducing the defence of good faith.

The Delegation has also indicatedthat the Dalban judgment was translated and sent out to presidents of courts of appeal and that the case had been discussed in 1999 and 2000 at a seminar organised in by the Romanian Judges’ Association, a meeting of the presidents of courts of appeal and a meeting of the Romanian Journalists’ Association.

Information required: Since, according to the information available to the Secretariat, the legislative provisions concerning the defence of good faith will not come in force until 29 June 2005, additional information is needed on the direct effect given to the European Court’s judgments by domestic courts, particularly with regard to the criteria used by the domestic courts to establish the truth of allegations. Information is also required on measures to raise the awareness of Romanian judges concerning the principles established by the Strasbourg Court in its case-law in respect of Article 10 of the Convention. Moreover, in view of the time elapsed since the date of the European Court’s judgment, the possibility of accelerating the entry into force of the relevant provisions of the new Criminal Code concerning insult and defamation could be considered.

H46-962 42930/98 Crişan, judgment of 27/05/03, final on 27/08/03

The case concerns the fact that the applicant could not challenge before a court the lawfulness of the decisions of an administrative body (issued in 1991 and 1994 based on Legislative Decree No. 118/1990) granting him certain rights as a person who had been persecuted on political grounds, following the repeal in 1997 of the possibility to lodge a judicial complaint against such decisions (violation of Article 6§1).

In 1998, a legislative reform re-instituted the possibility of a judicial complaint in this field. The European Court nonetheless found that in the circumstances of the case it had not been sufficiently established that the applicant could have used this procedure.

Individual measures: The Romanian authorities have indicated that the applicant may institute new administrative proceedings under the 1998 law with a view to obtaining a new administrative decision which, if need be, he may contest before a court (see “General measures”). They indicated that, alternatively, the applicant may, within three months after the publication of the judgment of the European Court in the Official Gazette, initiate revision proceedings against the court decision which denied him the right of access to a court. However, publication of the judgment has not yet been confirmed, so information is awaited on this issue.

General measures: At the 863rd meeting (December 2003), the Romanian delegation indicated that few people were still in the applicant’s situation, most of them having already used the new judicial procedure. The Romanian authorities have also provided examples of court decisions rendered after the 1998 reform which reviewed the merits of administrative decisions issued under the relevant Legislative Decree.

H46-963 28341/95 Rotaru, judgment of 04/05/00 - Grand Chamber

The case concerns a breach of the applicant’s right to respect for his private life in that the relevant national legislation does not contain sufficient safeguards against abuse as regards the way in which the Romanian intelligence service gathers, keeps and uses information. The European Court has thus concluded that the holding and use by the secret service of information on the applicant's private life, were not “in accordance with the law” within the meaning of the Convention (violation of Article 8). The case also concerns an infringement of his right to an effective remedy before a national authority that could rule on his application to have the file amended or destroyed (violation of Article 13).

Lastly, the case concerns a breach of the applicant’s right to a fair trial on account of the Court of Appeal’s failure to consider the claim for damages and costs (violation of Article 6§1).

Individual measures: At the 819th meeting (December 2002), the Romanian delegation indicated that there was no individual file on the applicant. Following the judgment of the European Court, the document that was in the possession of the Romanian intelligence service, based on which the applicant was erroneously designated as a member of an extreme-right organisation, was modified in order to avoid any confusion (another person bearing the same name as the applicant was listed there). By letter of 11/05/2004, the Romanian authorities indicated that the judgment of the European Court has been included in the file of the Romanian intelligence service, in order to avoid that any such confusion could occur again.

General measures: Information is awaited concerning the legislative reform to redress the shortcomings of Law No. 14/1992 on the organisation and operation of the Romanian intelligence service found by the European Court and on the reform of the law on national security which contains provisions relevant to the execution of this case.

The judgment of the European Court has been translated and published in the official gazette.

H46-964 33176/96 Moşteanu and others, judgment of 26/11/02, rectified on 04/02/03, final on 26/02/03

H46-965 32926/96 Canciovici and others, judgment of 26/11/02, final on 24/09/03

The cases concern the infringements of the right of access to a court in that, in 1995 and 1996, the Bucharest court of appeal had concluded that it was not competent to deal with the applicants’ claim concerning the restitution of property that belonged to them but which was nationalised in 1950 (violation of Article 6§1).

Individual measures: In the Canciovici case, information is awaited on whether the applicants may bring their claim for restitution of the property at issue before a court.

As far as the Moşteanu case is concerned, the European Court indicated (§61) that the applicants have meanwhile recovered their right of property over the building at issue.

General measures: Changes made to the legislation and case-law (especially Article 6 of Law No 213/1998 and the judgment of 28/09/1998 of the full Supreme Court) recognised the right of access to a court for former owners of nationalised property.

Nevertheless, information is awaited on whether interested persons still have the right of access to a Court following the adoption of Law No. 10/2001 (providing an administrative procedure for the restitution of nationalised property or granting of compensation) with a view to requesting restitution. The confirmation of the publication and dissemination of the judgments of the European Court is also expected.

- 3 cases against the Russian Federation

*H46-1499 47095/99 Kalashnikov, judgment of 15/07/2002, final on 15/10/2002, Interim Resolution ResDH(2003)123

The case concerns the poor conditions of the applicant's pre-trial detention between 1995 and 2000 which was found by the European Court to amount to degrading treatment, due in particular to severe prison overcrowding and an unsanitary environment; and its detrimental effect on the applicant's health and well-being, combined with the length of the period during which the applicant was detained in these conditions (violation of Article 3). The case also concerns the excessive length of this detention (1 year, 2 months falling within the Court's jurisdiction - violation of Article 5§3) and the excessive length of criminal proceedings brought against the applicant (1 year, 10 months falling within the Court's jurisdiction - violation of Article 6§1).

General measures: The Russian Federation has informed the Committee of a number of general measures adopted to prevent new, similar violations. In particular, the entry into force on 01/07/2002 of the new Code of Criminal Procedure has resulted in a large decrease in the number of persons detained pending trial, due in particular to the transfer of the power to order detention to the courts and the introduction of stricter criteria for allowing pre-trial detention. Accordingly, the overcrowding of pre-trial facilities has been reduced and conditions of detention improved. The Russian authorities stated that further improvements are planned, not least in the context of the Federal Programme for reforming the Ministry of Justice's penitentiary system for 2002-2006.

The new Code of Criminal Procedure is also instrumental in reducing the length of pre-trial detention, as it imposes stricter time-limits on investigation and trial. Following the Kalashnikov judgment, the Vice-President of the Supreme Court sent a circular letter to all Russian regional and republican courts on 05/09/2002 pointing out the undue procedural delays at the basis of the violations found by the Court in the Kalashnikov case. The circular stresses that the Kalashnikov judgment has a precedent value and entails very serious consequences inasmuch as it reflects the position of the European Court on important questions relating to fundamental rights of individuals subject to criminal prosecution, including the right to a reasonable length of judicial proceedings. In conclusion, the circular asks all courts to ensure strict compliance with the time-limits set by the Code of Criminal Procedure for investigation and trial and to prevent unjustified delays in proceedings.

At the 841st meeting (June 2003), the Committee adopted Interim Resolution ResDH(2003)123,in which it noted with satisfaction the measures adopted by the Russian Federation and also stated that further measures are required in this field to remedy the structural problems highlighted by the judgment. In conclusion, the Committee:

“- Calls upon the Russian authorities to continue and enhance the ongoing reforms with a view to aligning the conditions of all pre-trial detention on the requirements of the Convention, particularly as set out in the Kalashnikov judgment, so as effectively to prevent new, similar violations;

- Invites the authorities to continue to keep the Committee informed of the concrete improvement of the situation, in particular by providing relevant statistics relating to the overcrowding and sanitary and health conditions in pre-trial detention facilities;

- Decides to examine at one of its meetings not later than October 2004, further progress achieved in the adoption of the general measures necessary to effectively prevent this kind of violations of the Convention.”

The Russian authorities are thus invited to provide information about new general measures taken since the adoption of the Interim Resolution.

*H46-434 46133/99+ Smirnova, judgment of 24/07/2003, final on 24/10/2003

In 1993, criminal proceedings on charges of fraud were instituted against the applicants. The case concerns their repeated imprisonment on remand, for a total of 4 years and 4 months and 1 year and 6 months respectively, despite the absence of any properly reasoned judicial decision (violation of Article 5§§1 and 3). The case also concerns the excessive length of the criminal proceedings (more than 3 years and 4 months and almost 2 years and 6 months respectively) (violation of Article 6§1).

Finally, the case concerns an interference in the private life of the second applicant due to the confiscation of her identity paper (“internal passport”) from August 1995 (upon her arrest) to October 1999. Under domestic law this document, which is necessary for many aspects of everyday life, should have been given back to her each time she was released from remand. The European Court found that the removal of the applicant’s identity card had no basis in domestic law (violation of Article 8).

The applicants’ convictions were quashed in 2002.

General measures: As regards the violation of Articles 5§§1 and 3 and 6§1, the case presents similarities with that of Kalashnikov (Section 4.2), in which the Committee of Ministers adopted, at its 841st meeting (June 2003), Interim Resolution ResDH(2003)123 summarising the measures taken and envisaged by the Russian authorities in order to implement the Court’s judgment. As for the violation of Article 8, at the 871st meeting (February 2004), the Russian authorities were invited to provide information concerning the measures adopted and under way with the view to ensuring that seizure of identity papers by the investigative authorities are carried out in accordance with domestic law and that, by the same token, any administrative practice which breaks the law is punished. Publication and dissemination of the judgment of the European Court to the domestic courts and investigative authorities were also requested.

H46-967 58263/00 Timofeyev, judgment of 23/10/03, final on 23/01/04

The case concerns the non-enforcement over several years of a final court decision of the Orsk District Court in July 1998, ordering the Federal Treasury Department to compensate the applicant for the property that had been confiscated in 1981. The European Court found that the delay of almost 3 years in enforcing this decision appeared to have been caused by unlawful acts of the bailiffs, numerous adjournments due to the intervention of the supervisory-review authorities, and lack of clarity in the judgment (violation of Article 6§1 and Article 1 of Protocol No. 1).

Individual measures: In June 2001, following an application for supervisory review lodged by the Public Prosecutor of the region, the same district court delivered a new decision in the case, again awarding the applicant compensation for the confiscated property. On 06/04/2004, the government provided a copy of the transfer order dated 16/11/2001 confirming the payment of the awarded sums to the applicant.

General measures: The case presents certain similarities with that of Burdov (judgment of 07/05/2002) which is examined at the present meeting, in subsection 6.1 following the specific measures already adopted and announced (e.g. execution of over 5,000 domestic judgments concerning the indexation of allowances and allocation of the necessary budgetary means to social security bodies to allow them to meet the obligations arising from such judgments). As compared to the case of Burdov, the present case indicates a broader structural problem concerning the non-enforcement of domestic courts’ decisions. At the 879th meeting (April 2004), the Russian authorities were thus invited to reflect on what additional measures are necessary in order to ensure the enforcement of domestic courts’ decisions in the light of the considerable number of similar applications presently pending before the Court. It was also suggested that the experience of other countries which had been confronted with similar problems in the past be taken into account in planning and adopting the general measures in this case (e.g. by strengthening the state’s responsibility in cases of non-enforcement). Publication and dissemination of the judgment of the European Court to the competent domestic authorities were also requested.

- 1 case against San Marino

H46-969 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.

General measures: Information is expected on measures undertaken or envisaged in order to accelerate civil proceedings.

-1 case against the Slovak Republic

H46-970 41784/98 A.B., judgment of 04/03/03, final on 04/06/03

The case concerns an infringement of the applicant’s right to present her case on equal terms with the defendant in that, in 1997, without a formal and reasoned decision, a court rejected her requests for the appointment of an advocate to represent her in certain civil proceedings and her case was dismissed in her absence. Furthermore, since the higher levels of jurisdiction confirmed this outcome in camera, the shortcoming was not remedied (violation of Article 6§1).

Individual measures: At the 847th meeting (July 2003), the government was asked to provide information as regards whether the applicant could have her case re-examined in proceedings ensuring the equality of arms. The Slovak authorities have indicated that under the terms of Article 228§1 of the Code of Civil Procedure, a final decision by a domestic court may be quashed following a judgment of the European Court if this judgment may be considered as a new fact which could be at the origin of a decision more favourable to the applicant. In practice, this solution does not appear to be applicable to the applicant’s case, as the application for revision must be made within a strict time-limit of three years from the date on which the judgment of the national court became final. In this context, the Secretariat is examining, in cooperation with the Slovak delegation, to what extent the applicant continues to suffer serious consequences as a result of the violation found by the European Court.

General measures: The judgment of the European Court was published in the law revue Justičná Revue No. 6-7/2003. It was also sent to the presidents of the Regional Courts and to the President of the Supreme Court.

As regards the measures to ensure representation by an advocate in similar cases, the government indicated that according to the Code of Civil Procedure, courts may appoint a representative at the request of a party who meets the requirements for waiver of court fees when it is necessary for the protection of that party’s interests. The president of the court’s chamber shall appoint an advocate to represent a party in the circumstances set out above (Section 30§§1, 2).

An appeal on points of law is available when a party has been prevented, by the appellate court’s conduct, from acting before the court (Section 237(f)). Courts deliver a formal decision inter alia on issues relating to the conduct of proceedings (Section 167§1).

According to the Bar Act of 1990, every person has the right to legal assistance and may ask any advocate for it. An advocate is only entitled to refuse legal assistance to a person for serious reasons permitting the advocate to conclude that he or she cannot provide such assistance in an appropriate manner. This does not apply to cases when an advocate was assigned to represent a person under Section 30 of the Code of Civil Procedure. The Bar Association may examine whether such a refusal was justified. A person whose request for legal assistance has been turned down may ask the Bar Association to appoint an advocate to represent him or her (Article 15 §§ 1, 2 and 3). The Government is of the opinion that this legislation is sufficient but it was wrongfully applied in the present case, which is an isolated one.

Furthermore, measures in a broader sense have been taken: The Constitutional Court, by judgment No. PL.ÚS 14/98 of 22/06/1999, abrogated Section 250f of the Code of Civil Procedure (which authorised in camera decisions for simple cases) as contrary to the Constitution and to Article 6§1 of the Convention. As a result, this provision ceased to be effective from 14/07/1999 (see §31 of the Court’s judgment). The Government indicated that a new provision entered into force on 01/01/2003, whereby no oral hearing is held only when the parties propose so or agree thereon and this does not conflict with public order.

As regards more precisely cases concerning social security claims, Section 250s (2) of the Code of Civil Procedure provides that in appellate proceedings or in proceedings on appeal on points of law, the Supreme Court is not required to hold a hearing. Information about a potential amendment of this provision is awaited.

- 2 cases against Sweden

H46-972 34619/97 Janosevic, judgment of 23/07/02, final on 21/05/03

The case concerns the applicant’s right of access to court to determine the merits of criminal charges brought against him because of allegedly incorrect tax declarations for the tax year 1994. On 08/03/1996 the applicant requested reconsideration of the surcharges decided by the tax authority and a stay of execution. Notwithstanding this request, the tax authority took enforcement measures, particularly on the basis of the surcharges. The stay of execution was refused by the tax authority on 21/05/1996, as no security had been furnished for the amounts due. The enforcement proceedings were continued with the result that the applicant was declared bankrupt on 10/06/1996, before the administrative courts had decided on his appeal against the refusal to stay execution. His applications for leave to appeal before the Supreme Administrative Court were eventually refused on 03/11/1998 in respect of the stay of execution and on 18/09/1996 in respect of the bankruptcy. The decisions on the reconsideration of the surcharges, which were a precondition for the court’s examination of the appeal on their merits, were not taken until three years after the applicant’s request for reconsideration. The European Court found that the tax authority had failed to act with the required urgency and thereby unduly delayed a judicial determination of the issues, depriving the applicant of effective access to court (violation of Article 6§1).

The case also concerns the excessive overall length of the proceedings. The proceedings started on 01/12/1995, the date of the tax authority’s audit report containing the surcharges, and were still pending before the Administrative Court of Appeal at the date of the European Court’s judgment (almost 6 years and 8 months) (violation of Article 6§1).

Individual measures: Acceleration of the proceedings pending at national level has been requested, particularly to remedy the applicant’s lack of effective access to a court. On 02/04/2004 the Swedish delegation forwarded the judgments of 02/03/2004 of the Administrative Court of Appeal in the appeals lodged by the applicant in the taxation proceedings. It indicated that the applicant had sought leave to appeal against all three judgments to the Supreme Administrative Court. These proceedings were still pending as of 14/06/2004. Further information on the state of these proceedings is awaited.

Just satisfaction: By letter of 08/10/2003 the Swedish delegation informed the Secretariat that the payment of just satisfaction had been carried out in two portions. The first portion, covering damages to the applicant, was paid to the applicant’s solicitor on 14/08/2003. The second portion, covering the costs for trial procedures, was paid on 21/08/2003 in two parts: one part (SEK 182 541) was paid to the applicant’s solicitor, and the remaining part (SEK 141 811) was paid to the Swedish Enforcement Service to cover the applicant’s tax arrears for the tax year 1996.

In a further letter of 02/02/2004, the Swedish authorities put forward their view as to the compatibility with domestic law and with the Convention of the attachment of the sums concerned.

The question of the link between the sums confiscated and the violations found was addressed in the framework of a bilateral meeting on 14/06/2004 and will be readdressed in the light of further information to be obtained concerning the applicant’s position on this matter and as to whether he remains in debt, following the confiscation of the sums awarded by the European Court in respect of legal costs and expenses incurred before the European Court.

General measures: According to the Swedish authorities, the judgment of the European Court has attracted a great deal of attention in Swedish media and is well known. Explanatory reports, together with copies of the judgments in the present case and that of Västberga, have been sent to the relevant judicial authorities to draw their attention to the relevant obligations under the Convention. The judgments were commented on in an important legal journal, Svensk Juristtidning, and summaries of the judgments are available on the Government’s website (www.manskligarattigheter.gov.se), from where there are links to the judgments on HUDOC.

As regards the time element, following the Court’s judgments in the present case and that of Västberga Taxi AB and Vulic, the Swedish Tax Agency issued guidelines concerning time-limits for the reconsideration of taxation decisions. This should now be completed within one month or, if further investigations are necessary, within three months. According to the statistics available for 2003, the median time for a decision was 112 days.

The Swedish authorities have not considered it necessary to introduce new legislation with respect to the slow processing of cases, since existing legislation already provided that tax authorities should deal promptly with cases and imposed a requirement of diligent processing on administrative courts. Furthermore, the European Court’s judgments are part of the Swedish legal order. However, a new remedy has nevertheless been introduced in respect of unduly lengthy proceedings, in that tax authorities and courts are now empowered to remit or reduce a tax surcharge when the individual has not had his or her case determined within a reasonable time within the meaning of Article 6 (Chapter 5, section 14 of the Taxation Act and Chapter 15, section 10 of the Tax Payment Act).

As to enforcement, under the Tax Payment Act, which came into force on 01/07/2003, the taxpayer now has an unconditional right to be granted a stay of execution with respect to tax surcharges until the tax authority has reconsidered its decision or, if an appeal is lodged, until the competent county administrative court has examined the appeal (Chapter 17, sections 2a and 9 of the Act). Moreover, the taxpayer is not required to provide security in order to be granted such a stay of execution (Chapter 17, section 3 of the Act).

In addition, even though the Court did not find a breach of the presumption of innocence, certain amendments have been introduced in the provisions dealing with grounds for remission of tax surcharges (Chapter 5, section 14 of the Taxation Act and Chapter 15, section 10 of the Tax Payment Act).

The Secretariat is presently examining this information. More precise information as to the length of tax surcharge proceedings is awaited, particularly as regards such proceedings before the County Administrative Courts.

H46-973 36985/97 Västberga Taxi Aktiebolag and Vulic, judgment of 23/07/02, final on 21/05/03

The case concerns the applicants’ right of access to court in the determination of the merits of criminal charges brought against them because of allegedly incorrect tax declarations. On 04/09/1995 the first applicant (a taxi company) requested reconsideration of the surcharges decided by the tax authority. On 18/12/1995, the second applicant (the company’s president) appealed against the tax authority’s decision.

The facts are very similar to those of Janosevic against Sweden, with the exception that, at the date of the first applicant’s dissolution, the question of the merits had already been pending before the County Administrative Court for two and a half years. The European Court considered that the tax authority as well as the County Administrative Court had failed to act with the required urgency and thereby unduly delayed the determination of the issues by a court, depriving the applicant of effective access to a court (violation of Article 6§1).

The case also concerns the excessive length of the proceedings. In respect of the first applicant, proceedings started on 20/02/1995, when the tax authority informed the company of its intention to impose surcharges. The proceedings on the merits of these surcharges were still pending before the Supreme Administrative Court at the date of the European Court’s judgment (almost seven years and five months). As regards the second applicant, the proceedings started on 11/08/1995, the date of the tax authority’s report including in particular the surcharges, and ended on 03/05/2002 (six years and nine months) (violation of Article 6§1).

Individual measures: Acceleration of the proceedings pending at national level concerning the first applicant has been requested, particularly to remedy the applicant’s lack of effective access to a court. In its letters of 02/04/2004 and 15/06/2004, the Swedish delegation explained that the Administrative Court of Appeal had rejected the first applicant’s appeal in the taxation proceedings on 04/03/2004. It noted, first, that a company that had been dissolved in bankruptcy lacked capacity to be a party to legal proceedings but that some exceptions to this rule had been made in Swedish law; second, that the Supreme Administrative Court had found that by virtue of the applicability of Article 6 of the Convention to proceedings concerning tax surcharges, a taxpayer always had the right to have such a decision tried by an administrative court, even if the taxpayer in question was a company that had been dissolved and lacked legal capacity, but that this did not entail a right to a judicial examination of such cases at more than one instance; and finally, that the judicial examination of the first applicant’s appeal by the County Administrative Court had been adequate. In consequence, the Administrative Court of Appeal found that the applicant’s right of access to a court had not been violated and that there was no reason to grant the company the capacity to pursue legal proceedings further.

This information is being examined by the Secretariat. In the meantime, information would be useful as to whether any further proceedings are pending before the domestic courts.

General measures: This case presents strong similarities to the case of Janosevic v. Sweden (judgment of 23/07/2002) (Sub-section 4.2).

- 126 cases against Turkey

H46-1092 29900/96+ Sadak, Zana, Dicle and Doğan, judgment of 17/07/01, Interim Resolutions ResDH(2002)59 and ResDH(2004)31

The case concerns the violation of the right to a fair trial in proceedings before the Ankara State Security Court, which sentenced in December 1994 the four applicants, members of the Turkish Grand National Assembly, to 15 years’ imprisonment for belonging to an armed organisation, under section 168 of the Penal Code.

The violations found are the following:

- lack of independence and impartiality of the tribunal due to the presence of a military judge on the bench of the State Security Court (violation of Article 6§1 - see §40 of the judgment);

- lack of timely information about the legal redefinition of the accusation brought against the applicants and lack of sufficient time and facilities to prepare the applicants’ defence (violation of Article 6§3 a and b taken together with Article 6§1 - see §§57-59 of the judgment);

- impossibility to examine or to have examined the witnesses who testified against the applicants (violation of Article 6§3d taken together with Article 6§1 - see §§67-68 of the judgment).

