Ministers’ Deputies

Annotated Agenda

CM/Del/OJ/DH(2006)976-Vol I Public    8 November 2006

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976th meeting (DH), 17‑18 October 2006

Annotated Agenda[1]

Volume I

Public information version

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This document only takes into account the information available to the Secretariat on 8 September 2006.

CONTENTS

GENERAL QUESTIONS. 4

SECTION 4 - CASES RAISING SPECIFIC QUESTION (INDIVIDUAL MEASURES, MEASURES NOT YET DEFINED OR SPECIAL PROBLEMS) 5

SECTION 5 - SUPERVISION OF GENERAL MEASURES ALREADY ANNOUNCED.. 166

SECTION 6 - CASES PRESENTED WITH A VIEW TO THE PREPARATION OF A DRAFT FINAL RESOLUTION. 187

Additional documents

Addendum General Questions

Addendum 1 - Final Resolutions

Addendum 4 – Cases raising special questions

Addendum Preparation of the next DH meeting (982nd, 5-6 December 2006)

New documents:

CM/Inf/DH(2006)9-rev2

CM/Inf/DH(2006)19-rev2

Introduction to Volume 1

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) in the framework of the new working methods.

GENERAL QUESTIONS

a.                     Adoption of the Annotated Agenda and Order of Business

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 No. 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 (982nd meeting (5-6 December 2006))

                       See Addendum Preparation of the next meeting

d.                    New working methods of the Deputies’ Human Rights meetings

                       CM/Inf/DH(2006)9-rev2 (to be issued)

Decision: The Deputies agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH) on the basis of written contributions which the delegations are invited to transmit to the Secretariat and of a consolidated memorandum to be prepared by the Secretariat.

*e.                    Working methods of human rights meetings - designation of experts to be associated with the work of the GT-DH-PR A concerning the development of further practical proposals for the supervision of the execution of judgments in situations of slow or negligent execution

f.                      Obligation of states to furnish all necessary facilities to the European Court in its investigations with a view to establishing the facts (Article 38 of the Convention)

ResDH(2001)66, ResDH(2006)45

                        CM/Inf/DH(2006)20

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

(See Addendum 4 for part or all these cases)

Action

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

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

- 2 cases against Belgium

50372/99          Goktepe, judgment of 02/06/2005, final on 02/09/2005

This case concerns the unfairness of criminal proceedings against the applicant and two co-defendants for robbery with violence having caused the death of one victim, resulting in all the accused being sentenced to 30 years’ imprisonment by a final judgment of the Eastern Flanders Court of 27/11/1998 .

The Court considered that the Flanders Assize Court, estimating that possible aggravating circumstances applied equally to all those who had taken part in the robbery, formulated its question to the jury concerning whether or not there were aggravating circumstances globally for all the co-defendants rather than individually in respect of each of the co-defendants, thereby infringed the right of the applicant to defend himself in a practical and effective manner with respect to a decisive issue (violation of Article 6 § 1).

Individual measures:

- The applicant’s situation: he is serving a 30-year prison sentence and has been in Oudenaarde prison since 08/12/1996.

            1) Reopening of criminal proceedings: Given the gravity of the sentence pronounced following proceedings found unfair by the European Court, resulting from the failure, criticised by the Court, to assign individual responsibility for the aggravating circumstances, reopening of the proceedings seems to be the best measure to remedy the violation and erase its consequences (see also Recommendation Rec(2000)2 of the Committee of Ministers to member states on the re examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights).

• Information provided by Belgian authorities: There is no law in Belgium allowing reopening of proceedings following a judgment of the European Court. A draft law was to be adopted in this respect in June 2003, but following the dissolution of Parliament, this draft has become null and void. A second draft law was announced at the 914th meeting (February 2005)  in the context of the Van Geyseghem, Goedhart, Stroek, Pronk and Stift cases, (which will be examined at the 982nd meeting (December 2006).

A preliminary first draft was submitted to the legislation section of the Conseil d’Etat, which gave its opinion on it on 21/11/2005. However, in its current drafting, this preliminary draft law limits the possibility of reopening of proceedings to judgments delivered by the European Court after the entry into force of this law.

▪ Recent development: Following bilateral contacts with the Secretariat, the Human Rights Department of the Belgian Ministry of Justice has initiated co-operation with other bodies concerned on a possible extension of the application of this law to judgments which are being executed. At the 966th meeting (June 2006) the delegation announced that the draft would be submitted to Parliament soon and that the adoption of an interim resolution, proposed by the Secretariat, was not necessary to encourage the adoption of the law. So far no information has been provided in this respect.

            2) Possible alternative measures:

▪ Information provided by the Belgian authorities: In the absence of reopening, two solutions may be envisaged, both at the request of the applicant: parole or pardon. To be released on parole, the applicant must have served at least one third of the sentence (10 years in this case). As regards pardon, this derives from the discretionary power of the King and erases all possible restrictions which have been imposed and implies a reduction or a total remission of the execution of the penalties imposed. A request for pardon is not subject to conditions. In this case, the two solutions could be used together.

Moreover, on the basis of Article of 441 of the Criminal Investigation Code, the Minister of Justice may request the annulment of a judgment contrary to the law, according to the traditional case-law of the Cour de cassation, only if “the invoked unlawfulness of the factual circumstances revealed or discovered after the rejection of the appeal result from elements which are intrinsic to the proceedings followed previously before the Cour de cassation and which could not be known by this court at the relevant time”.

▪ Information provided by the applicant’s lawyer: On 30/09/2005 he was informed by the Belgian authorities that there was no intention to revise the judgment at issue ex officio on the basis of Article of 441 of the Criminal Investigation Code.

Furthermore, the applicant does not contemplate requesting pardon or to be released on parole and insists on his immediate provisional release and on re-examination of his case. By letter dated 06/02/2006, the applicant’s lawyer asked for support from the Committee of Ministers as regards these requests.

▪ Recent developments: At the 955th meeting (February 2006) the authorities undertook, at the request of the Secretariat, to reconsider the application of Article 441 of the Criminal Investigation Code. Moreover, at the 960th meeting (March 2006) the Belgian delegation reported that the possibility of ex officio revision was being discussed internally.

By letter of 06/06/2006 the applicant’s lawyer informed the Secretariat that he had asked the President of the Oudenaarde Court to order the suspension of the enforcement of the applicant’s sentence. This request was rejected by a decision of 30/06/2006 on the grounds that the judiciary was not competent in this respect because of the separation of powers and on the grounds that there had been no violation of Article 5 of the Convention (letter of the applicant’s lawyer of 17/08/06).

• Additional information awaited: As the applicant has for more than 10 years been serving a prison sentence resulting from an unfair trial, urgent measures are required to remedy to his situation. In this respect information is awaited on:

- the results of the co-operation of domestic authorities concerning possible retroactivity of the law on reopening of criminal proceedings,

- current status of the legislative proceedings to adopt the legislation,

- the result of the authorities’ reflection on possible alternative measures or interim measures to be enforced expeditiously to remedy to the applicant’s situation.

General measures (No examination envisaged): The finding of the violation in this case was due to the Assize Court’s refusal (confirmed by the Court of Cassation) to individualise the questions concerning the objective aggravating circumstances formulated to the jury. This refusal stemmed from the application of the theory of emprunt matériel de criminalité (§§ 21 and 30 of the judgment).

According to the case-law of the Belgian Court of Cassation, its president has discretionary power to decide that questions concerning real aggravating circumstances of a crime imputed to co-defendants would be formulated (or not) individually in respect of each of them (§ 22).

▪ Measures taken:

A more general reform of procedures before assize courts is under consideration. It aims in particular to put an end to the existing system of formulating questions to juries and also provides that a judge should be present at all the jury’s deliberations: not just those concerned with sentencing, but also those concerned with determining the guilt or innocence of the accused. The Bill enacting this reform was scheduled to be placed before Parliament in March 2006.

A group of judges is examining the European Court’s judgment in the framework of an expert group on criminal procedure under the Collegium of Prosecutors General. The judgment was transmitted to the Collegium to be sent out to the country’s appeal courts, to the Federal Prosecutor and to the Prosecutor at the Cour de cassation.

• Information is awaited concerning publication.

The Secretariat is examining this information and bilateral contacts are under way concerning general measures taken or envisaged.

Decisions: The Deputies, having examined the information provided by the Belgian authorities and concerning the situation of the applicant, 1.             invited the Belgian authorities to ensure as far as possible restitutio in integrum for the applicant, who is still imprisoned as a result of a conviction in violation of his right to a fair trial resulting from the collective application of aggravating circumstances to all the co-accused; 2.             agreed to resume consideration of this case at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning individual measures to put an end to the violation and erase, as far as possible, its consequences for the applicant as well as general measures proposed to prevent new, similar violations.

*           *           *

46825/99+        Claes and others, judgment of 02/06/2005, final on 02/09/2005[3]

This case concerns the lawfulness of criminal proceedings against the applicants which were heard at first instance before the Cour de cassation in December 1998 in accordance with Article 103 of the Constitution because two of the applicants, Mr Claes and Mr Coëme, were government ministers at the time of the alleged offences.

The European Court recalled that in its judgment in the case of Coëme and Others of 22/06/2000 it had found that although Article 103 of the Constitution allowed ministers to be tried by the Cour de cassation in exceptional circumstances, it did not authorise that provision to be used to allow it to try persons for related offences if they had never held ministerial office. In the absence of any statutory provision governing such connected offences, the European Court found that the Cour de cassation did not in this case constitute a tribunal “established by law” within the meaning of Article 6 with jurisdiction to try the five other applicants (violation of Article 6§1).

Individual measures: The Secretariat wrote to the Belgian authorities on 19/12/2005 with a view to presenting a plan of action for the execution of this judgment. Information was provided, by the delegation and by another of the applicants, Mr Delanghe, concerning his situation. Mr Delanghe would like proceedings regarding him reopened but the Ministry of Justice has indicated that, according to the Court of Cassation’s case-law on this point, Belgian law does not allow such reopening (there is no law on the reopening of proceedings).

• Bilateral contacts are under way to clarify the situation both of this applicant and of the others. It should be noted that the question of the adoption of such a law is presently examined in the context of the Göktepe case (Section 4.1).

General measures: It is recalled that, as it emerges from this judgment (§27) and from that in Coëme and others cited above, as well as from the final resolution in the latter case (ResDH(2001)164), that a special law was adopted on 25/06/1998 (entry into force on 01/07/1998) expressly in order to solve the question at issue regarding “connected offences”. Article 29, paragraph 1, of this law provides that co-perpetrators and accomplices in the offence for which a minister is charged, as well as the perpetrators of connected offences, are prosecuted and judged at the same time as the minister. This provision was not applied in the present case by virtue of a transitional provision of the new law.

• Assessment: no further measure appears necessary.

- 3 cases against Bulgaria

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

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

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

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

Individual measures: The European Court noted in its judgment (§81) that the case does not call for the applicant’s unconditional release, unless the respondent government fails to secure the immediate reopening of the criminal proceedings against him and a retrial in his presence. In June 2005 the applicant complained about the alleged reluctance of the authorities to execute this judgment. The Secretariat invited the authorities to provide information on this issue. In a letter of 15/07/2005 the Bulgarian delegation indicated that the Ministry of Justice had sent a copy of the European Court’s judgment to the General Prosecutor with a view to drawing his attention to his obligation to request the reopening of the criminal proceedings in this case. The Ministry of Justice also invited the competent District Court to restore the applicant’s case-file in order to allow the revision of the criminal case (destroyed in 1997). Following that court’s refusal to restore the file (decision of 14/11/2005) the Office of the Supreme Public Prosecutor is currently envisaging other possibilities of doing so.

The authorities also indicated that the execution of the applicant’s sentence has been suspended and he was released during the summer for a period not exceeding three months. This period has been prolonged twice so far.

• Information is awaited concerning the applicant’s situation and the reopening of his trial.

General measures:

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

In this context, the publication and the dissemination of the judgment of the European Court to the competent authorities appear to be sufficient measures for execution.

            2) Violation of Article 5§4: Information is awaited on the introduction into domestic law of judicial review of the lawfulness of a deprivation of liberty in similar situations. In December 2005 the authorities transmitted the plan of action for the execution of this judgment. It provides for a discussion at national level on the possibility of introducing of such judicial review into domestic law.

            3) Violation of Article 5§5: the case presents similarities to the Yankov case (judgment of 11/12/2003), scheduled for examination at the 982nd meeting (December 2006). 

            4) Publication and dissemination: the judgment of the European Court was published on the Internet site of the Ministry of Justice www.mjeli.government.bg.

• Information is awaited on its dissemination.

*           *           *

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

59491/00           United Macedonian Organisation Ilinden and others, judgment of 19/01/2006, final on 19/04/2006[4]

These cases concern infringements of the freedom of association of an organisation which aims to achieve “the recognition of the Macedonian minority in Bulgaria”, and of its members (violation of Article 11).

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

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

Individual measures: The European Court noted in the second case that in 2002-2004 the competent courts once again refused to register the applicant association. These facts are the object of another application, currently pending before the Court.

• In these circumstances, it appears necessary rapidly to receive information on the present situation of the Ilinden organisation and in particular on the present possibility of registration as a political party or/and as an association.

General measures (No examination envisaged): These cases present similarities to three other cases relating to the right to freedom of assembly and association of Ilinden and its members (Stankov and United Macedonian Organisation Ilinden, judgment of 02/10/2001, final resolution ResDH(2004)78 ; United Macedonian Organisation Ilinden and Ivanov, judgment of 20/10/2005, 982nd meeting and Ivanov and others, judgment of 24/11/2005, 982nd meeting).

In these cases an action plan is awaited on additional measures envisaged or already adopted in view of enhancing the efficiency of the measures adopted in 2002-2004 following the Stankov judgment.

As regards the present cases the Bulgarian authorities have already been invited to consider the possibility of organising special training measures on the Convention and the European Court’s case law on Article 11, targeting in particular the authorities competent for the registration of political parties and associations. 

• Information is awaited in this respect, as well as on the publication of the European Court’s judgment in United Macedonian Organisation Ilinden and others and on the dissemination of both judgments.

The judgment in United Macedonian Organisation Ilinden - Pirin and others was published on the website of the Ministry of Justice www.mjeli.government.bg.

- 3 cases against Croatia

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

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

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

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

Individual measures:

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

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

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

Furthermore, when this case was first examined at the 966th meeting (June 2006), the Croatian authorities were invited to provide information on the present situation of the child, in particular regarding who is looking after him and on what legal basis.

• Information is awaited on this issue.

General measures: On 31/05/2006 the Secretariat wrote to the Croatian authorities inviting them to present a plan of action for the execution of this judgment.

• Information is awaited in particular on the measures envisaged to ensure that proceedings in application of the 1980 Hague Convention are carried out speedily and to guarantee the effectiveness of the enforcement mechanisms for decisions requiring the return of a child. The authorities’ attention has been drawn to the experience of other member states having encountered similar problems (see the memorandum on the judgments of the European Court of Human Rights raising issues linked to international conflict of jurisdiction in child custody matters - CM/Inf/DH(2005)11).

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

*           *           *

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

5208/03            Antonić-Tomasović, judgment of 10/11/2005, final on 10/02/2006

29052/03          Nogolica No. 2, judgment of 17/11/2005, final on 17/02/2006

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

The case of Nogolica No. 2 also concerns the lack of an effective remedy at the applicant’s disposal against the excessive length of the proceedings in question (violation of Article 13). In this case the European Court noted than even though the applicant had lodged a constitutional complaint while his proceedings had still been pending, the Constitutional Court dismissed the complaint as inadmissible in 2003, once the proceedings had ended, without examining their length until that time. Consequently, the European Court concluded that the practice of the Constitutional Court in the circumstances of the present case rendered an otherwise effective remedy ineffective.

Individual measures:

▪ Information is awaited on the state of the domestic proceedings and if appropriate on their acceleration.

General measures:

            1) Violations of Articl 6§1: The cases present similarities to that of Horvat (judgment of 26/07/2001) closed by Resolution ResDH(2005)60, following:

- the adoption of general measures to improve the efficiency of the judicial system and avoid new violations (Act amending the Act on Civil Procedure, adopted on 14/07/2003, which aims at strengthening procedural discipline and simplifying civil proceedings) and

- the introduction of an effective remedy against the excessive length of judicial proceedings (new Article 63 of the Act on the Constitutional Court, in force since 15/03/2002). 

In addition, it might be noted that following the amendments to the Law on the judiciary, which entered into force on 29/12/2005, the Constitutional Court is no longer competent to examine at first instance complaints against the excessive length of judicial proceedings. Instead, the courts superior to those dealing with the merits of a case will have such competence. Their decisions concerning such complaints may be appealed before the Supreme Court and the decisions of the latter before the Constitutional Court.  

            2) Violation of Article 13: It should be noted that the Constitutional Court changed its practice of dismissing complaints against the excessive length of judicial proceedings once the proceedings had finished even if such complaints had been lodged while the proceedings had still been pending (see decision No. U-IIIA-603/2003 of the Constitutional Court of 24/09/2004).

- 3 cases against France

33656/96          Lemoine Daniel, Interim Resolution DH(2000)16

This case concerns the fact that the applicant could not contest before a court a decision discharging him from his post in 1988 on grounds of physical unfitness, according to the procedure then applicable by his employer, the French railway company (Société nationale des chemins de fer - S.N.C.F.) (violation of Article 6§1). This was because the French courts, holding themselves to be incompetent in view of the specific procedural rules applicable in this field, considered that a non-judicial organ (a commission set up by the S.N.C.F.) had exclusive jurisdiction to decide on the applicant’s complaint.

In fact the staff of the S.N.C.F. (a public establishment principally subject to private law) is in principle subject to private law, but comes partially under a specific regime resulting from the S.N.C.F. Staff Rules or of regulations having the nature of an administrative act (points 36-39 of the Commission’s report).

The case also concerns the excessive length of the judicial proceedings brought unsuccessfully by the applicant to contest his discharge, from 1989 to 1996 (violation of Article 6§1).

Individual measures: the latest contacts with the delegation give the following results:

The applicant tried to obtain full reparation of the violation concerning the lack of access to a court, by bringing his claims relating to the validity of the decision to discharge him from his post before the labour courts. These courts (and most recently the Court of Cassation in a judgment of 30/09/2005) dismissed the applicant’s requests, holding themselves not competent to review their position on the situation impugned by the European Court.

- In this context, the government has underlined (most recently in March 2006) that the applicant might still lay his claims before the administration and, if they were rejected, lodge an appeal before the administrative courts (which directly apply the Convention and the Court’s case-law). The Secretariat is checking with the delegation whether this possibility offers the applicant sufficient guarantees with regard to the Convention’s requirements and the Committee of Ministers’ practice in this kind of cases, and in particular whether it might offer him a chance to see the merits of his complaint examined as a last resort by a court.

General measures:

            1) Access to a court: since the facts of the case, a new procedure has been instituted (modification in 1999 of the rules on health and the organisation of the occupational health service). According to the new procedure instituted, decisions concerning unfitness for work are taken by doctors from the occupational health service. In cases where “(…)an agent contests a decision taken by the company occupational health officer declaring him/her unfit for his/her job, the agent may seise the transport labour inspector, who will take a decision after consulting the transport occupational health officer”.

There are several possibilities to appeal against decisions by transport labour inspectors (who in fact are ordinary labour inspectors): submission for an out-of-court settlement to the inspector who took the decision; disciplinary complaint to the Minister of Transport; finally, submission for a legal settlement before the administrative court.

Following a request for clarifications by the Secretariat, in March 2006 the delegation confirmed that according to the law currently in force, these provisions would fully apply to a person in a situation similar to Mr Lemoine’s.

            2) Length of the proceedings: general measures have been adopted in the framework of the execution of the Hermant case (application No. 31603, Final Resolution ResDH(2003)88).

*           *           *

51360/99          Marschner, judgment of 28/09/2004, final on 28/12/2004[5]

This case concerns the excessive length of three sets of criminal proceedings against the applicant and of one set of administrative proceedings concerning civil rights and obligations (violations of Article 6§1).

The first two sets of criminal proceedings began in 1996 and the third in 1997 (respectively 8½ years, more than 7 years and 2 months and 7½ years); the first and the third sets of proceedings were still pending when the European Court gave its judgment. The administrative proceedings began in 1999 and were also still pending at the date of the judgment of the European Court (5 years and 4 months).

Individual measures: The first set of criminal proceedings, begun in 1996, are still pending before the Paris Criminal Court. A hearing was set on 25/09/2006. On the other hand, the third set of criminal proceedings was closed by a judgment of the Paris Court of Appeal of 21/01/2004, which subsequently became final.

▪ Further information is awaited on the acceleration and the progress of the criminal proceedings which are still pending. Acceleration of the administrative proceedings, it they are still pending, is also awaited.

General measures:

            1) Length of criminal proceedings: This case presents similarities, (1) to that of Etcheveste and Bidart (judgment of 21/03/2002), in Section 6.2 following measures adopted to avoid excessive length of criminal proceedings, in particular at the investigatory stage (inter alia, as from the entry into force of Law No. 2000-516 of 15/06/2000, judicial inquiries are subject to a proceedings schedule and new rights have been granted to parties to avoid extension of proceedings); and (2) to the C.R. case and other cases of length of civil proceedings, in which examination of the general measures has been closed, given the measures adopted by the respondent state to avoid excessive length of civil proceedings (section 6.1 at the 940th meeting, October 2005), the delegation having stated that these measures also apply to criminal proceedings.

            2) Length of administrative proceedings: This case presents similarities to that of Sapl (judgment of 18/12/2001) and of other cases relating to the excessive length of administrative proceedings closed by final Resolution ResDH(2005)63 following measures taken by the respondent state, in particular the adoption of Law No. 2002-1138 of 09/09/2002 providing among other things recruitment, creation of courts and budgetary allocations, adoption of procedural measures making it possible for appeal courts to reduce their backlogs more quickly and reduce the inflow of new cases.

Finally, it is recalled that there are now effective remedies at internal level, offering the opportunity to complain of the excessive length of both criminal and administrative proceedings.

▪ Assessment: in view of these circumstances, no further general measure appears necessary.

*           *           *

46621/99          Mutimura, judgment of 08/06/2004, final on 08/09/2004

This case concerns the excessive length of certain criminal proceedings, in particular during the pre-trial investigation stage (violation of Article 6§1). The impugned proceedings, which began in 1995 and had already lasted for more than 9 years (at the pre-trial investigation stage) at the date of the European Court's judgment, relate to a criminal complaint combined with an application to join the proceedings as a civil party lodged by the applicant against a person resident in France who was suspected to have taken part in the Rwandan genocide (the European Court found that a certain number of delays were the responsibility of the national authorities, including in particular the fact that the international letters rogatory were not issued until 5 years after the opening of the judicial investigation).

This case also concerns the absence, at the time when the application was lodged, of any effective remedy making it possible to complain of the excessive length of the proceedings (violation of Article 13).

Individual measures: At the end of 2005, the investigating magistrate received answers to two international letters rogatory delivered in Rwanda, which were essential for the progress of the file. The judgment was also brought to the attention of the magistrates in charge of the case (see general measures), so that they are informed of the finding of violations of the Convention.

• Further information is awaited concerning the acceleration and the progress of the proceedings, if they are still pending.

General measures:

            1) Violation of Article 6§1:

• Information provided by the French authorities: the judgment of the European Court has been sent out to the competent magistrates is available on the intranet site of the Ministry of justice, where it is accessible to all magistrates.

• Assessment: these measures, added to those adopted in other similar cases (see below), appear sufficient to close the examination of the general measures.

It should also be recalled that France adopted measures to avoid new cases of excessive length of criminal proceedings, in particular at the investigatory stage (case of Etcheveste and Bidart, judgment of 21/03/2002, Section 6.2, Volume II).

In particular, as from the entry into force of Law No. 2000-516 of 15/06/2000, judicial inquiries are subject to a proceedings schedule and new rights have been granted to parties to avoid extension of proceedings.

            2) Violation of Article 13: The European Court noted that applications for compensation founded on 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).

- 17 cases against Greece

68138/01          Zazanis and others, judgment of 18/11/2004, final on 30/03/2005

3028/03            Basoukou, judgment of 21/04/2005, final on 21/07/2005

These cases concern the failure by the municipality of Loutraki or the prefecture of Evoia to comply with judgments of the Council of State given in 2000 and of 1996 respectively (violations of Article 6§1).

In the case of Zazanis and others, the Council of State had set aside the administration’s tacit refusal (on grounds of incomplete information) to grant a building company permission to cut down trees with a view to the construction of a building on land owned by the three applicants. The Council of State, considering that the file submitted had been complete, referred it back to the administration for a decision. The European Court noted that the authority’s imposition of new conditions subsequent to the above- mentioned judgment, especially an ad hoc modification of a construction coefficient, amounted to refusal to comply with the judgment. Moreover, the Minister of Environment’s decision of 2003 to reclassify the land in question as a “public use area” was tantamount to expropriation, rendering execution of the Council of State’s judgment pointless.

In the Basoukou case, the Council of State had annulled a prefectoral decision designating the applicant's land for public use. As a consequence, the applicant has been suffering an unlawful interference with her right to property since February 1996 (violation of Article 1 of Protocol No. 1).

The Zazanis and others case also concerns the lack of an effective domestic remedy whereby the applicants might secure the execution of the judgment (violation of Article 13).

Individual measures:

            1) Case of Zazanis and others:

• Information provided: By letter of 02/01/2006 the Greek authorities informed the Committee that proceedings for the expropriation of the applicants’ land had been brought by the competent local authorities. On 09/11/2005 there was a hearing before the First-Instance Court of Corinth to set the unit price for the applicants’ compensation. By letter of 22/03/2006 the Greek authorities informed the Committee that the judgment is still expected to be delivered.

• More information is awaited on the outcome of these proceedings.

Finally, it is to be noted that the European Court only awarded the applicants just satisfaction in respect of non-pecuniary damages. With regard to pecuniary damages, the applicants have reserved their right to lodge a new application with the Court for a violation of Article 1 of Protocol 1 (§51 of the judgment).

            2) Case of Basoukou:

• Measures adopted: The Greek authorities informed the Committee that the urban development directorate of the Environment Ministry initiated the procedure for lifting the public use designation of the applicant’s land. The ministerial decree modifying the urban plan of the town of Amarynthos, Evoia, was signed on 16/02/2006 and published in the Official Journal of 14/03/2006 (series D/197).