Having found these violations, the Court did not consider it necessary to decide separately the applicants’ complaints under Articles 10, 11 and 14.

Individual measures: In view of the extent of the violations of the right to a fair trial and of their consequences for the applicants, the Turkish authorities were requested, at the 764th meeting (October 2001), to consider urgently specific individual measures to erase these consequences. (cf. Committee of Ministers’ Recommendation R(2000)2 and its Interim Resolution ResDH(2001)106 on the individual measures in cases concerning freedom of expression in Turkey).

Interim Resolution ResDH(2002)59: At the 794th meeting (30/04/2002), as no progress in the execution of the judgment was reported on this point, the Committee of Ministers adopted Interim Resolution in which it: “Strongly urges the Turkish authorities, without further delay, to respond to the Committee’s repeated demands that the said authorities urgently remedy the applicants’ situation and take the necessary measures in order to reopen the proceedings impugned by the Court in this case, or other ad hoc measures erasing the consequences for the applicants of the violations found;”

Adoption of new legislation and retrial: On 04/02/2003 a new law entered into force allowing the reopening of domestic proceedings in all cases which have already been decided by the European Court and in all new cases which would henceforth be brought before the European Court. The provisions however exclude re-opening for all cases which were pending before the Court at the date of entry into force of the Law.

On the basis of this new law, the applicants' request for retrial was accepted by the State Security Court of Ankara on 28/02/2003, and thirteen public hearings were held.

The Committee of Ministers welcomed the reopening of the impugned domestic proceedings.

However, the Committee noted that successive requests to suspend the execution of the original prison sentence had been rejected by the State Security Court without convincing reasons being provided, notwithstanding the fact that the applicants continued to suffer the consequences of the violations found, i.e. imprisonment on the basis of an unfair trial.

This situation gave rise to calls for further measures to put an end to all negative effects for the applicants of the violations found. These requests were reiterated at every meeting of the Committee of Ministers as from April 2003. Moreover it was suggested that the Prosecutor should proprio mutu request that the applicants be released in order to conform to the European Court’s judgment.

The Turkish delegation indicated that these concerns would be conveyed to the competent authorities. It also recalled that the question of suspension of the original sentence lay within the competence of the State Security Court, stressing also the fact that the public prosecutor enjoyed the same guarantees as judges as far as his independence was concerned.

Following the mandate given by the Committee of Ministers at the 854th Meeting (October 2003), the President of the Committee addressed a letter to the Minister of Foreign Affairs of Turkey on 20/11/2003, expressing concern regarding the continued detention of the applicants and the alleged lack of fairness of the new trial, especially in relation to the presumption of innocence and equality of arms.

On 19/02/2004 the Turkish Minister of Foreign Affairs replied to this letter indicating that the applicants were considered as convicted persons in view of the initial court decision, which remained valid until the outcome of the new proceedings. The Minister stressed the fact that no convicted person could be released on the ground of a judgment of the European Court and insisted that the Government could not and should not interfere with the court proceedings. Moreover, he considered that the issues related to the equity of the new proceedings fell within the competence of the higher Courts and of the Strasbourg Court.

Interim Resolution ResDH(2004)31: In view of this reply, at the 879th meeting (April 2004), the Committee of Ministers adopted a second Interim Resolution in which it deplored the fact that the applicants continued to be held in detention in order to serve their original sentence and stressed Turkey’s obligation, under Article 46, paragraph 1, of the Convention, to comply with the Court's judgment in this case notably through measures to erase the consequences of the violation found for the applicants, including their release in the absence of any compelling reasons justifying their continued detention pending the outcome of the new trial.

The outcome of the re-trial: On 21/04/2004, the State Security Court rendered its verdict, confirming the applicants’ previous conviction to a 15-year prison sentence.

The Chairman of the Committee of Ministers expressed his disappointment at this verdict in a statement of 22/04/2004, underlining that the fact that the applicants had continued to be treated as convicted persons throughout the re-trial raised serious issues regarding the presumption of innocence. He further stressed that the execution of the European Court’s judgment required the applicants’ release pending the final outcome

of all relevant appeals before the Turkish Courts and indicated that arguments based on the independence of the judiciary could not release Turkey from this obligation.

The applicants lodged an appeal against the State Security Court judgment before the Court of Cassation.

On 09/06/2004, upon the request of the Prosecutor, the Court of Cassation suspended the execution of the applicants’ sentence and ordered their release. The same day, the Chairman of the Committee of Ministers issued a statement in which he expressed his satisfaction regarding the applicant’s release.

On 14/07/2004, the Court of cassation quashed the April 2004 judgment of the State Security Court, stressing that several irregularities affected the re-trial proceedings. While invoking the new Article 90 of the Turkish Constitution (according to which international human rights treaties prevail over conflicting domestic law) the Court of cassation also stressed that the violations of the Convention found by the European Court of Human Rights had not been properly redressed during the re-examination procedure. A fresh trial in an ordinary court (Ankara 11th Criminal Court) was ordered.

Follow-up by the Parliamentary Assembly: From the outset, the Parliamentary Assembly has been closely scrutinising the follow-up to the present judgment. At its 4th part session (23/09/2002) the Assembly held a debate and adopted Resolution 1297(2002) and Recommendation 1576(2002) on the implementation of the Court's judgments by Turkey. In these texts the Assembly, in particular, strongly supported demands to remedy the applicants' situation and urged the Committee of Ministers to use all means at its disposal to ensure compliance with the judgment without further delay.

In its reply to Recommendation 1576(2002), the Committee of Ministers "welcomes the fact that (…) the criminal proceedings in the aforementioned case are to be reopened before the State Security Court of Ankara. The Committee nevertheless notes that the suspension of the execution of the original prison sentence of the applicants pending the new trial was not approved when the request to re-open proceedings was accepted. The Committee trusts that a new, fair trial will proceed expeditiously so as effectively to erase the consequences of the violations found by the Court."

On 30/04/2003, the Committee of Ministers received a new written question (CM(2003)69) by Mr Erik Jurgens, a member of the Assembly, in which he "regret[s] notably that the execution of the original prison sentence imposed in the unfair proceedings had not been suspended" and "ask[s] if the Committee does not consider that to comply with the European Court's judgment Turkey must suspend the execution of [this] sentence (…) awaiting the new fair trial". A reply to this question was issued under the reference CM/AS(2003)Quest426-final and transmitted to the Parliamentary Assembly.

In its report of 17/03/2004 (Doc. 10111) on Honouring of obligations and commitments by Turkey, the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe took the opinion that the decisions of the Turkish courts rejecting the applicants’ requests for release on bail were “particularly incomprehensible and regrettable since Mrs Zana and the others, who have been imprisoned for more than ten years, are scheduled to be released in June 2005 and it cannot be claimed that the offences for which they are to be retried represent a serious threat to public order, given the time elapsed since the events took place”.

Furthermore, on 28/04/2004, an oral question was addressed by Mr Jurgens to the Chairman of the Committee of Ministers, asking whether the Committee was envisaging further specific action to secure the applicants’ release and whether the Committee agreed that Turkey still needed further reforms in order to align Turkish law and domestic courts’ practice with the Convention requirements.

In his reply, the Chairman indicated that these specific issues would be discussed at the Committee’s 885th meeting (June 2004), referring in this context to the constitutional amendments envisaged by the Turkish authorities (AS (2004) CR 13).

On 10/06/2004, the President of the Parliamentary Assembly issued a statement welcoming the applicant’s release.

General measures: Measures have been adopted, particularly in the context of the constitutional reform, to replace the military judge in State Security Courts by a civil judge (see the case Çıraklar v Turkey, judgment of 28/10/1998, Resolution DH(99)555), strengthening the constitutional protection afforded to the right to fair trial.

On 07/05/2004, the Parliament adopted a constitutional amendment abolishing state security courts. This amendment has come into force after being signed by the President of the Republic.

H46-974 36590/97 Göç Mehmet, judgment of 11/07/02 – Grand Chamber

The case concerns the breach of the applicant’s right to a fair trial, first on account of the absence of an oral hearing in the domestic proceedings conducted in 1995 based on Law No. 466 concerning his compensation claim for unlawful detention, and also on account of the non-communication to the applicant in 1996 of the written opinion submitted by the Principal Public Prosecutor to the Court of Cassation on the merits of the applicant’s appeal (violations of Article 6§1).

General measures: Concerning the first issue, information is awaited on the measures envisaged by the Turkish authorities with a view to allowing interested parties to be heard personally by the competent court in this kind of compensation proceedings. In the Secretariat’s view, legislative measures would be necessary to ensure that a hearing takes place. In this respect, it is important to note that, according to information available to the Secretariat, the draft new Code of Criminal Procedure (Article 142) still provides that assize courts may deal with claims for compensation for unlawful detention without holding a hearing. In the Secretariat’s opinion, the dissemination of the judgment of the Grand Chamber to the competent courts, accompanied by a circular letter stressing the necessity to organise a hearing, would be a useful interim measure. Information is awaited concerning this issue.

Concerning the second issue, by a letter of 15/01/2003, the Turkish authorities indicated that a new provision was added by Law No. 4778 of January 2003 to Article 316 of the Code of Criminal Procedure requiring notification of written opinions of the Principal Public Prosecutor to parties by the competent chamber of the Court of Cassation.

The Turkish authorities have confirmed the publication of the judgment of the European Court of 09/11/2000 (fourth section) in the Legal Bulletin of the Ministry of Justice. At the 879th meeting (April 2003), the Turkish delegation indicated that the judgment of the Grand Chamber of 11/07/2002 had been translated and was being published. The confirmation of this measure is awaited.

H46-594 27244/95 Tepe İsak, judgment of 09/05/03, final on 19/08/03[118]

The case concerns the authorities' failure to conduct an adequate and effective investigation into the circumstances surrounding the killing of the applicant's son in August 1993 in the province of Bitlis (South-East of Turkey) (violations of Articles 2 and 13). The European Court found that the authorities failed to take into account all the possible leads that might have indicated the persons responsible for the killing, failed to obtain information from all the allegedly essential witnesses and failed to conduct a full autopsy carried out by a qualified medico-legal expert.

The Court also found a violation of Article 38§1(a) concerning the state’s obligation to co-operate with the Court in establishing the facts of the case not least at the hearing organised by the Court in Ankara in 2000.

Individual and general measures: In view in particular of the violation of Article 38§1(a), further information is awaited on the progress of the investigation of the death of the applicant’s son. The attention of the Turkish authorities was drawn to Committee of Ministers’ Resolution ResDH(2001)66 concerning states’ obligation to co-operate with the European Court of Human Rights.

The Turkish delegation has reported that the Ministry of Justice had asked the competent authorities about the current state of the investigation. Documents concerning the investigation have been sent to the Secretariat but they do not show that action has been taken by the domestic authorities to remedy the shortcomings of the investigation highlighted by the European Court (most importantly, the failure to hear the witnesses referred to in §§ 179, 180).

The Turkish delegation has also indicated that autopsies are regularly conducted in cases of suspicious death, concluding that the problem identified by the European Court was an isolated one, and provided to the Secretariat, by letter of 07/01/2004, information on the procedural rules governing forensic examinations. The judgment of the European Court was published in the Bulletin of the Ministry of Justice on 20/01/2004.

This case also involves similar issues to those raised by certain other cases concerning actions of the security forces in Turkey (See below).

- Cases concerning actions of the Turkish security forces

H46-453 26307/95 Acar Tahsin, judgment of 08/04/04 - Grand Chamber[119]

H46-634 23954/94 Akdeniz and others, judgment of 31/05/01, Interim Resolution ResDH(2002)98[120]

H54-621 21893/93 Akdivar, Çiçek, Aktaş, Karabulut, judgment of 16/09/96, Interim Resolutions DH(99)434 and ResDH(2002)98[121]

H46-975 22947/93+ Akkoç Nebahat, judgment of 10/10/00, Interim Resolution ResDH(2002)98

H54-976 21987/93 Aksoy, judgment of 18/12/96, Interim Resolutions DH(99)434 and ResDH(2002)98

H46-487 24351/94 Aktaş, judgment of 24/04/03[122]

H46-977 32574/96 Algür, judgment of 22/10/02, final on 22/01/03

H46-978 22279/93 Altay, judgment of 22/05/01, Interim Resolution ResDH(2002)98

H46-979 25657/94 Avşar, judgment of 10/07/01, final on 27/03/00

H46-479 23656/94 Ayder and others, judgment of 08/01/04

H54-980 23178/94 Aydin, judgment of 25/09/97, Interim Resolutions DH(99)434 and ResDH(2002)98

H46-632 22493/93 Berktay, judgment of 01/03/01, final on 01/06/01, Interim Resolution ResDH(2002)98[123]

H46-630 23819/94 Bilgin İhsan, judgment of 16/11/00, Interim Resolution ResDH(2002)98[124]

H46-981 25659/94 Bilgin İrfan, judgment of 17/07/01, final on 17/10/01, Interim Resolution ResDH(2002)98

H46-982 28340/95 Büyükdağ, judgment of 21/12/00, final on 21/03/01

H46-983 23657/94 Çakici, judgment of 08/07/99, Interim Resolution ResDH(2002)98

H32-984 22677/93 Çetin, Interim Resolutions DH(99)434 and ResDH(2002)98

H46-985 25704/94 Çiçek, judgment of 27/02/01, final on 05/09/01, Interim Resolution ResDH(2002)98

H46-477 32578/96+ Çolak and Filizer, judgment of 08/01/04, final on 08/04/04[125]

H46-610 27308/95 Demiray, judgment of 21/11/00, final on 04/04/01[126]

H46-986 20869/92 Dikme, judgment of 11/07/00, Interim Resolution ResDH(2002)98

H46-987 25801/94 Dulaş Zubeyde, judgment of 30/01/01, Interim Resolution ResDH(2002)98

H46-988 27602/95 Ekinci Ülkü, judgment of 16/07/02, final on 16/10/02

H46-451 23145/93+ Elçi and others, judgment of 13/11/03, final on 24/03/04[127]

H54-623 23818/94 Ergi, judgment of 28/07/98, Interim Resolutions DH(99)434 and ResDH(2002)98[128]

H46-989 20764/92 Ertak Ismail, judgment of 09/05/00, Interim Resolution ResDH(2002)98

H46-990 29484/95 Esen, judgment of 22/07/03, final on 22/10/03

H46-631 22676/93 Gül Mehmet, judgment of 14/12/00, Interim Resolution ResDH(2002)98[129]

H54-991 21593/93 Güleç, judgment of 27/07/98, Interim Resolutions DH(99)434 and ResDH(2002)98

H46-992 22277/93 Ilhan Nasir, judgment of 27/06/00, Interim Resolution ResDH(2002)98

H46-625 22535/93 Kaya Mahmut, judgment of 28/03/00, Interim Resolution ResDH(2002)98[130]

H54-620 22729/93 Kaya Mehmet, judgment of 19/02/98, Interim Resolutions DH(99)434 and ResDH(2002)98[131]

H46-993 22492/93 Kiliç, judgment of 28/03/00, Interim Resolution ResDH(2002)98

H54-622 24276/94 Kurt, judgment of 25/05/98, Interim Resolutions DH(99)434 and ResDH(2002)98[132]

H54-994 23186/94 Menteş, Turhallı M. and S, and Uvat, judgment of 28/11/97, Interim Resolution DH(99)434

H46-995 21594/93 Oğur, judgment of 20/05/99 - Grand Chamber, Interim Resolution ResDH(2002)98

H46-478 28520/95 Önder Sadık, judgment of 08/01/04, final on 08/04/04

H46-996 31889/96 Orak Abdurrahman, judgment of 14/02/02, final on 14/05/02

H46-488 25656/94 Orhan Salih, judgment of 18/06/02, final on 06/11/02[133]

H46-627 21986/93 Salman, judgment of 27/06/00 – Grand Chamber, Interim Resolution ResDH(2002)98

H46-633 24490/94 Şarli, judgment of 22/05/01, Interim Resolution ResDH(2002)98[134]

H46-997 31866/96 Satık and others, judgment of 10/10/00, final on 10/01/01, Interim Resolution ResDH(2002)98

H54-998 23184/94 Selçuk and Asker, judgment of 24/04/98, Interim Resolutions DH(99)434 and ResDH(2002)98

H46-489 22876/93 Şemse Önen, judgment of 26/01/02, final on 14/05/02[135]

H46-999 26129/95 Tanlı, judgment of 10/04/01, final on 10/07/01, rectified on 28/04/01, Interim Resolution ResDH(2002)98

H46-624 23763/94 Tanrikulu, judgment of 08/07/99, Interim Resolution ResDH(2002)98[136]

H46-629 24396/94 Taş Beşir, judgment of 14/11/00, Interim Resolution ResDH(2002)98[137]

H54-1000 22496/93 Tekin, judgment of 09/06/98, Interim Resolutions DH(99)434 and ResDH(2002)98

H46-596 29422/95 Tepe Ayşe, judgment of 22/07/03, final on 22/10/03

H46-626 23531/94 Timurtaş, judgment of 13/06/00, Interim Resolution ResDH(2002)98[138]

H46-1001 32357/96 Veznedaroğlu Sevtap, judgment of 11/04/00, final on 18/10/00, Interim Resolution ResDH(2002)98

H54-1002 22495/93 Yaşa, judgment of 02/09/98, Interim Resolutions DH(99)434 and ResDH(2002)98

H46-1003 29485/95 Yaz, judgment of 22/07/03, final on 22/10/03

H32-628 23179/94+ Yilmaz, Ovat, Şahin and Dündar, Interim Resolutions DH(99)434 and ResDH(2002)98 [139]

H46-490 26973/95 Yöyler, judgment of 24/07/03, final on 24/10/03[140]

CM/Inf/DH(2004)12-rev

These cases concern violations of Articles 2, 3, 5, 6, 8 of the Convention and of Article 1 of Protocol No. 1, notably in respect of unjustified destruction of homes by the gendarmerie, disappearances, infliction of torture and ill-treatment during police custody and killings committed by members of the security forces. All the cases more specifically highlighted the general problem of the lack of effective domestic remedies capable of redressing violations of the Convention (violations of Article 13).

Since the very beginning of the Committee’s examination of these cases, it has been noted that the violations found are due to a number of structural problems: general attitudes and practices of the security forces, their education and training system, the legal framework of their activities and, most importantly, serious shortcomings in establishing at the domestic level administrative, civil and criminal liability for abuses. Thus, the Committee called upon the Turkish authorities to rapidly adopt comprehensive measures remedying these shortcomings in order to comply with the Court’s judgments.

On 09/06/1999, the Committee adopted Interim Resolution DH(99)434 in which it noted with satisfaction some progress in the adoption of such measures, while at the same time calling on Turkey rapidly to adopt further comprehensive measures to prevent new similar violations.

On 10/07/2002, the Committee adopted Interim Resolution ResDH(2002)98 which anew took stock of the progress in the execution of some 40 judgments concerning the action of the Turkish security forces.

In conclusion of this Resolution the Committee:

Welcomes Turkey's recent enhanced efforts which have resulted in the adoption of various important reforms necessary to comply with the above-mentioned judgments of the European Court;

Calls upon the Turkish Government to focus its further efforts on the global reorganisation of the basic, in-service and management training of Police and Gendarmerie, building notably on the efforts deployed in the framework of the Council of Europe's Police training project, with a view to achieving, without delay, concrete and visible progress in the implementation of the major reforms which were found necessary;

Urges Turkey to accelerate without delay the reform of its system of criminal prosecution for abuses by members of the security forces, in particular by abolishing all restrictions on the prosecutors' competence to conduct criminal investigations against State officials, by reforming the prosecutor's office and by establishing sufficiently deterring minimum prison sentences for persons found guilty of grave abuses such as torture and ill-treatment;

Strongly encourages the Turkish authorities to pursue and develop, in particular in the context of the new Council of Europe/European Commission Joint Initiative, short and long-term training strategies for judges and prosecutors on the Convention and the European Court's case-law, including wider dissemination of translated judgments to the domestic courts, rapid adoption and implementation of the legislation on the Turkish Academy of Justice and inclusion in its curricula of in-depth courses on the Convention;

Calls upon the Turkish Government to continue to improve the protection of persons deprived of their liberty in the light of the recommendations of the Committee for the prevention of torture (CPT);

Invites the Turkish authorities regularly to keep the Committee of Ministers informed of the practical impact of the measures taken, notably by providing statistics demonstrating effective investigations into alleged abuses and adequate criminal accountability of members of the security forces;

Decides to pursue the supervision of the execution of the present judgments until all necessary measures have been adopted and their effectiveness in preventing new similar violations has been established.

The Deputies are invited to resume consideration of this dossier with a view to assessing progress in the execution of all these judgments, in the light of the requests made in Interim Resolution ResDH(2002)98 and of the new information provided to date by the Turkish authorities.

This information will be summarised in an update of the Memorandum that was prepared for the 834th meeting (April 2003) (see CM/Inf(2004)12-rev).