Finally, it is to be noted that the European Court awarded the applicant just satisfaction covering the pecuniary damage sustained from February 1996 until the date of the judgment.

General measures: The cases present similarities to other Greek cases regarding non-execution of final judicial decisions by the administration which have been closed following the adoption by Greece of a series of comprehensive constitutional, statutory and regulatory measures (see ResDH(2004)81 on the Hornsby case and others).

Both judgments have been promptly translated and published on the site of the State Legal Council (www.nsk.gr).

43837/02          Castren-Niniou, judgment of 09/06/2005, final on 09/09/2005[6]

The case concerns the administration’s failure to comply with a judgment of the Chania Administrative Appeal Court delivered in May 2001 ordering the administration (Rhodes Hospital Appeal Evaluation Council) to grant the applicant the post she had applied for as a dentist in that hospital (violation of Article 6§1).

The case also concerns the excessive length of proceedings before administrative courts. They began in April 1991 and ended in May 2001 (more than 10 years for 4 degrees of jurisdiction) (violation of Article 6§1).

Individual measures:

● Information provided by the Greek authorities (letter of 23/12/2005): The applicant was promoted to the post of hospital attendant grade A on 01/10/1998. The pending litigation renewed by the applicant in August 2002 concerned her retroactive appointment to this post from 1990, as ordered by the Chania Administrative Appeal Court in 2001.

By judgment 86/2005 (07/07/2005) this court granted the applicant’s claim and remitted the case to the administration for the applicant to be appointed retroactively to the post. The Health Ministry brought the case before the competent second-instance appraisal council for the enforcement of both the domestic judgment and that of the European Court.

• Information provided by the Greek authorities (letter of 24/05/2006): The Appraisal Council was convened on 10/04/2006 and decided to appoint the applicant retroactively to the post at issue as from 1990. The decision was forwarded to the Ministry of Public Health on 12/04/2006. Information is awaited on the completion of the procedure by the publication of the decision in the Official Journal.

Finally, the European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage resulting from the violations. Pecuniary damages may also be awarded by domestic courts upon initiation by the applicant of relevant proceedings (see §45 of judgment).

General measures:

            1) Administration’s non-compliance with final domestic judgments:

• Measures adopted: Comprehensive series of statutory and other measures to ensure that the administration complies with final domestic judgments (see Final Resolution ResDH(2004)81 on Hornsby and other cases against Greece).

As regards Law 3068/2002 on the administration’s compliance with final domestic judgments, which provides remedies to impose compliance, the Greek authorities specified that this Law is applicable only to judgments delivered after 14/11/2002, the date of its entry into force. According to Article 95§5 of the Constitution (as amended in April 2001) the administration is bound to comply with all judicial decisions and administrative organs are liable in cases of non-compliance.

            2) Excessive length of proceedings in administrative courts:

• Measures adopted: Legislative and other measures to accelerate proceedings before administrative courts (see Final Resolution ResDH(2005)65 on Pafitis and others and 14 other cases against Greece, adopted on 18/07/2005). However, additional problems in this field have been highlighted in more recent judgments and are being addressed by the Greek authorities under the Committee’s supervision (see Manios group, 966e reunion, June 2006, Section 4.2, Volume I).

Legislative measures are envisaged to introduce an effective remedy in Greek law against this kind of violations.

• More information is awaited in the context of cases raising this issue (see e.g. Manios group of cases, mentioned above).

Finally, the European Court’s judgment has been translated and published at the site of the State Legal Council (www.nsk.gr). It has also been brought to the attention of the Health Ministry and the competent appraisal council.

*           *           *

16163/02          Nastou No. 2, judgment of 15/07/2005, final on 30/11/2005

The case concerns the state’s occupation of the 7 applicants’ land without compensation since 1985. The European Court found that the failure by the national courts to take a decision concerning the applicants’ title to the property as well as the total absence of any compensation, breached the equitable balance which should exist between the protection of the right to property and the requirements of the public interest (violation of Article 1 of Protocol No. 1).

The case also concerns the excessive length of civil proceedings concerning the recognition of the applicants’ ownership and their compensation. The contested situation came into being in 1985 and the proceedings were still pending when the European Court gave its judgment (violation of Article 6§1).

Finally, the case concerns the lack of an effective remedy in Greek law for the latter violation (violation of Article 13).

Individual measures:

• Information provided by the Greek authorities (letter of 23/05/2006): The hearing (joined with that concerning Nastou (Application 51356/99, Tsirikakis group, section 4.1, Volume I) before the Athens first-instance court set for 28/03/2006 has been once more adjourned, to 10/10/2006.

• Information awaited: On the state of these proceedings and on measures under consideration to accelerate them so as to put an end to the applicants’ uncertainty as to their property rights. Rapid progress is necessary, in view of the fact that the European Court has reserved its decision on just satisfaction.

General measures:

            1) Interrelated violations of Articles 1 of Protocol No. 1 and 6§1: Greece has already adopted a number of legislative and other measures to accelerate proceedings before civil courts (see Final Resolution  DH(2005)64 on Academy Trading Ltd and others against Greece and other cases, adopted on 18/07/2005).

            2) Violation of Article 13:Legislative measures are envisaged to introduce an effective remedy into Greek law for this kind of violations. More information is awaited (see also Konti-Arvaniti group of cases, section 4.2, Volume I).

Decision: The Deputies, having examined progress made in ensuring execution, decided to resume consideration of this case at their 982nd meeting (5-6 December 2006) (DH) on the basis of further information to be provided by the authorities of the respondent state concerning the acceleration of the long-pending proceedings.

*           *           *

                       - 13 cases concerning various violations in the context of land expropriation proceedings

46355/99          Tsirikakis, judgment of 17/01/02, final on 10/07/02 and of 23/01/03, final on 09/07/03

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

51354/99          Karagiannis and others, judgment (merits) of 16/01/03, final on 16/04/03

51356/99          Nastou, judgments of 16/01/03, final on 16/04/03 and of 22/04/04, final on 22/07/04

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

55794/00          Efstathiou and Michaïlidis and Cie Motel Amerika, judgment of 10/07/03, final on 10/10/03

58642/00          Interoliva Abee, judgment of 10/07/03, final on 10/10/03

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

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

73836/01          Organochimika Lipasmata Makedonias A.E., judgment of 18/01/2005, final on 18/04/2005

32730/03          Ouzounoglou, judgment of 24/11/2005, final on 24/02/2006

2531/02            Athanasiou and others, judgment of 09/02/2006, final on 09/05/2006[7]

55828/00          Satka and others, judgments of 27/03/03, final on 27/06/03 (merits) and of 02/03/2006, final on 02/06/2006 (just satisfaction)[8]

All these cases concern various violations of the applicants’ right to the peaceful enjoyment of their possessions in the context of land expropriation proceedings (violations of Article 1 of Protocol No. 1). The main issues raised are the following:

a) deprivation of land without compensation or with depreciated compensation; b) excessively lengthy proceedings or multiplication of proceedings in order to obtain full compensation following expropriation; c) lack of a national land registry.

Some also concern the excessive length of civil proceedings in the context of expropriations, or the local authorities’ refusal to abide by judicial decisions fixing compensation for expropriation (violations of Article 6§1).

Individual measures:

            1) Tsirikakis group: The applicants in all these cases have been awarded just satisfaction by the European Court, including compensation in respect of the pecuniary damage suffered.

• Information provided by the Greek authorities: In the Tsirikakis and Nastou cases domestic proceedings concerning recognition of land ownership were still pending. In the Tsirikakis case, the state’s appeal has been finally rejected by the Court of Cassation and no further proceedings are pending; In Nastou (information provided at the 966th meeting (June 2006) the hearing set for 28/03/2006 was adjourned until 10/10/2006.

• Additional information required on this case.

            2) Azas group: The European Court awarded just satisfaction to the applicants who claimed it.

• Information provided by the Greek authorities (letter of 13/06/2006): The proceedings initiated by some of the applicants in the Azas case against the Thessaloniki Court of Appeal’s judgment 362/2004, awarding the appellants the sum of 457 435 euros with interest, have been closed by the Court of Cassation’s judgment 54/2006 rejecting the appeal as inadmissible.

            3) Ouzounoglou case: By judgment No. 273/1998, the first-instance court of Thesprotia awarded the applicant compensation of 140 866 euros in respect of the reduction of the value of her house. The applicant received this compensation but alleges that since the annulment of this judgment in 2003, the state had claimed repayment of the sum.

• Clarification required on the possibility of regularising this situation in the light of the European Court's finding of a violation.

In addition, by judgment No. 6/2004 (Confirmed by judgment No. 62/2005 of the Corfu Appeal Court) the regional court of Thesprotia awarded the applicant further compensation of 118 697.38 euros for that part of her land which had been expropriated but not compensated due to the rebuttable presumption that the proximity of a new national road was beneficial to the owners of adjacent land.

            4) Athanasiou and others: The European Court awarded the applicants just satisfaction covering their pecuniary damage. In addition, three of the applicants have been awarded compensation by domestic courts for the fact that they can no longer build on the unexpropriated part of the land following its division. No further measure appears necessary.

            5) Case of Satka and others:

• Information provided by the Greek authorities (966th meeting, June 2006): the authorities are currently examining further possible measures, in view of the European Court’s judgment of 02/03/06 on just satisfaction in respect of pecuniary damage sustained.

• More information is awaited.

General measures (No examination envisaged): see the agenda prepared for the 966th meeting (June 2006), Section 4.1, Volume I.

- 1 case against Hungary

55220/00          Csanádi, judgment of 09/03/2004, final on 09/06/2004

This case concerns the excessive length of certain criminal proceedings (violation of Article 6§1). The proceedings began on 06/05/1995 and were still pending before the court of first instance when the European Court delivered its judgment (8 years and 9 months).

Individual measures: The criminal proceedings against the applicant were stayed in November 2005 as the authorities do no know where he is. There is a warrant of arrest out against him at present.

• Bilateral contacts are under way to evaluate whether further individual measures are needed.

General measures: The case presents similarities to the Németh case (Section 6.2). According to the Hungarian authorities, the length of criminal proceedings does not constitute a large-scale problem, as shown by the small number of such cases pending before the European Court.

The judgments of the European Court in these cases were published on the website of the Ministry of Justice www.im.hu. The judgment in the Németh case was sent to the Office of the National Judicial Council for dissemination to the competent courts.

Decision: The Deputies decided to resume consideration of this case at their 987th meeting (13‑14 February 2007) (DH), on the basis of further information to be provided by the authorities of the respondent state on the state of the proceedings, and, where appropriate, on their acceleration.

- 1 case against Ireland

34720/97          Heaney and McGuinness, judgment of 21/12/00, final on 21/03/01, Interim Resolution ResDH(2003)149

This case concerns in particular the failure to respect the applicants' right to remain silent and not to incriminate themselves (violation of Article 6§1) and the consequent breach of the presumption of their innocence (violation of Article 6§2).

The applicants, remanded in custody on suspicion of having committed terrorist acts, were initially informed by the police that they had the right to remain silent. However, charges subsequently laid against them included that of refusing to answer questions under the terms of Article 52 of the 1939 Offences against the State Act. In the subsequent criminal proceedings, they were found not guilty of the substantive charges but convicted and sentenced in June 1991 to six months' imprisonment for having refused to answer questions while on remand, under the terms of the above-mentioned Article 52.

Individual measures: The applicants sought to have their convictions erased.Their appeals, pending before the Court of Criminal Appeal, were scheduled to be heard on 29/05/2006.

• Information is awaited as to the outcome of those proceedings.

General measures: The measures already adopted or under way are detailed in the appendix to the interim resolution referred to above, which was adopted at the 847th meeting (July 2003) and by which it was decided to close the Committee's examination of general measures.

They may be summarised as follows:

-           the Irish authorities are considering amending Section 52 of the 1939 Act, and decided that the Garda Siochana (the Police) were not to avail themselves of that section until the legislative issue was resolved;

-           in the its judgment in Re: National Irish Bank (No.1), the Supreme Court found that no statement made under a certain legislative provision (which was similar to that found in Section 52) would be admitted into evidence unless the trial judge was satisfied that the confession was voluntary. The Court considered that compelling a person to confess and convicting that person on the basis of that compelled confession would be contrary to Article 38 of the Constitution. That is the current position in Irish law. The Irish government believes that that judgment is in itself sufficient to prevent future similar violations;

-           the European Convention on Human Rights Act 2003 requires Irish courts to interpret and apply the law in a manner compatible with the Convention and to take into account the case- law of the European Court;

The judgment of the European Court is accessible on the Irish Courts Service website www.courts.ie) and available in legal libraries.

- 4 cases against Italy

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

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

These cases concern unlawful interference with the freedom of association of the applicants, both judges. In 1994 and 1995, the Supreme Judicial Board (CSM) imposed disciplinary sanctions on the applicants because until March 1993 and October 1992 respectively, they had belonged to masonic lodges.

The European Court considered that the legal basis of the sanctions, i.e. Article 18 of Royal Decree No. 511 of 31/05/1946 combined with a 1990 directive of the CSM, was not sufficiently clear and specific, and therefore not predictable (violations of Article 11).

Individual measures: Disciplinary action was taken against the applicant Maestri in 1995, confirmed on 20/12/1996 by the Court of Cassation. Disciplinary action was taken against the applicant N.F. on 25/11/1994 and confirmed on 10/12/1996 by the Court of Cassation. Both applicants complained that this disciplinary action had had negative effects on their judicial careers.

            1) Applicant Maestri: resigned as a magistrate on 09/03/2005, and thus no measure is required.

            2) Applicant N.F.: The CSM refused the applicant promotion on 13/07/2000 because of the disciplinary sanction of 1994. The refusal was overturned by the regional administrative court on 11/07/2000 but this decision was appealed before the Council of State by the Ministry of Justice. The decision of the Council of State is awaited.

The CSM also refused to reopen the disciplinary proceedings on the basis of the European Court’s judgment, considering that it did not constitute an element allowing revision of disciplinary proceedings under Italian law (Article 37 of Royal legislative decree No. 511 of 31/05/1946). It also refused to inscribe the judgment of the European Court in the applicant’s professional file, in spite of a request to do so by the Advocate General before the Court of Cassation).

The Italian delegation and the applicant’s counsel have recently sent several documents and legal comments, which the Secretariat is currently examining.

General measures: The problem of the ambiguous legal basis has been resolved by the adoption of a new ordinance clearly stating that membership of masonic associations is incompatible with the exercise of judicial functions. This ordinance was issued after both the applicants had ceased to be freemasons and the procedure against the applicant N.F. had already begun.

• Information provided by the Italian authorities (letter of 0/10/2003): The European Court’s judgment in the N.F. case has 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 as well as in Il Sole 24 Ore - Guida al Diritto, No. 39 of 13/10/2001.

Decision: The Deputies agreed to resume consideration of these items at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning individual measures to put an en to the violation and to erase, as far as possible, its consequences for the applicants.

*           *           *

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 found guilty of drug dealing in May 1996, and sentenced to 20 years’ imprisonment and a fine. The European Court found that the applicant’s fears concerning the impartiality of the tribunal of first instance 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 provided by the Italian authorities (1/12/2005): The applicant has made no application to have the criminal proceedings reopened. The judgment will be mentioned on the applicant’s criminal record. Pending a solution to the absence in Italian law of means of reopening proceedings following judgments of the Court (see above), bilateral contacts are underway with a view to finding both a general solution to the problem and appropriate measures in the present case.

General measures: The problems at the origin of this judgment should not recur in Italy: in its judgment No. 371 of 1966, the Constitutional Court declared Article 34, paragraph 2, of the Code of Criminal Procedure to be unconstitutional, insofar as it fails to provide the exclusion from the trial of a judge having participated in other proceedings concerning the criminal liability of the same accused.

This Constitutional Court judgment is mentioned in the footnotes to the relevant article of the Code of Criminal Procedure.

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

*           *           *

30595/02           Bove, judgment of 30/06/2005, final on 30/11/2005

The case concerns the failure by the Italian authorities to implement court decisions ordering the progressive re-establishment of relations between the applicant and his daughter. The child was recognised by both her parents when she was born on 19/01/1995. On 22/09/1996, the Naples Youth Court gave custody to the mother, with visiting rights to the father. Since June 2000, meetings between the applicant and his daughter have been limited on account of the mother's accusations of sexual abuse of the child by persons close to the applicant. These accusations were dismissed without further action, and on 30/01/2003 the Naples Appeal Court decreed a progressive resumption of encounters between the applicant and his daughter. This decision was confirmed at appeal.

The European Court noted that the applicant had had no further contact with his daughter and that there was no indication that assistance had been provided to promote regular father-daughter contacts, relations between them having deteriorated to the point of non-existence. Under these circumstances it was clear that the authorities had not made a reasonable effort to facilitate family reunion, instead obliging the applicant to have recourse to repeated, prolonged and ultimately ineffective legal action (violation of Article 8)

Individual measures:

• Information provided by the Italian authorities (9/05/2006): Two encounters had taken place, on 27/01/2006 and 10/03/2006, in the presence of a court-designated psychologist. The authorities referred in this context to certain subjective obstacles related among other things to the distrust with which the daughter and her mother regard the applicant. On 22/03/2006 the Naples Appeal Court decided to suspend encounters and to pursue mediation between the parents to facilitate reconciliation between the father and his daughter.

• Information is expected on the implementation of this decision.

General measures: (No examination envisaged)

• Measures required: publication and dissemination of the judgment of the European Court, to raise the awareness of competent courts of the problems raised by this case. It may be noted that some of the measures adopted in the Scozzari case (see 966th meeting, June 2006, Section 4.2, Volume I), might be of relevance.

• Information on other possible measures taken or envisaged is awaited.

Decision:  The Deputies agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006), on the basis of further information to be provided by the authorities of the respondent state concerning individual measures proposed to put an en to the violation and to erase, as far as possible, its consequences for the applicant.

- 1 case against Latvia

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

                       CM/Inf/DH(2005)32-rev

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 expelled at the age of 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 where they had lived. The applicants unsuccessfully challenged their removal from Latvia before the domestic courts.

Following several forced deportation attempts, the applicants moved to Russia in July 1999 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 where a part of their family (parents or grandparents) continue legally to reside. The Court added that the applicants’ presence in Latvia 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: The need to ensure restitutio in integrum for the applicants expelled from Latvia in violation of Article 8 of the Convention has been stressed on numerous occasions before the Committee of Ministers (see in particular CM/Inf/DH(2004)13). The applicants requested in this context that the government reinstate them as permanent residents of Latvia.

▪ Reopening of the domestic judicial proceedings:

The Latvian government, for their part, informed the Committee that, following the European Court’s judgment, the Citizenship and Migration Authority had requested the reopening of judicial proceedings relating to the applicants’ deportation. The Supreme Court granted this request on 10/08/2004 and referred the case to the District Administrative Court of Riga for retrial. On 24/12/2004, the latter court declared unlawful the administrative decision of 29/11/1994 annulling the applicants' registration in the Register of Latvian residents. However, the court refused to quash this unlawful decision and to order of the applicants’ reinstatement in the Register. The court also dismissed the applicants' request to quash the deportation order issued on 20/08/1996 by the immigration authorities in their respect.

Claiming that no adequate redress was granted, the applicants lodged on 24/12/2004 an appeal against this decision before the Riga Court of Appeal. At the same date, the Citizenship and Migration Authority also lodged its appeal against the said decision.

The applicants’ lawyers have repeatedly stressed before the Committee the urgency of rapidly obtaining anew permanent residence status, particularly to allow access to the applicants’ elderly parents/grandparents living in Latvia, who are in precarious and deteriorating state of health (as demonstrated by recent medical certificates) and thus in great need of care and assistance by their next-of-kin. Given these circumstances and the increasing length of judicial proceedings, the applicants were requesting an urgent administrative decision to restore their permanent residence permit, thus putting an end to the violation of Article 8 found by the Court in 2003. They indicated in particular that no legal obstacle to such a decision appears to exist in Latvian law.

▪ Assessment of the situation by the Committee of Ministers:

At the 928th meeting (June 2005), the Committee noted that a number of delegations expressed their concern at the delay in restoring the applicants' permanent residence rights and stated that this issue should be urgently resolved. It further noted that some delegations stated in addition that the administrative decisions at the basis of the impugned expulsion had already been declared unlawful in December 2004 by the Riga administrative court, and suggested that the competent administrative authorities should now rapidly restore legality by ordering reinstatement of the applicants to their permanent residence rights. A similar proposal is contained in the Secretariat's memorandum issued for the 928th meeting (CM/Inf/DH(2005)32, §29).

▪ Letter by the Chairman of the Committee of Ministers:

Pursuant to the decision taken by the Committee of Ministers at the 933rd meeting (July 2005), the Chairman wrote to the Latvian Minister of Foreign Affairs on 27/07/2005 conveying the Committee’s concern at the lack of progress in implementing the judgment. The Chairman recalled that the judgment requires that the applicants be rapidly granted, as far as possible, restitutio in integrum, which implies in the present case the restoration of their permanent residence rights in Latvia. This letter was sent out to all delegations (DD(2005)527 of 8/09/2005).

In his reply of 11/10/2005 to this letter, the Latvian Minister of Foreign Affairs informed the Committee that his authorities were currently discussing with the applicants’ representatives possible solutions with a view to rapidly granting the applicants, as far as possible, restitutio in integrum. He assured the Committee that it would be duly informed of the outcome of this discussion. 

▪ Latest developments reported by the Latvian authorities: Following this exchange of letters, the authorities and the applicants engaged in negotiations in order to find, with the assistance of the Secretariat, a rapid way to grant the applicants permanent residence status in Latvia in line with the requirements of the judgment. The friendly settlement agreement has been concluded on 29/03/2006 between the parties but its execution has not yet been fully accomplished.

▪ Information to that effect is awaited. 

General measures: The Latvian translation of the judgment of the European Court has been published in the official periodical Latvijas Vēstnesis on 27/11/2003, No.167 (2932) in hard copy as well on online (www.vestnesis.lv) and at the website of the Government Agent (www.mkparstavis.am.gov.lv). The translated judgment has also been disseminated to judges and a short analysis of it has been included in the Bench Book for judges published in 2004. The issue has also been included in the training program for judges and assistants at administrative courts.

Since the administrative decisions at the basis of the violation have already been declared unlawful by the Latvian courts, no other general measure would appear necessary. 

Decision: The Deputies decided to resume consideration of this case at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning the implementation of the friendly settlement agreement.

- 1 case against the Netherlands

60665/00          Tuquabo-Tekle and others, judgment of 01/12/2005, final on 01/03/2006

The case concerns the Netherlands authorities’ refusal to allow Mrs Tuquabo-Tekle’s daughter by a previous marriage and living in Eritrea, to join her mother and step-family in The Netherlands and thus develop a family life.

The European Court found that the respondent state had failed in its obligation to strike a fair balance between the applicants’ interests (family reunion) and its own interest (controlling immigration) (violation of Article 8). The Court drew attention to the similarity of the case to that of Şen (Section 6.2). The Court further found that, in the particular circumstances of the present case, the fact that the child concerned was older than that in the Şen case, was not an element which should lead to assessing the case differently.

Individual measures: Information is awaited on progress in ensuring family reunion in this case.

General measures: Given the direct effect of European court’s judgments in the Netherlands, all authorities concerned are expected to align their practice to the present judgment. For this purpose, the judgment was published in the EHRC 2006, p. 648, no. 11. Confirmation is however awaited of the dissemination of the judgment to all courts and to the immigration and visa authorities at the Ministries of Foreign Affairs and of Justice.

Decision: The Deputies, having examined progress made in ensuring execution, agreed to resume consideration of this case at their 982nd meeting (DH) (5-6 December 2006), on the basis of further information to be provided by the authorities of the respondent state on the family reunion of the applicants and on the direct effect given to the present judgment.

- 5 cases against Poland

34049/96          Zwierzyński, judgment of 19/06/2001, final on 19/09/2001 and of 02/07/2002, final on 06/11/2002 (Article 41)[9]

The case concerns the excessive length of certain civil proceedings lodged by the State Treasury in 1992 and aiming at acquisition through adverse possession of title to some property illegally expropriated in 1952, at which time the registered owner of the building was the applicant’s father. When the European Court delivered its judgment, the case was still pending before the Lomza district Court and had already lasted, within the meaning of the Convention, 8 years and 1 month (violation of Article 6§1).

The European Court also found an infringement of the applicant’s right to the peaceful enjoyment of his possessions in particular due to the fact that the state organs continued to occupy the building at issue in spite of an administrative decision retrospectively restoring the title to the property to the applicant’s father, and brought directly or implicitly court proceedings, without any reason of “public interest”, which have resulted in the postponement of the restitution of the property (violation of Article 1 of Protocol No. 1).

Individual measures: The proceedings for acquisition through adverse possession of title of the building at issue, at the origin of the violation of Article 6§1, ended on 21/09/2001, when the Lomza district Court dismissed the Treasury’s action.

Under Article 41 of the Convention, the European Court decided that the respondent state had to restore the property to the applicant within three months from the date at which the judgment became final. Failing such restitution, the state had to pay the applicant, within the same time-limit, a sum of money corresponding to the value of the building (60 500 euros). Moreover, the state had to pay, within the same time-limit, 100 000 euros for the pecuniary damage caused by the disuse of the property. The time-limit expired on 06/02/2003.

In 2002, the Polish delegation informed the Committee that the government had taken steps to return the building at issue to the applicant, who refused it however, preferring to be paid the pecuniary damage afforded by the Court. A notarised deed has been drawn up to this effect.

Moreover, the Polish government twice requested the revision of the European Court’s judgments (on the merits and on Article 41), due to the fact that proceedings had been lodged before the national courts by third persons to contest the property right of the applicant’s father to the building at issue at the time of the expropriation. The government’s requests for revision were rejected by the European Court on 22/01/2003 and 24/06/2003.

A final judgment had been rendered by the domestic courts in November 2003, ruling that the property at issue had not constituted a part of the succession after the applicant’s parents. Deducing from this that the applicant cannot be considered as the owner of the property, the delegation concluded that he is not entitled to the restitution of the property or to compensation and asked the Committee of Ministers to postpone the examination of the case until the outcome of the new revision procedure that the authorities envisaged to open.

A third request for revision, submitted to the European Court on this ground on 19/01/2004, was rejected on 28/01/2005. On 22/04/2005, the Polish government submitted to the European Court additional observations for the reconsideration of this revision request.