- Friendly settlements cases and 1 striking-out concerning action of the security forces containing undertakings of the Turkish Government

CM/Inf(2004)12

H46-1004 24940/94 Acar, judgment of 18/12/01 - Friendly settlement

H46-1005 31137/96 Adalı, judgment of 12/12/02 - Friendly settlement

H46-1006 32598/96 Akbay, judgment of 04/10/01 - Friendly settlement

H46-1007 37453/97 Akman, judgment of 26/06/01, final on 25/10/01 - Striking-out

H46-636 28292/95 Ateş, judgment of 22/04/03 - Friendly settlement[141]

H46-1008 24935/94 Avcı, judgment of 10/07/01 - Friendly settlement

H46-1009 28293/95 Aydın K., C. Aydin and S. Aydin and others, judgment of 10/07/01- Friendly settlement

H46-1010 29289/95 Aydın Mehmet, judgment of 16/07/02 - Friendly settlement

H46-1011 29875/96 Başak and others, judgment of 16/10/03 – Friendly settlement

H46-1012 24946/94 Boğ, judgment of 10/07/01 - Friendly settlement

H46-1013 24938/94 Boğa, judgment of 10/07/01 - Friendly settlement

H46-480 40299/98 Boztaş and others, judgment of 09/03/04 - Friendly settlement

H46-1014 24934/94 Değer, judgment of 10/07/01 - Friendly settlement

H46-1015 22280/93 Demir Mahmut, judgment of 05/12/02 - Friendly settlement

H46-1016 24990/94 Demir, judgment of 10/07/01 - Friendly settlement

H46-1017 31845/96 Dilek Kemal, judgment of 17/06/03 - Friendly settlement

H46-1018 24939/94 Doğan, judgment of 10/07/01 - Friendly settlement

H46-595 32270/96 Doğan Ülkü and others, judgment of 19/06/03 - Friendly settlement[142]

H46-1019 30492/96 Erat and Sağlam, judgment of 26/03/02 – Friendly settlement

H46-1020 31246/96 Ercan, judgment of 25/09/01 - Friendly settlement

H46-1021 26337/95 Erdoğan Mahmut, judgment of 20/06/02 - Friendly settlement

H46-1022 42428/98 Eren and others, judgment of 02/10/03 - Friendly settlement

H46-494 46649/99 Güler and others, judgment of 22/04/03 - Friendly settlement[143]

H46-1023 24945/94 Güngü Kemal, judgment of 18/12/01 - Friendly settlement

H46-1024 29864/96 H.K. and others, judgment of 14/01/03 - Friendly settlement

H46-1025 30953/96 I.I., I.S., K.E., and A.O., judgment of 06/11/01 - Friendly settlement

H46-1026 24849/94+ Kalın, Gezer and Ötebay, judgment of 28/10/03 - Friendly settlement

H46-1027 38578/97 Kaplan Süleyman, judgment of 10/10/02 - Friendly settlement

H46-1028 37446/97 Kara and others, judgment of 25/11/03 - Friendly settlement

H46-1029 38588/97 Keçeci, judgment of 26/11/02 - Friendly settlement

H46-1030 42591/98 Kılıç Özgür, judgment of 22/07/03 - Friendly settlement

H46-1031 31890/96 Kınay M. and Kınay R., judgment of 26/11/02 - Friendly settlement

H46-1032 24944/94 Kızılgedik, judgment of 10/07/01 - Friendly settlement

H46-1033 28516/95 Macir, judgment of 22/04/03 - Friendly settlement

H46-614 28504/95 Merinç, judgment of 17/06/03 - Friendly settlement[144]

H46-1034 33234/96 N.Ö, judgment of 17/10/02 - Friendly settlement

H46-1035 31865/96 O.O. and S.M., judgment of 29/04/03 - Friendly settlement

H46-1036 39978/98 Oğraş and others, judgment of 28/10/03 - Friendly settlement

H46-1037 31136/96 Önder Yalçın, judgment of 25/07/02 - Friendly settlement

H46-1038 24936/94 Orak Adnan, judgment of 10/07/01 - Friendly settlement

H46-1039 27735/95 Oral and others, judgment of 28/03/02 - Friendly settlement

H46-1040 31883/96 Özbey, judgment of 31/01/02 - Friendly settlement

H46-1041 29856/96 Özcan Mehmet, judgment of 09/04/02 – Friendly settlement

H46-1042 37088/97 Özkur and Göksungur, judgment of 04/03/03 - Friendly settlement

H46-1043 24942/94 Parlak, Aktürk and Tay, judgment of 10/07/01 - Friendly settlement

H46-1044 29359/95 Saki, judgment of 30/10/01 - Friendly settlement

H46-1045 41926/98 Sarı Ramazan, judgment of 31/07/03 - Friendly settlement

H46-1046 31154/96 Şen Filiyet, judgment of 12/12/02 - Friendly settlement

H46-1047 24991/94 Şenses, judgment of 10/07/01 - Friendly settlement

H46-1048 31153/96 Soğukpınar, judgment of 12/12/02 - Friendly settlement

H46-1049 28632/95 Sünnetçi, judgment of 22/07/03 - Friendly settlement

H46-1050 38382/97 Toktaş, judgment of 29/07/03 - Friendly settlement

H46-1051 31731/96 Tosun Hanım, judgment of 06/11/03 - Friendly settlement

H46-1052 36189/97 Yakar, judgment of 26/11/02 - Friendly settlement

H46-1053 31152/96 Yalçın Şaziment, judgment of 12/12/02 - Friendly settlement

H46-1054 37049/97 Yaman Mehmet, judgment of 22/05/03 - Friendly settlement

H46-1055 22281/93 Yaşa Sıddık, judgment of 27/06/02 - Friendly settlement

H46-1056 32979/96 Yıldız Özgür, judgment of 16/07/02 - Friendly settlement

H46-1057 28308/95 Yıldız Zeki, judgment of 22/04/03 - Friendly settlement

H46-604 31730/96 Yurtseven and others, judgment of 18/12/03 - Friendly settlement[145]

H46-1058 27532/95 Z.Y., judgment of 09/04/02 - Friendly settlement

These cases mainly concern alleged violations of Articles 2, 3, 5, 6, 7, 8, 9, 13, 14, 18 of the Convention and Article 1 of Protocol No. 1 between October 1988 and July 1997 connected with the disappearance of applicants’ relatives and the destruction of properties during certain operations conducted by the security forces, the ill-treatment inflicted on applicants during police custody and their prolonged detention without being presented promptly before a judge.

According to the friendly settlements, the Turkish Government, in addition to payment of just satisfaction, undertakes in particular “to issue appropriate instructions and adopt all the necessary measures” – including the obligation to carry out effective investigations – to ensure that the right to life and the prohibition of such forms of ill-treatment are respected in the future, that all deprivations of liberty are fully recorded by the authorities and that effective investigations into alleged disappearances are carried out in accordance with their obligations under the Convention. In some cases, the Government referred in this connection to the commitments which they undertook in the Declaration agreed on in Application No. 34382/97 (Denmark against Turkey) and reiterated its resolve to give effect to those commitments.

General Measures: The general measures were summed up in Interim Resolution ResDH(2002)98 adopted at the 803rd meeting (July 2002). Following this interim resolution, the Turkish authorities adopted a number of general measures to comply with the judgments. The Committee will resume consideration of all these measures at the present meeting in the context of the cases concerning the actions of security forces (see above).

- Cases concerning dissolution of political parties

H46-1059 25141/94 Dicle for the Democratic Party (DEP), judgment of 10/12/02, final on 21/05/03

H46-1060 23885/94 Freedom and Democracy Party (ÖZDEP), judgment of 08/12/99 - Grand Chamber

H54-1061 19392/92 United Communist party of Turkey and others, judgment of 30/01/98

H54-1062 21237/93 Socialist Party and others, judgment of 25/05/98, Interim Resolution DH(99)245

H46-1063 22723/93+ Yazar, Karataş, Aksoy and the People’s Labour party (HEP), judgment of 09/04/02

H46-1064 26482/95 Socialist party of Turkey (STP) and others, judgment of 12/11/03, final on 12/02/04

CM/Inf(98)48

The cases concern the dissolution of the above-mentioned political parties by the Constitutional Court in 1991, 1992 and 1993. The United Communist Party and the ÖZDEP party were dissolved shortly after their creation, on the mere basis of their programmes. The Socialist Party was dissolved on account of certain statements made by its chairman, Mr Perinçek. The reasons advanced by the Constitutional Court covered the undermining of the territorial integrity and the unity of the nation by references to the Kurdish people or to Kurdish self-determination (breaches of the Constitution and of various Articles in the Law on Political Parties (LPP). Among those cited by the prosecutor, mention may be made of Articles 78, 81 and 101 b) of the LPP. HEP was dissolved in similar circumstances. In the United Communist Party case an additional ground was the title “communist”, banned in Article 96(3) of the LPP. In the ÖZDEP case an additional ground was a perceived aim to abolish the secular nature of the state in violation of Article 89 of the LPP.

The cases also concern the ensuing banning for life of the leaders of the parties from holding similar offices in any other political party.

In all the cases, the European Court found violations of the right to freedom of association (Article 11).

The Socialist Party case also concerns the criminal conviction of Mr Perinçek, subsequent to the Court’s judgment, on account of the same statements as led to the party’s dissolution.

General measures: The judgments of the European Court have been published in Turkish in the Official Bulletin of the Ministry of Justice.

The change of the Constitution in 1995 changed the permanent ban on political activities for members of dissolved parties to a 5-year ban and made it applicable only to party leaders.

The necessity of a further reform of the LPP has been pointed out since May 1998. Such a reform should remove the automatic ban of a party under Article 96§3 of the Constitution on the mere ground that its title contains the word "communist" and abrogate the possibility of dissolving parties solely on the basis of non-violent political speech or programmes which respect the rules of democracy. The possibility to ensure the compatibility of Turkish law with the Convention through a change of case-law was also noted (see in particular CM/Inf(98)48).

Further amendments to the Constitution entered into force on 17/10/2001. These amendments have among other things introduced a general principle of proportionality and the possibility to resort to less severe sanctions than dissolution of the party in case of violations of the authorised limits of political action, which however remain unchanged in Article 68 of the Constitution. Subsequently, a number of amendments to the LPP were adopted on 26/03/2002 in order to ensure that it is in conformity with the Constitution.

During the examination of these different amendments at the 792nd meeting (April 2002), the improvements brought about were noted, but certain hesitations were expressed in view of the absence of any change of several key provisions. More detailed information on positions adopted may be found in the Addendum 4 prepared for the 854th meeting. Following this exchange of views, the Deputies agreed to resume consideration of these cases at their 810th meeting (October 2002) in order to examine any clarifications which might have been made in the meantime through the case-law of Turkish courts, in particular by the Constitutional Court. At that meeting the Turkish Delegation informed the Committee that the Communist Party had been allowed to participate in the general elections, a fact which may be accepted as a change of practice under Article 96/3 of the Constitution. Further information on the effect of the recent constitutional and legislative amendments was however requested.

Subsequently, The Turkish delegation furnished information concerning the additional legislative measures taken in respect of the LPP (see Addendum 4 of the 854th meeting, for details) which entered into force 11/01/2003. According to new amendments, the conditions for being a member of a political party have been eased: being convicted under Article 312 of the Penal Code is no longer grounds for a restriction regarding being a member of a political party. Some other restrictions were lifted. The provisions of the LPP (Articles 98,100,102 and 104) were amended so as to conform to the Constitutional amendments. Finally, political parties were granted the right to appeal against requests of the Chief Public Prosecutor before the Constitutional Court.

At the 834th meeting it was agreed to wait for possible evolution of the case-law of the Constitutional Court as regards the effect given to the Convention and to the judgments of the European Court, or for other constitutional amendments, with a view to adopting, in the light of such evolution, either an interim or a final resolution at a subsequent meeting.

Individual measures: The bans on political activities imposed on the applicants following the dissolution of the Parties have all been lifted. The Committee of Ministers found that under former Article 53 (today Article 46§1) of the Convention, Turkey was under an obligation to erase the consequences of Mr Perinçek’s criminal conviction (see Interim Resolutions DH(99)245 and 529). Mr Perinçek was conditionally released after having served ¾ of his 14-month prison sentence and, following the application of amnesty legislation, he once again enjoys the civil and political rights which he lost as a result of his conviction, although on the condition that he does not “commit a further crime”. He has lodged a new complaint with the Court on account of this situation (Application No. 46669/99). This complaint was declared admissible by the Court on 26/02/2002. The Committee is awaiting the outcome of these proceedings.

H46-690 27692/95+ Karakoç and others, judgment of 15/10/02, final on 15/01/03

The case concerns the lack of impartiality of the State Security Court in that the judges who convicted the applicants had already been implicated in the decision concerning their detention on remand and had justified such decision on the basis of a detailed reasoning on the applicants' guilt. The European Court found that this situation, as well as the presence of a military judge in the State Security Court who convicted the applicants, justified objectively the applicants' doubts regarding the impartiality of the Court (violation of Article 6§1).

This case also concerns a disproportionate interference in the applicants’ freedom of expression on account of their conviction in 1994 under Article 8 of Anti-terrorism Law No. 3713 for having, in their capacity as representatives of trade unions and of the press, issued a press statement in 1993 denouncing the government’s alleged responsibility for extra-judicial killings in the South-East region. Following the amendment of the Anti-terrorism Law in 1995, the applicants were given a suspended sentence of 10 months’ imprisonment, which they had already partially served, and a fine. Mr Karakoç was also dismissed from his job without compensation because of his conviction (violations of Article 10).

Individual measures: The applicants no longer suffer from any consequences over and above those repaired by the just satisfaction awarded by the Court of their convictions since the abrogation of Article 8 of the Anti-terrorism Law because Article 8 of the Law on Criminal Records (as amended by Law No. 4778 of 2/1/2003) provides that any information on criminal records shall be erased ex officio by the General Directorate of Judicial Records and Statistics of Ministry of Justice when an offence is de-criminalised. In a letter of 07/07/2004 the Turkish authorities submitted the following information concerning the situation of the applicants’ criminal records:

Application name	Date of conviction	Date of erasure from the criminal records
Karakoç Bahri Zülfü	16/11/1995	03/11/2003
Alpsalan Mehmet	16/11/1995	On an unspecified date
Akyol Hamdullah	16/11/1995	10/02/2003

The Turkish authorities further submitted that, as a result of the abrogation of Article 8 of Anti-terrorism Law and of the erasure of the applicants’ convictions from their criminal records, the restrictions on the applicants’ civil and political rights have been automatically lifted.

General measures: As regards the violation of Article 10 of the Convention, the case is similar to the other above-mentioned Turkish cases of violations of freedom of expression. As regards the impartiality of State Security Courts, since 1999, military judges no longer sit in these courts (see Resolution DH(99)555 adopted in the case of Cıraklar).

At the 834th meeting (April 2003), information was requested on the measures envisaged as regards the other aspects of the violation of Article 6§1 raised by the European Court. To date no information has been received by the Secretariat.

- 6 cases against Ukraine

H46-496 41220/98 Aliev, judgment of 29/04/03, final on 29/07/03[146]

H46-1065 40679/98 Dankevich, judgment of 29/04/03, final on 29/07/03

H46-1066 41707/98 Khokhlich, judgment of 29/04/03, final on 29/07/03

H46-1067 39042/97 Kuznetsov, judgment of 29/04/03

H46-1068 38812/97 Poltoratskiy, judgment of 29/04/03

H46-1069 39483/98 Nazarenko, judgment of 29/04/03, final on 29/07/03

These cases concern the poor conditions of the applicants' detention between 1996 and 2000 on “death row” in four different prisons in Ukraine, found by the European Court to amount to degrading treatment due in particular to their prolonged confinement in very restricted living space without natural light and the virtual impossibility of any activity or human contact (violations of Article 3). The Court also found that the Ukrainian authorities' interferences with the applicants' rights to private and family life (in all these cases), with their correspondence (in the four last cases) and their freedom of thought were not in accordance with the law as their detention was governed until 1999 principally by an internal instruction inaccessible to the public (violations of Articles 8 and 9). The cases of Kuznetsov and Poltoratskiy also concern the failure to carry out an effective official investigation into allegations of assaults by prison authorities (violations of Article 3).

In the Dankevich case the Court also held that the applicant had not had an effective remedy in respect of his claims under the Convention (violation of Article 13).

The death sentences were commuted to life imprisonment in June 2000 following the abolition of the death penalty in Ukraine.

Individual measures: the representative of Mr. Poltoratskiy (his father Mr. Y.N. Poltoratskiy) complained that two of his private letters addressed to the applicant had been confiscated and that prison authorities still applied the unpublished Instruction criticised in the Court’s judgments (letter of 10/09/2003). By a letter of 03/10/2003 the Ukrainian delegation indicated that prisoners’ correspondence is regulated only by the Correctional Labour Code (see below) and that disciplinary sanctions were imposed on those officials who were responsible for the breach of the applicant’s right to correspondence. The representative of Mr. Poltoratskiy also stated that the Ukrainian authorities had not carried out an effective investigation into allegations of ill-treatment of the applicant by prison authorities in September 1998 (letters of 22/12/2003 and 16/03/2004).

He also sent the Secretariat copies of decisions of national jurisdictions of 2002, which refer among other things to the provisions of "the Instruction on the organisation of the supervision of correspondence" to conclude that the seizure of the applicant’s correspondence with his father was in accordance with law. Information on theses issues was requested from the Ukrainian delegation (letters of the Secretariat of the 18/02/2004 and 27/04/2004).

By a letter of 04/06/2004 the delegation transmitted to the Secretariat a declaration signed by the applicant on 30/09/2003, in which he states that he is satisfied with the response received from the penitentiary administration concerning the control of his correspondence and asks that his relatives’ complaints concerning this issue are not taken into consideration. The applicant’s declaration has been sent to his representative.

General measures: As regards the violations of Article 3, concerning conditions of the applicants’ detention in the death row, the attention of the Ukrainian authorities was drawn to the conclusions of European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in its reports of 1998, 1999 and 2000 on Ukraine. Information was requested concerning the measures envisaged to ensure that such conditions ceased to exist in Ukraine. By a letter of 03/10/2003 the Ukrainian delegation indicated that detention conditions for prisoners sentenced to life imprisonment had considerably improved since the relevant facts in these cases, as it was acknowledged by the European Court in the present judgments (see for example §147 of the Poltoratskiy judgment). Detention conditions are presently regulated by the Correctional Labour Code as modified in 2000 and 2001 and a Regulation on the execution of life sentences adopted in 2001 by the Department for the Execution of Sentences with a view to bringing these conditions into conformity with European standards for the protection of human rights.

The most important of these improvements relates to the access to natural light in cells and the possibility for sentenced persons to receive visitors, to send and receive letters and to have a daily walk.

The delegation also sent a comparative table of the various regulations on conditions of detention in prisons in Ukraine since 1992 which sets out the changes which have been introduced since that date (letter of 04/06/2004).

- As regards the absence of an effective investigation of alleged ill-treatment, information concerning the measures envisaged or already adopted is awaited.

As regards the violations of Articles 8 and 9: In 1999 the internal Instruction which was criticised in the judgments was revoked by a decision of the Department for Execution of Sentences. At the present time, the detention of prisoners sentenced to life imprisonment is regulated by the Correctional Labour Code and the Regulation on the execution of sentences of life imprisonment (see above), which was made public according to the legislation in force. The government furthermore adopted a programme for improvement of detention conditions for prisoners sentenced to life imprisonment.

However, it appears from the information provided by the delegation (letters of 27/11/2003 and 04/06/2004) that control of prisoners’ correspondence is also regulated by an internal Instruction adopted by the Department for the Execution of Sentences on 30/08/2002 and registered by the Ministry of Justice. Clarifications would be useful concerning the accessibility to the public of the applicable rules and also concerning their content with regard to their compatibility with the requirements of the Convention and the case-law of the European Court relating to the control of detainees’ correspondence.

As regards the violation of Article 13, information concerning the measures envisaged or already adopted is also awaited.

The judgments of the European Court in the cases of Kuznetsov and Poltoratskiy have been translated into Ukrainian and published on the internet site of the Ministry of Justice. The confirmation of the publication of these judgments in the official journal of the Ministry of Justice, as well as of their dissemination to prison authorities and prosecutors is awaited.

- 21 cases against the United Kingdom

- Action of the security forces in the United Kingdom

H46-1070 28883/95 McKerr, judgment of 04/05/01, final on 04/08/01

H46-1071 37715/97 Shanaghan, judgment of 04/05/01, final on 04/08/01

H46-1072 24746/94 Hugh Jordan, judgment of 04/05/01, final on 04/08/01

H46-1073 30054/96 Kelly and others, judgment of 04/05/01, final on 04/08/01

H46-1074 43290/98 McShane, judgment of 28/05/02, final on 28/08/02

H46-1075 29178/95 Finucane, judgment of 01/07/03, final on 01/10/03

CM/Inf/DH(2004)14-rev

These cases concern the death of applicants’ next-of-kin during police detention or security forces operations or in circumstances giving rise to suspicions of collusion of such forces. In this respect, the Court found various combinations of the following shortcomings in the proceedings for investigating deaths giving rise to possible violations of Convention rights (violations of Article 2): lack of independence of the investigating police officers from security forces/police officers involved in the events; lack of public scrutiny and information to the victims’ families concerning the reasons for decisions not to prosecute; the inquest procedure did not allow for any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which might have been disclosed; the soldiers / police officers who shot the deceased could not be required to attend the inquest as witnesses; the non-disclosure of witness statements prior to the witnesses’ appearance at the inquest prejudiced the ability of the applicants to participate in the inquest and contributed to long adjournments in the proceedings; the inquest proceedings did not commence promptly and were not pursued with reasonable expedition.

The McShane case also concerns the finding by the Court of a failure by the respondent state to comply with its obligations under Article 34, in that the police had – albeit unsuccessfully – brought disciplinary proceedings against the solicitor who represented the applicant in national proceedings for having disclosed certain witness statements to the applicant’s legal representatives before the European Court.

Individual measures: These are being examined together with general measures. See below and document CM/Inf/DH(2004)14-rev.

General measures: Information submitted by the United Kingdom authorities and other interested parties, including new information not taken into account in previous versions of the document, appears in document CM/Inf/DH(2004)14-rev, along with the Secretariat’s evaluation of that information. A full history of the previous examination of the first five cases appears in the Annotated Agenda of the 854th meeting (October 2003).

At that meeting it was decided to postpone the examination of these cases until the 879th meeting (April 2004), so as to be able to take into account the judgment of the House of Lords, which was still awaited, in the Middleton case. Subsequently, it was decided to join the Finucane case with the present group.

In the meantime, the Middleton judgment was delivered, alongside the House of Lords’ judgment in the domestic proceedings in the McKerr case, on 11/03/2004; information concerning these judgments is included in the revised memorandum (see CM/Inf/DH(2004)14-rev).

On 14/06/2004, the United Kingdom authorities forwarded further information concerning a significant number of questions raised in the above-mentioned memorandum. A meeting between the United Kingdom authorities and the Secretariat, with the participation of representatives of the Northern Ireland Courts Service, is planned for 20/09/2004, to exchange views on the measures taken and remaining to be taken. The results of this meeting will be presented to the Committee at the present meeting.

H46-1076 28212/95 Benjamin and Wilson, judgment of 26/09/02, final on 26/12/02

The case concerns the fact that the applicants, following sentence by courts to terms of discretionary life imprisonment, were unable to exercise their right to have their continued detention in hospital reviewed by a body empowered to examine the lawfulness of their detention since, in accordance with the applicable provisions of the Mental Health Act 1983, the Mental Health Review Tribunal (MHR Tribunal) could only recommend but not order their release (violation of Article 5§4).

Individual measures: The first applicant had been convicted of rape in 1983 and released by decision of the Secretary of State on the recommendation of the MHR Tribunal on 09/01/2001.

The second applicant was sentenced to life imprisonment for buggery in 1977 and on 13/06/2000 (date of the last review by the MHR Tribunal) he was still in prison. Information is awaited about the applicant’s present situation and whether he may obtain a review of his detention in line with the requirements of Article 5§4.

General measures: The Committee has previously enquired (854th and 879th meetings (DH) (October 2003 and April 2004 respectively)) whether the United Kingdom were considering the possibility of giving the MHR Tribunal the power to release detainees if it so decided. It appears that the Criminal Justice Act 2003 has introduced amendments to the relevant provisions of the Mental Health Act 1983. The Secretariat is currently examining these amendments. Observations from the United Kingdom authorities on the relevant amendments would be welcome.

The judgment has been published in the European Human Rights Reports at (2003) 36 EHRR 1.

- Cases concerning the lack of proper review of the lawfulness of the applicants’ continued detention

H46-1077 46295/99 Stafford, judgment of 28/05/02 - Grand Chamber

H46-1078 75362/01 Von Bulow, judgment of 07/10/03, final on 07/01/04

H46-1079 67385/01 Wynne No. 2, judgment of 16/10/03, final on 16/01/04

These cases concern the continued detention of the applicants, who had been sentenced to mandatory life imprisonment. The applicants' “tariffs” (the minimum period required to be served by a prisoner to satisfy the requirements of retribution and deterrence, after which continued detention may be based only on the need for protection of the public) expired, respectively, in 1979, 1998 and 1991. The applicants continued to be detained after the expiry of their tariffs without their cases being reviewed by a body with the power to order their release or with the necessary judicial safeguards (violations of Article 5§4).