The Polish authorities have also asked the Committee of Ministers to adjourn the discussion of the case until the European Court’s position will be clearly and comprehensively reconsidered.

General measures (No examination envisaged):

            1) Violation of Article 6§1: The judgment of the European Court was communicated to the Ministry of Justice for dissemination to courts, and to the Ministry of Internal Affairs for dissemination, in particular to the police. It has also been distributed to judges and prosecutors.

Moreover, the judgment was published in the Bulletin of the Council of Europe Information Office in Warsaw, as well as on its Internet website.

            2) Violation of Article 1 of Protocol No. 1: the case presents similarities to the other cases relating to the excessive length of civil proceedings (including Podbielski, Section 4.2).

*           *           *

73547/01          Jedamski and Jedamska, judgment of 26/07/2005, final on 30/11/2005

71731/01          Kniat, judgment of 26/07/2005, final on 26/10/2005

39199/98          Podbielski and PPU Polpure, judgment of 26/07/2005, final on 30/11/2005

48140/99          Teltronic-Catv, judgment of 10/01/2006, final on 10/04/2006[10]

These cases concern violations of the applicants’ right of access to a court due to domestic courts’ refusal to exempt them from court fees in respect of appeals lodged against decisions rendered between 1999 and 2001 (violations of Article 6§1). In the Jedamski and Jedamska case, the applicants’ claims concerning the attachment of their property by a bank in enforcement proceedings could not be examined. The Kniat case concerns the rejection of the applicant’s appeal against a judgment divorcing her from her husband against her will. In the Podbielski and PPU Polpure case, the applicant could not obtain an examination of his financial claims against the commune of Świdnica, for which he had carried out construction work.

Those claims amounted to nearly 3 500 000 PLN (980,800 EUR) and concerned in particular the payment of sums due to the applicant for the work carried out as well as compensation for the delay in their payment.  

The Teltronic CATV case concerns the courts' refusal to exempt the applicant company from fees on the ground that its net profit and the value of its assets were sufficiently high. Consequently, the court did not examine a claim resulting from the non-payment of an invoice by a customer.

Given the importance of the right to a court in a democratic society, the European Court concluded that the judicial authorities had failed to secure a proper balance between the interest of the state in collecting court fees and the interests of the applicants in vindicating their claims through the courts. Thus the imposition of the court fees on the applicants constituted a disproportionate restriction on their right of access to a court.

Individual measures:

            1) Case of Podbielski and PPU Polpure: following the European Court’s judgment the applicant, relying on Article 401, Section 2, of the Code of Civil Procedure, applied for the reopening of the proceedings finally terminated by a decision of the Supreme Court of 10/06/1999. This request was dismissed on 19/10/2005 on the grounds that the Code of Civil Procedure did not contain a clear provision allowing reopening in cases in which the European Court had delivered a judgment in favour of the applicant. This dismissal has been criticised in judicial circles and in the media (see Bulletin No. 2/2005 of the Information Centre of the Council of Europe in Warsaw).

In November 2005 he attempted to appeal against the Supreme Court’s judgment of 19/10/2005 but on 22/12/2005 the Supreme Court declared his appeal inadmissible as not being provided by law. On 07/04/2006 the Minister of Justice sent the applicant a letter in which he joined the Supreme Court’s position concerning the interpretation of Article 401, Section 2, of the Code of Civil Procedure and declared himself incompetent to contest the decisions of this jurisdiction. On 12/05/2006 the applicant lodged a constitutional complaint against the provision of Article 401, Section 2, of the Code of Civil Procedure as contradictory with the provisions of the Polish Constitution on the superiority of international treaties’ regulations over domestic laws.

Moreover, the applicant’s company became insolvent in the meantime and on 28/07/2006 the applicant asked the Minister of Justice and the Minister of Finance to stay all judicial and enforcement proceedings related to this insolvency until a decision concerning his constitutional complaint is delivered.

The applicant complains that, following the violation found by the European Court:

- he does not have the financial means to pay his debts and his enterprise has become insolvent,

- the domestic courts are failing to respect the obligations arising from the European Court’s judgment. 

He requests that the Committee of Ministers intervene so as to redress the negative consequences of the violation (in particular the pecuniary damage).

• Bilateral contacts between the Secretariat and the Polish delegation are under way on possible measures to erase the consequences of the violation for the applicant.

            2) Case of Teltronic CATV: Following the Katowice Appeal Court's decision of 31/07/1998, the applicant company's statement of claim was returned and had no legal effect. The European Court dismissed the applicant company's claim concerning pecuniary damage and granted it just satisfaction in repsect of non-pecuniary damage.

• Information is expected on the applicant company's current situation.

            3) Cases of Jedamski and Jedamska and Kniat: Information is awaited on the current situation of the applicants.

General measures: These cases present similarities to the Kreuz case (judgment of 19/06/01) (Section 6.2), in which measures have been already taken.

The Diet adopted a new Act on court costs in civil cases. This law entered into force on 2/03/2006, and

brings together in a single text questions of general principle related to the imposition of costs, their amount and procedures for exemption, these questions having previously been determined by different sets of rules (in particular the 1967 Act on court costs and the Civil Code).

The new law provides fixed amounts for costs in most court proceedings; previously, the general rule was that costs should be proportional. In addition, they simplify the calculation of proportional costs, which remain applicable in most disputes over assets. At present, proportional costs are equivalent to 5% of the value of the asset in dispute, with a minimum of 30 PLN and a maximum of 100 000 PLN.

The new aw also lays own the rules for exemption from costs. Parties to a dispute may be exempted, in whole or in part, by the judge if they make a declaration to the effect that they could not pay them without risking their living or that of their family. Such declaration must be accompanied by a detailed statement of their financial situation. In any event, they must pay the minimum charge of 30 PLN.

The possibility of exemption is available equally to physical and legal persons as well as organisational entities without legal personality.

- 2 cases against Portugal

73229/01          Reigado Ramos, judgment of 22/11/2005, final on 22/02/2006

The case concerns the failure to take adequate and sufficient action to enforce the applicant’s right of access to his child (born in 1995) (violation of Article 8). After their separation, the applicant and the mother concluded an agreement regarding their child, according to which the applicant should have visitation rights. A year later, the applicant brought proceedings seeking the judicial enforcement of the agreement, which was not being observed by the mother. Over several years, the mother could not be found by the domestic court, even though it undertook several steps to locate her (by requesting assistance from the police and the social security services, etc.). The proceedings were closed with the decision by the court to impose a moderate fine on the mother and to award equally moderate damages to the applicant. The European Court found that the measures taken by the Portuguese authorities with a view to enforcing the agreement, which is still valid, had been automatic and stereotyped and that they had failed to take practical and concrete steps to resolve the issue.

Individual measures:

• Information is urgently awaited on measures envisaged or taken by the Portuguese authorities with a view to enforcing the agreement regarding the applicant’s visitation rights. The applicant has informed the Secretariat that so far no measures have been taken.

General measures:

• Information is awaited on whether there is in Portugal an adequate legal arsenal capable of ensuring the respect of its positive obligations under Article 8. Information would in particular be useful as regards the adequacy and effectiveness of the available means in this respect (e.g. investigative measures, psychological and social assistance, sanctions, etc.) and their capability to ensure the legitimate rights of interested persons as well as respect for judicial decisions (see §56 of the judgment). Furthermore, information would be useful on the possible measures envisaged by the Portuguese authorities in this respect.

Finally, information is awaited on the publication of the judgment of the European Court and its dissemination to all relevant authorities, in particular to all courts.

*           *           *

30533/03          Carvalho Acabado, judgment of 18/10/2005, final on 15/02/2006

The case concerns the failure by the respondent state to strike a fair balance between the public interest and the right of the applicant to the peaceful enjoyment of her property (violation of Article 1 of Protocol 1). The applicant owned land which was expropriated in 1975 in the framework of an agricultural reform. The final amount of compensation, and the amount of interest she was entitled to, was only determined in 2003. The applicant appealed this final determination and, in May 2005, at the time the applicant submitted her observations to the European Court, the appeal was still pending and the relevant amounts not yet paid.

Individual measures:

• Information is awaited on the current state of the appeal proceedings and on whether in the meantime the applicant has received the compensation awarded to her and the interest due.

General measures: The case presents similarities to that of Matos e Silva LDA and others against Portugal (judgment of 16/09/1996) in Section 6.2, following the enactment of a legislative reform of administrative courts (Legislative Decree 229/96) aimed inter alia at accelerating administrative proceedings.

Decision: The Deputies, having examined progress made in ensuring execution, agreed to resume consideration of this case at their 982nd meeting (DH) (5-6 December 2006), on the basis of further information to be provided by the authorities of the respondent state concerning the individual measures to put an end to the violation and erase, as far as possible, its consequences for the applicants.

- 1 case against Romania

46626/99          Partidul Comunistilor (Nepeceristi) and Ungureanu, judgment of 03/02/2005, final on 06/07/2005

The case concerns the refusal by the Romanian courts, in 1996, to register as a political party the applicant political group (Party of Communists who have not been members of the Romanian Communist Party), given that its aims, as reflected in its constitution and political programme, were contrary to the constitutional and legal order of Romania.

The European Court noted that the founding texts of the applicant political group emphasised the principles of democracy, including political pluralism, universal suffrage and freedom to take part in politics, and did not contain any passage which might be considered a call for the use of violence, uprising or any other form of rejection of democratic principles. Moreover, the European Court rejected the government’s assertion that Romania cannot allow the emergence of a communist party to form the subject of a democratic debate. Therefore, it concluded that a measure as drastic as refusal to register the applicant as a political party, adopted before its activities had even started, was disproportionate to the aim pursued and consequently unnecessary in a democratic society (violation of Article 11).

Individual measures:

• Information provided by the Romanian authorities: they have indicated that, following the publication of the judgment of the European Court in the Official Gazette on 24/11/2005, the second applicant requested and obtained the revision of the 1996 court decision rejecting his application for the registration of the political group.

On 9/02/2006 the Bucharest Tribunal admitted the request for revision, ordered the applicant’s registration of as a political party and set a six-month deadline for the applicant party to fulfill the conditions imposed by the new legislation for the registration of political parties, in accordance with the indications expressed by the Committee of Ministers at the 960th meeting (March 2006). However, the applicant party appealed this decision and the proceedings are currently pending before the Bucharest Court of Appeal.

• Information is awaited on the outcome of these proceedings.

General measures: The Romanian authorities have confirmed the publication of the European Court’s judgment in the Official Gazette, as well as its communication to the Superior Council of Magistracy, the Bucharest Court of Appeal and to the Bucharest Regional Court, which is the competent body to decide on the registration of political parties.

Decisions: The Deputies 1.         having noted the information provided by the delegation of the respondent state, instructed the Secretariat to consider the advisability of preparing a draft final resolution in this case; 2.         agreed to resume consideration of this item at their 982nd meeting (5‑6 December 2006) (DH).

- 6 cases against the Russian Federation

77617/01          Mikheyev, judgment of 26/01/2006, final on 26/04/2006[11]

The case concerns torture inflicted on the applicant while in custody at the Leninskiy police station on 19/09/1998 by several police officers, with the aim of extracting a confession that he had committed the offences of which he was suspected and which proved to be nonexistent. As a result of severe physical and mental suffering sustained, the applicant attempted suicide resulting in a general and permanent physical disability (violation of Article 3).

The European Court found that the domestic investigation into the applicant’s allegations of torture had been closed and then re-opened more than 15 times during 7 years and had very serious shortcomings, such as omissions to question witnesses, delay in carrying out a number of important procedural steps (forensic examinations, confrontation of the police officers involved with the applicant, etc), lack of independence of the officials responsible for the investigation from those allegedly involved in the ill-treatment. On 30/11/2005 when the Leninskiy District Court of Nizhniy Novgorod found two police officers guilty of abuse of official powers associated with the use of violence and sentenced them to four years’ imprisonment with a subsequent three years’ prohibition on serving in law-enforcement agencies. However, the domestic court did not examine the abovementioned flaws in the investigation and no redress was provided to the applicant. Accordingly the European Court found that the investigation had not been adequate or sufficiently effective (procedural violation of Article 3) and that the applicant was deprived of an effective remedy, including a claim of compensation (violation of Article 13).

Individual measures: Information is awaited on whether the decision of 30/11/2005 has become final and on measures taken in respect of other officials allegedly involved in the events at issue (see in particular §68 of the judgment).

General measures: (No examination envisaged) It appears that the judgment requires important general measures to prevent new, similar violations. When adopting these measures, the Russian authorities may wish to take into account the comprehensive measures taken and/or envisaged in other countries to prevent similar violations by the security forces (see, in particular, Interim Resolutions DH(99)434, DH(2002)98 and ResDH(2005)43 concerning the action of the security forces in Turkey, Interim Resolution ResDH(2005)20 concerning the action of the security forces in Northern Ireland and Final Resolutions ResDH(94)34 in the case Tomasi against France and ResDH(2006)13 in the cases Egmez and Denizci against Cyprus).

            1) Procedural safeguards in police custody: It appears that the violations were due to the lack of certain procedural safeguards in the Russian legislation at the material time. The new Code of Criminal Procedure entered into force in July 2002. It is necessary to assess to what extent the current procedures as amended by this Code and their implementation comply with the detailed requirements of the Convention, which were violated in the present case.

• Information would be therefore helpful in this respect, notably on the following issues:

-               while in custody, to what extent an individual will be allowed to have contacts with the outside world, e.g. his lawyer or his relatives?

-               what actions may be taken by the outside persons if the ill-treatment is alleged?

-               what are the prosecutors’ duties in respect of persons in custody (do they have an obligation to visit persons in custody, how often, does a special report have to be drawn up)?

-               is a person subjected to a medical examination at the time of his arrest?

-               does the Russian law provide for a video recording of custodial questioning of suspects?

            2) The effectiveness of investigation: It results from the judgment that the shortcomings of the investigation pointed out by the Court were mostly due to the lack of independence of the investigating authorities from the officials allegedly involved in the ill-treatment. Therefore, it would be helpful to receive information on the following issues:

-           What bodies are responsible for the investigation of abuses committed by police officers and what are the guarantees of the investigative authorities' independence and impartiality from a hierarchical, institutional and practical point of view? And in particular

-               What are the investigation powers and means of Prosecutors General vis-à-vis the police?

-               How is the competent investigating authority determined so as to guarantee its independence (e.g. the investigators are called in from another jurisdiction)?

-               Is there an independent investigating body within the police and/or Prosecutor General office to investigate cases of alleged abuses committed by police officers (a kind of internal affairs division)?

-               What is the victim’s involvement in the proceedings (right to be heard, right to have reasons for non-prosecution, right to challenge such decisions before the courts)?

The authorities may also wish to illustrate their answers with recent specific examples and statistics, if there is any.

            3) Awareness raising and training: Given the particular importance of this type of violations, the authorities are invited to take appropriate measures to mainstream human rights training into initial and in‑service training of members of the police, judges and prosecutors. In the process of adopting these measures, the Russian authorities are invited to follow the Committee’s Recommendation (2004)4 of 12 May 2004 on the ECHR and professional training.

            4) Compensation of victims: The government indicated before the European Court that Russian law provided for the strict liability of the state, i.e. notwithstanding the identification and/or conviction of the perpetrators, in relation to unlawful actions of investigating authorities, prosecutors and courts (Article 1070 of the Civil Code). Clarifications are required on whether this Article offers those in the applicant’s position a possibility to obtain compensation pending investigation. Examples of relevant case-law would be helpful.

            5) Dissemination and publication of the judgment: Publication and wide dissemination of the judgment to all competent authorities are required together with circular letters and detailed instructions to be issued by higher hierarchical authorities, in particular by the Ministry of Interior and by the Prosecutor General, to explain to all subordinates the obligations flowing from the judgment and their effects on the day-to-day practice. An explanatory note from the Supreme Court to all lower courts would also be useful.

The Secretariat will shortly write to the Russian authorities with regard to a plan of action to be established for implementation of the present judgment.

Decision: The Deputies agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), on the basis of information to be provided by the authorities of the respondent state concerning payment of the just satisfaction, if necessary, the general measures proposed to prevent new, similar violations as well as individual measures to put an end to the violation and erase, as far as possible, its consequences for the applicant.

*           *           *

74826/01          Shofman, judgment of 24/11/2005, final on 24/02/2006[12]

The case concerns the dismissal by domestic courts of the applicant's claim introduced in 1997challenging the legal presumption of his paternity in respect of his wife's son born in 1995. Despite DNA tests establishing that the applicant was not the child's father, the courts were unable to accede to his request because it was time-barred under the terms of the Code of Marriage and Family of 1969, which was in force at the time of the child's birth. Under the Code a father could not challenge his paternity more than one year after he had been informed that the child had been registered as his.

The European Court found that, in rejecting the applicant's action even though he had learned more than a year after the child's birth that he could not have been its father, the respondent state had failed to strike a fair balance between the general interest of the protection of legal certainty of family relationships and the applicant's right to respect his private life (violation of Article 8).

Individual measures: In the framework of previous proceedings, the domestic courts established on the basis of genetic evidence that the applicant was not the child's father. However, the applicant is still required to pay maintenance in respect of the child.

• Information provided by the applicant (letter of 6/06/2006): The applicant has received a letter from a lawyer in Baden-Baden, acting on behalf of his ex-wife with a view to collecting a maintenance payment from him on the basis of the judgment of the Russian court, impugned by the European Court. This letter was forwarded to the Russian authorities on 14/06/2006.

On 7/07/2006 the applicant was informed by the authorities that the issue of individual measures was under examination by the Supreme Court of the Russian Federation, without any other detail.

Following the applicant’s request, the Russian authorities were invited to provide information on the current state of this examination and/or whether the applicant might request new paternity proceedings (re-opening) in the light of Article 46§3 of the Russian Constitution, as interpreted by the Constitutional Court (see in particular decision in Koulnev and others of 2/02/1996), allowing the review of individual cases after a decision of international body (Secretariat’s letter of 16/08/2006).

• Information in this respect is awaited.

General measures: (No examination envisaged) The European Court noted in its judgment that the new Family Code in force since 1/03/96 sets no time-limit for disclaiming paternity. However, by its Resolution No. 9 of 25/10/96 the Supreme Court established that the Code of 1969 should continue to be applied in respect of children born before the entry into force of the new Code.

▪ Additional measure required: publication and dissemination of the European Court's judgment, in particular to all courts. In this respect, a circular letter of the Supreme Court instructing the lower courts to apply the relevant provision of new Code irrespective of the date of child's birth would be useful to prevent new, similar violations.

Decisions: The Deputies, having considered the progress made in ensuring execution, 1.             invited the Russian authorities in particular to take the necessary measures to put an end to the violation and erase, as far as possible, its consequences for the applicant, for example through the re-opening of the paternity proceedings; 2.             decided to resume consideration of this case at their 982nd meeting (5‑6 December 2006) (DH), on the basis of information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction, the general measures proposed to prevent new, similar violations, as well as the individual measures.

*           *           *

71933/01          Gartukayev, judgment of 13/12/2005, final on 13/03/2006[13]

55762/00+        Timishev, judgment of 13/12/2005, final on 13/03/2006[14]

These cases concern the restriction of the applicants’ right to liberty of movement in that on 27/01/2000 and on 19/06/1999 respectively they had not been permitted to enter Kabardino-Balkaria from the Chechen Republic because of their Chechen ethnic origin. In the Gartukayev case, the restriction was imposed by an Instruction issued by the Ministry of the Interior of Kabardino-Balkaria in breach of domestic law, namely the Liberty of Movement Law (No. 52-42-I of 25/06/93). In the Timishev case, the restriction, while based on the Police Act (Section 11(22)) which allows the police to limit the liberty of movement in the public interest, resulted from an oral instruction of the Deputy Head of the Public Safety Police. The European Court considered in both cases that these restrictions were not in accordance with the law (violations of Article 2 of Protocol No. 4).

In the Timishev case, the European Court also considered that the impugned restriction was solely based on the applicant’s Chechen origin and thus could not be objectively justified in democratic society (violation of Article 14 taken in conjunction with Article 2 of Protocol 4).

Finally, the Timishev case concerns the authorities’ refusal to admit the applicant’s children to school on the ground that the applicant was no longer a resident in the town of Nalchik, since he had to surrender his migrant’s card, a local document confirming his residence in Nalchik, in exchange for compensation for the property he lost in the Chechen Republic. The European court recalled the absolute nature of the right to education and noted that Russian law admitted no residence qualification in this respect (violation of Article 2 of Protocol No. 1).

Individual measures: Both applicants were able to cross the border on the days they were stopped, by going through different check-points.

• Information required: in the Timishev case, on the applicant’s current situation as regards his registration as a resident in Nalchik and as to whether the applicant’s children were admitted to the school.

General measures (No examination envisaged):

            1) Violations of Article 2 of Protocol 4 and Article 14: Information required on whether persons in the applicants’ situation may freely cross the border between Kabardino-Balkaria and Chechnya today and if any restriction still exists, on its scope of application and legal basis.

            2) Violation of Article 2 of Protocol 1: The government declared before the Court that the Russian Education Act guaranteed the right to education irrespective of the place of residence (§ 62 of the judgment).

• Additional measures required: Dissemination of the judgment to all relevant authorities together with a circular of the Ministry of Education would be useful. Publication and dissemination of the judgments to all competent authorities possibly accompanied by a regulation or instructions from the Ministry of the Interior and the State Inspectorate for Road Safety, are required.

Decisions: The Deputies, 1.             expressed concern with the increasing number of cases concerning the Russian Federation in which delays were registered in providing the Committee with information regarding the execution of the Court’s judgments; 2.             noted that these delays were not necessarily indicative of any failure in taking the measures required by the judgments; 3.             invited the Russian authorities to inquire into the reasons for this situation and to remedy any problems identified; 4.             decided to resume consideration of all these cases at their 982nd meeting (5‑6 December 2006) (DH).

*           *           *

- Cases concerning the quashing of the final judgments through the supervisory review procedure

                       CM/Inf/DH(2005)20

Applications	Cases	Courts concerned	Date of the quashed judgment
68029/01	Kutepov and Anikeyenko, judgment of 25/10/05, final on 15/02/2006	Belgorod Regional Court	23/09/1999
66543/01	Vasilyev, judgment of 13/10/2005, final on 12/04/2006	Presidium of Orenburg Regional Court	11/10/1999

The cases concern the quashing, in 2000-2001, by the presidia of regional courts, of final judicial decisions granting the applicants with a better “Individual Pensioner Coefficient” for recalculation of their pensions and the arrears resulting from such a recalculation, following application for supervisory review (nadzor) lodged by state officials under Articles 319 and 320 of the Code of Civil Procedure then in force. These provisions gave state officials discretionary powers to challenge final court decisions at any moment. The European Court found that the use of supervisory review infringed the principle of legal certainty and thus the applicants' right to a court (violations of Article 6§1).

The Court further considered that backdating the decrease of the amount of the pensions granted by the final court decisions involved an excessive individual burden for the applicants (violations of Article 1 of Protocol No. 1).

Individual measures:

• Information required: In order to determine whether measures are necessary to erase the consequences of the violations, information was requested on the applicants’ current situations, in particular on the “Individual Pensioner Coefficient” currently used for recalculation of their pensions. However, on 5/06/2006 the Russian authorities indicated that they had lodged a request for revision under Rule 80 of the Rules of Court in the Pravednaya case which raises a similar issue.

General measures (No examination envisaged):

            1) Both these cases present similarities with the Ryabykh case (the progress achieved so far and outstanding issues are summarised in Interim Resolution ResDH(2006)1, CM/Inf/DH(2005)20).

• Additional measure required: publication and dissemination of the judgments of the European Court to all competent authorities.

            2) These cases also present similarities with the Pravednaya case in which information on general measures taken or envisaged is awaited.

- 6 cases against the Slovak Republic

                       - Cases of length of civil proceedings

46844/99          Bíro, judgment of 08/11/2005, final on 15/02/2006

3661/04            Gábriška, judgment of 13/12/2005, final on 13/03/2006

9818/02            Palgutová, judgment of 17/05/2005, final on 12/10/2005

77708/01          Šimková Adriana, judgment of 27/09/2005, final on 27/12/2005

69955/01          Široký, judgment of 18/10/2005, final on 18/01/2006

53363/99          Vanek, judgment of 29/11/2005, final on 28/02/2006

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

Individual measures: If they are still pending, acceleration of the proceedings in all these cases, which were still pending when the European Court delivered these judgments.

• Information is awaited on the state and the acceleration of the proceedings in particular in the cases of Palgutová, Šimková Adriana and Široký, having regard to what is at stake for the applicants (the proceedings in this case relate to an action to obtain a regular income following the death of the applicant's husband in a motor accident, to an action to obtain maintenance and to the lawfulness of the applicant’s dismissal from work).

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 (judgment of 09/11/2000) closed by Resolution ResDH(2005)67 (Act No. 501/2001 which reduces the number of cases in which second-instance courts are competent at first instance and aims to accelerate the gathering 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 a constitutional petition for complaints of violations of human rights protected by international treaties).

- 150 cases against Turkey

39437/98          Ülke, judgment of 24/01/2006, final on 24/04/2006[15]

The case concerns the degrading treatment of the applicant as a result of his repeated convictions and imprisonment for having refused to perform military service (violation of Article 3).

The applicant was called up in August 1995, but refused to do his military service on the ground that he had firm pacifist convictions, and he burned his call-up papers in public at a press conference. In January 1997 the applicant was sentenced to six months’ imprisonment and a fine.  Between March 1997 and November 1998 the applicant was convicted on eight occasions of “persistent disobedience” on account of his refusal to wear military uniform. During that period he was also convicted on two occasions of desertion, because he had failed to rejoin his regiment. In total, the applicant served 701 days of imprisonment.

The European Court first noted that on each occasion the applicant was freed having serving his sentence, he was once again sentenced and imprisoned for refusing to perform his military service and to wear his uniform. If the applicant persists in refusing to perform his compulsory military service, he has to live the rest of his life with the risk of being sent to prison.

The Court further noted that there was no specific provision in Turkish law governing the sanctions for those who refused to perform military service on conscientious or religious grounds. The only relevant applicable rules were provisions of the Military Criminal Code, which made any refusal to obey the orders of a superior an offence. In the Court’s opinion, that legal framework was evidently not sufficient to provide an appropriate means of dealing with situations arising from the refusal to perform military service on account of one’s beliefs. The numerous prosecutions already brought against the applicant and the possibility that he is liable to prosecution for the rest of his life amounted almost to “civil death” which was incompatible with the punishment regime of a democratic society within the meaning of Article 3.

Individual measures: The applicant is at present in hiding and is wanted by the security forces for execution of his sentence. He has no official address and has broken off all contacts with the administrative authorities.

In response to the specific measures requested by the applicant, the European Court indicated that it was primarily for the state concerned to choose, subject to supervision by the Committee, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention.

• Information is therefore awaited on the measures taken or envisaged by the Turkish authorities to ensure that the consequences of the violation found by the Court are remedied for the applicant urgently.

General measures:

• Information is awaited on the measures taken or envisaged by the Turkish authorities concerning the legal framework governing the situation of those who refuse to perform military service on conscientious or religious grounds. Information is also awaited on the publication and dissemination of the judgment to the relevant authorities, including the General Staff.

The Secretariat is awaiting the reply of the Turkish authorities to its initial phase letter of 10/07/2006 inviting them to present an action plan for the execution of this judgment.

Decision: The Deputies agreed to resume consideration of this item at their 982nd meeting (5-6 December 2006) (DH), on the basis of information to be provided by the authorities of the respondent state concerning payment of the just satisfaction, if necessary, the general measures proposed to prevent new, similar violations as well as individual measures to put an end to the violation and erase, as far as possible, its consequences for the applicant.

*           *           *

15259/02          Ertürk Hasan, judgment of 12/04/2005, final on 12/07/2005

This case concerns the excessive length of criminal proceedings in particular before the Ankara Martial Law Court (since abolished by a Law of 27/12/1993) and also partly before ordinary criminal courts. Proceedings began in November 1983 and are still pending before the Ankara Assize Court (more than 21 years of which 18 fall under the European Court's jurisdiction) (violation of Article 6§1).

The applicant was released pending trial in December 1988.

Individual measures:

• Information provided by the Turkish authorities: they informed the Secretariat on 03/04/2006 that the final decision of the Ankara Assize Court of 16/07/2002 had been quashed by the Court of Cassation on 28/05/2004. Subsequently, the case-file was transferred to the Ankara Assize Court which held its most recent hearing on 28/03/2006. However, the Turkish authorities gave no information concerning measures taken or envisaged so that the pending proceedings may be terminated rapidly.

• Information is therefore awaited on the termination of the proceedings which have now been pending for almost 22 years.

General measures: This case presents similarities to other cases of excessive length of criminal proceedings before Martial Law Courts, such as that of Şahiner and others against Turkey, which was closed by Resolution ResDH(2002)86 following the adoption of general measures by the Turkish authorities, in particular the abolition of these courts.

*           *           *

36150/02          Kaya Mehmet, judgment of 06/12/2005, final on 06/03/2006

This case concerns the excessive length of criminal proceedings in particular before the Ankara Martial Law Court, which was abolished by a Law of 27/12/1993, and also partly before ordinary criminal courts. The proceedings began in September 1980 and are still pending before the Ankara Assize Court (more than 25 years of which 18 fall under the Court's jurisdiction) (violation of Article 6§1). The applicant was released pending trial in April 1991.

Individual measures: Information is urgently awaited on the outcome of the proceedings.

General measures: This case presents similarities to other cases of excessive length of criminal proceedings before 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, in particular the abolition of these courts.

*           *           *

35811/97          Kolu Mustafa, judgment of 02/08/2005, final on 02/11/2005

The case concerns the unfairness of criminal proceedings brought against the applicant on charges of unlawful entry and aggravated theft in 1995. The applicant was sentenced to 33 years and four months’ imprisonment on the basis of the confessions he made, which he claimed were obtained under torture, in the absence of a lawyer, while in police custody in solitary confinement.

The European Court found that the applicant had made several self-incriminating statements while in police custody and that there was nothing to suggest that he had given those statements in the presence of a lawyer or after having been informed of his right to be assisted by a lawyer. Neither had it been shown that the police officers had informed the applicant of his right to remain silent. Furthermore, during the trial stage the applicant was denied not only the possibility of challenging the allegations made by his accusers but also an opportunity to challenge the use of confessions obtained in the absence of a lawyer in solitary confinement (violation of Article 6§§1, 3c and d).

Individual measures: The applicant was released in December 2000 in application of Amnesty Law No. 4616 of 22/12/2000. However, the Turkish authorities informed the Secretariat that the applicant’s conviction was still valid (although his sentence had been decreased by half) and still appeared on his criminal record.

• Information is therefore awaited on the erasure of all the consequences of the violation found by the Court. 

General measures:

• Measures adopted: Several measures have been taken with the entry into force of the new Code of Criminal Procedure (CCP) on 01/06/2005 and with the amendments introduced in the Rules on Apprehension, Police Custody and Interrogation in relation to the procedural safeguards in police custody (see, Appendix 1 to Interim Resolution ResDH(2005)43). These amendments, as far as relevant, can be summarised as follows:

1. All suspects or accused shall have the right to have access to a lawyer at every stage of the investigation. The right to have access to a lawyer, including during the interrogation, shall not be obstructed or limited (Article 149 of the CCP).

2. A lawyer shall be appointed if suspect or accused declares that he or she has no means to appoint one. In the investigation of crimes requiring at least five years’ imprisonment, a lawyer shall automatically be appointed whether or not the suspect or the accused requests it (Article 150 of the CCP).

3. Apprehended persons shall be informed of their rights at the time they are taken into custody (Article 6 of the Regulations).

4. Lastly, no statement obtained by security forces in the absence of a lawyer shall be considered as a basis of a conviction unless the suspect or accused confirms that statement before a judge or a court (Article 148 of the CCP).

Decision: The Deputies, having examined progress made in ensuring execution, decided to resume consideration of this case at their 982nd meeting (5-6 December 2006) (DH) on the basis of further information to be provided by the authorities of the respondent state concerning the erasure of all the consequences of the violation for the applicant.

*           *           *

38595/97          Kakoulli, judgment of 22/11/2005, final on 22/02/2006

The case concerns the killing of the applicants’ husband and father, Petros Kakoulli, in 1996, by Turkish soldiers on guard duty in the border area within the “Turkish Republic of Northern Cyprus (TRNC)” in Cyprus and the lack of an effective and impartial investigation into this killing (violation of Article 2).

The European Court found that the killing of Mr Kakoulli was not proportionate nor absolutely necessary for the purpose of “defending any person from unlawful violence” or “effecting a lawful arrest”, since Mr Kakoulli did not pose an imminent risk of death or serious harm to the soldier in question or anyone else and since the fatal shot was fired after Mr Kakoulli had already been injured and neutralised and when it was thus possible to carry out an arrest.

The Court further found that, notwithstanding the seriousness of the incident, there were a number of significant omissions which raise doubts about the effectiveness and impartiality of the investigation into the killing, carried out immediately afterwards, and following which no criminal or disciplinary proceedings were brought against the soldier who shot Mr Kakoulli. The Court found the following shortcomings in the investigation:

-           the initial autopsy failed to record fully the injuries on Petros Kakoulli’s body, an omission which hampered an assessment of the extent to which he was caught in the gunfire, and his position in relation to the soldiers on guard duty;

-           the investigating authorities based their findings solely on the soldier’s account of the facts, without casting any doubt on it and without seeking any further eyewitnesses;

-           these same authorities failed to inquire as to whether the victim could have posed a serious threat to the soldiers from a long distance with the alleged weapons or whether the soldiers could have avoided using excessive lethal force;

-           the investigators did not examine whether the soldier who shot Mr Kakoulli had complied with the rules of engagement laid down in the military instructions concerning the Haşim 8 Guard Post.

Individual measures:

Information is awaited on the possibility of remedying the shortcomings in the domestic investigation highlighted by the Court.

General measures (No examination envisaged): On 06/06/2006, the Secretariat wrote to the Turkish authorities concerning the presentation of an action plan for the execution of this judgment.

• Information is in particular awaited on a possible modification of the instructions to military personnel in the border area of the “TRNC” as regards rules of engagement, particularly since these instructions do not seem to be in line with the “UN Force and Firearms Principles”. In addition, information is awaited on the publication of the judgment and its dissemination to all relevant military and investigative authorities. Information on possible instructions to soldiers serving in the border area concerning the consequences of the European Court’s judgment would also be useful.

*           *           *

38187/97          Adalı, judgment of 31/03/2005, final on 12/10/2005

The case concerns the lack of an effective investigation into the death of the applicant’s husband, who was shot in front of his house in Nicosia (i.e. in the part situated to the north of the demarcation line) on 6/07/96 (violation of Article 2 and 13). The Court found the following shortcomings in the investigation:

-               the failure of the investigating authorities to take fingerprints on the terrace or inside the applicant’s home and the absence of real coordination or monitoring of the scene of the incident;

-               the fact that the ballistic examination carried out by the authorities was insufficient;

-               the failure of the investigating authorities to take statements from some key witnesses (although additional witness statements were taken in 2002, after the application in this case had been communicated to the government);

-               the failure of the authorities to inquire sufficiently into the motives behind the killing of the applicant’s husband, and 

-               the lack of public scrutiny of the investigation and the lack of information provided to the deceased’s family.

The case also concerns an interference with the applicant’s freedom of association on account of a refusal of permission to cross from northern to southern Cyprus to attend a bi-communal meeting on 20/06/1997 (violation of Article 11).

Individual measures: On 24/03/2006, the Chief Public Prosecutor of the “TRNC” sent a letter to the police authorities, ordering them to initiate an additional investigation into the death of Mr Adalı, taking into account the shortcomings identified in the Court’s judgment. Information is awaited on the follow-up given to this letter and in particular on the specific steps taken in the framework of this additional investigation.

General measures (No examination envisaged):

• Information supplied by the Turkish authorities: The Turkish authorities have provided an action plan regarding the general measures taken or envisaged in this case.

            1) Violations of Article 2 and 13: They stressed that the shortcomings in the investigation found by the Court generally emanated from the practice and not from the legislation in place and have provided a copy of the Coroners Law and of the Law on Criminal Procedures of the “TRNC” in support of this assertion, underlining specifically Article 14 of the Coroners Law, which states that every interested party may appear at an inquest.

• Measures adopted: Article 29 of the Act on the Law Office was amended on 13/03/2006 to the effect that the Chief Public Prosecutor, if he finds it necessary, may supervise or direct investigations carried out by the General Directorate of the Police Forces and give orders in this respect. Consequently, the role of the Attorney General in police investigations has become more important.

According to the Turkish authorities, the judgment has been translated into Turkish and will be disseminated to the relevant authorities shortly. In addition, an article titled “The Ilkay Adalı Case and Aspects of the Right to Life” has been published in the Lefkoşa Bar Journal.

• Additional information awaited: The indication of other potentially relevant articles in the Coroners Law and the Law on Criminal Procedures would be appreciated. In addition, information regarding the involvement of victim’s families in investigations other then coroner’s inquests into the death of their relative would be useful.

            2) Violation of Article 11:

• Measures adopted: The necessary measures have been taken in the framework of the case of Djavit An (section 6.2). The “Council of Ministers of the TRNC” adopted several decisions following the judgment of the European Court in that case, in order to provide a legal basis regulating the crossing of the “green line” in both directions. Under the terms of decision No. E-762-2003 the crossing from the north to the south is carried out after presentation of an identity card or a passport and the computerised record of the passage of persons and vehicles. Each person may carry personal effects. Moreover, the provisions according to which the passage is carried out on a day trip basis and the return must take place before midnight were repealed by a decision of the “Council of Ministers of the TRNC” No. T-820-2004.

*           *           *

- Cases raising the issue of restitutio in integrum for the applicants:

reopening of the domestic proceedings not allowed by Turkish law

39465/98          Parsıl, judgment of 26/04/2005, final on 26/07/2005

The case concerns the violation of the applicant’s right to a fair trial on account of the failure to disclose Principal Public Prosecutor's written opinion concerning the validity of the applicant's appeal on a point of law before the Court of Cassation in an embezzlement case (violation of Article 6§1).

In March 1996, the applicant was sentenced to 7 years and 9 months' imprisonment and a fine of 33 333 333 Turkish liras (390 euros) and was banned from exercising public office.

Individual measures: The applicant cannot obtain the reopening of the impugned proceedings under Law No. 4793 as this law does not apply to proceedings which were pending before the European Court at the date of its entry into force.

• Information is therefore awaited on the measures envisaged by the Turkish authorities in order to erase all the consequences of the violation for the applicant.

General measures: 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.

Thereafter, this provision was included in Article 297 of the new Code of Criminal Procedure adopted on 17/12/2004, which and entered into force on 01/06/2005 (see in this context, the Göç case in Section 6.2).

*           *           *

- Cases concerning the independence and impartiality of state security courts

53431/99          Gençel, judgment of 23/10/2003, final on 24/03/2004

39678/98          Acar Leşker, judgment of 22/06/2004, final on 22/09/2004

27310/95          Ağaoğlu, judgment of 06/12/2005, final on 06/03/2006

55954/00          Akar and Beçet, judgment of 20/09/2005, final on 20/12/2005

52656/99          Akbaba, judgment of 17/01/2006, final on 17/04/2006

59759/00          Akçakale, judgment of 25/05/2004, final on 25/08/2004

52665/99          Akkaş Çağlar, judgment of 23/10/03, final on 24/03/04

41956/98          Aksaç, judgment of 15/07/2004, final on 15/10/2004

59234/00          Al and others, judgment of 13/11/03, final on 24/03/04

63183/00          Aslan Bedri and Reşit, judgment of 22/12/2005, final on 22/03/2006

59237/00          Aslan Mehmet Salih, judgment of 15/07/2005, final on 15/10/2005

40297/98          Aydın Şehmuz, judgment of 22/12/2004, final on 22/03/2005

54501/00          Aydın Volkan, judgment of 10/11/2004, final on 10/02/2005

54275/00          Aytan, judgment of 20/09/2005, final on 20/12/2005

63878/00          Balçık, judgment of 26/04/2005, final on 26/07/2005

57562/00          Becerikli and Altekin, judgment of 08/01/2004, final on 14/06/2004

56363/00          Biyan Lasgin, judgment of 03/02/2005, final on 03/05/2005

46388/99          Bozkurt Bilal and others, judgment of 04/12/03, final on 24/03/04

57345/00          Budak and others, judgment of 10/01/2006, final on 10/04/2006

49892/99          Bulut, judgment of 22/11/2005, final on 22/02/2006

55812/00          Çaloğlu Vahit and Hilan, judgment of 29/07/2004, final on 29/10/2004

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

40395/98          Canevi and others, judgment of 10/11/2004, final on 10/02/2005

57019/00          Çaplik Hatip, judgment of 15/07/2005, final on 15/10/2005

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

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

61650/00          Çelik Mehmet, judgment of 15/07/2005, final on 15/10/2005

57944/00          Çetinkaya and others, judgment of 18/12/2003, final on 14/06/2004

59640/00          Çiftçi Evrim, judgment of 29/11/2005, final on 01/03/2006

48155/99          Çınar, judgment of 15/01/2004, final on 14/06/2004

52898/99          Çolak No. 1, judgment of 15/07/2004, final on 15/10/2004

53530/99          Çolak No. 2, judgment of 15/07/2004, final on 15/10/2004

51416/99          Dalgıç, judgment of 23/10/03, final on 24/03/04

60262/00          Demir Ebru, judgment of 22/11/2005, final on 22/02/2006

42437/98          Dinç Riza, judgment of 28/10/2004, final on 02/02/2005

50193/99          Doğan and Keser, judgment of 24/06/2004, final on 24/09/2004

49503/99          Doğan Halil, judgment of 29/01/2004, final on 14/06/2004

62017/00          Doğru, judgment of 10/11/2005, final on 10/02/2006

29592/96          Dolaşan, judgment of 18/01/2005, final on 18/04/2005

34498/97          Döner, judgment of 26/10/2004, final on 26/01/2005

47654/99          Duran Osman, judgment of 04/12/03, final on 04/03/04

40997/98          Duran Tahir, judgment of 29/01/2004, final on 14/06/2004

46506/99+        Durmaz and others, judgment of 14/10/2004, final on 14/01/2005

44267/98          Dursun and others, judgment of 04/12/03, final on 04/03/04

43926/98          Epözdemir, judgment of 28/10/2004, final on 28/01/2005

53895/00          Erdoğan Mesut, judgment of 23/10/03, final on 24/03/04

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

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

56021/00          Erolan and others, judgment of 15/01/2004, final on 14/06/2004

54814/00          Eşidir and others, judgment of 11/10/2005, final on 11/01/2006

49655/99          Gökdere and Gül, judgment of 09/12/2004, final on 09/03/2005

1889/04            Güllü, judgment of 10/11/2005, final on 15/02/2006

59997/00          Gündüz Müslüm No. 2, judgment of 12/07/2005, final on 12/10/2005

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

53968/00          Güneş İsmail, judgment of 13/11/03, final on 13/02/04

46272/99          Güneş, judgment of 22/04/2004, final on 10/11/2004

40528/98          Güven Ahmet and others, judgment of 22/01/2004, final on 14/06/2004

57343/00          Hatun and others, judgment of 20/10/2005, final on 20/01/2006, rectified on 01/12/2005

54919/00          İçöz, judgment of 15/01/2004, final on 14/06/2004

58057/00          İrey, judgment of 27/07/2004, final on 27/10/2004

47340/99          Jalaliaghdam, judgment of 22/01/2004, final on 14/06/2004

57939/00          Kalyoncugil and others, judgment of 29/01/2004, final on 14/06/2004

52691/99          Karabaş, judgment of 21/07/2005, final on 21/10/2005

45718/99          Karakurt, judgment of 20/09/2005, final on 15/02/2006

54335/00          Kaya and others, judgment of 24/06/2004, final on 24/09/2004

44054/98          Kaya İrfan, judgment of 22/01/2004, final on 14/06/2004

57758/00          Kaymaz and others, judgment of 28/10/2004, final on 28/01/2005

52701/99+        Keçeci, judgment of 15/07/2005, final on 15/10/2005

35363/02          Kepeneklioğlu and Canpolat, judgment of 06/09/2005, final on 06/12/2005

58058/00          Kezer and others, judgment of 24/01/2006, final on 24/04/2006[16]

40498/98          Kılıç Murat, judgment of 30/09/2004, final on 30/12/2004

48083/99          Kılınç Mükremin, judgment of 15/03/2005, final on 15/06/2005

48062/99          Kırcan Mustafa, judgment of 22/01/2004, final on 14/06/2004

48263/99          Kirman, judgment of 27/11/03, final on 27/02/03

50903/99          Korkmaz, judgment of 22/01/2004, final on 14/06/2004

43818/98          N.K., judgment of 30/01/03, final on 30/04/03, rectified on 18/02/03

63357/00          Öncü and others, judgment of 29/11/2005, final on 01/03/2006

64684/01          Öner and others, judgment of 25/10/2005, final on 25/01/2006

56006/00          Özcan Mehmet and others, judgment of 11/10/2005, final on 11/01/2006

55427/00          Özcan Serdar, judgment of 08/04/2004, final on 08/07/2004

46952/99          Özdemir Hıdır, judgment of 15/01/2004, final on 14/06/2004

42141/98          Özden, judgment of 24/05/2005, final on 24/08/2005

49707/99          Özdoğan, judgment of 18/01/2005, final on 18/04/2005

48059/99          Özer K. and others, judgment of 22/04/2004, final on 22/07/2004

48438/99          Özertikoğlu İsmail, judgment of 22/01/2004, final on 14/06/2004

58397/00          Özsoy, judgment of 02/02/2006, final on 02/05/2006

59244/00          Öztürk Ayşe, judgment of 04/11/2004, final on 04/02/2005

52695/99          Öztürk, judgment of 20/09/2005, final on 20/12/2005

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

60177/00          Özüpek and others, judgment of 15/03/2005, final on 15/06/2005

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

53014/99          Peker, judgment of 23/10/03, final on 24/03/04

48065/99          Polat Metin and others, judgment of 15/01/2004, final on 14/06/2004

38422/97          Reyhan, judgment of 21/07/2005, final on 21/10/2005

54545/00          Şahindoğan, judgment of 30/11/2004, final on 28/02/2005

57919/00          Şahmo, judgment of 20/09/2005, final on 20/12/2005[17]

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

41968/98          Sekin Duran, judgment of 02/02/2006, final on 02/05/2006[18]

50118/99          Şimşek, judgment of 23/10/2003, final on 24/03/2004

47328/99          Şirin, judgment of 15/03/2005, final on 15/06/2005

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

30452/96          Takak, judgment of 01/04/2004, final on 07/07/2004

45907/99          Tanrıkolu and others, judgment of 20/10/2005, final on 12/04/2006

62877/00          Taş Dede, judgment of 10/11/2005, final on 10/02/2006

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

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

48805/99          Taydaş and Özer, judgment of 04/11/2004, final on 04/02/2005

69515/01          Tekin and Taştan, judgment of 11/01/2005, final on 11/04/2005

52899/99          Tekin Mahsun, judgment of 20/12/2005, final on 20/03/2006

41990/98          Temirkan, judgment of 20/09/2005, final on 20/12/2005

35070/97          Tezcan Uzunhasanoğlu, judgment of 20/04/2004, final on 20/07/2004

57561/00          Toprak, judgment of 08/01/04, final on 08/04/04

48095/99          Töre Nazif, judgment of 14/04/2005, final on 14/07/2005

42738/98          Tuncel and others, judgment of 27/11/03, final on 24/03/04

51053/99          Tutmaz and others, judgment of 23/10/03, final on 24/03/04

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

42775/98          Ükünç and Güneş, judgment of 18/12/2003, final on 14/06/2004

48616/99          Ünal Süleyman, judgment of 10/11/2004, final on 10/02/2005

48173/99+        Y.B. and others, judgment of 28/10/2004, final on 28/01/2005

57344/00          Yağiz and others, judgment of 22/11/2005, final on 22/02/2006[19]

46284/99          Yanıkoğlu, judgment of 14/10/2004, final on 14/01/2005

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

53586/99          Yavuzaslan, judgment of 22/04/2004, final on 22/07/2004

50249/99          Yeşil, judgment of 01/07/2004, final on 01/10/2004

52162/99          Yeşiltaş Hüseyin and Kaya Zeki, judgment of 15/07/2005, final on 15/10/2005

40518/98          Yıldırım Süleyman, judgment of 29/07/2004, final on 29/10/2004

49156/99          Yıldız Bekir, judgment of 06/09/2005, final on 15/02/2006

52164/99          Yildiz and others, judgment of 21/07/2005, final on 21/10/2005

58400/00          Yıldız Hüseyin, judgment of 25/10/2005, final on 25/01/2006

57172/00          Yılmaz and Durç, judgment of 22/12/2005, final on 22/03/2006

62319/00          Yilmaz Feyyaz, judgment of 15/07/2005, final on 15/10/2005

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

53497/99          Yilmaz Levent Can, judgment of 21/07/2005, final on 21/10/2005

42552/98          Yılmaz Mehmet Bülent and Yılmaz Şahin, judgment of 07/10/2004, final on 07/01/2005[20]

45733/99          Yılmaz Metin, judgment of 22/12/2004, final on 22/03/2005

48992/99          Yılmaz Murat, judgment of 24/06/2004, final on 24/09/2004

66689/01          Yılmaz Yıldız, judgment of 11/10/2005, final on 11/01/2006

47628/99          Yurtsever, judgment of 02/02/2006, final on 02/05/2006

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).

The Y.B and others case also concerns a violation of the principle of presumption of innocence (violation of Article 6§2).

Individual measures: The European Court considered that where an individual has been convicted by a court which did not meet the Convention requirements of independence and impartiality, a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation.

However, the provisions of the Turkish Code of Criminal Procedure does not enable the criminal proceedings to be reopened in these cases, inasmuch as the Code only provides for the reopening of proceedings in respect of the Court’s judgments which became final before 04/02/2003 or judgments rendered in applications lodged with the Court after 04/02/2003.

Consequently, the applicants’ appeals for reopening of proceedings in the cases of N.K (43818/98), Özertikoğlu İsmail (48438/99), Süvarioğulları (50119/99), Güven and others (in respect of Ramazan Akdağ) (40528/98), Yıldırım Süleyman (40518/98), Güneş Ismail (53968/00), Gençel (53431/99) and Kaymaz and others (57758/00) were rejected by domestic courts. In the case of Kaymaz and others, the applicants lodged a new application with the European Court alleging that the fact that they had been deprived of the possibility to have their cases reopened constituted violations of Articles 3, 5 § 1(a) and 6 (in conjunction with 14) of the Convention. 

• Information expected: concerning the applicants’ situation and the measures envisaged ensuring proper redress to the applicants, particularly 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 (No examination envisaged)

            1) Violations of Article 6§1 (independence and impartiality): 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.

            2) Violations of Article 6§2 (presumption of innocence): in the case of Y.B and others, publication and dissemination of the European Court’s judgment to the police force, in particular to the Anti-Terrorism Branch.

Decision: The Deputies, having examined progress made in ensuring execution, agreed to resume consideration of these cases at their 982nd meeting (DH) (5-6 December 2006) on the basis of further information to be provided by the authorities of the respondent state concerning the just satisfaction payment, if necessary, as well as the individual measures to put an end to the violations and erase, as far as possible, their consequences for the applicants.

*           *           *

                       - Cases concerning ill-treatment suffered by the applicants and the lack of independence and impartiality of state security courts

52941/99          Gültekin and others, judgment of 31/05/2005, final on 31/08/2005, rectified on 06/12/2005

48063/99          Aslan Orhan, judgment of 20/10/2005, final on 20/01/2006

43925/98          Karakaş and Yeşilırmak Yılmaz, judgment of 28/06/2005, final on 28/09/2005

39813/98          Önder Soner, judgment of 12/07/2005, final on 12/10/2005

These cases concern the ill-treatment of the applicants during police custody (violations of Article 3).

They also 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).

The applicants in two of the cases are still serving heavy prison sentences (life imprisonment in the case of Gültekin and others and 20 years in the Önder case).

Individual measures: As regards the violations of Article 6§1, these cases present similarities to the other cases concerning the independence and impartiality of state security courts. The European Court has reiterated its view (except in the case of Karakaş and Yeşilırmak) that in cases where 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 would be to ensure that in due course the applicant is granted a retrial by an independent and impartial tribunal. The applicants cannot obtain reopening of proceedings for the reasons explained above.