The Stafford case also concerns the unlawfulness of the applicant's detention, given that following his release on licence after serving the tariff imposed on him in 1967 under a mandatory life sentence for murder, the Secretary of State for the Home Department decided in 1997 to continue his detention on grounds unrelated to his original conviction (violation of Article 5§1). Mr Stafford was released by the Secretary of State on 22/12/1998 (§27 of the judgment).

The Wynne (No. 2) case also concerns the lack of an enforceable right to compensation for the breach of the applicant's right to liberty (violation of Article 5§5).

Individual measures: According to the information provided by the United Kingdom authorities on 17/05/2004, Mr von Bülow had an oral hearing before the Parole Board on 22/12/2003, which recommended his transfer to an open prison, and the Secretary of State accepted that recommendation. It therefore appears that, despite the fact that this occurred after the coming into force of Schedule 22 of the Criminal Justice Act 2003, which transferred the power of decision to the Parole Board (see below – General measures), the final decision on this point was not within the competence of the Parole Board but remained with the Secretary of State. Accordingly, clarification would be useful concerning the regime currently applicable to the release of the applicant.

The United Kingdom authorities further indicated on 17/05/2004 that Mr Wynne had recently applied to the Parole Board and that a hearing was expected in early summer. On 24/07/2004 the applicant wrote to the Secretariat, in a letter forwarded to the United Kingdom authorities on 16/08/2004, complaining of a number of serious procedural issues surrounding the hearing. Clarifications are awaited concerning the procedure followed in this case.

General measures: With regard to the violations of Articles 5§1 and 5§4, interim measures were initially taken, followed by legislative measures. Thus, the Government indicated in its letter of 19/05/2003 that as an interim general measure following the judgment in the Stafford case, administrative arrangements were put in place from 01/01/2003 concerning the review and release of mandatory life sentence prisoners (possibility of oral hearing, of examination of witnesses and of legal representation before the Parole Board, and normally, acceptance by the Home Secretary of the Parole Board's recommendation for release).

The Government has further indicated that under the new Parole Board Rules (to be issued shortly), all life-sentence prisoners will be entitled to insist upon an oral hearing. A copy of the new Rules would be useful, in particular in view of the procedural issues raised with respect to individual measures (see above).

In addition, legislative amendments related to the violations of Articles 5§1 and 5§4 have now been made through the enactment of Part 12, chapter 7 of the Criminal Justice Act 2003 and Schedules 21 and 22 to that Act, which came into force on 18/12/2003. In accordance with these provisions, it is the Parole Board that orders the release of mandatory life sentence prisoners in all cases where their minimum term has been fixed by a court.

According to these provisions, in new cases, the fixing of the minimum term to be served by mandatory life sentence prisoners and of the early release provisions applicable to them now falls to the courts; consequently, it is the Parole Board that later orders the release of these prisoners.

As to currently serving mandatory life-sentence prisoners, three situations are identified. First, in the case of prisoners whose tariff has not yet been fixed, this task falls to the High Court. Secondly, prisoners whose tariff has been fixed but has not expired may apply to have it reviewed by the High Court, which cannot fix a higher tariff than that previously fixed by the Secretary of State. In both cases the same early-release provisions then apply as to new mandatory lifers. Thirdly, in the case of mandatory lifers who remain in detention although their tariff has already expired, such as the applicants in the second and third cases, the same provisions automatically apply concerning their release.

In all cases, therefore, it is the Parole Board that is henceforth competent to rule on the release of mandatory life sentence prisoners; the Secretary of State is no longer free to depart from the decision of the Parole Board.

As regards the violation of Article 5§5 in the Wynne (No. 2) case, the case presents similarities to that of O’Hara (see Section 5.3 of the Annotated Agenda for the 885th meeting (June 2004)). The Government has indicated that under Section 6(1) of the Human Rights Act (HRA), it is unlawful for a public authority to act in a way incompatible with a Convention right. Under Section 8 of the HRA, if a court finds that such an unlawful act has occurred, it may award damages. In illustration of this point, it has forwarded two examples of case-law of the High Court, namely the judgments in the cases of KB & Others v Mental Health Review Tribunal [2003] EWHC 193 (Admin), reported at (2003) 2 All ER 209, andRichards v Secretary of State for the Home Department [2004] EWHC 93 (Admin), reported at (2004) NLJR 176 and (2004) All ER(D) 254.

In the first case, damages were awarded for delays in reviews of detention by the Mental Health Review Tribunal in breach of Article 5§4.

The second case concerns the judicial review of the refusal of the Secretary of State to award damages in a case in which a nine-month interval had elapsed between the Parole Board’s recommendation that a mandatory life-sentence prisoner be released and his release by the Secretary of State. The High Court found that, although this detention had infringed the claimant’s rights under Article 5 of the Convention, damages could not be awarded under the mechanism described above, since the authority in question had been bound by primary legislation to act as it had acted, and therefore, in accordance with section 6(2) of the HRA, section 6(1) did not apply. However, Article 5§5 of the Convention, which had been incorporated into United Kingdom law by the HRA, required a possibility of pursuing, in the domestic courts, an enforceable claim for compensation for unlawful detention. Thus, the failure to pay the claimant damages was a breach of his Article 5§5 Convention rights, and this failure itself constituted an unlawful act under section 6(1) HRA, for which damages could be awarded under section 8.

The judgments in the Stafford and Wynne (No. 2) cases have been published in European Human Rights Reports at (2002) 35 EHRR 32 and (2004) 38 EHRR 42 respectively.

H46-1080 38784/97 Morris, judgment of 26/02/02, final on 26/05/02

The case mainly concerns the lack of independence and impartiality of the Army court-martial which judged the applicant, on account of various structural problems (violation of Article 6§1).

The case present similarities to the Findlay case (see Resolution DH(98)12) following which the Army Act 1996 was adopted, entering into force in April 1997.

In the present case, the Court questioned some of the new provisions included in this Act. It noted in particular that the safeguards surrounding the independence of the ordinary members of the court-martial were not sufficient to exclude the risk of outside pressure and that the Reviewing Authority, which was a non-judicial body, had the power to vary the finding and sentence imposed by the court-martial.

General measures: On 16/12/2003, the Grand Chamber of the European Court delivered its judgment in the Cooper case. In the light of the new information before the Court in that case, which concerned a Royal Air Force (RAF) court-martial, it found that there had been no violation of Article 6. The Court was satisfied on the basis of this information that the final decision in such a case would always lie with a judicial body, which was not bound by the advice to or the decision of the Reviewing Authority. It was also satisfied that there were sufficient safeguards surrounding the ordinary members of the court-martial to ensure their independence; in this respect, an important element was the distribution and content of the CMAU (RAF) Briefing Notes to ordinary members of the RAF court-martial. Although the Cooper case dealt with an RAF court-martial, it was not disputed that the relevant regulatory frameworks governing Army and RAF courts-martial were the same in all material respects. In view of the fact that the Briefing Notes distributed to ordinary members of the court-martial do not clearly fall within the regulatory framework that can be said to be the same in the Army and RAF, a copy of the Briefing Notes currently distributed to ordinary members of Army courts-martial would be useful.

The judgment of the European Court in the present case has been published in European Human Rights Reports at (2002) 34 EHRR 52.

H46-1081 57067/00 Grieves, judgment of 16/12/03 - Grand Chamber

The case concerns the unfairness of naval court-martial proceedings undertaken in 1998 and which resulted in the conviction of the applicant (violation of Article 6§1). The European Court found that certain shortcomings in the proceedings were such that the applicant’s misgivings about the independence and impartiality of his naval court-martial could be considered to be objectively justified. These shortcomings included the lack of a full-time Permanent President of Courts-Martial, the relative lack of detail and clarity in the briefing notes prepared for members of naval courts-martial and especially the fact that the Judge Advocate in a naval court-martial is not a civilian but a serving naval officer who, when not sitting in a court-martial, carries out regular naval duties.

General measures: The United Kingdom authorities have indicated (letter of 27/05/2004) that the appointment of serving naval personnel as judge advocates has ceased since the Court’s judgment was delivered. Furthermore, under the Naval Discipline Act 1957 (Remedial) Order 2004, the responsibility of appointing judge advocates has been transferred to the Judge Advocate of the Fleet. The latter is a civilian, who appoints as judge advocates civilian barristers, solicitors and other individuals holding judicial appointments.

As regards the briefing notes prepared for ordinary members of naval courts-martial, these were amended in 2002 to include appropriate instructions as to the need to function independently and free from outside pressure. The briefing notes are currently being amended further to reflect the appointment of civilian judge advocates and to ensure maximum possible consistency with those of the Army and RAF. A copy of the briefing notes, as amended, would be useful.

As to the lack of a Permanent President, the United Kingdom authorities consider that the above-mentioned changes suffice to obviate the need to create such a post. However, their possible introduction in navy courts-martial and reintroduction in army and air-force courts-martial is being considered as part of the continual review of policy in this area. Confirmation of the current position on this point would be helpful.

The judgment of the European Court has been published in European Human Rights Reports at (2004) 39 EHRR 2.

H46-1082 30668/96 Wilson and the National Union of Journalists, Palmer, Wyeth and the National Union of Rail, Maritime and Transport workers, Doolan and others, judgment of 02/07/02, final on 02/10/02

The case concerns the failure of the state in its positive obligation to secure the enjoyment of rights under Article 11, by permitting employers to use financial incentives to induce employees to surrender important union rights (violation of Article 11 as regards both the individual and the trade union applicants). The individual applicants refused to sign new, individual contracts of employment offering a wage increase in return for renouncing the right to be represented by their trade unions. As a consequence their salaries fell below those of their colleagues who had signed individual contracts.

General measures: Following the release of a consultation paper (“Review of the Employment Relations Act 1999”) by the Department of Trade and Industry in February 2003, the Employment Relations Bill was introduced in Parliament. Part III of the Bill deals with inducement and detriments in respect of membership of independent trade unions. It provides, inter alia, that workers have a right not to have an offer made to them for the sole or main purpose of inducing them to renounce union membership or activities.

The Bill has been passed by the House of Commons and, as of the closing date for submission of information for the present agenda, was due to have its third reading by the House of Lords on 08/09/2004. It should be noted in this respect that doubts have been raised both in the House of Lords and by the Joint Committee on Human Rights as to the degree to which the relevant aspects of the Bill will resolve the problems identified by the European Court in the present judgment. In particular:

- The failure to provide trade unions themselves with an avenue for redressing a violation of their rights under Article 11 – relying instead solely on the indirect protection they may receive through the availability of remedies to their members – has been criticised, as it could result not only in a violation of Article 11 but also in a breach of the right to an effective remedy for that violation. In addition, the adequacy of the protection of the rights of non-recognised unions has been questioned. The Government has indicated that it was considering these points carefully, in consultation with the relevant stakeholders, and planned to finalise its deliberations in time for the Bill’s third reading.

- Concerning the question as to whether workers have a right not to have employers make offers to other workers in order to induce them to surrender their union rights, the Government considers that this goes beyond the scope of the present judgment, since the facts of the case involved only individuals to whom such offers had actually been made. It may also be observed that this question would lose some of its relevance if an avenue of redress were open to trade unions themselves.

- Finally, the manner in which tribunals will in practice apply the expression “sole or main purpose” and whether this will adequately reflect the requirements of Article 11 is unclear. The Government has confirmed that it will keep this last point under review once the provisions have come into effect.

At the present stage of the parliamentary procedure, amendments may still be made on issues not voted on at previous stages. In the light of this fact and of the important issues raised, information would be useful on the progress of the Bill in Parliament and any follow-up given to the issues mentioned above.

The judgment was published in the Times Law Reports on 05/07/2002. It has also been published in the European Human Rights Reports at (2002) 35 EHRR 523 and in the Industrial Relations Law Reports at [2002] IRLR 568.

H46-1083 50390/99 McGlinchey and others, judgment of 29/04/03, final on 29/07/03

The case concerns inhuman and degrading treatment suffered prior to her death by a prisoner addicted to heroin who was the mother of the first two applicants and daughter of the third applicant. The European Court found in particular that the prison authorities had failed to provide accurate means of monitoring her weight loss, that despite her worrying health condition there was a gap of two days in the monitoring of her condition by a doctor, and that she was not admitted to hospital quickly enough (violation of Article 3).

The case also concerns the lack of an effective remedy allowing an examination of the standard of care given in prison and the possibility of obtaining damages (violation of Article 13).

General measures: The respondent state has informed the Secretariat that in order to prevent new, similar violations of Article 3, a programme is under way concerning prison health policy on the handling of substance abusers and addicts. It involves the transfer of health services for prisoners from the Prison Service to a primary care trust by 2006. The aim of this transfer is to improve the quality and appropriateness of health care services for prisoners and to maintain these services within the National Health Service. In addition, the Prison Health Team is reviewing its advice on the clinical management of substance abusers on entry into prison. The programme is currently undergoing consultation with health service and Prison Service colleagues. Further information is awaited about the progress of this programme and particularly its effect on especially vulnerable detainees such as drug addicts.

As regards the violation of Article 13, the respondent state has indicated that the Human Rights Act 1998, in force since October 2000, provides an effective remedy which also covers claims for damages by relatives acting on behalf of deceased persons.

The judgment of the European Court has been sent out to the Prison Service and published in European Human Rights Reports at 2003 (4) EHRR 466.

H46-1084 35605/97 Kingsley, judgment of 28/05/02 - Grand Chamber

The case concerns a breach of the applicant’s right to a fair trial due to the lack of appearance of impartiality of the Gaming Board which in 1994, under the terms of the 1968 Gaming Act, revoked its certificates regarding the applicant’s employment as a director in the gaming industry. A year before the hearing, members of the Board had publicly stated that there was sufficient evidence to conclude that the applicant was not a fit and proper person to be a director of a casino company. In 1996 the High Court and the Court of Appeal rejected the applicant’s appeals, based on the “doctrine of necessity” that enjoined that the decision be made by the Board and could not be delegated to an independent tribunal. The European Court found that the Panel of the Gaming Board had not presented the necessary appearance of impartiality not least due to the statements made by members of the Board about the applicant before the hearing, and that the subsequent judicial reviews of the Panel’s decision were too limited to rectify the shortcomings (violation of Article 6§1).

Individual measures: The applicant applied to the Gaming Board for a new license. In its letter dated 10/03/2003, the Board informed him that it would be minded to grant the application should he obtain employment, or the formal offer of employment in a British casino operation. The criterion for the approval would be the applicant’s sufficient knowledge of current casino operation. The decision would also be subject to Criminal Records Bureau check. In his letter dated 25/03/2003, the applicant thanked the Board for its helpful cooperation and had not been in further contact with it since.

General measures:

As regards the first aspect of violation of Article 6§1, by letter of 27/05/2004 the respondent state informed the Secretariat that new legislation (the Gambling Bill) is scheduled to repeal the 1968 Gaming Act and replace the Gaming Board by a new Gambling Commission whose decisions will be subject to appeal by a special Gambling Appeal Tribunal. This Tribunal’s decisions will be subject to judicial review by the High Court. Information on the progress of the reform is awaited. Interim measures taken by the respondent state include the increase of the Gaming Board’s membership from five to eight. This gives the Board greater ability to ensure that no member who has been involved in any way with decisions relating to making objections to the licence has any involvement in decisions relating to the Section 19 certificate, and vice versa. Also, if a decision were to be quashed by the court and referred back to the Gaming Board, the Board would be able to field a new panel of members to make the decision.

As regards the second aspect of the violation, the respondent state has confirmed that following the judgment of the European Court the “doctrine of necessity” may no longer be used as a defence to an allegation that a public body was biased. In addition, following the entry into force of the Human Rights Act in October 2000, judicial review of the same decision by the Board is possible before the High Court, which may remedy defects arising under Article 6§1.

The judgment of the European Court was published at (2003) 35 European Human Rights Reports 10.

- Cases of length of judicial proceedings

H46-1085 44808/98 Mitchell and Holloway, judgment of 17/12/02, final on 21/05/03

H46-497 43185/98+ Price and Lowe, judgment of 29/07/03, final on 03/12/03

H46-1086 42116/98 Somjee, judgment of 15/10/02, final on 15/01/03

H46-1087 50034/99 Obasa, judgment of 16/01/03, final on 16/04/03

The first two cases concern the excessive length of certain civil proceedings relating to financial disputes (violations of Article 6§1). In the first case the proceedings started in February 1988 and ended in June 1998, in which the applicants complained of a period of unjustified delay at the High Court from October 1991 to March 1994. In the second case the proceedings began in February 1986 and ended in March 1998. In particular, a pre-trial period of eight and a half years elapsed between the issuing of the writ initiating proceedings in February 1986 and the fixing of the date of the first hearing at the High Court in August 1994.

The two other cases concern the excessive length of several sets of proceedings, relating to allegations of race discrimination in employment, before Employment Tribunals and the Employment Appeal Tribunal (violations of Article 6§1). In the Somjee case, there were three sets of proceedings lodged in 1988 and 1989 and ended in 1997 and 1998 (more than 7 and 8 years for each one). In the Obasa case the proceedings were instituted in December 1991 and completed in April 1999 (7 years and 4 months).

General measures: Given the fact that in these cases a structural problem of administration of justice was revealed, (see §§ 54-56 of the Mitchell & Holloway judgment, §23 of the Price & Lowe judgment, §§ 17, 72-73 of the Somjee judgment and § 35 of the Obasa judgment), the respondent State has been requested to provide information about measures envisaged in order to ensure a reasonable length of proceedings. As regards civil proceedings, in April 1999 the Civil Procedures Rules came into force. As a result, courts now always supervise length of proceedings and intervene if necessary, as prescribed by the judgments of the European Court. As regards the proceedings before the labour courts, the respondent State by its letter of 20/02/2004 provided the Secretariat with the following information: (a) Since 2002 the Employment Appeal Tribunal has been reinforced by more judges and may now sit throughout the year; (b) Internal procedural changes were introduced by the Employment Appeal Tribunal at the end of 2002 for the acceleration of the proceedings; (c) Changes have been drafted to the Employment Tribunal Rules of Procedure aimed at a more efficient case management; (d) The Employment Tribunal System Task Force published its report in July 2002 containing recommendations to the Government, some of which require changes to legislation, while others will be effected by internal changes regarding the additional resources required.

The Secretariat is currently examining new information provided by the respondent state regarding the progress of the changes mentioned under item (c) and the effects that the other measures taken have had on the length of proceedings before labour courts.

Finally, the Somjee judgment was published at (2003) 36 EHHR 16 and disseminated to Employment Tribunals and to the Employment Appeal Tribunal. The Mitchell & Holloway judgment was published at (2003) 36 EHHR 52, while the Price & Lowe and Obasa judgments were published on the Justis website which is one of the leading UK legal websites used by the legal profession. The Price & Lowe judgment has also been disseminated to the competent judicial authorities.

H46-1088 39482/98 Dowsett, judgment of 24/06/03, final on 24/09/03

The case concerns the unfairness of criminal proceedings brought against the applicant in the Crown Court (in 1989) and subsequent proceedings before the Court of Appeal (in 1994) due to the non-disclosure of certain evidence to the defence. The applicant was sentenced to life imprisonment for murder following these proceedings, in which the prosecution did not disclose to the defence certain evidence which the applicant alleged was relevant to the credibility of the statements made against him by one of his co-accused. At no point in the proceedings was there an opportunity for defence counsel to put arguments as to the relevance of the material at issue to a court having first-hand knowledge of the evidence given at trial (violation of Article 6§1 and 6§3b).

Individual measures: The United Kingdom authorities indicated on 07/06/2004 that the applicant had applied to have his case reviewed by the Criminal Cases Review Commission. Information is awaited concerning the outcome of this application.

General measures: This case presents similarities to that of Rowe and Davis (judgment of 16/02/2000) (Section 6.2). However, it seems that legislative amendments have recently been introduced concerning the disclosure of evidence, which may be relevant to the present case. Clarification would be useful on this point.

The judgment has been published in the European Human Rights Reports at (2004) 38 EHRR 41.

H46-1089 46477/99 Edwards Paul and Audrey, judgment of 14/03/02, final on 14/06/02

The case concerns a breach of the positive obligation imposed on the national authorities to protect the life of the applicants’ son, who was killed while in custody by another detainee considered dangerous, who shared the same cell (November 1994). The failure of the agencies involved in the case (medical profession, police, prosecution and court) to pass on information about the second detainee to the prison authorities and the inadequate nature of the screening process on his arrival disclosed a breach of the state’s positive obligation to protect the life of the applicants’ son (violation of Article 2).

The case also concerns the ineffectiveness of the inquiry into the death of the applicants’ son as it was not possible to oblige prison staff to give evidence and because the applicants were not sufficiently associated with the investigation procedure (violation of Article 2). Finally, it concerns the lack of an effective remedy in this respect (violation of Article 13).

Individual measures: By a letter of 13/10/2003, the United Kingdom authorities informed the Committee that the Prison Service had conducted a further investigation looking into the specific issues that still concerned the applicants. The terms of reference, including 35 questions, were agreed with the applicants. The investigation was carried out by a senior governor, who reported on 27/06/2003 to the applicants and the commissioning authorities. All current Prison Service employees who were asked to be interviewed agreed to do so (including two who had previously declined to give evidence to the inquiry impugned before the Court). The applicants were involved not only with drawing up the terms of reference of the investigation but also with its progress. All documentation within the control of the Prison Service was made available to them at its conclusion and they attended a meeting with the investigator. After considering the report and meeting the investigator, three outstanding issues were identified. A meeting with members of staff who could give first-hand evidence relating to these issues was organised and a follow-up meeting planned for 13/10/2003 focusing on mentally ill offenders generally. The Prison Service has no current plan to publish the investigation report, which it sees as a matter entirely for the family.

General measures: The Committee has requested information about any measures that the United Kingdom might envisage adopting, in particular with respect to changes of practice and procedures in the Prison Service.

To date, no information has been received on any specific measures taken to prevent similar deaths occurring in future (for example, improvement of communication between the relevant agencies and of screening processes of prisoners on arrival). Information would be useful in this respect.

As regards investigations in such cases, the United Kingdom authorities informed the Committee in a letter of 13/10/2003 of a number of consultation exercises that had been carried out with respect to the investigation of deaths in custody. These included a proposal to extend the Prisons and Probation Ombudsman’s terms of reference to include the investigation of deaths in custody; a report of June 2003, “Death Certification and Investigation in England, Wales and Northern Ireland – The Report of a Fundamental Review 2003”, which had identified a number of weaknesses in the current coroner system (including the need for a more clearly defined and extensive role for the coroner, better training for coroners and their officers and a clearer and more involved role for the bereaved) and which was expected to lead to legislation for England and Wales in due course; and a July 2003 report of the Attorney General on the role and practices of the Crown Prosecution Services in cases arising from deaths in custody. Furthermore, the Prison Service was currently carrying out trials of strengthened internal investigations with some external input. These sought to put families more centre-stage and were partly based on experiences in the present case. Information would be useful as to any further developments in the above respects, insofar as they relate to deaths in custody, and in particular as to any legislative or regulatory follow-up envisaged in order to put in place permanent provisions governing such strengthened investigations.