• Information expected: on the applicants' situation and the measures envisaged to ensure them proper redress, particularly 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:

            1) Violations of Article 3: these cases present similarities to the other cases concerning the actions of security forces in Turkey, which are being examined by the Committee (in this connection see Interim Resolution ResDH(2005)43 adopted at the 928th meeting (June 2005) which takes stock of the measures already taken and points out the outstanding issues to be resolved).

            2) Violations of Article 6§1: these cases present similarities the other cases concerning the independence and impartiality of state security courts

*           *           *

32984/96          Alfatli and others (applicant 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 European 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 (more than 8 years and 11 months).

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: Concerning the independence and impartiality of the Martial Law Court, 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.

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. However, the provisions of Code of Criminal Procedure on reopening of domestic proceedings do not apply in his case (the same situation as in the cases concerning the independence and impartiality of state security courts).

• Information provided by the Turkish authorities: on 07/10/2004 the Turkish authorities informed the Secretariat that the “plan of action” for the implementation of the measures required had been brought to the attention of the Ministry of Justice. On 11/01/2005 the Turkish authorities informed the Committee that the provisions of Law No. 5352 (Law on Criminal Records) do not allow the erasure of the applicant’s conviction from his criminal records due to the heavy punishment imposed (i.e. death sentence commuted to life sentence).

• Information is awaited on the specific measures taken or envisaged by Turkey in order to ensure redress for the applicant, either by allowing the reopening of proceedings or any other ad hoc measures.

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, in particular the abolishment of the jurisdiction of Martial Law Courts.

- 1 case against Ukraine

34056/02          Gongadze, judgment of 08/11/2005, final on 08/02/2006[21]

The case concerns the disappearance and murder of the applicant’s husband, Mr Gongadze, a political journalist, in September 2000.

The European Court found that in spite of Mr Gongadze’s writing to the Prosecutor General complaining about being subject to surveillance by unknown people and the inexplicable interest in him shown by law-enforcement officers, the authorities failed to take any step to verify this information or to protect his life (violation of Article 2). The Court further found that the investigation into his disappearance had suffered a series of delays and deficiencies (procedural violation of Article 2).

The Court also found that the investigation authorities’ attitude to the applicant and her family, in particular the uncertainty resulting from numerous contradictory statements about the fate of the applicant’s husband and their constant refusal to grant her full access to the case-file, caused her serious suffering amounting to degrading treatment (violation of Article 3).

Finally, the Court considered that the lack of any effective investigation for more than 4 years and the impossibility to seek compensation through civil proceedings pending criminal investigation constituted a denial of an effective remedy (violation of Article 13).

Individual measures: The judgment states that the investigation had been completed and the case was about to be sent to court (§ 143). The European Court also noted that the report on the murder of Mr Gongadze submitted to the Parliament of Ukraine on 20/09/2005 by the ad hoc investigating committee specifically named several state officials involved in his kidnap and murder (§ 146).

▪ Information is thus awaited on steps taken by the authorities following this investigation and the report of the ad hoc committee.

General measures (No examination envisaged): It appears that the violations were due to the particular political context in Ukraine at the material time. However, in order to determine whether general measures are necessary to remedy the shortcomings highlighted by the judgment, clarification is expected on the rules governing investigation procedures if they were to take place today, in particular as regards the independence of the investigators, the promptness of the investigation and the right of the aggrieved party to adequate access to the file during the investigation.

▪ Remedies against the excessive length of investigation: In the context of the examination of the Merit case (966th meeting, June 2006, Section 4.2, Volume I), the Ukrainian authorities transmitted to the Secretariat a draft law on pre-trial and trial procedures and enforcement of judgments within reasonable time. This draft proposes a new remedy, making it possible to apply to a higher court to order particular procedural actions within a certain time-limit and/or award compensation for delays. Such compensation could be for an amount up the equivalent of fifteen times the minimum wage. The draft also specifies that such a decision should be dispatched to the competent authority in order to decide on disciplinary action against the persons responsible for the delay.

▪ Information is awaited: on the time-table for the adoption of this draft. Publication and dissemination of the European Court’s judgment are required.

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

- 1 case against Albania

54268/00          Qufaj Co. Sh.p.k., judgment of 18/11/2005, final on 30/03/2005[22]

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

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

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

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

• Evaluation: no additional measure seems to be required.

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

No information has been provided so far.

• Information is awaited on the action plan envisaged by the Albanian authorities for the execution of this judgment, and in particular concerning publication and dissemination of the judgment to competent authorities.

- 3 cases against Belgium

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

This case concerns the failure to respect the adversarial principle during the establishment of an expert medical opinion ordered in the framework of criminal proceedings against the applicant for assault.

By a final judgment of 27/11/1997 the Liège Appeal Court condemned the applicant to two years’ imprisonment suspended and a fine.

The European Court noted that the applicant, who was prevented from taking part in the proceedings before the expert, had been denied the opportunity – personally or through his counsel or medical adviser – to cross-examine witnesses appearing before the expert, to submit observations on the material examined and information collected or to ask the expert to make further inquiries. He was thus deprived of the possibility to comment on crucial evidence (violation of Article 6§1).

Individual Measures:

• Information provided by the Belgian authorities (letter of 07/02/2006): Under Article 92 of the Criminal Code, penalties for minor offences are subject to limitation 5 years after the judicial decision has become final. In this case the penalty imposed on the applicant has been subject to limitation since 27/11/2001.

• Bilateral contacts are under way to clarify whether other individual measures, in particular the striking of the sentence from the applicant’s criminal record, are apposite in this case.

General measures:

• Information provided by the Belgian authorities (letter of 07/02/2006): An important reform of criminal procedure is under way in Belgium, involving a change to rules governing criminal medical opinions so that they are subject to the adversarial principle at all stages: preliminary investigation, investigation and trial. It is for the prosecution, the examining magistrate or the trial judge to determine the conditions for establish such opinion having regard to the rights of the defence and the requirements of the prosecution.

The adversarial principle is however not applicable in the following four specific situations, in which to apply it would:

- obstruct the administration of evidence in the context of an investigation;

- represent a danger to persons;

- represent a threat to privacy; or

- where an application by a civil party to join criminal proceedings with a suit for damages appears inadmissible or where such civil party is unable to show legitimate justification for consulting the case-file.

The Bill enacting this reform was passed by the Senate on 1/12/2005 and passed to the House of Representatives.

The European Court’s judgment has been communicated to the Collegium of Prosecutors General for dissemination to the appeal courts, to the Federal Prosecutor and to the Prosecutor before the Cour de cassation.

• Additional information is awaited concerning publication of the European Court’s judgment and on the progress of the Belgian criminal law reform.

*           *           *

                       - Cases of length of proceedings concernant civil rights and obligations before the Conseil d'Etat

49204/99          Entreprises Robert Delbrassinne S.A., judgment of 01/07/2004, final on 01/10/2004

47295/99          Stoeterij Zangersheide N.V. and others, judgment of 22/12/2004, final on 22/03/2005

These cases concern the excessive length of proceedings concerning civil rights and obligations before the Conseil d’Etat (violations of Article 6§1). In the first case, the proceedings, which concerned the granting of a building permit, began on 30/06/93 and ended on 7/12/98 (5½ years). In the second case, they began in 1975 and ended in 1998 (more than 22½ years before one degree of jurisdiction). They concerned the granting of an extraction permit.

The European Court noted that the length mainly resulted from the unexplained time taken by the auditeur of the Conseil d’Etat to submit his report.

Individual measures: None: the proceedings are closed.

General measures:The European Court’s judgment was notified to the auditeur général of the Conseil d’Etat and the Minister of the Interior and published on the Internet website of the SPF (Service public fédéral, i.e. Ministry of) Justice in the three official languages.

• Information provided by the Belgian authorities (letter received on 30/05/2005): The Conseil d’Etat was being reformed to reduce its backlog (in particular regarding proceedings concerning aliens’ rights).

The Belgian government proposed certain measures, to be discussed with the Conseil d’Etat. The structural and organisational measures envisaged will include, in particular:

- eliminating the non-judicial functions of the Conseil d’Etat,

- improving the functioning of sections, in particular in the light of the results of the work of the section president in charge of organisation,

- clearer definition of the tasks of the registrar, deputy registrar and administrator.

The government also foresees the introduction of modern management (including a system of terms of office for certain functions and an evaluation system for magistrates) as well as simplified procedures in some cases.

New judges are to be recruited to deal with the judicial backlog.

• Additional information is awaited on the follow-up to this reform.

Decision: The Deputies agreed to resume consideration of these items at their 992nd meeting (3-4 April 2007) (DH), in the light of further information to be provided by the authorities of the respondent state concerning general measures to prevent new, similar violations, particularly the reform of the Conseil d’Etat.

- 12 cases against Bulgaria

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: In May 2003 the Supreme Administrative Court quashed the judicial decisions challenged by the European Court and referred Mr Al-Nashif’s complaint back to the Sofia City Court and to the District Court of Smolian for new examination.

- In December 2004 the Sofia City Court declared null and void Order No. 63552/1999 of the Passport Department of the Ministry of Interior, revoking the first applicant's residence permit, as the department was not competent to issue such an order. This decision is final.

- In June 2003 the District Court of Smolian quashed the first applicant's expulsion order. Following an appeal before the Supreme Administrative Court the case was sent back to another composition of the District Court of Smolian. In 2005 this court again annulled the expulsion order after having examined the case on the merits. This decision has been challenged before the Supreme Administrative Court which delivered its judgment in 2006.

- The authorities are considering the possibility of annulling the ban on the first applicant’s entry into Bulgaria. 

• Information is expected on the contents of the decision of the Supreme Administrative Court of 2006. The confirmation of the final character of this decision is also awaited. Additional information on lifting the ban for Mr Al-Nashif’s re-entry to the territory is also necessary.

General measures:

            1) Violations of Articles 8 and 13: the attention of the Bulgarian authorities was drawn to a number of problems in the legislation and regulations which were the basis of the violations found by the European Court in the present case. 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, nor of the decision of expulsion itself when such reasons are evoked (cf. Article 46§2 of the Aliens Act in conjunction with Article 34-1 of the Administrative Procedure Act). The Bulgarian authorities have thus been invited to take measures in this respect possibly in the light of the experience of other countries in this matter (e.g. Chahal against the United Kingdom, judgment of 15/11/1996, Resolution ResDH(2001)119).

During 2004, the authorities informed the Committee of various possible solutions which have been considered insufficient in view of the Convention’s requirements. Moreover, it was noted that the most effective way to bring domestic legislation into conformity with the Convention's requirements would be to amend the Aliens Act so as to subject such expulsion measures to supervision by an independent authority having a minimum of competence and certain form of adversarial proceedings.

In May 2005, the delegation indicated that, in the framework of an interdepartmental procedure to prepare a draft amendment of the Aliens Act, the Ministry of Justice has proposed the abrogation of Article 46§2 of this law, underlining that it is incompatible with Articles 5§4 and 13 of the Convention.

In June 2005, the Secretariat suggested the possible preparation of an interim resolution which could take note of the measures adopted so far and encourage the authorities to comply fully with the European Court’s judgment. Afterwards, the authorities indicated that the Ministry of the Interior is preparing in its turn proposals for amendments to the Aliens Act aiming at introducing independent supervision of such expulsion measures. In November 2005 a new draft law providing for the abolition of Article 46§2 of the Aliens Act was submitted to the Council of Ministers.

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

• Information is expected on the progress in the preparation of the legislative reform.

            2) Violation of Article 5§4: clarifications have been requested concerning whether Bulgarian law at present provides for judicial review of the lawfulness of detention in specialised centres in cases of expulsion on the grounds of national security (see Art. 44§6 in conjunction with Art. 46 of the Aliens Act). The delegation indicated that the Ministry of Justice will ask the Ministry of the Interior whether Bulgarian law at present provides for judicial review of the lawfulness of alien’s detention in cases of expulsion, and if appropriate, whether such control might be introduced. In addition, the authorities consider that following the judgment in the Al-Nashif case the domestic courts are already obliged to provide the guarantees provided for in Article 5§4.

• Information is expected on the results of the analysis concerning the control of the detention in cases of expulsion. Examples of domestic courts’ decisions concerning the last issue, if available, would be helpful.

            3) Publication: The judgment of the European Court was published on the Internet site of the Ministry of Justice http:www.mjeli.government.bg.

Decisions: The Deputies, having examined the information provided by the Bulgarian authorities concerning the measures adopted or being planned to abide by the judgment: 1.             noted with concern that the legislative reform necessary for the execution of this judgment is still at an early stage and that the applicants still suffer the consequences of the violations found by the European Court in this case, as the first applicant’s situation concerning his right to return to Bulgaria is not definitely determined; 2.             invited the Bulgarian authorities to take all necessary measures to finalise rapidly the legislative reform and to ensure an efficient redress at national level in respect of the violations already found in respect of the applicants; 3.             decided to resume consideration of all the necessary measures for the implementation of this judgment at their 987th meeting (13‑14 February 2007) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning the progress of the legislative reform and the adoption of the individual measures.

*           *           *

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

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

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

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

43233/98          Osman, judgment of 16/02/2006, final on 16/05/2006[24]

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

45500/99          Tzekov, judgment of 23/02/2006, final on 23/05/2006[25]

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

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

The rest of the cases concern the ill-treatment inflicted on the applicants by police officers in 1995 and 1996, in the course of different police operations and during police custody (violations of Article 3). The European Court noted in particular in the case of Tzekov that the National Police Act provided for the use of a firearm by police officers in order to arrest an individual even in circumstances where such measure is not strictly necessary and proportionate.

All these cases also concern the lack of effective investigation by the Bulgarian authorities into these deaths and ill-treatment (violations of Articles 2 and 13 or 3).

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

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

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

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

Individual measures: Information has been requested on whether the applicant in the Krastanov case may request the opening of a criminal investigation against the police officers following the judgment of the European Court.

The applicant in the Toteva case died in 2003. However, clarification was requested regarding the state of the investigation into her allegations of ill-treatment. Clarifications are also awaited concerning the applicants’ present situation in the other cases.

Moreover, it has been noted that according to the Code of Criminal Procedure (Articles 421§2 and 422§1, p. 4) when a judgment of the European Court has found a violation of the Convention which is decisive for the criminal proceedings, the Prosecutor General is obliged to request the reopening of the proceedings in question within one month from the date upon which he took cognisance of the judgment of the European Court.

• Information is still awaited on these issues.

General measures:

            1) Violations of Article 2 and/or 3 (violation of the right to life, ill-treatment and lack of medical care):

- Human rights training and in particular training on the standards of Convention is on the compulsory curriculum of initial training for police officers organised by the Academy of the Ministry of Interior. During the academic year 2003-2004, 443 senior police officers and 121 sergeants received initial training in this field and 266 senior police officers and 81 sergeants received in-service training. (The Secretariat has received the curriculum and relevant time-tables). Additional information has been provided concerning training for police officers planned for 2004-2005. Moreover, between 1999 and 2003, hundreds of police officers attended various seminars and other training activities on the requirements of the Convention and of the CPT to be respected in the exercise of their duties (detailed information on this issue has also been provided).

- 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, to analyse the CPT reports concerning Bulgaria and to propose concrete measures to prevent cases of police ill-treatment. In 2002, as a result of its work, 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 (Article 54 of the Regulations implementing the Ministry of Interior Act).

- 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 Rec(2001)10 of the Committee of Ministers on the European Code of Police Ethics.

• Evaluation: under way.

            2) Violations of Articles 2 and 13 (lack of effective investigation):

- Legislative amendments adopted on 27/04/2001 provide 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;

- 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 Ministry of Justice requested information from the Military Prosecutor’s Office on the complaints concerning allegations of ill-treatment by the police, and on the results of the inquiries conducted in such cases.

- 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.

- 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. The judgments in the Toteva and Krastanov cases were also published on this Internet site.

• Information awaited: concerning the outcome of the inquiries on the cases transmitted to the Military Prosecutor's Office in 2002, as well as statistics for 2003 and 2004 (awaited since April 2005). Additional information has been sought on possible measures to ensure in future that individual complaints of ill-treatment by police officers are the subject of independent investigations (see the letter of 15/12/2004 in the Toteva case). Information has also been requested on measures to guarantee respect of the obligation of the competent authorities to open criminal proceedings when cases of ill-treatment by police officers are brought to their attention (see the letter of 04/04/2005 in the Krastanov case). Finally, the authorities have been invited to consider sending the judgments of the European Court in the Krastanov, Ognyanova and Choban, Osman, Toteva and Tzekov cases to the competent investigation organs in order to draw their attention to the deficiencies of the enquiries conducted in these cases. 

            3) Violations of Article 5§1 in the Anguelova andOgnyanova and Choban cases (illegal detention): article 72§1 of the Law on the Ministry of Interior provides (as Article 35§1 of the repealed National Police Act, in force at the relevant time) that a written order must be issued for the detention of a person by the police. In addition to this regulation, according to Article 54§5 of the Rules implementing the law on the Ministry for the Interior adopted in 1998 by the Minister of the Interior's Department, this order must be recorded in a special register. Moreover, in a circular letter of 13/03/2002 the Director of the national police force directorate reminded all the chiefs of regional police force directorates of their obligation to take all necessary measures to ensure strict compliance with these rules.

4) Violation of Article 3 in the Tzekov case (insufficient nature of the legal framework for the use of firearms by police officers): this issue has been raised during the examination of the case of Nachova and others (Section 4.2).

            5) Violation of Article 6§1 (excessive length of civil proceedings), the Krastanov case presents similarities to the Djangozov case (Section 4.2 at the 982nd meeting, December 2006).

Decision: The Deputies agreed to resume consideration of these cases at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning: - general measures proposed to prevent new, similar violations; - individual measures to put an end to the violation and erase, as far as possible, its consequences for the applicant and, - if possible, payment of the just satisfaction awarded in these cases.

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

The case concerns the killing on 19/07/1996 of the applicants’ relatives, Mr Angelov and Mr Petkov, by a military policeman who was trying to arrest them. The two men were conscripts in the Bulgarian army, both aged 21 and of Roma origin, who were wanted by the military police following their escape from the place where they were serving short terms of imprisonment for being repeated absence without leave. Neither man was armed.

The European Court considered that Mr Angelov and Mr Petkov were killed in circumstances in which the use of firearms was not justified and that the relevant law and practice on the use of force during arrest, falls well short of the level of protection of the right to life required by the Convention (violation of Article 2).

The case also concerns the lack of effective investigation by the Bulgarian authorities into the deaths of the two men (violation of Article 2) and finally to the authorities’ failure to fulfil their procedural obligation to investigate whether or not possible racist motives may have played a role in the events (violation of Article 14 taken in conjunction with Article 2). 

Individual measures: According to Article 362§1, point 4, in conjunction with Article 362§3 of the Code of Criminal Procedure, in force at the time when the European Court delivered its judgment, the proposal to reopen criminal proceedings following a judgment of the European Court is made ex officio by the Prosecutor General. According to the relevant provisions of the new Code of Criminal Procedure, which entered into force in April 2006, the Prosecutor General is obliged to request the reopening of the proceedings within one month from the date upon which he took cognizance of the European Court’s judgment (Articles 421§§1 and 2 and 422§1-4). In June 2006, the Bulgarian delegation indicated that the Prosecutor General had been informed of the judgment of the European Court.

• Information is awaited on the follow-up action taken on this issue.  

General measures: The judgment of the European Court has been published on the website of the Ministry of Justice www.mjeli.government.bg.

            1) Violation of Article 2 (material aspect):

In June 2006, the Ministry of Justice asked Prosecutor General’s offices in courts of appeal for information on complaints concerning allegations of ill-treatment inflicted during arrest lodged between 2002 and 2004, and on their outcome. The authorities indicated that this information is received they will take concrete measures to set a legal and administrative framework for the use of force and firearms during arrest.

• Information is awaited on measures envisaged by the authorities and the timetable for their adoption. Furthermore, information would be useful on possible interim measures envisaged or already taken by the authorities to guarantee that any use of force must be strictly proportionate to the nature of the offence committed by the fugitive and the threat he or she posed (see in particular §§94-97 of the judgment).

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

            3) Violation of Article 14 taken in conjunction with Article 2: Reflection is being given in the Ministry of Justice to the possibility of introducing a special provision in the Criminal Code, according to which racist motivation will constitute an aggravating circumstance for some offences. The Secretariat shares the Government agent’s view expressed during this reflection, that the current provisions of the Criminal Code relating to certain racist crimes (such as promotion of racial hatred or participation in a group or a crowd assembled to commit racist acts), do not appear to be applicable to facts similar to those concerned by the judgment of the European Court.

• Information is awaited on the outcome of this reflection, as well as on the plan of action envisaged by the authorities. The confirmation of the dissemination of European Court’s judgment to members of the security forces, prosecutors, investigating authorities and competent judges is also awaited.

*           *           *

30985/96          Hassan and Tchaouch, judgment of 26/10/00- Grand Chamber

39023/97          Haut Conseil spirituel de la communauté musulmane, judgment of 16/12/2004, final on 16/03/2005

The applicants in these two cases are the representatives of the two rival factions which, since the democratic changes of 1989, dispute the direction of the Muslim community in Bulgaria.

The cases concern the authorities’ unjustified interference between 1995 and 1997 in the internal organisation of a divided Muslim community, due to the replacement of its recognised leadership and to manner in which the executive participated in the organisation of a conference aimed to unify this community (violations of Article 9). The first case also concerns the repeated refusal of the Bulgarian Council of Ministers to comply with the Supreme Court's judgments quashing the refusal to register the new leadership of the community (violation of Article 13).

The European Court noted in the first case that the provisions of the Religious Denominations Act of 1949 did not meet the required standards of clarity and predictability and allowed unfettered discretion to the executive in registering religious denominations.

In the second case the Court observed that the authorities did not remain a neutral mediator between opposing groups, but rather insisted on unification despite the decision of the leaders of the applicant organisation to withdraw. In consequence, the authorities' actions (notably those of the Directorate of Religious Denominations, a government agency) had the effect of compelling the divided community to accept a single leadership against the will of one of the two rival leaderships. The leaders elected by the 1997 conference obtained the status of the sole legitimate leadership of the Muslim community and, as a result, the applicant organisation was deprived of the possibility of continuing to manage the affairs and assets of the part of the Muslim community it represented.

It may also be noted that, the legitimacy of the first unification conference having been challenged by certain leaders, the division within the Muslim community in Bulgaria continued beyond 1997. Several other national conferences took place, with the task of electing new leaders, the most recent in March 2005.

Individual measures: A unification conference held in October 1997 adopted the new statutes of the Muslim denomination and elected a new leadership. Mr Hassan attended the conference and approved the new leadership. These changes have been registered by the government.

• Information awaited: on the current situation of the applicant organisation in the second case, in order to assess whether individual measures are necessary.

General measures:

            1) Problems related to the arbitrary replacement of the Muslim community’s leadership: the authorities consider that the new Religious Denominations Act, which entered into force in 2003 represents a sufficient guarantee in order to prevent new similar violations in future. It should be noted in this respect in particular that from now on, a judicial body - the Sofia City Court – and not any more the executive, will be competent to register religious communities wishing to obtain legal personality.

What is more, the Bulgarian authorities consider that the direct effect of the case-law of the European Court, which is beginning to be recognised by domestic courts in increasingly varied fields, will prevent new violations in future similar to that found in the present case, not least by ensuring that the Religious Denominations Act and the provisions which regulate the registration of religious denominations, is interpreted in conformity with the requirements of the Convention. With a view to facilitating this development, the Centre for training of judges sent the judgment in the case of Hassan and Tchaouch to the competent courts.

            2) Authorities’ Interference in the organisation of the unification conference in 1997: the Bulgarian authorities have been invited to consider publishing the judgment in the Supreme Holy Council of the Muslim Community and sending it to the Directorate of Religious Denominations, as well as to the courts and the local authorities competent to register national and local leadership of religious denominations, along with an explanatory note drawing their attention in particular to their obligation to remain neutral and impartial in exercising their functions under the new Religious Denominations Act of 2003. In this respect, particular emphasis should be placed on the conclusions of the European Court concerning the role of the authorities in a situation of conflict between or within religious groups, which is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other. The competent authorities should also be informed that measures favouring a particular leader of a divided religious community or seeking to compel the community to place itself under a single leadership against its will would constitute an infringement of the freedom of religion guaranteed by Article 9 of the Convention (see in particular §96 of the judgment). The delegation indicated in this respect that the Directorate of Religious Denominations undertook to disseminate the judgment of the European Court.

• Information awaited: The confirmation of the dissemination of the judgment in the Supreme Holy Council of the Muslim Community case is expected. A copy of the circular would be appreciated.

Furthermore, information would be useful concerning the necessity or otherwise of adopting specific measures aiming at preventing new similar violations of Article 9 of the Convention.

            3) Violation of Article 13: following the entry into force of the Religious Denominations Act the Bulgarian Council of Ministers is not longer competent to approve the registration or the modification of the statute of religious institutions. As indicated above, these are issues to be decided by the domestic courts. Furthermore, the remedies available to challenge the decisions of the Sofia City Court seem to be in conformity with the Convention's requirements. The Bulgarian authorities indicated, moreover, that the refusal of the Bulgarian Council of Ministers to comply with the judgments of the Supreme Court in this case is an exceptional occurrence and that court decisions, in particular those concerning the registration of religious denominations, will be respected by the executive in future.

            4) Publication: The judgments were published on the website of the Ministry of Justice www.mjeli.government.bg.

*           *           *

42908/98+        Kirilova and others, judgment of 09/06/2005, final on 09/09/2005

The case concerns the failure of the authorities to provide compensation to which the applicants were entitled under domestic law for the expropriation during the 1980s or the early 1990s of properties which had belonged to them or their ancestors (violation of Article 1 of Protocol No. 1). At the time of the expropriations the applicants were awarded compensation in the form of flats which the authorities undertook to build but which had still not been finished or handed over to the applicants when the European Court delivered its judgment (except in the case of Ms Shoileva‑Stambolova and Mr Shoilev).

The European Court noted in particular that the uncertainty the applicants faced for many years was coupled with the lack of effective domestic remedies to rectify the situation and the reluctance – even active resistance – of the competent authorities to provide a solution to the applicants’ problem.

Individual measures: The question of Article 41 has been reserved concerning the compensation for pecuniary and non-pecuniary damage. 

General measures: On 12/12/2005 the Secretariat wrote to the Bulgarian delegation requesting the presentation of a plan of action for the execution of this judgment.

• Information is expected in particular as regards the evaluation of the situation at national level concerning persons, whose property was expropriated by the state and who are in a similar situation to that of the applicants in this case. Information is also awaited on the measures planned to improve their situation, if necessary.