The United Kingdom authorities have informed the Committee that the judgment of the European Court was disseminated to all the authorities concerned and published in the European Human Rights Reports at (2002) 35 EHRR 487.

SECTION 4.3 – SPECIAL PROBLEMS

- 2182 cases against Italy

H46-1090 Cases concerning the length of judicial proceedings including[147]

a. 118 cases mainly concerning proceedings before administrative courts

b. 1569 cases mainly concerning proceedings before civil courts

c. 1 case concerning civil proceedings requiring exceptional diligence

d. 364 cases mainly concerning proceedings before labour courts

e. 7 cases mainly concerning civil proceedings concerning enforcement of judgments

f. 122 cases mainly concerning proceedings before criminal courts

CM/Inf/DH(2004)20-rev, CM/Inf(2004)23-rev

In all the 2181 cases against Italy listed in the appendix to this agenda, violations of Article 6§1 were found on account of the excessive length of judicial proceedings. 178 similar cases concluded by friendly settlements have been examined to date by the Committee of Ministers (including 6 concerning administrative proceedings, 16 concerning civil proceedings; 3 concerning civil proceedings requiring exceptional diligence; 125 concerning labour proceedings and 28 concerning criminal proceedings).

Individual measures: the Italian authorities have indicated that pending cases in respect of which the European Court has found a violation are brought to the attention of the competent domestic courts and receive, where possible, accelerated treatment.

Information has accordingly been requested on the 710 cases which appeared still to be pending before the domestic courts (43 before administrative courts, 546 before civil courts, including 1 case requiring exceptional diligence; 109 before labour courts; 4 before civil enforcement courts and 8 before criminal courts), which are indicated in the addendum to Appendix 2 of the Annotated Agenda. A list of these cases was also sent to the Italian authorities on 24/02/2004.

General measures: the implementation of effective measures to solve the structural problem of the excessive length of judicial proceedings in Italy has been awaited since the end of the 1980s and particularly since the Committee of Ministers found, in 1997 (cf. Interim Resolution DH(97)336), that the previously enacted measures had been ineffective.

In October 2000, the Committee of Ministers adopted Interim Resolution ResDH(2000)135 in which, in view of the gravity and persistence of the problem in spite of the efforts made by the Italian authorities, it called upon the latter :

- to maintain the high priority given to the reform of the Italian judicial system and to continue to make rapid and visible progress in the implementation of the reforms,

- to continue their examination of further measures that could help effectively to prevent new violations of the Convention on account of the excessive length of judicial proceedings,

- to inform the Committee of Ministers with the greatest diligence of all steps undertaken to this effect;

It furthermore decided:

- to continue the attentive examination of this problem until the reforms of the Italian judicial system become thoroughly effective and a reversal of the trend at domestic level is fully confirmed;

- to resume, meanwhile, its consideration of the progress made, at least at yearly intervals, on the basis of a comprehensive report to be presented each year by the Italian authorities.

Since this special monitoring procedure was set up, the Committee has, in 2001, 2002 and 2003, examined the two first reports, covering mainly the period 2000-2002.

Document CM/Inf(2004)20-rev contains the third annual report by the Italian authorities on the effectiveness of justice in Italy. The examination of this report, initially scheduled at the latest in April 2004, was postponed as the Italian authorities had not provided the required information in time: the Deputies considered the situation of the administrative courts and of the other courts respectively in June (885th meeting) and July 2004 (891st meeting).

In particular, as regards administrative courts, the Deputies took note of a slight improvement in the effectiveness of first instance regional courts (T.A.R.), where pending cases diminished by around 4% during 2003. The Deputies noted however that the backlog of pending cases (818 000) before these courts at the end of 2003 remained remarkable, that there appeared to be no visible improvement as regards the Council of State and that further information on the implementation of the announced reforms remained expected.

As regards civil and criminal courts, the Deputies took note with concern of the increase both of the average length of proceedings and of the backlog of pending cases, in spite of the multiple and complex measures enacted notably in the last 5 years. In this respect, they found that the adoption or implementation of several measures remained expected as well as replies on a number of issues raised at the occasion of the examination of previous reports.

Summing up the debate at the 891st meeting (July 2004), the Chairman noted that the deputies agreed to resume consideration of the question at the present meeting with a view to making the yearly evaluation of the situation described in the annual report for 2003, and to taking note of the follow-up that could be proposed by the Italian authorities.

At the time of preparing this document, the Secretariat had not received information on this subject.

A Secretariat assessment of the progress made, in the light of the information available, is contained in document CM/Inf(2004)23-rev.

H32-652 33286/96 Dorigo Paolo, Interim Resolutions DH(99)258 of 15/04/99 (finding of a violation), ResDH(2002)30 and ResDH(2004)13 (adoption of individual measures)

The case concerns the unfairness of certain criminal proceedings as a result of which the applicant was condemned in 1994 to more than thirteen years’ imprisonment for, among other things, involvement in a terrorist bomb attack on a NATO military base in 1993. His conviction was based exclusively on statements made before the trial by three “repented” co-accused, although the applicant had not been allowed to examine these statements or to have them examined in conformity with the law in force at the relevant time (violation of Article 6§1 taken together with Article 6§3d).

Individual measures: The applicant, who has always claimed to be innocent, continues to suffer very serious negative consequences because of the outcome of the unfair domestic decision at issue against him, which are not remedied by the just satisfaction and cannot be fully rectified except by re-examination or reopening. In fact, Mr Dorigo is still serving the prison sentence resulting from the unfair proceedings.

Since the finding of the violation in April 1999, the Italian authorities have thus been invited to remedy this situation. In particular, the Deputies encouraged the Italian authorities to ensure the rapid adoption of legislation allowing the reopening of domestic proceedings to erase violations of the Convention, in conformity with the principles in the Recommendation No. R(2000)2 (see Interim Resolutions ResDH(2002)30 of 19/02/2002) and strongly urged the Italian authorities, without further delay, to ensure the adoption of measures allowing the consequences for the applicant in this case to be erased (see in particular Interim Resolution ResDH(2004)13 of 10/02/2004).

To date, however, more than five years after the finding of the violation, no measure has been taken in favour of the applicant.

A draft law (No. 2441/S) aimed at introducing into Italian law the possibility to reopen domestic proceedings not in conformity with the Convention has been before the Italian parliament since 2001. However, this draft law explicitly excludes from reopening cases concerning mafia and terrorism crimes and, therefore, it would not be applicable to the case of Dorigo. It should be noted, in this context, that re-examination of proceedings is possible in Italy, on certain grounds, without exceptions related to the type of crime at issue. Therefore, the exception provided by the draft law on reopening of proceedings would exclusively affect proceedings having violated the Convention.

At the 885th and 891st meetings (June and July 2004), the Italian delegation indicated that there appeared to be little prospect of seeing the draft law adopted soon or amended so as to be applicable to the applicant’s case.

Discussion ensued concerning alternative means to overcome the problem and ensure appropriate redress. In this context, the delegation referred to the possibility for the applicant to obtain a presidential pardon, although admitting that such pardon would not fully erase the consequences of the violation: a pardon in fact erases neither the crime nor the ancillary penalties, and its only effect would be to bring forward the liberation of the applicant, scheduled at present for April 2007.

In this context, it should be noted that Italian law (Section 681§4 of the Code of Criminal Procedure) provides that a pardon may be granted even in the absence of a request. The Secretariat has however not been informed of any initiative taken by the Italian authorities in favour of the applicant, although they have publicly envisaged using this possibility in 2004 in another case, concerning complaints similar to those of the Dorigo case (the Sofri case, application No. 37235/97, which was declared inadmissible as manifestly ill-founded by the European Court of Human Rights by decision of 04/03/2003).

General measures (No examination envisaged at the present meeting): Constitutional and legislative amendments were introduced in November 1999, February 2000 and March 2001 to ensure respect of the adversarial principle and thus prevent new violations of the right to fair criminal proceedings similar to that found in this case. These rules apply retroactively to pending proceedings and provide in particular that no-one may be convicted on the sole basis of statements that the accused person could not challenge, even when such statements had already been attached to the judge’s file as legal evidence in conformity with the law applicable when the statements were made.

- 1 case against Moldova and the Russian Federation

*H46-48 48787/99 Ilaşcu, Ivanţoc, Leşco and Petrov-Popa, judgment of 08/07/2004 - Grand Chamber

The case concerns events occurring in the “Moldavian Republic of Transdniestria” (“the MRT”), a region of Moldova known as Transdniestria which declared its independence in 1991 but is not recognised by the international community. It concerns the unlawful detention of the four applicants (three of whom are now Romanian citizens), following their arrest in 1992 and subsequent trial by the “Supreme Court of the MRT”, and the ill treatment inflicted on them during their detention.

As regards the responsibility of Moldova, the Court found that the Moldovan government, the only legitimate government of the Republic of Moldova under international law, did not exercise authority over the part of its territory that was under the effective control of the “MRT”, but that it had a positive obligation under Article 1 of the Convention, following its ratification of the Convention on 12/09/1997, to take the measures that it was in its power to take and were in accordance with international law to secure to the applicants the rights guaranteed by the Convention. Consequently, the Court found that the applicants were within the jurisdiction of the Republic of Moldova for the purposes of Article 1, but that its responsibility for the acts complained of – committed in the territory of the “MRT”, over which it exercised no effective authority – was to be assessed solely in the light of its positive obligations under the Convention. These related both to the measures needed to re-establish its control over Transdniestrian territory, as an expression of its jurisdiction, and to measures to ensure respect for the applicants’ rights, including attempts to secure their release. As regards the applicants’ situation, the Court noted that before ratification of the Convention in 1997 and also after that date the Moldovan authorities had taken a number of measures to secure the applicants’ rights. On the other hand, it had no evidence that, since the release of the first applicant in May 2001, effective measures had been taken to put an end to the continuing infringements of their Convention rights complained of by the other applicants. Accordingly, Moldova’s responsibility was capable of being engaged on account of its failure to discharge its positive obligations with regard to the acts complained of that had occurred after May 2001.

As regards the responsibility of Russia, the Court found that the Russian authorities had contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria, and had continued to provide military, political and economic support to the regime even after the ceasefire agreement of 1992, thus enabling it to survive by strengthening itself and by acquiring a certain amount of autonomy vis-à-vis Moldova. In the Court’s opinion, all of the acts committed by Russian soldiers with regard to the applicants, including their transfer into the charge of the separatist regime, were capable of engaging the responsibility of Russia for the consequences of the acts of that regime. The Russian army was still stationed in Moldovan territory despite the undertakings to withdraw completely given by Russia at OSCE summits in 1999 and 2001. Both before and after the ratification by Russia of the Convention on 05/05/1998, the “MRT” remained under the effective authority, or at the very least under the decisive influence, of Russia, and it survived by virtue of the military, economic, financial and political support that Russia gave it. That being so, the Court considered that there was a continuous and uninterrupted link of responsibility on the part of Russia for the applicants’ fate, as its policy of support for the regime and collaboration with it had

continued beyond 05/05/1998, and after that date Russia had made no attempt to put an end to the applicants’ situation brought about by its agents and had not acted to prevent the violations allegedly committed. The applicants therefore came within the jurisdiction of Russia and its responsibility was engaged with regard to the acts complained of.

As to the facts alleged, the Court found that the ill-treatment inflicted on the first applicant and the conditions in which he was detained while under the threat of execution constituted torture (violation of Article 3 by Russia) and that the ill-treatment inflicted on the second applicant and the conditions in which he was detained also constituted torture (violation of Article 3 by Moldova and Russia). It further found that the ill- treatment inflicted on the third and fourth applicants and the conditions in which they were detained constituted inhuman and degrading treatment (violation of Article 3 by Moldova and Russia). Various combinations of the following elements were emphasised by the Court in its finding of these violations: the mock executions inflicted on the first applicant; the severe beatings inflicted on Mr Ilaşcu and Mr Ivanţoc; the solitary confinement of Mr Ivanţoc and Mr Petrov-Popa; the lack of contact of all the applicants with their lawyers or families; poor nourishment, lack of dietetically appropriate meals and living conditions leading to deleterious effects on health; denial of medical assistance; at times, the complete deprivation of food; the discretionary power of the prison authorities with respect to correspondence and prison visits; and the aggravating factor of their being detained on the basis of an arbitrary conviction.

As regards the applicants’ deprivation of liberty, the Court noted that the “Supreme Court of the MRT” which passed sentence on the applicants was set up by an entity which is illegal under international law and has not been recognised by the international community. The patently arbitrary nature of the circumstances in which the applicants were tried and convicted demonstrated that this “court” belonged to a system which could hardly be said to function on a constitutional and legal basis reflecting a judicial tradition compatible with the Convention. In consequence, the Court found that none of the applicants had been convicted by a “court” within the meaning of Article 5. Furthermore, a sentence of imprisonment passed by a judicial body such as the “Supreme Court of the MRT” at the close of proceedings like those conducted in the present case could not be regarded as “lawful detention” ordered “in accordance with a procedure prescribed by law”. That being so, there had been a violation of Article 5§1 of the Convention until May 2001 as regards the first applicant (violation of Article 5§1 by Russia), and there had been and continued to be a violation of that provision as regards the other applicants, still detained (violation of Article 5 § 1 by Moldova and Russia). Furthermore, the Court held, unanimously, that “the respondent States [were] to take all necessary measures to put an end to the arbitrary detention of the applicants still imprisoned and secure their immediate release” (paragraph 22 of the operative part of the judgment).

With respect to the right of individual petition, the Court noted the difficulties experienced by the applicants in lodging their application, the threats made against them by the Transdniestrian prison authorities and the deterioration in their conditions of detention after their application was lodged. It noted that the Russian authorities had requested Moldova to withdraw certain observations it had submitted to the Court in October 2000 concerning the responsibility of Russia. It found that such conduct on the part of the Russian Government was capable of seriously hindering the Court’s examination of an application lodged in exercise of the right of individual petition, thereby interfering with this right (violation of Article 34 by Russia). In addition, the Court noted certain remarks made publicly by the President of Moldova following the release of the first applicant, which made an improvement in the other applicants’ situation depend on withdrawal of the application, and thus represented direct pressure intended to hinder exercise of the right of individual petition (violation of Article 34 by Moldova).

Individual measures: As indicated above, the Court ordered the immediate release of the applicants still in detention. Moreover, it emphasised the urgency of this measure in the following terms (paragraph 490): “any continuation of the unlawful and arbitrary detention of the… applicants would necessarily entail a serious prolongation of the violation of Article 5 found by the Court and a breach of the respondent States’ obligation under Article 46§1 of the Convention to abide by the Court’s judgment.“ It should further be emphasised that this is the first time that the Court has ruled on a potential breach of Article 46§1.

According to the information available to the Secretariat, only two of the four applicants have been released to date. Mr Ilaşcu was released in May 2001 (as noted by the Court) and Mr Leşco at the expiry of the sentence imposed on him by the “Supreme Court of the MRT”, on 02/06/2004. The other two applicants, Messrs Ivanţoc and Petrov-Popa, are still in detention.

- During the first examination of the case (894th meeting, 9/09/2004), the Permanent Representative of Moldova stated that the Moldovan authorities had sent letters to the Russian authorities, the Secretary General of the Council of Europe and the Norwegian Chairmanship of the Committee of Ministers, requesting

their assistance in obtaining the release of applicants who are still in detention. The first two letters were also forwarded to the Committee and distributed during the meeting. However, given the current tensions between Chišinau and Tiraspol, the Moldovan authorities considered that, for the time being, their influence on Tiraspol on this point was minimal or even non-existent. As regards just satisfaction, the Ministry of Finance had also ordered its payment, which was due to be made shortly.

- At the same meeting, the Permanent Representative of the Russian Federation referred to the position put forward by the Russian authorities in the press release issued by the Ministry of Foreign Affairs on 08/07/2004, which was forwarded to the Committee and distributed at the meeting. He emphasised the Russian authorities’ disagreement with the judgment on both legal and political levels and their view that since the applicants’ lives were not in danger, Article 46§1 of the Convention was not pertinent. Concerning possible execution measures or measures already taken, the Russian authorities considered that they were not in a position to execute the judgment, since releasing the applicants through the use of force was out of the question. Furthermore, the Permanent Representative informed the Committee of his instructions not to participate in its examination of the case until otherwise instructed.

- Several other delegations emphasised the urgency with which the Committee of Ministers needed to examine the case, the obligation of the respondent states to execute the judgment and the urgent nature of the measures ordered by the Court. The Romanian delegation also indicated that the two applicants who remained in detention were still being held in inhuman and degrading conditions.

- It should be recalled that the urgent individual measures ordered by the Court in this case will have been examined again by the Committee of Ministers between the preparation of the present annotated agenda and the meeting.

General measures: During the first examination of the case, at the 894th meeting (9/09/2004), the Representative of Moldova stated that the judgment of the European Court had been translated and would soon be published in the Official Gazette.

Information is awaited concerning other measures envisaged in order to prevent similar violations in future. The Secretariat will shortly write to the Moldovan and Russian authorities with a view to drawing up a plan of action for the execution of this judgment.

- 2 cases against Turkey

H46-1091 26308/95 Institut de Prêtres français and others, judgment of 14/12/00 – Friendly settlement - Interim Resolution ResDH(2003)173

The case concerns a Turkish judicial decision of 1993 annulling the applicant Institute’s property entitlement to a plot of land on the grounds that, by letting part of this land to a private company, this Institute was no longer eligible for special treatment as a non-profit body (complaints under Article 1 of Protocol No. 1 and Article 9). The parties concluded a friendly settlement according to which the Government undertook the following obligations:

- The Treasury and the Directorate General of Foundations recognise the right to usufruct to the benefit of the priests in charge of the applicant Institute. This right to usufruct shall comprise the full use and enjoyment of the land and the buildings thereon and the right to rent the land for profit-making purposes in order to meet its needs;

- The two above-mentioned state authorities agree to undertake the formalities necessary to register their respective declarations in the land register and to provide appropriate guarantees to ensure the renewal of the life tenancy in favour of the priests who will replace the current usufructuary;

- The Directorate General of Foundations waives its claim to USD 41,670 owed by the applicant Institute in rent collected over the five years since its property title was annulled.

The necessity of urgent compliance with these obligations has been stressed in the Committee of Ministers at each of its DH meetings since October 2001, as well as in two letters of the Presidency of the Committee of Minister the first sent on 06/11/2002 to the Turkish Permanent Representative, the second on 17/06/2003 to Mr Gül, Minister of Foreign Affairs of Turkey.

On numerous occasions, the Turkish delegation indicated that the problems encountered to ensure the respect of the commitments made were going to be solved. On 18/04/2003, the first Chamber of the Council of State, consulted for advice, did not approve the friendly settlement.

On 08/10/2003, the Committee of Ministers adopted an Interim Resolution “urging the Turkish authorities in order to comply without delay with the Court’s judgment in this case” and deciding “to pursue the supervision of the execution of the present judgment, if need be, at each of its forthcoming meetings, until all necessary measures have been adopted”.

On 30/12/2003, the Chamber of Administrative Matters of the Council of State quashed the decision of 18/04/2003, concluding that the Council of State’s opinion was not necessary in this case because the amount of the undertakings taken by the state had not exceed the upper limit over which such an opinion is necessary. It also underlined that the strike out judgments of the Court following a friendly settlement are binding for the States, which have to abide by them under the control of the Committee of Ministers.

According to the information provided by the Turkish delegation since last April, several concrete steps were taken following that decision:

- approval by the Ministry of Finance for the right to usufruct to be given to Mgr Fontaine, representing the institute, and on the distribution of the incomes resulting form the renting of the properties among the institute, the Tax authorities and the Directorate General of Foundations;

- letter of 29/03/2004 of the Ministry of Finance to the Treasury of Istanbul and to the Directorate of Foundations, requesting both of them to make the necessary arrangements and legal formalities;

- decision of 12/05/2004 of the Board of Foundations providing that a right of usufruct shall be granted on behalf of Mgr Fontaine, as the representative of the “Assumption Church” on the properties at issue

- decision of 15/06/2004 of the Council of Ministers providing the same.

Attached to the Board of Foundations’ decision was the draft of the official agreement to be prepared by the Land Registry Office when the right of usufruct is registered, which states among other things that, “the right of usufruct will be granted on behalf of Priest Mr Alain Fontaine for his life-time, as the representative of the “Assumption Church”, and following his death the exercise of right of usufruct will be passed on to his successor priest selected by the “Assumption Church”. This condition will be valid for all other successor priests. (…) The exercise of right of usufruct shall take effect at the date of its registration in the land registry”. It also contains provisions on the value of the right of usufruct, the share of the income and the date of payment.

The communication of the final text of the document mentioned above and the copy of the actual registrations are awaited. Information about the situation as to the incomes collected during the period of non-execution of the friendly settlement is also awaited.

H46-1093 25781 Cyprus against Turkey, judgment of 10/05/01 – Grand Chamber

CM/Inf(2004)4-rev3, CM/Inf(2004)4/1-rev 3, CM/Inf(2004)4/3-rev 3, CM/Inf(2004) 4/4 revised

The case relates to the situation that has existed in northern Cyprus since the conduct of military operations there by Turkey in July and August 1974 and the continuing division of the territory of Cyprus. The European Court of Human Rights held that the matters complained of by Cyprus in its application entailed Turkey’s responsibility under the European Convention on Human Rights. In its judgment, the Court held that there had been 14 violations of the Convention:

Greek-Cypriot missing persons and their relatives

- a continuing violation of Article 2 (right to life) of the Convention concerning the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances;

- a continuing violation of Article 5 (right to liberty and security) concerning the failure of the Turkish authorities to conduct an effective investigation into the whereabouts and fate of the Greek-Cypriot missing persons in respect of whom there was an arguable claim that they were in Turkish custody at the time of their disappearance;

- a continuing violation of Article 3 (prohibition of inhuman or degrading treatment) in that the silence of the Turkish authorities in the face of the real concerns of the relatives attained a level of severity which could only be categorised as inhuman treatment.

Home and property of displaced persons

- a continuing violation of Article 8 (right to respect for private and family life, home and correspondence) concerning the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus;

- a continuing violation of Article 1 of Protocol No. 1 (protection of property) concerning the fact that Greek-Cypriot owners of property in northern Cyprus were being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights;

- a violation of Article 13 (right to an effective remedy) concerning the failure to provide to Greek Cypriots not residing in northern Cyprus any remedies to contest interferences with their rights under Article 8 and Article 1 of Protocol No. 1.