The judgment was published on the website of the Ministry of Justice www.mjeli.government.bg.

• Information is expected on its dissemination to local authorities and competent courts.

Decision: The Deputies, agreed to resume consideration of this item at their 987th meeting (13‑14 February 2007) (DH), on the basis of an action plan to be provided by the Bulgarian authorities concerning the general measures proposed to prevent new, similar violations.

- 1 case against Cyprus

73797/01          Kyprianou, judgment of 15/12/2005 - Grand Chamber

The case concerns the lack of impartiality of the Limassol Assize Court which in 2001 sentenced the applicant, an advocate, to 5 days’ imprisonment for contempt in the face of the court while he was conducting the defence in a murder trial.

The European Court found that the Assize Court failed to satisfy the requirements of objective and subjective impartiality: first, it was the judges criticised by the applicant who took the decision to prosecute, tried the issues arising from the applicant’s conduct, determined his guilt and imposed the sanction. Secondly the judges’ personal conduct demonstrated that they did not succeed in detaching themselves sufficiently from the situation (violation of Article 6§1).

The case also concerns the violation of the applicant’s freedom of expression in his capacity as a lawyer. The European Court, taking also into account the unfair procedure described above, considered the penalty, which was immediately enforced, disproportionately severe on the applicant and “capable of having a ‘chilling effect’ on the performance by lawyers of their duties as defence counsel” (§181 of judgment) (violation of Article 10).

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

General measures:

            1) Violation of Article 6§1

● Information received: The offence in question is provided by the Courts of Justice Law 1960 (as amended). At the 955th meeting (February 2006) the Cypriot authorities informed the Committee that a legislative amendment was under consideration.

● Information awaited on this and possible other measures envisaged to ensure both the objective and subjective impartiality of courts in cases concerning the offence of contempt of court.

            2) Violation of Article 10

● Information received: At the same meeting the Cypriot authorities also informed the Committee that the judgment of the European Court, with an explanatory note, had been promptly sent out to the Supreme Court, the Bar Association (also published on its website: www.cyprusbarassociation.org), the Ombudsman and the Justice Ministry. Confirmation of this information in writing is awaited.

● Information awaited on (a) dissemination of the Court’s judgment to lower courts; (b) publication of the Court’s judgment in the Cyprus Law Journal.

- 46 cases against the Czech Republic

                       - Cases of length of judicial proceedings

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

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

50262/99          Bartl, judgment of 22/06/2004, final on 22/09/2004

58358/00          Bečvář and Bečvářová, judgment of 14/12/2004, final on 14/03/2005

65189/01          Centrum Stavebního Inženýrství, A.S., judgment of 21/12/2004, final on 21/03/2005

52859/99          Dostál, judgment of 25/05/2004, final on 10/11/2004

30276/03          Dušek, judgment of 14/02/2006, final on 14/05/2006

65191/01          Eko-Energie, SPOL. S R.O., judgment of 17/05/2005, final on 17/08/2005

35883/02          Fáber, judgment of 17/05/2005, final on 30/11/2005

65192/01          Fackelman ČR, spol. s r.o, judgment of 26/10/2004, final on 26/01/2005

76343/01          Havelka, judgment of 02/11/2004, final on 02/02/2005

28009/03          Havlíčková, judgment of 14/02/2006, final on 14/05/2006

32853/03          Herbst and others, judgment of 12/04/2005, final on 12/07/2005, rectified on 04/10/2005

75375/01          Houbal, judgment of 14/06/2005, final on 14/09/2005

58177/00          Houfová No. 1, judgment of 15/06/2004, final on 10/11/2004

58178/00          Houfová No. 2, judgment of 15/06/2004, final on 10/11/2004

76802/01          Hradecký, judgment of 05/10/2004, final on 02/02/2005

66448/01          Jahnová, judgment of 19/10/2004, final on 19/01/2005

65195/01          Jírů, judgment of 26/10/2004, final on 26/01/2005

71545/01          Karasová, judgment of 30/11/2004, final on 28/02/2005

45107/98          Koktavá, judgment of 02/12/2003, final on 14/06/2004

47269/99+        Konečný, judgment of 26/10/2004, final on 30/03/2005

75546/01          Kos, judgment of 30/11/2004, final on 28/02/2005

50248/99          Králíček, judgment of 29/06/2004, final on 29/09/2004

28661/03          Kubizňáková, judgment of 21/06/2005, final on 21/09/2005

64750/01          L.C.I., judgment of 07/06/2005, final on 07/09/2005, rectified on 04/10/2005

48446/99          Libánský, judgment of 22/06/2004, final on 22/09/2004

70861/01          Mlynář, judgment of 13/12/2005, final on 12/04/2006

35888/02          Nemeth, judgment of 20/09/2005, final on 20/12/2005

76250/01          Paterová, judgment of 14/09/2004, final on 14/12/2004

58116/00          Pfleger, judgment of 27/07/2004, final on 15/12/2004

73578/01          Pištorová, judgment of 26/10/2004, final on 26/01/2005

15377/02          Polach, judgment of 25/10/2005, final on 12/04/2006

65196/01          Římskokatolická Farnost Obříství, judgment of 24/05/2005, final on 24/08/2005

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

71551/01          Škodáková, judgment of 21/12/2004, final on 21/03/2005

21377/02          Skoma, spol. s r.o., judgment of 14/02/2006, final on 14/05/2006

27911/02          Slezák and others, judgment of 11/10/2005, final on 11/01/2006

29054/03          Tetourová, judgment of 27/09/2005, final on 27/12/2005[26]

14044/04          Thon, judgment of 13/12/2005, final on 13/03/2006

77762/01          Vitásek, judgment of 02/11/2004, final on 30/03/2005, rectified on 22/03/2005

63627/00          Voleský, judgment of 29/06/2004, final on 10/11/2004

70847/01          Volf, judgment of 06/09/2005, final on 06/12/2005

65291/01          Vrábel and Ďurica, judgment of 13/09/2005, final on 13/12/2005

70846/01          Vrána, judgment of 30/11/2004, final on 28/02/2005

8768/03            Zouhar, judgment of 11/10/2005, final on 11/01/2006

These cases concern the excessive length of proceedings before civil, administrative and criminal courts (violations of Article 6§1). In the Hartman, Dostál, Bartl, Konečný, Hradecký, Houbal, Tetourová and Thon cases, the European Court also found a violation of the right to an effective remedy against the excessive length of proceedings (violations of Article 13).

In the Paterová, Volesky, Jahnová, Jírů, Kubizňáková and Thon cases, the European Court noted in addition that the courts should have acted with special promptness considering that the proceedings at issue related to the custody of a child, the right of access, a labour dispute and an allowance to be paid by a father. Several cases were still pending at the time when the European Court delivered its judgments. In three of them, the cases of Paterová, Jahnová and Thon, the Court insisted on the requirement of special diligence.

Individual measures: In all the pending cases, the domestic courts have been informed about the violations found by the European Court. However, it is recalled that urgent individual measures are expected in Paterová, Jahnová and Thon cases where the European Court has insisted on the requirement of special diligence inasmuch as the case concerns child custody. In October 2005 and most recently in May 2006, the delegation stated that the length of proceedings, in the Paterová case, is mainly due to the actions of the child’s father. The Jahnová case was closed in December 2005.

• Information awaited: More recent information is awaited in the Paterová and Thon cases. Information is also awaited on the state of the proceedings in Schmidtová, Havelka, Římskokatolická Farnost Obříství, Centrum Stavebního Inženýrství A.S., Herbst and others, Slezák, Nemeth, Zouhar, Thon, Skoma, spol. s r.o., Havlíčková and Dušek cases and if need be, their acceleration.

General measures:

▪ Information provided by the Czech authorities

            1) Length of proceedings: Certain provisions of the Code of Civil Procedure have been amended by laws Nos. 30/2000 and 59/2005 so as to accelerate proceedings. Thus, the rules applicable to the partiality of judges have been modified so that a partial judge may be replaced by another by a decision of the President of the court (previously this required a decision of the superior court) and that the parties may raise the issue of partiality against a judge only in the first hearing held by this judge. The competences of a judge in preparing the hearing are made more precise. A complaint with insufficient information may be declared inadmissible if it is not completed within a deadline given by the judge. The judge may also oblige a defendant to present his written comments on a complaint. If he fails to comply, the law presumes his acquiesce to the complaint.

Measures have also been taken to make the procedure more concentrated. An appeal is possible in all cases unless the value at stake is minor (less than 2.000 CZK or about 70 euros) but no new allegations may be brought before the appellate court. The appellate court must decide the case itself (instead of referring it back to the court of first instance) except where there has been a serious defect in the procedure. Furthermore, judges have a more precise duty to instruct the parties on their procedural rights and obligations, and friendly settlements are encouraged.

            2) Effective domestic remedies against the excessive length of proceedings: Law No. 192/2003 has introduced a new Article 174a to Law No. 6/2002 on tribunals and judges (which entered into force on 01/07/2004). According to this new Article, a party who considers that proceedings have lasted too long may ask for a deadline for taking a procedural action. This deadline is set within 20 working days by the next-higher court if it finds the request motivated. The court in question is bound by this deadline and there is no possibility to appeal a decision setting/refusing the deadline. Moreover, the Czech delegation informed the Secretariat in May 2006 that a law amending Law No. 82/1998 = entered into force in 27/04/2006. This new law provides adequate compensation for applicants who have suffered from the excessive length of proceedings and will be applied retroactively: if an applicant has applied to the European Court complaining of the excessive length of proceedings, he may ask for compensation within a year starting from the entry into force of the law.

            3) The special diligence requirement in family cases: Information has also been requested about measures envisaged to ensure that the special diligence requirement is respected by all competent authorities in family cases.

            4) Publication and dissemination of the judgments: Judgments of the European Court against Czech Republic are systematically translated and published on the website of the Ministry of Justice (www.justice.cz). They are also sent electronically to the presidents of regional, higher and supreme level courts as well as to all judges of the Constitutional Court and to the Ombudsman and other competent administrative and judicial authorities. The judgments are reported regularly in the Council of Ministers and a press release is prepared on every case by the Ministry of Justice.

▪ Information awaited: statistics illustrating the effects of the amendments made to the Code of Civil Procedure as well as information on measures taken or envisaged to ensure special diligence in family cases.

- 2 cases against Finland

50882/99          Sallinen Petri and others, judgment of 27/09/2005, final on 27/12/2005

The case concerns search and seizure of privileged material at the first applicant’s law firm in the course of police investigation and also affecting the rights of his clients (violation of Article 8).

The European Court found that the Finnish law did not provide proper legal safeguards in that it was unclear about the circumstances in which privileged material could be subject to search and seizure. The interference in question was not thus “in accordance with the law” in the meaning of Article 8 and the applicants were therefore deprived of the protection to which they were entitled.

Individual measures: Taking into account that seized material has either returned to the first applicant or destroyed and that the other consequences of the violation found in this case have been redressed by the Court through the award of a just satisfaction compensating the non-pecuniary damage suffered by the applicants, no further individual measure seems necessary.

General measures: The Deputy Chancellor of Justice has invited the Ministry of Justice to examine whether there is need to amend the legislation in order to clarify the relationship between the Coercive Measures Act, the Code of Judicial Procedure and the Advocates Act.

The judgment of the European Court has been translated and published on the Finlex database and sent out to several national authorities. 

• Additional information awaited on the result of the authorities’ reflections concerning the nature of the measures to be taken and on the proposed action plan.

*           *           *

38885/02          N., judgment of 26/07/2005, final on 30/11/2005

The case concerns the decision to deny an asylum application lodged by the applicant, a Congolese agent belonging to the inner circle of the former president and who had fled his country in 1997. The competent national authorities considered that his declarations were not credible and ordered his deportation in November 2002. The deportation was suspended pending the judgment of the European Court.

The European Court, having conducted a fact-finding mission to Helsinki and received additional information, stated that there were substantial grounds for believing that the applicant would be exposed to a real risk of treatment contrary to Article 3, if expelled to the Democratic Republic of Congo and that his expulsion would therefore constitute a violation of Article 3.

Individual measures: The applicant’s case has been re-examined by the Directorate of Immigration on 16/01/2006. The Directorate referred in its decision to the European Court’s judgment and concluded by granting the applicant a temporary residence permit for 16/01/2006 - 16/01/2007 on the basis of his need for protection. Since the applicant has expressed his dissatisfaction with this decision and he has the possibility to appeal his case, confirmation is awaited that the decision has become final. 

General measures: The judgment of the European Court has been published in the Finlex database and it has been sent out to the Parliamentary Ombudsman, the Chancellor of Justice, the Supreme Court, the Supreme Administrative Court, the Ministry of Justice, the Ministry of Internal Affairs and to the Directorate of Immigration.

• Information is awaited on possible further general measures taken or envisaged to prevent new, similar violations.

Decision: The Deputies decided to resume consideration of this case at their 982nd meeting (5-6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning the general measures proposed to prevent new, similar violations, and the individual measures to put an end to the violation and erase, as far as possible, its consequences for the applicant.

- 5 cases against France

59480/00          Harizi, judgment of 29/03/2005, final on 29/06/2005[27]

This case concerns the unfairness of certain criminal proceedings against the applicant, accused of having evaded a deportation order (violation of Article 6 §§ 1 and 3c).

The European Court found that there had been a failure to respect the applicant's right of defence, in that in 1999 the appeal court, in application of the domestic law in force at the material time, prohibited him from being represented on the grounds of his failure to appear. In fact, although he had indicated his willingness to appear before the court of appeal, he could not do so without breaching French law, as the deportation order against him had finally been executed and he had received no entry document from the authorities enabling him to attend the hearing. In a judgment delivered in absentia following the proceedings at issue, on 15/10/1999, the applicant was sentenced to 6 months’ imprisonment and 10 years’ exclusion from French territory.

Individual measures:

• Information awaited: on whether the applicant may still lodge a motion to have the Court of Appeal’s judgment set aside. If so, given the general measures taken (see below), such a remedy would comply with the rights of the defence. So far there is no indication that the applicant has made any such request.

General measures: The European Court noted with interest the contribution of the Dentico judgment, rendered by the Plenary Assembly of the Cour de cassation on 02/03/2001 (i.e. after the present application to the European Court). According to this judgment, “the right to a fair trial and the right of every defendant to be assisted by counsel mean that a court may not try a defendant who fails to appear in court and who is not excused without hearing counsel if present at the hearing to defend him”.

• Further information awaited: In view of the fact that the European Court underlined the paramount importance of the accused’s appearance in person at the hearing (§ 49 of the judgment), and that the violation would not have occurred had the applicant been authorised to enter French territory to attend the hearing as he had wished, the dissemination of the European Court’s judgment to the competent authorities (public prosecutor’s office and Ministry of the Interior) appears to be desirable.

*           *           *

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 military pensions tribunals of incapacity (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 European 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: According to the latest information available, the proceedings were still pending at the end of 2005, before the Cour régionale des pensions of Poitiers (appeal court

• Further information awaited: given the need for particular diligence and in line with the Committee’s practice, further information is awaited on the acceleration and the progress of the proceedings.

General measures: Taking into account the specific nature of proceedings before military pensions tribunals, reference should be made:

- to the case of C.R. and other cases of length of civil proceedings, the examination of the general measures of which was closed, given the measures adopted by the respondent state to avoid excessive length of civil proceedings (see the note on the C.R. case in Section 6.1 for the 940th meeting (October 2005));

- to the cases of Sapl (judgment of 18/12/2001) and Caillot (judgment of 04/06/1999), concerning the excessive length of proceedings before the administrative courts, closed by final Resolution ResDH(2005)63 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.

▪ Further information awaited according to the European Court, it is important that situations of this kind are resolved particularly quickly. Thus publication and dissemination of the judgment were requested at the 854th meeting (October 2003) with the intention that it should be taken into account by the relevant authorities.

*           *           *

44962/98          Yvon, judgment of 24/04/03, final on 24/07/03

The case concerns an infringement of the principle of equality of arms on account of the privileged position of the Government Commissioner (a different institution from that concerned in the Kress case, judgment of 07/06/01) in proceedings before the expropriations judge and of the advantages he enjoys in terms of access to relevant information published in the land registry index (violation of Article 6§1). The Government Commissioner is a party to the proceedings for assessing compensation before the expropriations judge, his main role being to ensure that the compensation allocated to the party whose land has been expropriated does not exceed the real value of the expropriated property. The interests he defends are similar to those defended by the expropriating authority, i.e. they tend towards a moderate assessment of the compensation, and he may be – as in the present case – a member of the same administration as the representative of the expropriating authority (§30 of the judgment).

According to the European Court, this does not, in itself, clearly disadvantage the person whose land has been expropriated in the defence of his or her case. To reach the conclusion that in these proceedings there was an imbalance to the detriment of the party whose land had been expropriated, in breach of the principle of equality of arms, the European Court relied on the following elements (§§33 to 37 of the judgment) :

1. The Government Commissioner has an advantage with regard to the elements he has at his disposal to assess the expropriated land (the key point of the debate, according to the European Court). Indeed, being a tax official, he has full access to the land registry index listing all transfers of property, whereas the expropriated party’s access is limited (this party does not have a full and free access to the index: on the contrary, may only obtain extracts corresponding to transfers of property, the references of which he knows).

2. Furthermore, the Government Commissioner plays a dominant role in the proceedings:

a. at first instance, unlike the other parties, he is not obliged to disclose his written submissions to them; he may simply file them with the registry, and is not even obliged to inform the other parties that he has done so;

b. he addresses the judge last;

c. “finally, and above all” (according to the European Court), he has considerable influence over the judge’s assessment of the land. On the one hand, the Commissioner’s conclusions have a particular weight when the assessment he proposes is lower than that proposed by the expropriating authority and, in such a case, if the judgment dismisses the Government Commissioner’s conclusions, it must give specific reasons. On the other hand and as a consequence, the judge is bound to a large extent; indeed, he is only entitled to name another expert at first instance, and may only do so in exceptional circumstances at the appeal stage.

Individual measures: The compensation granted to the applicant at the proceedings at issue was indeed slightly superior to the amount proposed by the Government Commissioner but corresponded only to one third of the applicant’s estimation. The French authorities have been asked about the influence the privileged position of the Government Commissioner might have had on the valuation of the property, as well as on the measures envisaged to remedy to the possible consequences suffered by the applicant on that ground.

In reply, they indicated that they considered that no individual measure was necessary, the Court having dismissed the applicant’s claims in respect of pecuniary damage on the ground that it could not speculate as to the probable outcome of the proceedings at issue had the violation of Article 6§1 not taken place, and having further considered that the finding of a violation was sufficient compensation for the non-pecuniary damage sustained.

• The assessment of this information will be presented in a memorandum prepared by the Secretariat.

General measures: First, from 09/06/2004, the Cour de cassation, directly drawing the consequences of the present judgment of the European Court, held that some of the national provisions impugned in the Yvon case caused an imbalance incompatible with the principle of equality of arms to the advantage of the Government Commissioner, and that implementing them would breach Article 6§1.

Secondly, on 13/05/2005 the French authorities enacted a decree, No. 2005/467 (which entered into force on 01/08/2005), which provides the following:

            1. Limited access of the party whose land has been expropriated to the land registry index: Although it did not increase this access, the decree (Article R 13-32) now requires the Government Commissioner’s conclusions to set out the references to the elements upon which he relied to reach the proposed assessment, as well as the reasons for which the elements which were not relevant were dismissed. Thus, the party whose land bas been expropriated would be in a position to accede to the same information as the Commissioner.

            2. The Commissioner’s dominant position in proceedings:

a. The Government’s Commissioner must now notify his conclusions to the parties (by recorded delivery with acknowledgement of receipt) at least eight days before the visit of the land. If he does not respect this obligation, his conclusions are inadmissible.

b. To compensate for the fact that the Commissioner addresses the judge last, the other parties may now reply to his conclusions by a written note (notified to the parties by recorded delivery with acknowledgement of receipt), until the day of the hearing.

c. The delegation has indicated that the provision giving particular weight to the Commissioner’s conclusions when the assessment he proposes is lower than that proposed by the expropriating authority has been repealed and replaced by the following provision: “The judgment must indicate the reasons in law and in fact for granting any principal or secondary compensation” (Article R 13-36). Accordingly there is now legal parity of treatment as between the Government Commissioner’s and the claimant’s proposals.

Finally, concerning the question of the possibility for the judge to appoint another expert:

- in first instance, the judge has now the possibility to appoint an expert (or a solicitor – notaire), by a reasoned decision, when there is a special difficulty regarding the assessment.

- at the appeal stage, the assistance of an expert is no longer limited to exceptional circumstances. The decision is taken by a motivated decision of the Court of appeal and the expert is chosen by the Chamber’s president if there is no agreement between the parties on this point.

The delegation indicated that this decree is the precursor of a broader reform of the law of expropriations, and that a government order (ordonnance) would be adopted on the basis of a law of 09/12/2004. On the other hand it also pointed out that the procedural principles, set out in the Decree of 13/05/2005 in response to the European Court’s judgment in Yvon, would not be changed.

• Evaluation of all this information: no further general measure appears necessary.

Decision: The Deputies, having examined progress made in ensuring execution, agreed to resume consideration of this case at their 982nd meeting (5-6 December 2006) (DH), in order to progress in the evaluation of the individual measures adopted or to be adopted to put an end to the violation and erase, as far as possible, its consequences for the applicant.

*           *           *

73316/01          Siliadin, judgment of 26/07/2005, final on 26/10/2005[28]

This case concerns the lack of specific and effective protection by French criminal law of the applicant against the “servitude” in which the applicant has been held (violation of Article 4). The applicant is a Togolese national who was a minor and in an illegal situation at the relevant time; for several years from 1994 onwards, she worked as an unpaid servant for a couple who made her work seven days a week and had confiscated her passport. The European Court held that Article 4 of the Convention gives rise to positive obligations on states, consisting in the adoption and effective implementation of criminal-law provisions making the practices set out in this Article a punishable offence. In the present case, the Court found that the respondent state had not complied with these positive obligations. In fact, the European Court noted that slavery and servitude were not as such classified as criminal offences in French criminal law, and that the persons who held the applicant in servitude had not been convicted under criminal law, although they were prosecuted under Articles 225-13 and 225-14 of the Criminal Code, as worded at the time.

Individual measures: Under civil law, the national Courts granted the applicant the sums due to her in respect of unpaid wages plus an indemnity, and also 15 245 euros in compensation for the “important psychological trauma” she had suffered. Under criminal law, the decision acquitting the persons who had held the applicant in “servitude” has the status of res judicata. The applicant made no other request.

General measures: The European Court noted that the legislation had been changed after the facts of this case. In a law of 18:04/2003, the following provisions were enacted:

(1) Articles 225-13 and 225-14 of the Criminal Code were amended subsequently to the facts. The relevant offences are now defined as “obtaining the performance of unpaid services or services against which a payment is made which clearly bears no relation to the importance of the work performed…” (Art. 225-13) and“subjecting a person, whose vulnerability or dependence is obvious or known to the offender, to working or living conditions incompatible with human dignity…” (Art. 225-14). To establish these offences, it is necessary only to prove that the vulnerability or dependence are known. This replaces the criterion applicable at the material time, according to which it was necessary to prove that there had been an “abuse” of the vulnerability or dependence. In other words, a conviction is possible if the vulnerability of dependence could not be ignored by the person who committed the facts, which is easier to prove.

In the French authorities’ opinion, these provisions, interpreted by the courts in the light of the Convention and of the present judgment, will make it possible in the future to convict those committing acts similar to those at issue in the present case.

Furthermore, the authorities stress that the sentences have been made heavier in the new law:

(2) Such offences were originally punishable by 2 years’ imprisonment and a fine of 500 000 French francs (76 225 euros). Since the 2003 law, they are punishable by 5 years’ imprisonment and a fine of 150 000 euros.

(3) A new aggravating circumstance was created. Before the 2003 law, there was only one aggravating circumstance: the multiplicity of victims. The law of 2003 added the minority of the victim and, of course, the combinations of these circumstances.

In view of this situation, further information would be useful on the measures taken to make known the requirements of the Convention as they arise from this judgment, in particular on the publication of this judgment and its dissemination to the relevant authorities (in particular public prosecutors).

*              *              *

57752/00          Matheron, judgment of 29/03/2005, final on 29/06/2005[29]

This case concerns the fact that, in proceedings against him for narcotics offences, the applicant could not contest the inclusion of certain transcribed telephone conversations in his case-file. These transcripts were obtained through telephone tapping, the lawfulness of which he could not contest as it was conducted in the context of other proceedings to which he was not party (violation of Article 8).

The European Court took no position on the question as to whether or not this interference was “in accordance with the law”, but nonetheless noted that a situation in which people are subjected to tapping for the purposes of proceedings to which they are not party would not seem to be covered by law inasmuch as the law makes no distinction as to the proceedings for which tapping is authorised. On the other hand the European Court found that the applicant had not had the benefit of “effective supervision” of the interference, nor had he been effectively protected by the law on account of the case-law of the Cour de cassation as applied in this case. Following the proceedings at issue, the applicant was sentenced to 15 years’ imprisonment.

Individual measures: On the basis of Article L626-1 of the Code of Criminal Procedure, the applicant had the possibility to ask for his case to be re-examined. He does not appear to have used it.

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

General measures: Bilateral contacts are under way concerning the measures which can be envisaged.

- 2 cases against Georgia

28537/02          “Iza” Ltd and Makrakhidze, judgment of 27/09/2005, final on 27/12/2005[30]

2507/03            “Amat-G“ Ltd and Mebaghishvili, judgment of 27/09/2005, final on 15/02/2006[31]

These cases concern violations of the applicant companies’ right to a court on account of the administration’s failure to enforce final domestic judgments (from May 2001 and December 1999 respectively) ordering the state to pay certain sums to the applicant companies (violations of Article 6§1). They also concern the lack of an effective remedy in this respect (violations of Article 13).

Finally, the cases concern violations of the applicant companies’ right to the peaceful enjoyment of their property, as from 7/06/2002 (the date on which Protocol No. 1 entered into force with respect to Georgia) as a result of the failure to enforce the domestic judgments (violations of Article 1 of Protocol No. 1). The European Court noted that the non-enforcement of final judgments by the Georgian state budget institutions, on account of the limited budgetary resources, was a persistent problem, recognised by the domestic authorities.

Individual measures: The just satisfaction awarded by the European Court covers entirely the sums at issue in the unenforced domestic judgments and provides that the payment is tax-free. Given that the domestic judgments are still enforceable, the situation remains to be solved through appropriate procedures so as to avoid continuing violations of Article 6 on account of the failure to execute valid judicial decisions.

• Information has been requested on the measures envisaged in this respect.

General measures: In the framework of the examination of the “Iza” case, the Georgian authorities have been invited, by letter of 3/04/2006, to present an action plan for the execution of the judgment and their attention has been drawn in particular to the examples of other countries confronted with similar problems in the past (see, for example, Hornsby against Greece and Burdov against Russia, closed by resolutions ResDH(2004)81 and ResDH(2004)85 respectively).

It should be noted that in the “Amat-G” case, the European Court indicated that the provisions enacted on 2/07/2004 by the Georgian government, introducing a mechanism for the gradual payment of outstanding debts of the state, did not satisfy the requirements of precision and predictability implied by the concept of law within the meaning of the Convention (§61 of the judgment).

• Information is therefore necessary on the further measures envisaged (including as regards the setting up of an effective domestic remedy).

By letter of 07/08/2006, the Georgian authorities indicated that an action plan was being prepared. They also confirmed that, in order to ensure that these judgements are effectively taken into account as soon as possible, the “Iza” judgment had been translated into Georgian and published in the Official Gazette (Sakartvelos Sakanonmdeblo Matsne) as well as distributed to the appropriate State agencies, in particular: the Office of the Prosecutor General of Georgia, the Ministries of Interior, of Finances, of Defence, of Education and Sciences, of Economical  Development, the Constitutional Court, the Supreme Court, the Parliament and the State Chancellery of Georgia. Furthermore, the judgment is available in Georgian on the website of the Ministry of Justice: http://www.justice.gov.ge/makrakhidze.pdf

Decisions: The Deputies, having taken note of the structural nature of the violations found in these cases, 1.             recalled that the Georgian authorities had been required in March 2006 to prepare an action plan, concerning the general measures proposed to prevent new, similar violations and the appropriate individual measures to put an end to the violations and erase, as far as possible, their consequences for the applicants; 2.             agreed to resume consideration of these items at their 987th meeting (13‑14 February 2007) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning individual and general measures.

- 5 cases against Greece

74989/01          Ouranio Toxo and others, judgment of 20/10/2005, final on 20/01/2006[32]

The case concerns the violation of the applicants’ (a lawfully constituted political party and 2 members of its political secretariat) freedom of association by the national authorities’ acts and omissions.

In this respect, concerning the fact that in September 1995, on grounds of public order, the police removed the sign with the name of the party in “Macedonian”, the European Court noted that “the risk of causing tension within a community by using political terms in public does not suffice, by itself, to justify interference with freedom of association” (§41 of judgment). Concurrently, the Court found that the local authorities, instead of promoting “the intrinsic values of a democratic system, such as pluralism, tolerance and social cohesion” (§42 of judgment), incited the local population to protest against the applicants, which resulted in an attack and, inter alia, damage to the party premises by protesters. Finally, the Court noted that the police did not take any preventive or protective measures during these events, that the public prosecutor did not find it necessary to initiate an investigation to determine responsibility, and that both these behaviours were contrary to the authorities’ “positive obligations inherent in the effective respect of freedom of association” (§37 of judgment) (violation of Article 11).

The case also concerns the excessive length of the criminal proceedings combined with civil action for damages lodged by the applicants. They started in December 1995 and ended, by the rejection of the complaint by the indictments Chamber, in January 2003 (more than 7 years solely for the investigation of the case) (violation of Article 6§1).

Individual measures: The general measures adopted and under way (below) also cover the individual measures required to ensure the effective protection of the applicant political party’s and its members’ freedom of association, in accordance with the Convention as interpreted by the Court in this case. The European Court awarded the applicants just satisfaction in respect of pecuniary and non-pecuniary damages.

General measures:

1) Violation of Article 11

• Measures adopted: By letter of 23/06/2006 the Greek authorities informed the Committee of the following: (a) Subsequent to the facts of the case, the police reassessed their objectives and adopted a new anti-crime strategy taking into consideration recent studies, international practice and relevant Recommendations of the Committee. Thus, a series of new decrees, orders and decisions have been issued by the police from 2002 to 2006 concerning in particular visible operations of police officers including patrols.

In particular: Order 1026/31.05.2006, issued following the judgment of the European Court, provides that, with a view to reinforcing citizens’ sense of security, sensitive targets, including those of particular political interest (political parties’ offices, local organisations etc), shall be under surveillance 24 hours a day, so that any risk of aggression is avoided. Particular emphasis is placed on the need to provide immediate and effective assistance in case of riots against such targets. This order has been sent out to all police headquarters stressing that police directors should personally supervise its implementation.

In addition, on 3/12/2004 the Policemen's Code of Conduct (Presidential Decree 254/2004) entered into force. It contains useful guidelines for policemen's conduct towards all citizens, in accordance with international human rights principles. Specific provisions provide policemen's obligation to respect every individual's right to life and personal security.

(b) The Court’s judgment was promptly transmitted to the Ministry of Public Order, the Head of Police and the Ministry of Justice and translated and published at the State Legal Council’s site (www.nsk.gr).

• Supplementary information awaited: on further dissemination of the Court’s judgment, possibly with an explanatory note, to municipal and regional authorities, police officers, prosecutors and judges of Florina (and its region) where the applicant political party is based.

                   2) Violation of Article 6§1

Greece has already adopted a number of legislative and other measures a view to accelerating proceedings before criminal courts (see Resolution ResDH(2005)66 in the case of Tarighi Wageh Dashti and 7 other cases against Greece, adopted on 18/07/2005).

*           *           *

67629/01          Assymomitis, judgment of 14/10/2004, final on 14/01/2005

The case concerns the violation of the three applicants' right to peaceful enjoyment of their possessions in that they had been prevented since May 1992 from carrying out work on their land despite having obtained a building permit; an appeal against the validity of this permit, lodged by the municipality in 1993, was rejected as inadmissible by the Council of State in 1999. The European Court found that the excessive length of the proceedings before the Council of State, as well as the competent authorities' attitude and failure to give a clear response following the decision of the Council of State, had imposed specific and exorbitant pressure on the applicants (violation of Article 1 of Protocol No. 1).

The case also concerns the excessive length of the proceedings initiated by two of the applicants before the Council of State (from April 1993 to February 2002, more than 9 years) (violation of Article 6§1).

Individual measures:

• Information received: At the 955^th DH meeting (February 2006) the Greek delegation informed the Committee that on 14/12/05 the municipality of Chalandri lifted the applicants’ land qualification as a green area and that on 02/02/06 the urban planning office qualified the relevant land as constructible.

Confirmation in writing is awaited.

Finally, it is noted that the European Court awarded the applicants just satisfaction in respect of pecuniary damages covering their losses from May 1992 until the delivery of the judgment.

General measures:

I.              Violation of Article 1 of Protocol No. 1

• Information received: The Greek authorities have informed the Committee that the Athens Prefecture has written to all services involved in urban planning in its jurisdiction about the conditions that led to the finding of this violation by the European Court.

It has particularly stressed the direct effect of the Convention and the Court’s case-law, and underlined that no similar cases should occur and that landowners should be promptly compensated where town plans qualify land as being for public use.

• Information is awaited on any further possible legislative or administrative measures envisaged, as indicated in the Greek delegation’s letter of 27/04/2005 to the competent Greek authorities.

II.             Violation of Article 6§1

Greece has already adopted a number of legislative and other measures with a view to accelerating proceedings before administrative courts (see Final Resolution ResDH(2005)65 on Pafitis and others and 14 other cases against Greece, adopted on 18/07/2005). Additional problems in this field have been highlighted in more recent judgments (e.g. Manios judgment of 11/03/2004, final on 11/06/2004) and are being addressed by the Greek authorities under the Committee’s supervision. In this context, information is awaited on the progress of the draft Bill on the Administrative Law Code aimed at accelerating administrative court proceedings (mentioned in the Justice Ministry's letter of 30/09/2004) and on any other specific measures envisaged to accelerate proceedings before the Supreme Administrative Court.

Finally, the judgment of the European Court has also been sent to the Ministry of Justice and to the Council of State, and translated and published on the site of the State Legal Council (www.nsk.gr).

*           *           *

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

Application	Case	Duration of proceedings	Courts involved		State of proceedings
53401/99	Konti-Arvaniti, judgment of 10/04/03, final on 10/07/03	Since April 1988		Kavala First Instance Court; Thrace Court of Appeal	Closed (in 2004)
77198/01	Athanasiou, judgment of 29/09/05, final on 29/12/05	November 1994 -July 2002		Athens Regional Court	Closed
3257/03	Sflomos, judgment of 21/04/05, final on 21/07/05	May 1998 - June 2004	Athens First Instance Court and Court of Appeal		Closed

These cases concern the excessive length of proceedings in civil courts and lack of an effective domestic remedy (violations of Articles 6§1 and 13).

Individual measures: None, in all cases the proceedings have ended.

General measures:

1) Violations of Article 6§1: Greece has adopted a number of legislative and other measures with a view to accelerating proceedings before civil courts (see Resolution ResDH(2005)64 on Academy Trading Ltd and others against Greece and other cases, adopted on 18/07/2005).

2) Violations of Article 13: The Greek authorities have informed the Committee that legislative measures to introduce an effective remedy in Greek law for this kind of violations are under way.

• More information is urgently required.

The authorities’ attention is also drawn to the Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies and to measures adopted by other countries confronted with similar problems (see e.g. Resolutions ResDH(2005)60 on Horvat and 9 other cases against Croatia; ResDH(2005)67 on Jóri and 18 other cases against the Slovak Republic).

Decisions: The Deputies, 1.             noted with concern the systemic problem of lack of effective domestic remedy highlighted in these cases which deserved particular attention; 2.             decided to resume consideration of these items at their 992nd meeting (3‑4 April 2007) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning the general measures urgently required to prevent new, similar violations.

- 1 case against Hungary

20723/02          Osváth, judgment of 05/07/2005, final on 05/10/2005

The case concerns the non-adversarial nature of proceedings before the domestic courts seised of applications by the public prosecutor’s office to extend the applicant’s detention pending trial. These applications were made at the investigation stage between June and December 2001 (violation of Article 5§4).

The European Court observed that the applicant’s detention pending trial was repeatedly prolonged without him having been served in advance with copies of the prosecution’s applications. The Court considered that, even if the applicant was able to appear in person or be represented at the court hearings concerning his detention that possibility was not sufficient to afford him a proper opportunity to comment on the relevant applications. Moreover, the Court noted that the applicant could not appear in person or be represented before the Supreme Court, which decided in camera to prolong his detention on remand. The Court noted finally that the fact that the Supreme Court prolonged the applicant’s detention on remand on a ground which had not previously been referred to, and was consequently quite unexpected for the applicant, aggravated the absence of an adversarial procedure.

Individual measures: None: the applicant was released in March 2002.

General measures:

            1) Legislative measures: the old Code of Criminal Procedure in force at the relevant time did not prescribe that, during the investigation, a prosecution motion to extend detention must be served on the defendant. Information was requested on the resolution of that issue by the new Code of Criminal Procedure, which entered into force in 2003, and on any other measure, if appropriate, aimed at the prevention of new, similar violations of the Convention.

The authorities provided the Secretariat with the relevant provisions of the Law 2006/LI which modified the provisions of the Code of Criminal Procedure of 2003 concerning this issue (letter of 24/03/2006). According to the new provisions, the investigating judge and the court examine applications relating to pre-trial detention at a hearing with the participation of the parties in all cases, except when the grounds evoked are the same as those of the previous decisions. Before the hearing, the investigating judge transmits the prosecutor’s application to the suspect and his counsel.

▪ Some clarifications appear to be necessary to evaluate the need for additional measures for execution. Bilateral contacts are under way in this respect.

            2) Publication and dissemination: the judgment of the European Court was published on the website of the Ministry of Justice www.im.hu <http://www.im.hu> and in the human rights quarterly Acta Humana. The Ministry of Justice has also sent a copy of the judgment to the National Judicial Council and the Prosecutor’s Office for dissemination to appropriate judges and prosecutors.

- 1 case against Hungary and Romania

71099/01          Monory, judgment of 05/04/2005, final on 05/07/2005[33]

- 4 cases against Ireland

50389/99          Doran, judgment of 31/07/03, final on 31/10/03

42297/98          McMullen, judgment of 29/07/2004, final on 29/10/2004

54725/00          O’Reilly and others, judgment of 29/07/2004, final on 29/10/2004

18273/04          Barry, judgment of 15/12/2005, final on 15/03/2006

The cases concern the excessive length of certain proceedings concerning civil rights and obligations before criminal, civil and administrative courts. In the Doran case, the proceedings lasted approximately 8 years and 5 months; in the case of O’Reilly and others, some 4 years and 11 months; in the McMullen case the proceedings started on 29/06/1988 and were still pending when the European Court delivered its judgment (the period taken into account by the Court was approximately 16 years); and in the Barry case, the applicant was brought to trial eight years after being charged, and proceedings were still pending when the European Court delivered its judgment (violations of Article 6§1).

The cases of Barry, Doran and the O’Reilly and others also concern the lack of an effective domestic remedy in respect of excessively long proceedings (violations of Article 13).

Individual measures:

• Information is awaited on the current state of the domestic proceedings in the Barry and McMullen case and, if appropriate, on their acceleration.

General measures: Copies of the Doran, McMullen and O’Reilly judgments have been provided to all government departments and offices that had an interest in the case and copies have also been provided to the Courts Service. An article about the Doran case appeared in the Irish Times on 01/08/2003. A link to the website of the Court is provided on several Government and legal websites.

            1) As regards the violation of Article 6§1: In the Barry case, the violation appears to be due to circumstances particular to the case; consequently the publication and dissemination of the judgment would appear to be sufficient for execution.

As to the other cases, the Courts Service was established in 1999 by legislation in order “to manage the courts, support the judiciary and provide a high-quality and professional service to all the courts” (by implementing an IT strategy, assisting the judiciary with case management and making major efforts to reduce waiting times in criminal and family law matters). Under the Civil Liability and Courts Act 2004, a total of 8 additional judges were appointed to several courts in November 2004. A Commercial Court (rather “list”) was also set up in January 2004.There are also ongoing amendments to the rules of the various courts with a view to introducing greater efficiencies in court practice and procedure. The Irish authorities have provided general statistics on the courts in Ireland.

• Information expected: on the publication and dissemination of the Barry judgment as well as on a preliminary evaluation by the Irish authorities as to how the measures adopted in 1999 and 2004 have improved the situation as to the length of proceedings before civil and administrative courts, if possible, with recent statistics as well as information on the above-mentioned on-going amendments.

            2) As regards the violation of Article 13: The Irish authorities referred to a recent judgment (03/10/2004) of the Supreme Court, in which the Court referred to the McMullen case and the European Convention on Human Rights Act 2003, and stated that domestic courts have an obligation to ensure that proceedings are concluded within a reasonable time. The authorities also referred to Section 46 of the Courts and Courts Officers Act 2002, which entered into force on 31/03/2005 and provides for the establishment of a register of every reserved judgment in civil proceedings. If the judgment is not delivered within two months from the date upon which it was reserved, the President of the Court which heard the case must list the proceedings before the judge who reserved judgment at two-month intervals. That judge must specify the date on which he or she proposes to deliver the judgment.

• Information expected: Clarification is awaited on how this measure provides a remedy for the violation of Article 13, i.e. enables a litigant to complain to a domestic tribunal either to expedite a decision or obtain redress for delays.

- 60 cases against Italy

55764/00          Zečiri, judgment of 04/08/2005, final on 04/11/2005

The case concerns the retention of the applicant by the police pending his expulsion to his country of origin (Serbia & Montenegro). This retention was found to be unlawful insofar as the expulsion order had not only been annulled by the Court of Cassation but also commuted to a prison sentence of a year and two months which the applicant had already served (violation of Article 5§1).

The case also relates to the absence of sufficiently reliable means of obtaining redress for the first violation (violation of Article 5§5).

Individual measures: None, since the applicant has been freed and has left Italy.

General measures: The European Court found that Article 314 of the Code of Criminal Procedure, which is supposed to provide means of redress for undue privation of liberty, could not be applied in the present circumstances, and that the other remedies invoked by the government were not effective either (§§47-51 of the judgment). This being the case, it would appear necessary to provide appropriate means of redress for unlawful retention in order to prevent similar violations of Article 5§5 in the future.

• Information is awaited on measures envisaged to this end.

*           *           *

38805/97          K., judgment of 20/07/2004, final on 15/12/2004

The case concerns the excessive length of certain proceedings brought pursuant to the United Nations Convention on the Recovery of Maintenance Abroad to obtain enforcement in Italy of a Polish judgment of 1993 ordering payment of maintenance to the applicant. The proceedings were brought in 1996 before Italian civil courts by the Italian state on behalf of the applicant, a Polish national. These proceedings lasted 8 ½ years, from 1994 to 2002 (violation of Article 6§1).

The European Court noted long periods of inactivity on the part of the Italian authorities before proceedings began before the Perugia Appeal Court (from 1994 to 1996) then at the enforcement stage (from 1999 to 2000). The Court also expressed doubts as to the applicability of the Pinto Act in this case.

Individual measures: Enforcement procedures resulted in the seizure of the property of the applicant’s ex-husband and, according to the latest information transmitted in 04/05/2006, a valuation of this property is under way. The valuation should have been submitted on or by 22/06/2006.

General measures: The proceedings in this case are special insofar they were conducted partly before administrative authorities and partly judicial authorities. The overall length was excessive especially regarding the conduct of the proceedings before the administrative authorities. For this reason, this case should be distinguished from the other cases of length of judicial proceedings. The Italian authorities examined the specific problem raised in this case at an inter-ministerial meeting held at the Ministry of the Interior on 24/05/2005. Several unresolved legal difficulties were highlighted, such as the fact that it is impossible to begin judicial enforcement proceedings directly without a prior decision of the Appeal Court, and the absence of a special government bank account upon which the sums of money involved in proceedings of this kind may be deposited.

• Written information is expected on these matters.

*           *           *

                       - Cases concerning bankruptcy proceedings

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

47778/99          Bassani, judgment of 11/12/03, final on 11/03/04

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

55984/00          Goffi, judgment of 24/03/2005, final on 06/07/2005[34]

7503/02            Neroni, judgment of 20/04/2004, final on 10/11/2004

39884/98          Parisi and 3 others, judgment of 05/02/04, final on 05/05/04

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

52985/99          S.C., V.P., F.C. and E.C., judgment of 6/11/03, final on 6/02/04

51703/99          Vadalà, judgment of 20/04/2004, final on 20/07/2004

77986/01          Forte, judgment of 10/11/2005, final on 10/02/2006[35]

These cases concern disproportionate restrictions of the applicants' rights in excessively long bankruptcy proceedings. In order to protect the rights of creditors, 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. Such restrictions are not open to criticism in themselves. However, 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 and Neroni cases).

Individual measures: Proceedings are closed in all these cases except in the cases of S.C., V.P., F.C. and E.C. (still pending after more than 14 years) and Vadalà.

• Information is awaited concerning the closure of these proceedings or, at least, the lifting of the restrictions on the applicants’ freedom of correspondence and movement (see below).

General measures:

• Questions resolved by the recent reform: Legislative Decree No. 5/2006 adopted on 9/01/2006 has brought about a fundamental reform of bankruptcy law including a number of modifications to remedy the violations found, in particular:

            - Respect for correspondence: (Article 48 of the Decree): the bankrupt now receives all his correspondence and is obliged to transmit to the liquidator only communications concerning the bankruptcy proceedings, whereas beforehand all letters were diverted directly to the liquidator;

            - Means of contesting restrictions on correspondence: The new rule abolishing the pre-emptive supervision of correspondence should resolve the problem found by the Court regarding a remedy. In any event, the reform (Articles 26 and 36) has enhanced the available remedies, providing shorter time-limits for decisions and the possibility of appealing against omissions on the part of the liquidator;

            - Freedom of movement: (Article 49) the only obligation for the bankrupt is to inform the competent authorities of any change of residence, whereas formerly he could not leave his residence without authorisation.

• Evaluation: These changes, which also have an immediate effect on pending proceedings, effectively dispose of the corresponding violations found by the Court.

• Questions remaining to be resolved- Respect for property and access to a court:

For the duration of bankruptcy proceedings, the liquidator administers the property and is responsible before the courts for all questions relating to it. The reform does not cover this aspect because it is inherent in the very aim of the bankruptcy procedure. What is more, the European Court underline that such “interference” in the administration and representation of property was not to be called into question in itself but only insofar as they lasted too long. The origin of the violation is thus to be found in the inefficiency of the Italian judicial system, particularly regarding the excessive length of bankruptcy proceedings.

Continued monitoring of this group of cases is needed because, as the reform was only introduced recently, it is not yet possible to assess its effects on the efficiency of court procedures. The question also arises of the advisability of examining them jointly with the group of cases of excessive length of proceedings against Italy.

• Publication of the judgments of the European Court: 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.

The Secretariat is preparing, in consultation with the Italian authorities, a draft interim resolution taking stock of the progress achieved in executing these cases and the matters remaining to be resolved.

Decision: The Deputies, agreed to resume consideration of these cases at their 982nd meeting (5‑6 December) (DH) on the basis of a draft interim resolution to be prepared by the Secretariat.

*           *           *

36813/97          Scordino No. 1, judgment of 29/03/2006 - Grand Chamber[36]

The case concerns the excessive length of certain civil proceedings seeking compensation of expropriation. Proceedings began on 25/05/1990 and ended on 7/12/1998 (more than 8 ½ years). The applicant availed himself of the domestic remedy provided by the Pinto Act and seised a national court for compensation for the length of proceedings. This remedy proved ineffective as the national court granted an inadequate amount of compensation, corresponding to 10% of the amount awarded by the European Court in similar cases (violation of Article 6§1).

The case also concerns the inadequate compensation for expropriation under Law No. 359/1992, the amount of which was considerably less than the market value of the land at issue and furthermore subject to a 20% tax. The European Court found that the applicants had been subjected to a disproportionate and excessive charge in the absence of any legitimate general interest to justify it (violation of Article 1 of Protocol No. 1).

The case further concerns the unfairness of the relevant proceedings on account of the retroactivity of Article 5bis of Law No. 359 which imposed a new, significantly less favourable compensation regime than that applicable to debts accrued prior to its entry into force. The European Court considered that the respondent state had failed to show that the grounds invoked – i.e. that budgetary and policy considerations revealed a “clear and overriding general interest” to justify the retroactive application of the law, were legitimate (violation of Article 6§1).

The European Court found that there is a large-scale problem and invited the Italian authorities, under Article 46 of the Convention, to eliminate every obstacle to obtaining compensation duly related to the value of the expropriated property.

Individual measures: None: the proceedings at issue are closed and the European Court awarded just satisfaction in respect of the pecuniary and non pecuniary damage sustained.

General measures:

            1) The excessive length of the proceedings and the effectiveness of the compensatory remedy (Pinto Act):

            a) Change of jurisprudence concerning fixing the amount of compensation: The decision at issue was taken by the court of appeal before the change of the jurisprudence of the Court of Cassation in 2004, declaring the primacy of the jurisprudence of the Strasbourg Court with regard to the application of the Pinto Act. It is important to assure a large dissemination of the judgements of the European Court in order to allow a correct application of the case-law of the European Court by Italian courts of appeal.

            b) The general problem of the excessive length of judicial proceedings: This is a structural problem, solution of which is urgent and of fundamental importance. The Court has found that the creation of a domestic remedy has not changed the basic problem of the length of judicial proceedings which continues to be excessive. The remedy simply precluded the European Court from finding violations by transferring the workload to already-overloaded courts of appeal. This finding of the Court corroborates the well-established position of the Committee of Ministers to the effect that the provision of domestic remedies does not dispense states from their obligation to resolve structural problems at the origin of violations. In Interim Resolution ResDH(2005)114, the Committee called upon “the competent authorities to set up an effective national policy, coordinated at the highest governmental level, with a view to achieving a comprehensive solution to the problem and to present by the end of 2006 at the latest a new plan of action based on a stocktaking of results achieved so far and embodying an efficient approach to its implementation”. The Committee will examine this action plan and the follow-up action to be taken in early 2007 at the latest.

            2) The problem of expropriation procedure:

The case does not concern the indirect expropriation procedure, i.e. the problem which is dealt with in the context of the group of cases of Belvedere Alberghiera. Nevertheless, the question of insufficiency of expropriation compensation could be better approached in the context of the solutions envisaged in this group which poses more general problems (Section 4.2). A draft resolution on problems linked with expropriation will be submitted at the present meeting.