Living conditions of Greek Cypriots in Karpas region of northern Cyprus

- a violation of Article 9 (freedom of thought, conscience and religion) in respect of Greek Cypriots living in northern Cyprus, concerning the effects of restrictions on freedom of movement which limited access to places of worship and participation in other aspects of religious life;

- a violation of Article 10 (freedom of expression) in respect of Greek Cypriots living in northern Cyprus in so far as school-books destined for use in their primary school were subject to excessive measures of censorship;

- a continuing violation of Article 1 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in that their right to the peaceful enjoyment of their possessions was not secured in case of their permanent departure from that territory and in that, in case of death, inheritance rights of relatives living in southern Cyprus were not recognised;

- a violation of Article 2 of Protocol No. 1 (right to education) in respect of Greek Cypriots living in northern Cyprus in so far as no appropriate secondary-school facilities were available to them;

- a violation of Article 3 in that the Greek Cypriots living in the Karpas area of northern Cyprus had been subjected to discrimination amounting to degrading treatment;

- a violation of Article 8 concerning the right of Greek Cypriots living in northern Cyprus to respect for their private and family life and to respect for their home;

- a violation of Article 13 by reason of the absence of remedies in respect of interferences by the authorities, as a matter of practice, with the rights of Greek Cypriots living in northern Cyprus under Articles 3, 8, 9 and 10 of the Convention and Articles 1 and 2 of Protocol No. 1.

Rights of Turkish Cypriots living in northern Cyprus

- a violation of Article 6 (right to a fair trial) on account of the legislative practice of authorising the trial of civilians by military courts.

The Deputies examined this case for the first time at their 760th meeting (July 2001). During the second examination of the case at the 764th meeting (October 2001) delegations strongly supported the proposal made by the delegation of Liechtenstein that the Committee should follow the approach already proposed by the Director General of human rights at the 760th meeting, that is, identifying specific categories of violations according to the complexity of the execution measures required, without preventing the Deputies from pursuing in parallel an examination of the other issues raised in the Court’s Judgment :

- the question of missing persons,

- the living conditions of Greek Cypriots in northern Cyprus,

- the rights of Turkish Cypriots living in northern Cyprus,

- the question of the homes and property of displaced persons.

Since then, the different categories have been addressed at several times and the Delegation of Turkey as well as other delegations provided information that has been examined by the Committee of Ministers (for further details on the history of this case’s examination by the Committee of Ministers, see document CM/Inf(2004)4-Rev2).

A Turkish translation of the judgment was published in the legal journal Yargı Mevzuatı Bülteni of 01/07/2003.

For the present meeting, the Chairman has proposed to focus the debates on the question of missing persons, on some specific questions concerning the living conditions of the Greek Cypriots in the northern part of Cyprus, in particular those related to education, and on the question of military courts.

Question of missing persons

In the framework of the earlier discussions on this question (see CM/Inf(2004)4/1-Rev3), the delegation of Turkey has underlined the importance of the Committee on Missing Persons in Cyprus (CMP), stressing the efforts of Turkey to contribute to the work of this committee and the need to reactivate it. Several other delegations have referred to the judgment of the Court, which states that “the respondent state’s procedural obligation at issue cannot be discharged through its contribution to the investigatory work of the CMP [and that] (…) although the CMP’s procedures are undoubtedly useful for the humanitarian purpose for which they were established, they are not of themselves sufficient to meet the standard of an effective investigation required by Article 2 of the Convention, especially in view of the narrow scope of that body’s investigations”.

In this respect, the Turkish authorities have indicated that they had asked for a meeting of the CMP to be called with a view to its reactivation and to a reinforcement of its powers, to comply with the Convention’s requirements. On 23/06/2004, the Secretariat received copy of a letter sent on 17/06/2004 by Mr. Denktaş, “President of the TRNC”, to the Secretary-General of the United Nations for this purpose. According to three press releases submitted by the Turkish authorities on 02, 07 and 09/09/2004, the CMP met on 30/08/2004 and 03/09/2004. Information is awaited on the outcomes of these first meetings of the CMP, as well as on the issue of the enlargement of its powers.

Furthermore, given the emphasis on the authorities’ attitudes as a significant constitutive element of the violation found, it appears that, independently of the running of investigations proper, changes in the manner in which the Turkish authorities deal with the concerns of relatives of the missing could constitute measures likely to remedy this violation. At the 885th meeting (June 2004), the Turkish authorities declared their readiness, if necessary, to create a special information unit in the northern part of Cyprus for the families of missing persons. Information is thus awaited concerning measures taken or envisaged by the Turkish authorities in this respect.

Specific questions concerning the living conditions of the Greek Cypriots in the northern part of Cyprus

Information has also been provided in this respect, including the specific questions related to education (see CM/Inf(2004)4/3-Rev3). Concerning the censorship of schoolbooks for Greek-Cypriot primary schools in the northern part of the island, considered as excessive by the Court in respect of Article 10 of the Convention, the Turkish authorities have declared – submitting examples – that many books contain demonstrated bias. This has been denied by the Cypriot authorities. The Committee is still awaiting information on the changes made in comparison with the situation criticised by the Court in order to accelerate and simplify procedures, to relax the criteria for censorship and to reintegrate this process into the framework of the confidence-building measures recommended by UNFICYP.

In connection with the issue of secondary education, the Turkish authorities indicated, at the 885th meeting (June 2004), that by decision of 21/05/2004, the “TRNC Council of Ministers” authorised the “Ministry of National Education and Culture” to work on the establishment and regulation of a schooling system for the children of Greek-Cypriot, Maronite and Latin-origin families living in the Karpas region, beginning with the drafting of a special law on this subject. According to the Turkish authorities, priority was given to this project with the aim of passing the new law in time to enable the opening of a secondary school for the 2004-2005 school year. At the beginning of September, the Cypriot press announced the reopening of the secondary school of Rizokarpaso on 13/09/2004.

Information is awaited on the present state of this issue.

Military courts

It is recalled that on 28/05/2003, the Secretariat wrote to the Turkish delegation on the questions raised by the legislative practice of authorising the trial of civilians by military courts. Information has been provided in response to this letter, notably in the memorandum of the Turkish authorities of 09/01/2004. According to this information (see CM/Inf(2004)4/4-rev), the “Law No. 34/1983 on the Establishment and Judicial Procedure of the Security Forces Court and Security Forces Court of Appeal” was amended by “Law No. 13/2002” by eliminating the appointment of military judges in favour of the exclusive appointment of civil judges.

Furthermore, the military courts of the “TRNC” have only limited jurisdiction to hear and determine cases involving offences relating to civilians, mainly for offences committed in military areas, during military service or against the property of the armed forces. Moreover, persons tried before military courts enjoy the same rights as if they were tried by civilian courts, and, consequently, they suffer no discrimination whatsoever. Lastly, the Turkish authorities indicated that, in a case pending before the “Security Forces Court” (case No. 710/2000), a reference was made to the “Turkish Cypriot Supreme Constitutional Court” (under No. 6/2003) challenging the constitutionality of the examination by the “Security Forces Court” of a case against a civilian.

The Cypriot authorities consider that no matter what amendments the respondent state claims have been made to “Law No. 34/1983”, this law still remains contrary to the finding of the European Court in §359 of the judgment, because the legislative practice is still to authorise the trial of civilians by military courts.

As there is, according to the Turkish authorities, basically no more difference between criminal proceedings before military courts and those before any other civilian court of the “TRNC”, information would be useful on the reasons for keeping such special jurisdictions. Information is also awaited on the state of the proceedings concerning the reference to the “Constitutional Supreme Court” mentioned above.

- 1 case against Ukraine

H46-1094 48553/99 Sovtransavto Holding, judgment of 25/07/02, final on 06/11/02 and judgment of 02/10/03, final on 24/03/04 (Article 41), Interim Resolution ResDH(2004)14

The case concerns the failure to respect the applicant company’s right to a fair trial before an impartial and independent tribunal in respect of certain proceedings conducted between 1997 and 2002 before the Ukrainian courts with a view to establishing the unlawfulness of domestic decisions which resulted in the depreciation of its shares in - and the ensuing loss of control over - a Ukrainian transport company (violation of Article 6§1).

The main deficiencies found by the Court consist of:

- repeated attempts by the President of Ukraine to influence domestic court decisions;

- application of "protest" procedure ("application for supervision") making it possible to quash final judicial decisions without any limitations;

- the refusal by courts to examine the arguments on the merits in a public hearing and the absence of adequate motivation of judicial decisions.

The Court concluded in addition that the manner in which the impugned proceedings were conducted and concluded had violated the applicant company's right to peaceful enjoyment of its possessions (violation of Article 1 of Protocol No. 1).

Individual measures: In May 2000 the applicant company merged with a private limited company "Sovtransavto". This merger involved the transfer of all rights and obligations of applicant to the new company. Following the judgment of the European Court of 25/07/2002 the private limited company "Sovtransavto" made a request for reopening of the domestic proceedings as legal successor of the applicant company. On 19/08/2003 the Supreme Court granted this request. The resolution of the Kyiv Appellate Commercial Court of 24/01/2002 and the decisions of the Commercial Court of Kyiv Region of 10-23/04/2001 were quashed and the case was referred to the Commercial Court of Lugansk Region for new examination.

The representatives of the private limited company "Sovtransavto" indicated that their client’s request had been rejected on 07/05/2004 without examination on the merits, on the ground that this company could not be the legal successor of the applicant company (letter of 10/06/2004).

The Ukrainian delegation has specified in this regard that the applicant’s appeal against the decision of the first-instance court was dismissed by a decision of 12/07/2004 of the Donetsk Appellate Commercial Court and sent for examination to the Supreme Commercial Court.

Copies of the decisions of 07/05/2004 and 12/07/2004 are awaited as well as further information on the development of these proceedings.

The question of the individual measures will also be examined in the light of the judgment of the European Court in the proceedings under Article 41. As regards just satisfaction for the alleged pecuniary damage, the Court noted that it was not possible to speculate on the outcome of the proceedings before the Ukrainian courts, and consequently the amount of the compensation to be awarded would not be based directly on the value of the shares held by the applicant. On the other hand, considering the gravity of the violations which occurred in the contested proceedings, the Court found that the applicant had suffered a loss of real opportunities and awarded the company compensation taking into account this value as reference.

General measures: On 11/02/2004 the Committee of Ministers adopted an Interim Resolution ResDH(2004)14, taking stock of the measures adopted so far and pointing out the outstanding questions.

As regards the problem of the executive's repeated interferences with judicial proceedings, the Committee expressed satisfaction with the reforms adopted in 2002 aimed at reinforcing the independence of the judiciary, in particular the establishment of the State Judicial Administration and the new arrangements by which courts are financed from the central state budget instead of from the budgets of local authorities. It has also been noted that on 12/07/2003 the President of Ukraine adopted an order instructing the Prime Minister and different ministries to take appropriate measures to guarantee the unconditional implementation of all legal norms, including the Convention, protecting the independence of the judiciary. In this respect the Committee of Ministers underlined the importance of rapid and efficient action to give effect to this order so as to ward off attempts to influence the administration of justice, and to ensure that adequate sanctions are imposed on the authors of any such attempts and that other appropriate measures are taken to enhance the independence of the judiciary.

Noting with interest the establishment in October 2002 of the Judges' Academy of Ukraine the main task of which is the initial and in-service training of judges, the Committee called on the competent authorities to continue the training on the Convention, including the case-law of the European Court, and to ensure that the Ukrainian judges have ready access to such case-law.

Concerning supervisory review (protest), it was recalled that this procedure had been abolished in Ukrainian law since June 2001. However, it appears that according to the provisions of the Code of Civil Procedure and the Code of Commercial Procedure, public prosecutors have the power to ask for the annulment of final judgments in civil proceedings in order to protect individuals’ or state interests, without having been a party in these proceedings. In this respect the Committee has invited the authorities to ensure that it is no longer possible for public prosecutors to question the final character of judgments in civil cases.

Finally, as regards other problems in the judgment (different approaches of the Ukrainian Courts in the application and interpretation of domestic law; absence of motivation of certain decisions of national courts etc - §§79 and 81 of the judgment), the Committee noted that measures of training of judges, in particular on the Convention and the case-law of the European Court, are of particular importance for the prevention of new violations related to this type of issues.

In order to facilitate the application of the requirements of the Convention, the European Court's judgment of 25/07/2002 has been translated and published in the Official Journal, issue No. 44/2003, in the Bulletin of the Ministry of Justice, No. 9/2003 and in the journal Case-law of the ECHR.

The Ukrainian authorities have also been invited to ensure wide publication of the Interim Resolution in Ukrainian translation to Government ministries, the General Prosecutor's Office, local authorities and courts.

By letter of 14/06/2004 the Ukrainian Delegation indicated that the Interim Resolution has been published in Ukrainian translation in the Bulletin of the Supreme Court (No. 3(43), 2004) which is accessible to the institutions mentioned above, as well as to the public.

Additional information is awaited concerning the concrete follow-up given to this interim resolution.

SECTION 5 - SUPERVISION OF GENERAL MEASURES ALREADY ANNOUNCED

(See Addendum 5 for part or all these cases)

Action

The Deputies are invited to supervise progress in the adoption of general measures aiming at preventing further similar violations to those found by the Court in the following cases. If necessary, supplementary information on some or all the cases listed below will appear in Addendum 5. The Deputies are invited to resume consideration of these cases in 6 months at the latest.

SUB-SECTION 5.1 – LEGISLATIVE AND/OR REGULATORY CHANGES

- 1 case against Cyprus

H46-1095 25316/94 Denizci and others, judgment of 23/05/01, final on 23/08/01

The case concerns in particular the fact that the applicants (and in the case of the ninth applicant, her son) were subjected to ill-treatment considered inhuman by the European Court (violation of Article 3), that they were victims of unlawful arrest and detention (violation of Article 5§1) and that they were subjected to restrictions on their freedom of movement (violation of Article 2 of Protocol No. 4).

Individual measures: In spring 2003 an independent investigator was appointed to conduct a criminal investigation of the facts of the case and this investigation is underway. In view of the Court’s conclusions in this case and of the fact that the applicants have not pursued this matter before the Committee of Ministers, no further examination of individual measures appears to be called for.

General measures: Information received concerning general measures taken with respect to Article 3 has also been considered in the context of the execution of the judgment in the Egmez case (Section 4.2).

As regards the violation of Article 5§1, a Bill has been tabled in Parliament introducing improved access of detained persons to a lawyer and a doctor, and providing for criminal sanctions against police officers who breach those rights. According to this Bill it is also a criminal offence for a police officer to deprive an individual of his or her liberty except in the circumstances specified under Article 11(2) of the Constitution or to arrest an individual without an arrest warrant (except persons arrested in flagrante delicto). The Bill was examined by the relevant parliamentary committee in December 2003.

In response to a request by the Cypriot delegation at the 863rd meeting (December 2003), the Secretariat informed the delegation in a letter of 18/12/2003 that the following issues remained outstanding:

- formal publication of the judgment following its translation;

- adoption of additional legislation making it a criminal offence for a member of the police unlawfully to deprive a person of his or her liberty;

- adoption of the draft legislation introducing improved access of detained persons to a lawyer and a doctor.

In addition, the Cypriot authorities have confirmed that the various dissemination and training measures referred to in the submissions of the Cypriot authorities addressed the violation of Article 2 of Protocol No. 4 in the present case.

Information is awaited with respect to the three outstanding points listed above.

- 1 case against Greece

H46-766 46372/99 Papastavrou, judgment of 10/04/03, final on 10/07/03

The case concerns a violation of the 25 applicants’ right to peaceful enjoyment of their possessions. In 1994 the prefect of Athens ordered the reafforestation of plots possessed in good faith by the applicants, but considered by the State as its own property. This decision confirmed a similar decision taken by the Minister of Agriculture in 1934, covering the same plots, and was taken without a fresh reassessment of whether the plots in question were forests or not. The applicants’ appeal to the Supreme Administrative Court was declared inadmissible on the sole ground that the prefect’s decision was not an executory act but simply confirmed the 1934 ministerial decision. The European Court considered that the absence of reassessment of the situation by the prefect 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) (violation of Article 1 of Protocol No. 1).

The question of just satisfaction was reserved as a whole.

Individual measures: The adoption of individual measures is linked with the expected judgment on just satisfaction, as well as with the general measures (especially the creation of a Forest Registry, see below).

General measures: On 30/04/2004 a letter (concerning all pending Greek cases relating to violations of Art. 1 Prot. 1) was sent by the Secretariat to the respondent state, requesting information on the creation of a Forest Registry as well as on possible interim measures, such as the wide dissemination of the judgment of the European Court to competent administrative authorities accompanied by a circular ordering the reafforestation of a destroyed forest immediately after its destruction. A reply is awaited. Information on the dissemination of the judgment of the European Court to the Supreme Administrative Court is also awaited. The issue of efficient identification of land ownership is examined in the context of the Tsirikakis and Hatzitakis cases (Section 4.2). The judgment of the European Court was published on the official web site of the State Legal Council (www.nsk.gr).

- 5 cases against the United Kingdom

H54-1117 22520/93 Johnson Stanley, judgment of 24/10/97

The case concerns the applicant’s continued detention in hospital, although he was no longer suffering from mental illness, pending his placement in a hostel (violation of Article 5§1).

General measures: The United Kingdom delegation has informed the Committee of Ministers that a circular issued by the Department of Health (No. HSC 2000/03) was sent to all authorities concerned drawing attention to the judgment. A revised Statutory Code of Practice came into force under the Mental Health Act of 1983 on 01/04/1999. The report of a group of independent experts appointed to review all the changes needed to the Mental Health Act and the Consultation Paper on the reform of the Mental Health Act (Green Paper) were both published on 16/11/1999. On 15/06/2002, the draft bill was published. In this context, the Committee has asked to be kept informed about when the proposed amendments to the Mental Health Act to remedy the breaches found in this case will be placed before Parliament.

Finally, the judgment has been published in the European Human Rights Report

H46-1119 30308/96 Faulkner Ian, judgment of 30/11/99 - Friendly settlement

The applicant complained of the fact that he could not pursue a civil action in Guernsey, as legal aid could not be granted for that purpose (complaint under Article 6§1).

General measures: The Government of the United Kingdom has informed the Committee that following the introduction of an interim Criminal Legal Aid Scheme, an interim Civil Legal Aid Scheme was introduced with effect from 01/01/2002. With regard to the Criminal Aid Scheme, in 119 cases during the year 2001, legal aid was provided for persons who had been detained in police or customs custody.

In a letter of 16/12/2003, the United Kingdom authorities indicated that legal aid has continued to be provided to litigants who need and deserve it under the interim schemes, which have now been in operation for around two years.

In addition, a Projet de Loi, the Legal Aid (Bailiwick of Guernsey) Law 2003, was approved by Guernsey’s States of Deliberation (legislative body of the island) in July 2003. This does not formally establish any particular statutory scheme for legal aid but creates the powers to enable an appropriate scheme to be developed through subordinate legislation. That subordinate legislation will be developed when the States of Deliberation and the authorities in Alderney and Sark have debated the merits of various schemes and decided on the best way to proceed. The work under way to review the various options for a statutory scheme is in progress.

In a further letter forwarded on 24/05/2004, the United Kingdom authorities indicated that Royal Sanction for the Projet de Loi had yet to be received, meaning that the Law remained unregistered on the Island. This had slowed down the progress of the relevant subordinate legislation; however, the Legal Aid Working Party had continued to meet to investigate how to achieve a viable legal aid service that would not be so bureaucratic as to be disproportionate to the need to ensure feasible access to justice for all. In the meantime, the existing non-statutory scheme appeared to be working adequately.

Information concerning further progress in the adoption of the statutory scheme is awaited.

H46-1120 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 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).

General measures: Information is awaited concerning the legislative reform which the government has committed itself to undertake, to modify the legislation involved in this case so as to allow 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. The revised legislation would also provide that certain persons could be excluded from acting as "nearest relative". A draft amendment containing these provisions was sent to the Secretariat on 19/07/2002. At the 841st meeting (June 2003), the United Kingdom delegation indicated that the draft would be examined by Parliament in the near future. The confirmation of the adoption of these measures is awaited.

The judgment of the European Court has been published, but confirmation of the details of this publication is awaited.

H46-1121 25680/94 I., judgment of 11/07/02 - Grand Chamber

H46-1122 28957/95 Goodwin Christine, judgment of 11/07/02 - Grand Chamber

These cases concern, in particular, the state’s failure to comply with its positive obligation to ensure the right of the applicants (post-operative, male-to-female transsexuals) to respect for their private life, in particular due to the lack of legal recognition given to their gender re-assignment (violations of Article 8) as well as the impossibility for them to marry a person of the sex opposite to their re-assigned gender (violations of Article 12).

Individual measures: The state of the law as it stood at the time of the facts in the present cases prevented the taking of measures to erase the consequences of the violations found for the individuals concerned. The Joint Committee on Human Rights (JCHR – a joint committee of both Houses of Parliament) emphasised in its reports dealing with the draft Gender Recognition Bill (described in the “General measures” section below) that including the possibility of retrospective recognition of a person’s acquired gender, at least from the date on which the violation was established by the Court, would provide a remedy for successful litigants in Strasbourg and the United Kingdom, and others whose cases were pending at that date.

The United Kingdom authorities indicated on 03/09/2004 that general measures had been taken (see below). The Secretariat is currently examining the extent to which the measures taken will allow the consequences of the violations found in the present cases to be erased.

General measures: On 11/07/2003 the Government of the United Kingdom announced the publication of a draft Gender Recognition Bill for pre-legislative scrutiny by the JCHR. The Bill aimed to allow transsexual people who have taken decisive steps to live fully and permanently in the acquired gender to gain legal recognition in that gender.

By letter of 08/03/2004, the United Kingdom authorities drew attention to the progress of the Bill through Parliament. The Bill was scrutinised by the JCHR, which made a number of recommendations, some of which were accepted by the Government. In its Scrutiny of Bills: Second Progress Report of 10/02/2004, the JCHR highlighted certain outstanding concerns with respect to the effect of a recognised change of gender on previous marriages. These include the effect on the family relationships of individuals affected, as well as the consequences for their pensions and other social rights.

The United Kingdom authorities indicated on 03/09/2004 that the Gender Recognition Act had been passed by Parliament and had received Royal Assent on 01/07/2004. The Secretariat is currently examining the Act as adopted.

The Goodwin judgment was published in European Human Rights Reports at (2002) 35 EHRR 447.

SUB-SECTION 5.2 – CHANGES OF COURTS’ CASE-LAW OR OF ADMINISTRATIVE PRACTICE

- 1 case against France

H46-1124 33592/96 Baumann, judgment of 22/05/01, final on 22/08/01

The case concerns an infringement of the applicant’s right of access to a court (between 1993 and 1995) in order to obtain recognition of his right of property with respect to possessions seized and then confiscated by a court decision, in the context of criminal proceedings to which the applicant was a third party (violation of Article 6§1). Several problems led to this first violation. First, an investigating magistrate failed unexpectedly to rule on an application lodged by the applicant to obtain restitution of articles under judicial safekeeping. Secondly, having not been informed that the criminal case in which the facts at issue had originated had been scheduled before a criminal court, the applicant was unable to lodge an application for the return of his possessions (as allowed by Article 479 of the Code of Criminal Proceedings for “any person other than the defendant, a civil party or the person liable under civil law who claims to have a right over articles under judicial safekeeping”, which corresponds to the applicant’s situation in this case). Finally, an application the applicant lodged before the criminal court actually reached the public prosecutor, who failed to forward it to the criminal court’s registry, examined it on his own and finally refused it.

The case also concerns an infringement of the applicant’s right to liberty of movement, due to the seizure and then confiscation of his passport (violation of Article 2 Protocol No. 4).

Individual measures: Following the judgment of the European Court, which is directly applicable, the applicant may lodge a request for restitution of his effects (including the sums of money kept on a special account of the Caisse des dépôts et consignations) based on Articles 710 and 711 of the Code of Criminal Procedure.

General measures: The judgment of the European Court has been sent to all prosecutors general of courts of appeal. However, given the diverse problems at the origin of the first violation and the need for all relevant authorities to take them into consideration, it is important that the authorities of the defendant state should confirm both the publication of the judgment and its dissemination, not only to prosecutors but also to criminal courts, i.e. including investigating magistrates.

More precisely concerning the second problem which led to the violation of Article 6§1 (see above), at the 764th meeting (October 2001), information was requested on precisely how the appeal provided in Article 479 of the Code of Criminal Procedure is to be exercised, particularly how third parties as defined in Article 479 are informed of a seizure by the court so they can actually lodge an appeal. At the 819th meeting (December 2002), the French delegation announced that a possible change of this text or of the practice was being examined by the department of criminal affairs. Information is expected in this respect.

- 1 case against Iceland

H46-784 44671/98 Arnarsson SigurÞór, judgment of 15/07/03, final on 15/10/03

This case concerns the violation of the applicant’s right to a fair hearing by a tribunal, concerning a criminal matter (violation of article 6§1). In May 1997, the applicant was involved in a fight following which a person died, and was charged with kicking the victim in the head causing a cerebral haemorrhage which resulted in death. After having heard the witnesses and the applicant, the District Court acquitted him. Following an appeal by the prosecution, the Supreme Court sentenced the applicant in May 1998 to two years and three months’ imprisonment, basing its decision on a reassessment of the oral evidence given before the lower court without hearing evidence from him or the other witnesses. The European Court found that the issues to be determined by the Supreme Court when convicting and sentencing the applicant could not have been examined properly without a direct assessment of the evidence given by the applicant in person and by certain witnesses.

Individual measures: The Applicant’s counsel has indicated that the applicant does not wish to apply for re-opening.

General measures: In a letter dated 23/02/2004 the Icelandic delegation stated that the origin of the violation found by the Court lay in the circumstances of the case and that, this being the case, no general measure other than the translation, dissemination and publication of the European Court’s judgment was foreseen.

In this context, the Secretariat notes that the violation does not stem from the wording of the law and that, accordingly, a change in case-law would be enough to avoid future, similar violations. Given that such a change presupposes that the courts concerned directly apply the jurisprudence of the European Court, it is also noted that there is no binding direct effect in Icelandic Law (Law No. 62 of 1994). At the 879th meeting (April 2004) the Icelandic delegation stated that, despite this legislative provision, the Supreme Court regularly makes reference to the case-law of the European Court. Thus examples of such direct effect are awaited, as is the confirmation of the translation, dissemination and publication of the Arnarsson judgment.

- 1 case against the Slovak Republic

H46-1126 32106/96 Komanický, judgment of 04/06/02, final on 04/09/02

The case concerns a breach of the applicant’s right to fair trial during civil proceedings he brought after being dismissed from employment in 1991. The European Court concluded that the procedure followed in this case by the national courts did not enable the applicant to participate properly in the proceedings and to comment on all evidence adduced, notably because the national court had proceeded with his case in his absence, although he had notified the court in advance that he could not attend for health reasons. This procedure did not therefore satisfy the requirements of the principle of the equality of arms (violation of Article 6§1).

Individual measures: The applicant has requested the reopening of the impugned proceedings. In a judgment of 12/03/2003 the Constitutional Court declared itself incompetent to examine the applicant’s request to this end. The Slovak authorities indicated that under the terms of Article 228§1 of the Code of Civil Procedure, a final decision by a domestic court can be cancelled following a judgment of the European Court if this judgment may be considered as a new fact which could be at the origin of a decision more favourable to the applicant. In practice this solution should not be applicable to the applicant’s case as the application for revision must be made within a strict time-limit of three years starting from the date on which the judgment of the national court became final. In this context, the Secretariat is examining, in co-operation with the Slovak delegation, to what extent the applicant continues to suffer the consequences of the violation found by the European Court.

The applicant indicated in a letter of 27/02/04 that he had requested the reopening of the domestic proceedings before the Supreme Court. Information on the outcome of these proceedings is awaited.

General measures: Thel judgment of the European Court was published in Justičnà Revue No.11/2002. By letter of 08/07/2003 the Slovakian Delegation indicated that the judgment of the European Court had been sent to the President of the Supreme Court and to the presidents of all district courts, to be disseminated to all judges. The Secretariat has also received copies of the relevant texts of the Code of Civil Procedure concerning the participation of parties in hearings before civil courts. Recent examples of domestic case-law showing that the courts take the judgments of the European Court effectively into consideration would be very useful to confirm the effect of the dissemination of the judgment in this case.

SUB-SECTION 5.3 – PUBLICATION / DISSEMINATION

- 4 cases against France

H46-1127 43722/98 Wiot, judgment of 07/01/03, final on 07/04/03

*H46-435 42400/98 Seguin, judgment of 16/04/2002, final on 06/11/2002

These cases concern the excessive length of certain proceedings concerning civil rights and obligations before labour courts (and administrative courts in the case of Seguin, concerning a redundancy for economic reasons) (violations of Article 6§1).

In the case of Seguin, the proceedings began in 1984 and ended in 1998 (12 years and 9 months).

In the case of Wiot, the proceedings began in 1992 and were still pending when the European Court delivered its judgment (almost 10 years and 4 months).

Individual measures: Concerning the Wiot case, the French delegation stated at the 841st meeting (June 2003) that the proceedings were closed at internal level.

General measures: with the intention that these judgments be taken into consideration by the relevant authorities, publication was requested at the 827th (February 2003) and 841st meetings (June 2003) respectively.

H46-1128 49580/99 Santoni, judgment of 29/07/2003, final on 29/10/2003, revised on 01/06/2004,

final on 01/09/2004

The case concerns the excessive length of proceedings before social security courts concerning an industrial accident (violation of Article 6§1). The proceedings began on 15/02/1988 and ended on 11/12/1998 (10 years, 9 months and 25 days).

The European Court noted in its judgment that the National Industrial Accidents Commission was responsible for several periods of inactivity.

General measures: Publication and dissemination of the European Court’s judgment, together with a circular, to the authorities concerned with industrial accidents, were requested at the 871st meeting (February 2004).

H46-161 45840/99 Bayle, judgment of 25/09/03, final on 25/12/03[148]

This case concerns an infringement of the applicant’s right of access to a court (violation of Article 6§1). In 1998, her appeal on points of law had been struck out from the roll of the Court of Cassation on the basis of Article 1009-1 of the new Code of Civil Procedure, on the ground that she had only partially complied with the pecuniary order made by the Court of Appeal. The European Court noted, inter alia, that in view of her financial situation, the applicant had been unable to pay all the sums concerned but that her desire to comply with the judgment had been evidenced by the fact that she had paid a substantial sum in partial execution; moreover, regard being had to the Court of Cassation’s case-law on the issue before it, her appeal had good prospects of success. In the light of these circumstances in particular, the European Court considered that the decision to strike the applicant’s appeal out of the roll had been a disproportionate measure which had barred her effective access to the Court of Cassation.

Individual measures: Following the European Court’s judgment, the applicant applied to the First President of the Court of Cassation in order to reinstate the appeal on the roll, which has been accepted. The case is presently pending before the Court of Cassation’s 1st Civil Chamber.

General measures: This case presents similarities to that of Annoni di Gussola (judgment of 14/11/2000), (sub-section 6.2). The European Court did not call Article 1009-1 of the New Code of Civil Procedure into question, but its implementation by the judge. The judgment in the Annoni di Gussola case was disseminated and published in January 2001; however, a similar violation was found in the present case (last refusal to replace the applicant’s appeal on the Court of Cassation’s roll: November 2002). Confirmation that the particular attention of the First President of the Court of Cassation has been drawn to this judgment is therefore awaited.

- 1 case against Poland

H46-884 30218/96 Nowicka, judgment of 03/12/02, final on 03/03/03

The case concerns detention on remand of the applicant, who refused to submit to psychiatric examinations ordered by a court in the framework of her prosecution for criminal libel, which began in 1994. The European Court considered that the applicant’s detention – on two occasions – was intended to ensure that she complied with her obligation under a judicial order, but that in view of the length of the detention (83 days in all) the public authorities had not respected the balance to be established between the importance of ensuring immediate compliance with this obligation and the right to freedom (violation of Article 5§1).

The case also relates to unjustified restrictions on family visits during the applicant’s detention (violation of Article 8).

General measures: On 30/03/2004 the Ministry of Justice asked the Presidents of the Courts of Appeal to disseminate the European Court’s judgment to all district and regional courts under their administrative jurisdiction. In reply, the Presidents of the Courts of Appeal informed the Ministry that the judgment had been sent to all courts with circular letters drawing judges’ attention to the special diligence required in cases relating to detention of a person with a view to ensuring compliance with an obligation to undergo a psychiatric examination ordered by a court. Recommendations of the Presidents of the Courts of Appeal and Regional Courts addressed to the competent judges also underlined the need for a careful assessment of the proportionality of restrictions on family visits during such detention.

The judgment of the European Court has so far been published in the Bulletin of the Council of Europe Information Centre, issue n°1/2003, and on its Internet site www.coe.org.pl.

Information is awaited concerning the dissemination of the judgment to the medical authorities involved in such proceedings and its publication on the Internet site of the Ministry of Justice.

- 2 cases against Spain

H46-971 59072/00 González Doria Durán de Quiroga, judgment of 28/10/03, final on 28/01/04

H46-448 61133/00 Lopez Sole y Martin de Vargas, judgment of 28/10/03, final on 28/01/04[149]

These cases concern the excessive length of two sets of criminal proceedings (violations of Article 6§1).

In the first case, the proceedings lasted from 1985 to 1999, i.e. 14 years, 4 months and 5 days for three degrees of jurisdiction. In the second case, the proceedings lasted from 1985 to 2000, i.e. 14 years, 8 months and 2 days for three degrees of jurisdiction.

General measures: The judgment of the European Court delivered in the second case has been published in the Official Journal of the Ministry of Justice, No. 1966 of 01/06/2004.

Written confirmation of publication of the judgment delivered in the first case and dissemination of both judgments of the European Court, possibly with a circular letter to criminal courts drawing their attention to the requirements of the Convention with regard to the length of criminal proceedings.

SUB-SECTION 5.4 – OTHER MEASURES

No new case

SECTION 6 - CASES PRESENTED WITH A VIEW TO THE PREPARATION OF A DRAFT FINAL RESOLUTION:

(See Addendum 6 for part or all these cases)

Action

At the time of issuing the present annotated Agenda, the information available on the measures taken in these cases seemed to allow the preparation of draft resolutions putting an end to their examination by the Committee of Ministers (if necessary, supplementary information on some or all the cases listed below will appear in an Addendum 6). As regards the cases appearing in sub-section 6.1, the Deputies are invited to examine the new information available with a view to evaluating whether a draft final resolution can be prepared. As regards cases listed in sub-section 6.2, the Deputies are invited to note that the elaboration of a draft final resolution, in cooperation with the delegation of the respondent state, is under way. In both cases, the Deputies are invited to postpone consideration of these cases to their next meeting.

Cases in which the new information available since the last examination appears to allow the preparation of a draft final resolution

- 2 cases against Austria

H46-717 40284/98 Krone Verlag GmbH and CoKG No. 2, judgment of 06/11/03, final on 06/02/04

The case concerns a disproportionate interference in the freedom of expression of the applicant company, a newspaper, on account of the imposition in 1998 of a coercive indemnity, under Section 20§1 of the Media Act, for not having fully respected the obligation duly to inform the public of compensation claims instituted against it by publishing a short notice having the same “publishing value” as the articles at the origin of the compensation procedure.

The European Court found that this financial penalty constituted a disproportionate breach of the newspaper’s freedom of expression in that it had been imposed by the Vienna Court of Appeal for the period encompassing the appeal proceedings following a decision at first instance in favour of the newspaper. At least during the period of the appeal proceedings, it could not reasonably have been demanded of the newspaper to publish another notice in the presence of a favourable judicial decision, just in case this decision were to be overturned by a superior court (violation of Article 10).

Individual measures: The consequences of the violation found in this case have been considered and given redress by the Court in the context of the award of a just satisfaction. Furthermore, Section 363a of the Code of Criminal procedure allows the applicant company to request the reopening of criminal proceedings found to violate the Convention.

General measures: In view of the direct effect of the Convention and its case-law in Austrian law, the Committee of Ministers considered that the publication of the judgment and its wide dissemination could prevent new violations similar to that found in this case. Accordingly, the Court’s judgment was published in the Newsletter OIM 2003/6 of the Österreichisches Institut für Menschenrechte, http//www.sbg.ac.at/oim. As for all other judgments of the European Court against Austria concerning criminal law, the judgment at issue was automatically transmitted to the presidents of all higher courts to bring the judgment to the attention of all judicial authorities in their area of competence. Furthermore, judgments of the European Court are accessible to all judges and state attorneys through the Internet database of the Austrian Federal Chancellery.

H46-637 39069/97 Krone Verlag GmbH and CoKG No. 3, judgment of 11/12/03, final on 11/03/04

The case concerns a disproportionate interference in the freedom of expression of the applicant company, a newspaper, on account of an injunction issued against it in 1997, under the Unfair Competition Act, banning it notably from comparing its sale prices with those of a competitor newspaper without disclosing the differences in their reporting styles.

The European Court considered that the Austrian courts had based their decision on inconsistent reasoning; on the one hand, that the two newspapers were not of comparable quality and that a comparison of their prices would therefore be misleading and, on the other hand that they were competing in the same market for the same readership. The Court also considered the injunction, which had far-reaching consequences for future advertising involving price comparison, to be far too broad. It impaired the very essence of price comparison. Its practical implementation would also have been very difficult for the applicant company, which risked being fined if it failed to comply with the order (violation of Article 10).

Individual measures: By letter of 26/07/04, the Austrian authorities indicated that the application of the injunction had never been requested and that, as the European Court rights had found the injunction contrary to the Convention, its enforcement would be henceforth considered unlawful.

General measures: In view of the direct effect of the European Convention on Human Rights and its case-law in Austrian law, the Committee of Ministers considered that the publication of the judgment and its large dissemination could prevent new violations, similar to that found in this case. Accordingly, the judgment was widely published: an extensive German translation was published in the Österreichische Juristenzeitung (ÖJZ 2004, p. 397), in the ÖIMR-Newsletter 2003/6 (http/www.sbg.ac.at/oim) and in the “legal overview” of the daily newspaper Die Presse on 12/01/04. As for all other judgments of the European Court against Austria concerning criminal law, the judgment at issue was automatically transmitted, on 12/12/03, to the presidents of all higher courts to bring the judgment to the attention of all judicial authorities in their area of competence. Furthermore, judgments of the European Court are accessible to all judges and state attorneys through the Internet database of the Austrian Federal Chancellery.

- 1 case against Finland

H46-746 32559/96 The Fortum Corporation, judgment of 15/07/03, final on 15/10/03

The case concerns the non-adversarial and thus inequitable nature of certain proceedings brought against the applicant company before the Supreme Administrative Court in 1995 by the Competition Office, in that two memoranda submitted to the Court by the Competition Office had not been communicated to the applicant. The European Court concluded that the applicant company, sentenced to a fine, had not been given an opportunity to comment on these memoranda and therefore had been unable to participate properly in the proceedings (violation of Article 6§1).

Individual measures: The applicant has not requested the reopening of the impugned proceedings. The Finnish authorities have indicated that, according to sections 63 and 64 of the Administrative Judicial Procedure Act, extraordinary appeals may be lodged against final administrative decisions if, inter alia, “a procedural error which may have had a relevant effect on the decision has been committed”. Such an appeal has to be lodged within five years of the date upon which the decision becomes final. For “very significant reasons”, a decision may also be annulled later on.

General Measures: The Secretariat notes that, since December 1996, the procedure before the Supreme Administrative Court has been regulated by the Act on Administrative Court Procedure which provides in Article 34 that an opportunity shall be reserved to parties to the proceedings to comment on the demands of other parties and on evidence which may affect the resolution of the matter. Exceptions to this principle exist when such communication of evidence to the interested party is found to be “manifestly unnecessary”. Nevertheless, the direct effect afforded by the Finnish courts to the European Court’s case-law should determine that their discretion when interpreting such an exception will be exercised in accordance with the principle of a fair trial enshrined in Article 6 of the Convention. In this respect, the Finnish authorities have confirmed that the judgment of the European Court was translated, published on Finlex and widely disseminated with a covering letter to various authorities concerned.

- 1 case against France

H46-750 67263/01 Mouisel, judgment of 14/11/02, final on 21/05/03

The case concerns inhuman and degrading treatment undergone by the applicant in that he was kept in prison until his provisional release on 22/03/2001, despite the decline in his state of health, which was considered more and more alarming and less and less compatible with his imprisonment. It also raises questions about the conditions of his detention, transfer to hospital and medical treatment (violation of Article 3).

General measures: In its judgment, the European Court took note of the recent evolution of French legislation in this field, which has increased the powers of the judge responsible for the execution of sentences in respect of seriously ill prisoners. It considered that these judicial procedures “may provide sufficient guarantees to ensure the protection of prisoners' health and well-being, which states must reconcile with the legitimate requirements of a custodial sentence”. Under Article 729 of the Code of Criminal Procedure (CCP) as amended by the Law of 15/06/2000, the need to undergo treatment may be taken into

account in a decision to grant parole.

Furthermore, under the Law of 04/03/2002 on patients' rights (new Article 720-1-1 of the CCP), prisoners' sentences may be suspended if they are suffering from a life-threatening illness or if their condition is incompatible in the long term with their continued detention. The judge may direct that the sentence be suspended indefinitely: he must arrange for two expert assessments in order to determine whether a sentence should be suspended or whether a suspension should be lifted. 21 persons were released in 2002 on the basis of this provision and 63 in 2003.

As far as the conditions of detention and transfer to hospital are concerned, a circular was sent on 15/07/2003 by the Ministry of Justice to all directors of prisons as well as to the director of the National College of Prison Administration to set up the terms and conditions for the organisation of prisoners’ transfer to hospital. It results from this document, in particular, that it is up to the head of the prison to issue a decision in writing, upon a prisoner’s departure from the prison, indicating whether the prisoner is to be handcuffed or fettered, taking into account inter alia his or her state of health. Furthermore, the head of the prison, one of his or her deputies or the head of the detention service if he or she has been so authorised, issues a decision in writing concerning whether the prisoner is to be handcuffed or fettered in hospital, depending on, among other points, his or her state of health. Finally, as far as the medical consultation itself is concerned, three levels of supervision are possible: absence of prison staff with or without means of restraint, supervision by prison staff but without means of restraint, or supervision by prison staff with means of restraint. In any case, the head of the escort must make sure that the measures taken do not impinge on the confidentiality of the medical conversation. Moreover, the doctor may question the application of certain measures.

- 1 case against Italy

H46-197 42098/98 Pezone, judgment of 18/12/03, final on 18/03/04

The case concerns the unlawful detention of the applicant for 15 months and 14 days, from 11/12/1992 to 25/03/1994, on account of an error in the calculation of his sentence, a previous detention period not having been deducted (violation of Article 5§1). The case also concerns the fact that the applicant could not obtain compensation for this unlawful detention. The European Court noted that the legislation in force at the relevant time did not provide for such compensation; that the applicant’s claim for damages against the judicial authorities had been unsuccessful and that Italian courts have constantly denied any direct effect to Article 5§5 of the Convention (violation of Article 5§5).

Individual measures: The consequences of the violation found in this case have been considered and given redress by the European Court in the context of the award of a just satisfaction.

General measures: Since 1996, compensation can be obtained in cases similar to the one at issue, following a decision of the Constitutional Court (judgment No. 310/96). Furthermore, the judgment has been

- 1 case against Lithuania

H46-878 41510 Jasiūnienė, judgment of 06/03/03, final on 06/06/03

This case concerns the executive authorities’ failure to execute a judgment of the Klaipėda Regional Court of 03/04/1996 requiring them to take appropriate measures to choose the form of compensation to be afforded to the applicant in respect of her late mother’s land, which had been nationalised during the Soviet occupation of Lithuania. The European Court considered that, at least from 02/06/1999 (the date of adoption of a law authorising the authorities in such cases to choose the most appropriate form of compensation under judicial control) the Lithuanian authorities, by failing to take steps to execute the judgment, had unjustifiably infringed the applicant’s right to a fair trial (violation of Article 6§1).

The Court also decided that, by failing to comply with the judgment, the national authorities had prevented the applicant from obtaining the compensation she could reasonably have expected to receive, and so infringed her right to peaceful enjoyment of possessions (violation of Article 1 of Protocol No. 1). When the European Court rendered its judgment, the domestic judgment had still not been complied with.

Individual measures: Individual measures include the enforcement of the domestic judgment at issue. To accomplish this, the Governor of Klaipėda, by decision of 15/04/2004, allocated a plot of land to the applicant (specifically, the applicant’s property rights with respect to her late mother’s land were fully restored).

To arrive at this solution, the Lithuanian authorities took several measures, mostly with a view to disseminating and explaining the Court’s judgment to all the authorities concerned (the Governor of Klaipėda, the mayor of the town where the contested plot of land is situated, etc.). Furthermore, the Agent of the government personally followed the execution of the judgment in question.

General measures: First of all, the Lithuanian authorities indicated (letter of 31/05/2004) that the land reform which had been under way since 1991 would soon be complete, in 2005. There now remains only a small number of the plots of land in respect of which compensation has not yet been awarded. Hence it would not be relevant at this point to envisage any change to the legal basis of this reform (“Law on land reform”; “law on the restoration of the rights of ownership of citizens to existing real property”).

Secondly, until completion of the land reform, it seems possible to avoid new, similar violations given that the Convention and the Court’s case-law are directly applicable in the legal system of Lithuania (letter of 11/06/2004). The relevant authorities and courts will this take the implications of the Jasiūnienė judgment into account. Measures have therefore been taken to publish and disseminate the judgment, which has been translated to Lithuanian and published, in particular in the annual compendium “Europos žmogaus teisių teismo sprendimai bylose prieš Lietuvos Respubliką 2003 01 01 – 2004 01 01” and on the internet site of the Ministry of Justice. It has also been included in the training programme “implementation and interpretation of the European Convention on Human Rights” which will be conducted by the Agent of the government, particularly for judges and other Lithuanian civil servants. Finally, the relevant national authorities (not least the Chancellor of the Government, the Chairman of the Parliament and two different Committees of the Parliament) and local authorities have been informed of the Court’s judgment.

- 1 case against the Netherlands

H46-881 39657/98 Steur, judgment of 28/10/03, final on 28/01/04

The case concerns an interference in the freedom of expression of the applicant, a lawyer, in that in 1996 he was sentenced (under Article 46 of the Act on the legal profession) by a disciplinary council to an admonition for having pleaded during a trial that a social security investigating officer had exerted unacceptable pressure on his client resulting in the latter’s incrimination. The Disciplinary Appeals Tribunal had upheld the applicant’s admonition on the grounds that he did not support his allegations with evidence when he made them, although he subsequently did so.

The European Court noted in particular that the disciplinary authorities had not attempted to establish whether the applicant’s allegations were true or had been made in good faith. While it is true that no penalty had been imposed on the applicant, the Court found that the threat of an ex post facto review was difficult to reconcile with the advocates’ duty to protect the interests of their clients and might adversely affect the way they performed their professional duties. In the circumstances, the Court found that the restrictions on the applicant’s freedom of expression did not meet a pressing social need (violation of Article 10).

Individual measures: The Dutch authorities specified that the admonition at issue in this case was not mentioned in the applicant’s professional file and that, accordingly, the violation had only had moral consequences, which had been taken into account and remedied through the publication and wide dissemination of the judgment of the European Court to all the authorities concerned.

General measures: the Dutch authorities indicated that the judgment had been notified to lawyers’ disciplinary authorities, drawing their attention to their obligation to give effect to the Court’s findings in this case. Furthermore, the judgment was published in the legal magazines NJB (Nederlands Juristenblad) 2003, No. 57 and Advocatenblad 2004, No. 4.

- 1 case against Poland

H46-1125 26761/95 Płoski, judgment of 12/11/02, final on 12/02/03

This case concerns a breach of the applicant’s right to respect for private and family life because of the refusal to allow him, at the material time detained on remand (1994), to attend his parents’ funerals (violation of Article 8).

General measures: The relevant provisions of the new Code of Execution of Criminal Sentences of 1997 which govern the granting of permission for leave for family reasons have remained in substance unchanged compared to those of the Code of 1969 which was in force at the relevant time. Under the terms of Article 141a of the new Code prisoners may, in circumstances of special importance for them, apply to the Penitentiary Judge for permission for leave under the escort of prison officers or other trustworthy persons for a maximum of five days. In cases concerning persons detained on remand the preliminary authorisation of the court competent for the extension of the remand is also required.

Since these provisions are in principle in conformity with the requirements of Convention and the conclusions of the European Court in this case and it was rather the national authorities’ application of the relevant provisions which was challenged in this judgment, the dissemination of the judgment to the competent authorities seems to be a relevant and sufficient measure for the prevention of new violations of the same nature. The Polish delegation indicated that the Ministry of Justice has sent the text of the judgment of the European Court together with a circular letter to the presidents of courts of appeal to be disseminated to all judges.

The Polish authorities were furthermore asked to provide new examples showing that domestic case-law effectively takes into account the European Court's judgments. The delegation provided the Secretariat with several judgments of domestic courts which refer expressly to the Convention and to the judgments of the European Court concerning in particular Articles 5, 6 and 10 of the Convention. The judgment of the European Court has so far been published in the Bulletin of the Council of Europe Information Centre, issue n°1/2003, and on its Internet site www.coe.org.pl.

- 18 cases against Romania

- Cases concerning the annulment of final court decisions relating to property ownership

H46-1097 33353/96 Boc, judgment of 17/12/02, final on 17/03/03

*H46-1099 29769/96 Curuţiu A. and M., judgment of 22/10/02, final on 22/01/03

H46-1100 36017/97 Dickmann, judgment of 22/07/03, final on 22/10/03

H46-1101 32936/96 Drăgnescu, judgment of 26/11/02, final on 26/02/03

H46-1102 38445/97 Erdei and Wolf, judgment of 15/07/03, final on 15/10/03

H46-1103 32977/96 Găvruş, judgment of 26/11/02, final on 26/02/03

H46-1104 32915/96 Ghitescu, judgment of 29/04/03, final on 29/07/03

H46-1105 31736/96 Grigore, judgment of 11/02/03, final on 11/05/03

H46-1106 32268/96 Nagy, judgment of 26/11/02, final on 26/02/03

H46-1107 36039/97 Oprescu, judgment of 14/01/03, final on 14/04/03

H46-1108 31172/96 Popa and others, judgment of 29/04/03, final on 29/07/03

H46-1110 35882/97 Potop, judgment of 25/11/03, final on 25/02/04

H46-1111 33631/96 Savulescu, judgment of 17/12/02, final on 17/03/03

H46-1112 48179/99 Sofletea, judgment of 25/11/03, final on 25/02/04

H46-1113 32260/96 Surpaceanu Constantin and Traian-Victor, judgment of 21/05/02, final on 21/08/02

H46-1114 39184/98 Tandreu, judgment of 25/11/03, final on 25/02/04

H46-1115 32269/96 Tărbăşanu, judgment of 11/02/03, final on 11/05/03

H46-1116 29407/95 Vasiliu, judgment of 21/05/02, final on 04/09/02

These cases concern the Supreme Court’s annulment of final court decisions delivered at first instance establishing the validity of the applicants' titles to property that had been previously nationalised. The Supreme Court intervened following applications for nullity lodged by the Procurator General on the ground of Article 330 of the Code of Civil Procedure which allowed him at any moment to challenge final court decisions. The European Court considered that by acting in this way, the Supreme Court had failed to acknowledge the principle of legal certainty and accordingly violated the applicants’ right to a fair trial. It also took the view that the Supreme Court had infringed the applicants’ right of access to a tribunal in that it had not recognised courts’ jurisdiction over disputes concerning recovery of property (violations of Article 6§1). Finally, the European Court found that the Supreme Court’s decisions had violated the applicants’ right to respect for their possessions by annulling without justification and without compensation final court decisions that recognised the applicants’ property rights to the apartments in question (violation of Article 1 of Protocol No. 1).

In the Nagy case, the violation of the property right is also determined by the uncertainty flowing from the existence of two contradictory property titles to the apartment at issue. The state obtained a property title based on the 1995 Supreme Court decision (annulling the previous final decision returning the apartment to the applicant) and obtained the right to note this title in the land register in February 1999. On the other hand, the applicant had bought the apartment from the state in 1975 (and is occupying it) and noted his right in the land register in March 1999.

Individual measures: In accordance with the decisions of the European Court, the state has, in all these cases, under Article 41 of the Convention, either returned the properties at issue to the applicants or paid an amount of money corresponding to the current value of the houses at issue, within three months from the date on which the judgment became final.

Concerning the Nagy case, the Romanian authorities indicated that the land register contained two successive notations, which were not conflicting, so as the applicant is recognised in domestic law as the sole owner of the property at issue.

General measures: By letter of 11/09/2003, the Romanian delegation informed the Secretariat that Article 330 of the Romanian Code of Civil Procedure had been repealed by an emergency ordinance adopted by the government and published in the Official Gazette on 28/06/2003. This reform was approved by Parliament on 25 May 2004.

- 1 case against the Russian Federation

H46-966 59498/00 Burdov, judgment of 07/05/02, final on 04/09/02

The case concerns the non-execution in full or in part over several years by the Russian social authorities of final decisions delivered in 1997-2000 by the Shakhty City Court (Rostov region) which ordered them to pay the applicant a fixed compensation and established a monthly allowance (with subsequent indexation) for damage to his health sustained during his participation in emergency operations at the Chernobyl nuclear plant (violations of Articles 6 and of Article 1 of Protocol No. 1).

The total amount of the fixed compensation owed was paid on 05/03/2001.

Individual measures: On 21/08/2002, 08/11/2002 and 07/01/2004, the Secretariat received letters from the applicant complaining that the amount of the monthly allowance paid to him had still not been indexed. By letter of 13/04/2004, the Russian authorities informed the Committee that, by decision of 11/07/2003, the Shakhty City Court had ordered a fresh indexation of the allowance. The latter decision became final on 01/10/2003 and is being executed.

General measures: During the examination of the case at 810th (October 2002) and 819th (December 2002) meetings, the Russian authorities informed the Committee of the following measures adopted in response to the European Court's judgment:

- publication of the judgment in Rossijskaia Gazeta and its wide dissemination with a view to ensuring that the competent authorities may comply therewith;

- payment of arrears because of the non-execution, as in the present case, of domestic judgments ordering the payment of allowances for the victims of Chernobyl (a total of 284,6 million rubles were paid between January and October 2002);

- execution of 5128 other domestic judgments concerning the indexation of the allowances for the victims of Chernobyl and allocation of the necessary budgetary means (378,6 million rubles for 2002 and 260 million rubles for 2003) to social security bodies to allow them to meet the obligations arising from these judgments;

On 02/04/2004 the Parliament adopted the Law amending of the legislation governing the social insurance of to Chernobyl victims. The new law, which entered into force on 29/04/2004, provides for a new system of indexation of allowances paid in accordance with the existing legislation (the indexation will be henceforth based on the inflation rate used for calculation of the federal budget).

Furthermore, the Committee is pursuing the examination of further measures in relation to the more general problem concerning the non-enforcement of domestic courts’ decisions in the case of Timofeyev (judgment of 23/10/2003) (Section 4.2).

- 11 cases against Turkey

H46-669 23462/94 Arslan, judgment of 08/07/99

H32-670 25658/94 Aslantaş Sedat, Interim Resolution DH(99)560 of 08/10/99

H46-673 28496/95 E.K., judgment of 07/02/02, final on 07/05/02

H46-674 25067/94+ Erdoğdu and Ince, judgment of 08/07/99

H46-675 24919/94 Gerger, judgment of 08/07/99

H46-679 23168/94 Karataş, judgment of 08/07/99

H46-681 28493/95 Küçük Yalçın, judgment of 05/12/02, final on 05/03/03

H46-682 24246/94 Okçuoğlu, judgment of 08/07/99

H46-685 23500/94 Polat, judgment of 08/07/99

H46-688 24762/94 Sürek No. 4, judgment of 08/07/99

H46-689 29590/96 Yağmurdereli, judgment of 04/06/02, final on 04/09/02

These cases all relate to unjustified interference with the applicants’ freedom of expression, in particular on account of their conviction by State Security Courts under former Article 8 of the Anti-terrorism Law following the publication of articles and books or the preparation of messages addressed to a public audience (violation of Article 10)[150].

Individual measures: The applicants no longer suffer any consequences of their convictions over and above those repaired by the just satisfaction awarded by the Court since the abrogation of Article 8 of the Anti-terrorism Law, because Article 8 of the Law on Criminal Records (as amended by Law No. 4778 of 2/1/2003) provides that any information on criminal records shall be erased ex officio by the General Directorate of Judicial Records and Statistics of Ministry of Justice when an offence is de-criminalised. In a letter of 07/07/04 the Turkish authorities gave the following information concerning the situation of the applicants’ criminal records:

Application name and number	Date of conviction	Date of erasure from the criminal records
23462 Arslan	28/01/1993	14/08/2003
25658 Aslantaş Sedat	01/12/1994	29/04/2003
25067+ Erdoğdu (1) and İnce (2)	12/08/1993	(1) on an unspecified date (2) 1/8/2003
28496 E.K	09/09/1994	15/10/2003
24919 Gerger	09/12/1993	05/09/2003
23168 Karataş	19/04/1996	03/07/2003
28493 Küçük Yalçın	02/08/1994	03/07/2003
24246 Okçuoğlu	11/03/1993	29/01/2003
23500 Polat	23/12/1992	25/03/2003
24762 Sürek IV	27/09/1993	31/07/2003
29590 Yağmurdereli	23/06/1994	22/07/2003

General measures: Article 8 of Anti-Terrorism Law, which prohibited written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic or the indivisible unity of the nation, was abrogated by Law no. 4928 of 19/07/03.

- 2 cases against the United Kingdom

H46-1123 35765/97 A.D.T., judgment of 31/07/00, final on 31/10/00

The case concerns a breach of the applicant’s right to respect for his private life on account of the existence of legislation prohibiting homosexual acts between consenting men in private, and of the applicant’s prosecution and conviction for gross indecency in respect of such acts, which had taken place in private, at the applicant’s home (violation of Article 8).

The applicant was sentenced to two years’ imprisonment on 20/11/1996 and has been conditionally discharged.

Individual measures: In March 2003, the applicant’s representative informed the Secretariat that the applicant did not wish to pursue the adoption of individual measures.

General measures: By letter of 14/05/2004, the United Kingdom authorities indicated that the Sexual Offences Act 2003 came into force on 01/05/2004. The provisions criticised by the European Court have been repealed under Schedule 7 to this Act. In addition, the authorities referred to changes made to the notification requirements under the Sex Offenders Act 1997, which requires persons having committed sexual offences, including certain persons convicted before that Act came into force, to notify certain information to the police. Thus, where an offender has been subject to notification requirements as a result of a conviction, finding or caution in respect of the provisions at issue in the present case, they may apply to the Secretary of State to cease to be subject to these requirements. The judgment of the European Court has been published in European Human Rights Reports at (2001) 31 EHRR 33.

H46-1118 24833/94 Matthews, judgment of 18/02/99- Grand Chamber, Interim Resolution DH(2001)79

The case concerns the non-respect of the applicant’s right to participate in elections to choose the legislature in that no election to the European Parliament (EP) was held in Gibraltar in 1994 (violation of Article 3 of Protocol No. 1).

General measures: During the first examination of this case in March 1999 the United Kingdom delegation informed the Committee of Ministers of the government’s efforts within the European Union to find a satisfactory solution to this case. The government expressed a strong preference for an agreement of its EU partners to the enfranchisement of Gibraltar through a change to the 1976 EC Act on Direct Elections to the European Parliament. The United Kingdom committed itself to making every effort to achieve enfranchisement for Gibraltar for the 2004 EP elections.

In April 2001 the delegation indicated that, in view of the absence of agreement between the member states of the European Union concerning a solution, the government was considering the possibility of implementing the judgment of the European Court by the adoption of a regulation at the national level without prior amendment of the 1976 Act.

On 26/06/2001 the Committee of the Ministers adopted Interim Resolution ResDH(2001)79 noting the complexity of the issues raised by this judgment and inviting the United Kingdom to take the necessary measures to guarantee the rights under Article 3 of Protocol No. 1 in respect of elections to the European Parliament in Gibraltar.

In November 2002 the government introduced the European Parliament (Representation) Bill to the House of Commons. Pursuant to its provisions, Gibraltar would be treated as part of one of the English or Welsh electoral regions for the purposes of EP elections. The United Kingdom Parliament adopted the European Parliament (Representation) Act which received the Royal Assent on 08/05/2003.

It should be noted that Spain questioned the compatibility of the European Parliament (Representation) Act 2003 with European Union law before the European Commission, because this act grants franchise to persons who are not nationals of the UK and hence not EU citizens, and because it creates a “combined electoral region” incorporating Gibraltar into an existing electoral region in England and Wales. On 29/10/2003 the Commission declared that the United Kingdom has organised the extension of voting rights to residents in Gibraltar within the framework of the margin of discretion presently given to member states by EU law. However the Commission did not adopt a reasoned opinion within the meaning of Article 227 (action for non-fulfilment of an obligation) of the Treaty Establishing the European Community.

The European Parliamentary Elections (Combined Region and Campaign Expenditure) (United Kingdom and Gibraltar) Order of 2004 approved by the British Parliament included Gibraltar in the constituency of the South West region.

On 10/06/2004 the citizens of Gibraltar took part for the first time in elections to the European Parliament with a turnout of 57.54%. The combined region South West and Gibraltar elected 7 members of the European Parliament.

The case has received extensive newspaper coverage and the judgment of the European Court has been published, in particular in the Human Rights Report, Human Rights Digest and other legal journals.

[1] Those items marked with an asterisk * were added after approval of the draft Agenda (Appendix 2 to the Volume of Decisions of the 891st meeting) in accordance with the Rules adopted by the Committee of Ministers for the application of Article 46 of the European Convention on Human Rights.

[2] Inclusion of cases in this Section does not exclude the possibility that general measures may be examined at subsequent meetings.

[3] This case also appears in sub-section 3.a

[4] This case also appears in sub-section 3.a

[5] This case also appears in sub-section 3.a

[6] Of which 11 years and more than 2 months elapsed since the Slovak Republic recognised the right of individual application

[7] Of which 11 years and more than 2 months elapsed since the Slovak Republic recognised the right of individual application

[8] This case also appears in sub-section 3.a

[9] This case also appears in sub-section 3.a

[10] This case also appears in sub-section 3.b

[11] This case also appears in sub-section 3.b

[12] This case also appears in sub-section 3.a

[13] This case also appears in sub-section 3.c

[14] This case also appears in sub-section 3.a

[15] Furthermore, in the cases of Başkaya and Okçuoğlu and E.K., the sentence imposed was not provided by law (violation of Article 7). Some of these cases also concern the independence and impartiality of State Security Courts (violation of Article 6§1) and measures have already been adopted in order to solve this problem, thus preventing new similar violations (see Resolution DH(99)255 adopted in the case of Cıraklar).

[16] This case also appears in sub-section 3.a

[17] This case also appears in sub-section 3.a

[18] This case also appears in sub-section 3.a

[19] This case also appears in sub-section 3.a

[20] This case also appears in sub-section 3.a

[21] This case also appears in sub-section 3.a

[22] This case also appears in sub-section 3.a

[23] This case also appears in sub-section 3.a

[24] This case also appears in sub-section 3.a

[25] This case also appears in sub-section 3.a

[26] This case also appears in sub-section 3.a

[27] This case also appears in sub-section 3.a

[28] This case also appears in sub-section 3.a

[29] This case also appears in sub-section 3.a

[30] The Convention entered into force in respect of Croatia on 05/11/1997

[31] This case also appears in sub-section 3.b

[32] the period taken into consideration in the judgment started on 03/05/1974, date of ratification of the Convention by France : its length, for the purposes of the Convention, was thus of 26 years and 5 months.

[33] This case also appears in Section 3.a

[34] Eight years and nine months of which elapsed since Hungary recognised the right of individual application.

[35] Five years and five months of which elapsed since Hungary recognised the right of individual application.

[36] Eleven years of which elapsed since Hungary recognised the right of individual application.

[37] Almost eight years and eight months of which elapsed since Hungary recognised the right of individual application.

[38] This case also appears in sub-section 3.a

[39] This case also appears in sub-section 3.a

[40] This case also appears in sub-section 3.b

[41] This case also appears in sub-section 3.a

[42] This case also appears in sub-section 3.a

[43] This case also appears in sub-section 3.a

[44] This case also appears in Section 2

[45] This case also appears in sub-section 3.a

[46] This case also appears in sub-section 3.a

[47] This case also appears in sub-section 3.a

[48] This case also appears in Section 2

[49] This case also appears in sub-section 3.a

[50] This case also appears in sub-section 3.a

[51] This case also appears in sub-section 3.a

[52] This case also appears in sub-section 3.a

[53] This case also appears in sub-section 3.b

[54] This case also appears in sub-section 3.a

[55] This case also appears in sub-section 3.a

[56] This case also appears in sub-section 3.a

[57] This case also appears in sub-section 3.a

[58] This case also appears in sub-section 3.a

[59] This case also appears in sub-section 3.a

[60] This case also appears in sub-section 3.a

[61] This case also appears in sub-section 3.a

[62] This case also appears in sub-section 3.a

[63] This case also appears in sub-section 3.a

[64] This case also appears in sub-section 3.a

[65] This case also appears in sub-section 3.a

[66] This case also appears in sub-section 3.a

[67] This case also appears in sub-section 3.a

[68] This case also appears in sub-section 3.a

[69] This case also appears in sub-section 3.a

[70] This case also appears in sub-section 3.a

[71] This case also appears in Section 2

[72] This case also appears in sub-section 3.a

[73] This case also appears in sub-section 3.b

[74] This case also appears in sub-section 3.a

[75] This case also appears in sub-section 3.a

[76] This case also appears in sub-section 3.a

[77] This case also appears in Section 2

[78] This case also appears in sub-section 3.a

[79] This case also appears in Section 2

[80] This case also appears in sub-section 3.a

[81] This case also appears in sub-section 3.a

[82] This case also appears in sub-section 3.a

[83] This case also appears in sub-section 3.a

[84] This case also appears in sub-section 3.a

[85] This case also appears in sub-section 3.a

[86] This case also appears in sub-section 3.a

[87] This case also appears in Section 2

[88] This case also appears in sub-section 3.a

[89] This case also appears in sub-section 3.a

[90] This case also appears in sub-section 3.a

[91] This case also appears in sub-section 3.a

[92] This case also appears in sub-section 3.b

[93] This case also appears in sub-section 3.a

[94] This case also appears in sub-section 3.a

[95] This case also appears in sub-section 3.a

[96] The Secretariat proposes to postpone consideration of this item at a forthcoming meeting not later than six months hence.

[97] This case also appears in sub-section 3.a

[98] This case also appears in sub-section 3.a

[99] Poland’s declaration recognising the right of individual petition (former Article 25 of the Convention) took effect on 1/05/1993.

[100] This case also appears in sub-section 3.a

[101] This case also appears in sub-section 3.a

[102] This case also appears in sub-section 3.a

[103] This case also appears in Section 2

[104] This case also appears in Section 2

[105] This case also appears in Section 2

[106] This case also appears in sub-section 3.a

[107] This case also appears in Section 2

[108] This case also appears in sub-section 3.a

[109] This case also appears in sub-section 3.a

[110] This case also appears in Section 2

[111] This case also appears in sub-section 3.a

[112] This case also appears in sub-section 3.b

[113] This case also appears in sub-section 3.a

[114] This case also appears in sub-section 3.a

[115] This case also appears in sub-section 3.a

[116] This case also appears in sub-section 3.a

[117] This case also appears in sub-section 3.b

[118] This case also appears in sub-section 3.b

[119] This case also appears in sub-section 3.a

[120] This case also appears in sub-section 3.c

[121] This case also appears in sub-section 3.c

[122] This case also appears in sub-section 3.a.

[123] This case also appears in sub-section 3.c

[124] This case also appears in sub-section 3.c

[125] This case also appears in sub-section 3.a

[126] This case also appears in sub-section 3.c

[127] This case also appears in sub-section 3.a

[128] This case also appears in sub-section 3.c

[129] This case also appears in sub-section 3.c

[130] This case also appears in sub-section 3.c

[131] This case also appears in sub-section 3.c

[132] This case also appears in sub-section 3.c

[133] This case also appears in sub-section 3.a.

[134] This case also appears in sub-section 3.c

[135] This case also appears in sub-section 3.a.

[136] This case also appears in sub-section 3.c

[137] This case also appears in sub-section 3.c

[138] This case also appears in sub-section 3.c

[139] This case also appears in sub-section 3.c

[140] This case also appears in sub-section 3.a

[141] This case also appears in sub-section 3.c

[142] This case also appears in sub-section 3.b

[143] This case also appears in sub-section 3.a

[144] This case also appears in sub-section 3.c

[145] This case also appears in sub-section 3.c

[146] This case also appears in sub-section 3.a

[147] The list of these cases appears in the addendum to this document.

[148] This case also appears in sub-section 3.a

[149] This case also appears in sub-section 3.a

[150] Some of these cases also concern the independence and impartiality of State Security Courts (violation of Article 6§1) and measures have already been adopted in order to solve this problem, thus preventing new similar violations (see Resolution DH(99)255 adopted in the case of Ciraklar).