*           *           *

- Cases concerning constructive expropriation

31524/96          Belvedere Alberghiera S.R.L., judgment of 30/05/00, final on 30/08/00 and of 30/10/03 final on 30/01/04

41040/98          Acciardi and Campagna, judgment of 19/05/2005, final on 12/10/2005

71603/01          Binotti, judgment of 13/10/2005, final on 13/01/2006

63632/00          Binotti, judgment of 17/11/2005, final on 17/02/2006

20236/02          Capone, judgment of 06/12/2005, final on 06/03/2006

62592/00          Capone, judgment of 15/07/2005, final on 30/11/2005

24638/94          Carbonara and Ventura, judgment of 30/05/00 and judgment of 11/12/03

63861/00          Carletta, judgment of 15/07/2005, final on 30/11/2005

65272/01          Chiro’ Dora No. 3, judgment of 11/10/2005, final on 11/01/2006

63620/00          Chiro’ and 3 others No. 1, judgment of 11/10/2005, final on 11/01/2006

65137/01          Chiro’ and 3 others No. 2, judgment of 11/10/2005, final on 11/01/2006

67196/01          Chiro’ and 3 others No. 4, judgment of 11/10/2005, final on 11/01/2006

67197/01          Chiro’ and 3 others No. 5, judgment of 11/10/2005, final on 11/01/2006

63296/00          Colacrai No. 1, judgment of 13/10/2005, final on 13/01/2006

63868/00          Colacrai No. 2, judgment of 15/07/2005, final on 30/11/2005

63633/00          Colazzo, judgment of 13/10/2005, final on 13/01/2006

71175/01          De Pasquale, judgment of 13/10/2005, final on 13/01/2006

44897/98          Di Cola, judgment of 15/12/2005, final on 15/03/2006

64111/00          Dominici, judgment of 15/11/2005, final on 15/02/2006

63242/00          Donati, judgment of 15/07/2005, final on 30/11/2005

19734/92          F.S. No. 1, Interim Resolution DH(98)209 du 10/07/98

63864/00          Fiore, judgment of 13/10/2005, final on 13/01/2006

16041/02          Giacobbe and others, judgment of 15/12/2005, final on 15/03/2006

60124/00          Gravina, judgment of 15/11/2005, final on 15/02/2006

58858/00          Guiso-Gallisay, judgment of 08/12/2005, final on 08/03/2006

62876/00          Istituto Diocesano Per Il Sostentamento Del Clero, judgment of 17/11/2005, final on 17/02/2006

63240/00          La Rosa and 3 others No. 6, judgment of 15/07/2005, final on 30/11/2005

58119/00          La Rosa and Alba No. 1, judgment of 11/10/2005, final on 11/01/2006

58386/00          La Rosa and Alba No. 3, judgment of 15/11/2005, final on 15/02/2006

63238/00          La Rosa and Alba No. 4, judgment of 13/10/2005, final on 13/01/2006

63241/00          La Rosa and Alba No. 7, judgment of 17/11/2005, final on 17/02/2006

63285/00          La Rosa and Alba No. 8, judgment of 15/07/2005, final on 15/10/2005

56578/00          Lanteri, judgment of 15/11/2005, final on 15/02/2006

63866/00          Maselli, judgment of 13/10/2005, final on 13/01/2006

43663/98          Mason and others, judgment of 17/05/2005, final on 12/10/2005

36818/97          Pasculli, judgment of 17/05/2005, final on 12/10/2005

69907/01          Prenna and others, judgment of 09/02/2006, final on 09/05/2006

14793/02          Sciarotta and others, judgment of 12/01/2006, final on 12/04/2006

43662/98          Scordino No. 3, judgment of 17/05/2005, final on 12/10/2005

67790/01          Scozzari and others, judgment of 15/12/2005, final on 15/03/2006

67198/01          Serrao, judgment of 13/10/2005, final on 13/01/2006

77822/01          Serilli, judgment of 06/12/2005, final on 06/03/2006

77823/01          Serrilli Pia Gloria and others, judgment of 17/11/2005, final on 17/02/2006

All these cases concern the de facto expropriation of land belonging to the applicants following their emergency occupation, subsequently prolonged, by the public authorities.

The lawfulness of such expropriation could not be tested because there was no formal need of transfer of the property and on account of the slowness of subsequent court proceedings. The European Court found this situation to be incompatible with the exercise of the applicants’ right to the peaceful enjoyment of their property (Violations of Article 1 of Protocol No. 1).

Since the 1970s, Italian local authorities have been occupying and on an emergency basis without issuing expropriation orders. Courts confronted with this situation have developed the case-law rule of “indirect expropriation”, according to which public authorities may acquire title to the land at issue without formal expropriation if, following the expropriation and irrespective of the lawfulness of same, public works have been carried out on the property. This jurisprudence was acknowledged and modified by a number of laws of which the most recent was the “Compendium on public utility expropriation”.

In its earliest judgments in 2000 (see Belvedere Alberghiera and Carbonara and Ventura) the European court found that the doctrine of “indirect expropriation” failed to offer sufficient legal certainty. In this respect it noted certain contradictory applications of the doctrine in Italian case-law. The Court further noted that indirect expropriation enabled the administration to set aside the ordinary rules of expropriation with the attendant risk of unpredictable or arbitrary results for the citizen. Indirect expropriation makes it possible to occupy land and bring about irreversible changes to it without a deed of transfer. Consequently, the only possible measure of legalisation is a finding of illegality by a court in the absence of a formal declaration by the public authority. Such a finding required proceedings, which must be brought by the victim and which will probably last a very long time.

The European Court also found that indirect expropriation made it possible for the public authority to occupy and transform property without paying compensation at the time. Such compensation must be claimed by the victim, within five years. But the right to such compensation may be declared time-barred as the court fixes the starting point for the five-year period retroactively, thus making any hope of compensation pointless (see judgment in Carbonara and Ventura, §71).

Individual measures: Pending the proceedings on the issue of just satisfaction (so far reserved by the European Court in most of these cases), the Italian authorities are invited urgently to find the adequate means to erase the continuing effects of the violations found.

Identification of individual measures may be part of the solution of the general problem (see below) as it requires the setting up of an effective domestic system to secure the return of property expropriated de facto and/or to pay adequate compensation in respect of expropriation or damages.

General measures adopted so far: Presidential decree No. 327 of 8/06/2001, in force since July 2003, adopted a compendium of measures reforming expropriation. In particular, Article 43 provides that, following illegal occupation of land, the administration may issue a deed of expropriation in order to regularise the situation if justified by reasons of public interest.

The Court of Cassation, in plenary decisions adopted after the entry into force of the compendium (5902/2003 and 11096/2004) stated that the norms in domestic maw concerning indirect expropriation were sufficiently accessible, precise and predictable and excluded any risk of conflict with the Convention.

The Council of State (plenary decision 2/2005) emphasised that following the adoption of the Compendium, expropriation in Italy could no longer be the simple consequence of a de facto situation: but rather the effect of a formal act, motivated by the administration, even if ex post facto. It also underlined that in the absence of such an act, the citizen has a primary right to the return of the property which the administration cannot refute on the sole ground that public works have been carried out.

• Efficacy of theses measures contested by the European Court: In its judgment in Prenna against Italy of 9/02/06 (§§64-65) the Court noted that:

-           the existence of a legal framework as such is not enough to satisfy the principle of legality and that attention needs to be paid to the quality of law;

-           historically, relevant Italian case-law is contradictory;

-           there are also contradictions between case-law and statute law;

-           constructive expropriation is a means of legitimating illegalities committed by the administration in such a way as it can benefit from its illegal acts.

The Court found that, whether it resulted from a case-law doctrine or a statutory text such as Article 43 of the Compendium, indirect expropriation could not be considered a valid alternative to proper expropriation carried out according to law.

• Information required:In the light of these recent conclusions of the Court, it would appear that new legislation is the best way of resolving the situations at the origin of the present violations and ensuring that the administration is at least strongly deterred from resorting to this kind of expropriation. Information is awaited in this respect. Information is in particular necessary about the measures envisaged to set up an effective domestic mechanism providing adequate compensation to all persons in the applicants’ positions (see Individual measures above).

Draft interim resolution: following the decision adopted by the Deputies at their 966th meeting (June 2006), the Secretariat prepared a draft interim resolution in consultation with the Italian delegation. This draft is submitted to the Deputies at the present meeting with a view to its adoption.

*           *           *

                       - Cases concerning the reopeningof domestic proceedings

42191/02          R.R., judgment of 09/06/2005, final on 12/04/2006

The case concerns the unfairness of certain criminal proceedings brought in absentia against the applicant, who was suspected of having breached his obligation to pay maintenance for his family. The judicial authorities considered that the applicant, who had moved abroad and could no longer be found, had voluntarily forfeited his right to take part in the proceedings. The proceedings resulted in the applicant's conviction and sentence to 6 months' imprisonment suspended and a fine. The judgment became final in April 2002.

The European Court found that it had not been established that the applicant had wilfully fled from justice or unequivocally renounced his right to a hearing; and had had no opportunity to obtain a fresh examination of the rights or wrongs of the accusations made against him (violation of Article 6§1).

Individual and general measures:

            1) The unfairness of the proceedings: Italy adopted Law No. 60/2005 amending Article 175 of the CCP so as to reinforce the guarantees of notifications in in absentia proceedings. Under the new law, the deadline for appealing against a judgment pronounced in absentia may be re-opened simply at the request of the person concerned. There is one exception to this rule, where the accused has had “effective knowledge” of the proceedings against him or of the judgment but has wilfully decided not to appear or to appeal. Moreover, the basic deadline has been increased from 10 to 30 days counting from the date upon which the accused is delivered to the Italian authorities

This new legislation seems to remedy the general problems raised by this case. However, this new law should be interpreted by domestic courts in accordance with the requirements of the Convention. Accordingly, the attention of domestic courts should be drawn to the problem at the origin of the violation, as established in this case, either by the publication of the judgment of the European Court through appropriate means, or by its dissemination during seminars concerning judicial personnel

            2) The question of reopening: This new law is not applicable to the applicant. The European court held that when it concludes that an applicant has been convicted in circumstances violating his right to participate in his trial, the most appropriate form of redress in principle would be to hold a new trial or to reopen the proceedings promptly (§76). Italian law does not yet permit reopening proceedings following a violation of the Convention, but there have been some recent attempts to bring about such reopening by jurisprudential means (see the Dorigo and F.C.B. cases in Sections 4.3 and 4.2 respectively).

It is recalled that the general problem posed by the absence of legislation in Italy providing reopening of criminal proceedings found to have violated the Convention is under examination in certain other cases (Dorigo, F.C.B., Bracci, Sejdovic).

The need to reopen the proceedings in this case should nevertheless be established on the basis of possible continuous effects of the impugned conviction on the applicant, taking into account in particular a recent law on remission of sentences. This issue has been addressed in the context of bilateral discussions.

56581/00          Sejdovic, judgment of 01/03/2006 - Grand Chamber[37]

The case concerns the unfairness of certain criminal proceedings brought against the applicant in absentia. The judicial authorities considered that the applicant, who was suspected of murder and could not be traced had wilfully fled from justice, was “on the run” (latitante). The proceedings resulted in the applicant’s conviction and sentence to 15 years, 8 months’ imprisonment. In the absence of an appeal, this judgment became final in 1997.

The European Court found that it had not been established that the applicant had wilfully fled from justice or unequivocally renounced his right to a hearing; he had furthermore benefited from to opportunity to obtain a fresh examination of the rights or wrongs of the accusations made against him (violation of Article 6§1).

Individual measures:

• Prosecution of the applicant: In 1999, the applicant was arrested in Germany under a warrant issued by the Rome Public Prosecutor. Extradition was subsequently denied on the ground that Italian law did not provide a sufficiently safe guarantee concerning re-opening of his trial and the applicant was freed. In May 2006, the Italian authorities revoked the international warrant against the applicant and the judgment of the European Court was noted in his criminal record

The applicant does not seem to have requested the reopening of the proceedings, this issue remains to be clarified.

• Possibility of reopening the proceedings under consideration: The new law (see general measures) providing the possibility of applying for extension of the deadline for appealing against an in absentia conviction is not applicable to the applicant. Thus reopening the criminal proceedings at issue would be an appropriate way to remedy the violation found (see § 126 of the judgment quoting Committee of Ministers’ Recommendation Rec(2002)2). However, Italian law does not yet allow re-opening of proceedings following violations of the Convention but there have recently been a number of attempts to do so on the basis of case-law (see the cases of Dorigo and F.C.B. (Section 4.3 and 4.2).

General measures: After the judgment of the European Court, Law No. 60/2005 was adopted, amending Article 175 of the CCP so as to reinforce the guarantees of notifications in in absentia proceedings. Under the new law, the deadline for appealing against a judgment pronounced in absentia may be re-opened simply at the request of the person concerned. There is one exception to this rule, where the accused has had “effective knowledge” of the proceedings against him or of the judgment but has wilfully decided not to appear or to appeal. Moreover, the basic deadline has been increased from 10 to 30 days counting from the date upon which the accused is delivered to the Italian authorities. The Court considered that is was premature in the absence of any domestic case-law to determine whether this reform achieved the goal set by the Convention and did not consider it necessary to indicate general measures in the case (§§123-124).

Accordingly, publication of the judgment, and its dissemination to judicial personnel would be an appropriate way of implementing this case.

*              *              *

36822/02          Bracci, judgment of 13/10/2005, final on 15/02/2006

The case concerns a violation of the applicant’s right to a fair trial in that he was unable to examine, question or to have questioned the main witness to the accusation against him. On 5/12/2000 he was convicted of number of crimes including rape and illegal possession of a weapon and sentenced to six years’ imprisonment.

The European Court noted that, as regards the charge of sexual abuse, the applicant was convicted on the sole basis of testimony given by the victim before the trial pursuant to Article 512 of the Code of Criminal Procedure (CCP), all trace of this witness having subsequently been lost.

The European Court found that the rights of the defence had been hampered in a manner incompatible with the guarantees of the Convention (violation of Article 6§§1 and 3d).

Reopening(Individual and/or general measure): Pending a solution to the problem of the absence in Italian law of a means of reopening of proceedings following a judgment of the Court (see above), bilateral contacts are under way with a view to finding a general solution or an individual solution in this case.

The European court recalled its case-law to the effect that, when it concludes that an applicant has been convicted in found to violate the Convention, the most appropriate form of redress in principle would be to hold a new trial or to reopen the proceedings promptly (§76). Despite repeated representations by the Committee of Ministers over many years and a number of unsuccessful attempts to adopt the necessary legislation, Italian law does not yet permit reopening of proceedings following a violation of the Convention, but there have been some recent attempts to bring about such reopening by jurisprudential means (see the Dorigo and F.C.B. cases in Sections 4.3 and 4.2 respectively).

• Information is awaited on the progress accomplished in Italian law and the measures envisaged by the Italian authorities in this respect.

General measures: The possibility under Italian law to make use of pre-trial testimony, denying the defence the possibility of effective cross-examination raises serious misgivings in relation to the Convention. Article 512 of the Criminal Code which was applied in this case, does not exclude such a possibility. To avoid new, similar violations, it would seem desirable to clarify the question either by legislation or through a consolidated case-law interpretation.

At the same time, in order to improve the implementation of the Convention, efficient means need to be found to bring these questions to the attention of justice professionals (publication and dissemination of the European Court’s judgment, seminars).

*           *           *

12151/86          F.C.B., judgment of 28/08/91, Résolution DH(93)6 and Interim Resolution ResDH(2002)30

This case concerns the unfairness of certain criminal proceedings: the applicant was sentenced, in absentia, in 1984, to twenty-four years’ imprisonment without the domestic court having ascertained whether he had effectively intended to waive his rights to appear and defend himself (violation of Articles 6§1 and 6§3.c).

In March 1993, the Deputies adopted Resolution DH(93)6, closing the examination of this case on the basis of the information given by the Government of Italy on the general measures adopted.

Individual and general measures:

            1) The situation of the applicant: In 1999, the Committee decided to resume consideration of the case as regards individual measures, when the applicant complained that, contrary to the information available in 1993, the consequences for him of the violation found had not been remedied: indeed, the Italian authorities had requested his extradition from Greece in order to enforce the unfair conviction.

This raises the question of reopening these proceedings. As from September 2000, the Italian authorities dropped their requests for extradition.

In 2004, following the applicant’s arrest in Italy for other offences, an enforcement order was issued in respect of the conviction which had found to be unfair by the European Court. The Court of Cassation, seised by the applicant to content the legitimacy of the enforcement order, referred the matter back to the Appeal Court, emphasising the need to revise the order in the light of the European Court’s finding of a violation. Nonetheless, the Appeal Court has not changed the enforcement order and the matter has once more been brought before the Court of Cassation. The Committee of Ministers has taken note of the recent initiatives aiming at resolving the problem by jurisprudential means but notes that the applicant is still suffering the consequences of the violation.

• Information is awaited on the development of these proceedings so as to define the follow-up to be given to this case by the Committee of Ministers.

           

2) The question of reopening: In September 2000, the Italian authorities indicated that a bill was being considered to allow the reopening of criminal proceedings found to violate the Convention. However, despite the Committee’s repeated requests and a number of abortive attempts to enact the necessary legislation, such reopening is still not provided in Italian law.

Attempts have been made recently to secure reopening by jurisprudential means (See the Dorigo case, Section 4.3). The Committee has invited the Italian authorities to pursue their efforts to ensure, either through legislation or through case-law that the consequences of proceedings found to violate the Convention may be rapidly erased (See decision adopted with immediate effect at the 970th meeting (July 2006)).

            3) The unfairness of the proceedings: In 1989, Italy adopted a new Code of Criminal Procedure improving the guarantees in case of in absentia proceedings (see Resolution DH(93)6). In 2004 the European Court, in its judgment in Sejdovic against Italy, found the improvement inadequate.

On 10/11/2004, following the that judgment, Italy adopted Law No. 60/2005 amending Article 175 of the CCP so as to reinforce the guarantees of notifications in in absentia proceedings. Under the new law, the deadline for appealing against a judgment pronounced in absentia may be re-opened simply at the request of the person concerned. There is one exception to this rule, where the accused has had “effective knowledge” of the proceedings against him or of the judgment but has wilfully decided not to appear or to appeal. Moreover, the basic deadline has been increased from 10 to 30 days counting from the date upon which the accused is delivered to the Italian authorities. The Court considered that is was premature in the absence of any domestic case-law to determine whether this reform achieved the goal set by the Convention and did not consider it necessary to indicate general measures in the Sejdovic case.  

- 2 cases against Lithuania

55480/00+        Sidabras and Džiautas, judgment of 27/07/2004, final on 27/10/2004

70665/01          Rainys and Gasparavičius, judgment of 07/04/2005, final on 07/07/2005

These cases concern the employment restrictions imposed on the applicants who had occupied posts in the Lithuanian branch of the KGB during the Soviet period. Pursuant to an Act of 1998, the applicants (a tax inspector, a prosecutor, a corporate lawyer and an attorney) were dismissed and banned from applying for public-sector and various private-sector posts until 2009.

The European Court found that, although the legislation pursued a legitimate aim, it failed to offer sufficient guarantees, either with regard to establishing disloyalty to the state or in defining the areas of employment from which persons falling within the scope of the law would be excluded. In addition it was unjustified to impose restrictions for considerations of national security or loyalty in respect of private-sector employment. The Court noted in particular the very belated adoption of the Act imposing these restrictions on the applicants a decade after Lithuanian independence. The Court thus found that the measures taken with regard to the applicants were disproportionate (violations of Article 14 combined with Article 8).

Individual measures:

• Additional measures required: The Lithuanian authorities are invited to clarify the applicants’ current position and the measures taken or envisaged to put an end to the discrimination against them (for instance the specific remedies available in the domestic legal order capable of redressing if need be the consequences of the violation for the applicants).

General measures: A draft law amending the Act of 16/07/1998, at the origin of the violations in both cases, was presented to the Lithuanian Parliament at its plenary session on 14/06/2005. According to the authorities, the draft amendments will extend the possibilities for former KGB officers’ employment in both the private and the public sectors. At the same time, the draft law provides an exhaustive list of all the functions, jobs and tasks from which former KGB employees are barred. The Lithuanian authorities consider that these amendments will provide appropriate safeguards to avoid discrimination and guarantee adequate and appropriate judicial supervision of the imposition of employment restrictions. The amendments were expected to be adopted during the autumn 2005 session.

The judgment in the case of Rainys and Gasparavičius has been published on the website of the Ministry of Justice (www.tm.lt) and it will also be published in the annual publication “Europos žmogaus teisių teismo sprendimai bylose prieš Lietuvą (“Decisions and Judgments of the European Court of Human Rights in cases against Lithuania”). The judgment and its translation have been sent out to all courts, the State Security Department and the Genocide and Resistance Research Centre of Lithuania.

• Additional information awaited on the text of the draft amendments and on their progress in Parliament. Information is also awaited on the publication and dissemination of the judgment of the European Court in the case of Sidabras and Džiautas.

- 4 cases against Moldova

61821/00          Ziliberberg, judgment of 01/02/2005, final on 01/05/2005

This case concerns the violation of the applicant’s right to a fair trial at the hearing, held by the regional court of Chişinău in May 2000, on his appeal against his conviction and sentence to pay an administrative fine (the equivalent of 3.17 euros) for participating in an unauthorised demonstration (violation of Article 6§1).

In this respect, the European Court found that the applicant had had no prior notice of the hearing because regional court had sent him the summons just one day before the hearing so that he had no possibility to organise his defence.

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damages suffered. No further measure seems to be needed. 

General measures:

• Information submitted by the Moldovan authorities: the Ministry of Justice has prepared a draft law modifying the Code of Administrative Offences which has been submitted to Parliament. The Parliament adopted it at its first reading on 23/06/2005 but rejected at its second reading on 14/07/2005. A revised text should therefore be submitted to it by the government.

• Further information is awaited on the manner in which the reform will prevent similar violations and on the current state of the ongoing legislative procedure. Information is also awaited on the publication of the European Court’s judgment and its dissemination to all domestic courts and investigation authorities, possibly with an explanatory note drawing their attention to the requirements of the Convention concerning the right to a fair trial (see in particular §§39-42 of the judgment).

Decision: The Deputies decided to resume consideration of this item at their 992nd meeting (3-4 April 2007) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning the ongoing legislative procedure to prevent new similar violations as found in this case, as well as the publication and the dissemination of the European Court’s judgment.

*           *           *

9190/03            Becciev, judgment of 04/10/2005, final on 04/01/2006

3456/05            Sarban, judgment of 04/10/2005, final on 04/01/2006

These cases concern the poor conditions in which the applicants were detained on remand (violations of Article 3). In the Becciev case, the European Court noted the poor condition of the cell, the absence of outdoor exercise, the inadequacy of the food and the fact that the applicant had been detained under these conditions for 37 days in 2003. Likewise in the Sarban case, the Court concluded that the failure to provide the applicant with basic medical assistance in 2004-2005 whilst he was obviously in need of medical attention and had indeed requested it, together with the other forms of humiliation practiced on him, such as handcuffing and being placed in a metal cage during hearings, amounted to degrading treatment.

The case also concerns the insufficient grounds for the detention (violation of Article 5§3). Both applicants were civil servants, charged with embezzlement (Becciev) and of abuse of power (Sarban). The European Court found that the domestic courts had justified their decisions in a somewhat abstract and stereotyped way even though the applicants had given a number of undertakings in support of their liberation: neither of them had objected in any way to the investigation; neither had a criminal record, and both were prepared to surrender their passports. Furthermore, both had their families in Moldova and third parties were prepared to stand bail for them.

The Sarban case also concerns the failure to ensure a prompt examination of the lawfulness of the applicant's detention (21 days) (violation of Article 5§4).

Finally, the Becciev case concerns the domestic court's refusal to hear a witness for the defence (violation of Article 5§4).

Individual measures: In the Becciev case, the applicant was released in 2003. Moreover, taking into account that the consequences of the violation found in this case have been redressed by the Court through the award of just satisfaction in respect of the non-pecuniary damage suffered, no further individual measure seems necessary.

• Information provided by the delegation (960th meeting, April 2006): Mr. Sarban has now also been released and is not under any legal constraint.

General measures:

            1) Violation of Article 3: The authorities are invited to provide information, in particular in the light of the report of the CPT, on measures taken or envisaged to improve conditions in the remand centres in question and on conditions in Moldovan remand centres in general.

            2) Violation of Article 5: It would also be appropriate to draw the attention of domestic courts (possibly by a circular) to their obligation under Article 5 to give adequate reasoning for decisions concerning detention on remand and also to consider alternative, less restrictive arrangements. The obligation of prompt examination of the lawfulness of detention could also be stressed.

• The Moldovan authorities are furthermore invited to provide information on the other possible general measures taken or envisaged to prevent new, similar violations.

The publication of the judgment of the European Court would also appear necessary.

*           *           *

19960/04          Popov No. 2, judgment of 06/12/2005, final on 06/03/2006

The case concerns a violation of the right to a fair hearing and to the peaceful enjoyment of possessions in that a final judgment favourable to the applicant was quashed (violations of Article 6§1 and Article 1 of Protocol No. 1). On 05/11/1997, the applicant applied for the restitution of his parent’s house and the Centru District Court gave a final judgment in his favour. In 2004, the occupants of the house lodged a request of revision of this decision before the Court of Appeal which was granted on 26/05/2004. The proceedings were thus re-opened and the case was still pending when the European Court gave judgment.

The European Court found that by extending the time-limit for lodging requests for revision without giving any reasons to it, and by allowing the case to be freshly examined as an appeal rather than as a genuine revision, the Court of Appeal had infringed the principle of legal certainty and constituted a disproportionate interference with the applicant’s right to the peaceful enjoyment of his possessions.

Individual measures:

• Information is awaited on measures taken or envisaged to erase the consequences of the violation for the applicant.

General measures: This case presents similarities to that of Roşca (judgment of 22/03/2005, Section 6.1) in which the authorities have stated that, according to the new Code of Civil Procedure which entered into force on 12/06/2003, final judgments may no longer be annulled except where a friendly settlement has been reached in a case which is being examined by the European Court, and if the government considers that the national judgment in question violates the rights secured in the Moldovan Constitution or in the Convention. No further measure seems to be needed.

- 2 cases against the Netherlands

49902/99          Brand, judgment of 11/05/2004, final on 10/11/2004

48865/99          Morsink, judgment of 11/05/2004, final on 10/11/2004

The cases concern the provisional detention of the applicants (14 and 15 months respectively) pending availability of places in a secure psychiatric facility (violations of Article 5§1).

The applicants, who had been judged responsible for their acts, had been sentenced to imprisonment. In addition, because of problems of mental health, they were ordered to be detained in a secure psychiatric facility upon expiry of their sentences (respectively in 1994 and 1998). This was not a punitive measure but rather aimed at protecting society from the risks posed by the applicants.

The European Court found that the length of time the applicants had to wait was unacceptable. In addition, the Court stated that “[…] even a delay of six months in the admission of a person to a custodial clinic cannot be regarded as acceptable” (see §66 of the judgment in the case of Brand).

General measures:

• Background: The Secretariat notes that the current legislation, which entered into force in 1997 (i.e. after the facts in this case), provides a maximum delay for placement in a secure institution of six months. The Minister of Justice may extend this period by three months at a time, if placement proves impossible.

• Measures concerning the delay in admission to a custodial clinic: The Netherlands authorities have initiated measures to increase the capacity of secure psychiatric facilities, keeping in mind that following the judgments of the European Court and developments in domestic case-law, persons waiting for six months or more for placement in a custodial clinic need to be given priority. Thus in the years 2006/2007 the capacity of the concerned clinics will be increased by a total of 260 places. In 2006 the capacity was expanded by 146 places and more increases are envisaged. On 16/08/2006, the Netherlands authorities have informed the Secretariat that despite these measures the waiting period has not been reduced to below 6 months in all cases as the number of confinements orders is still high and expanding capacity depends also on finding and appointing qualified staff. Accordingly, three-month extensions are not yet exceptional. In addition, a pilot programme has been initiated under which those in detention awaiting placement may receive treatment in order to shorten their subsequent stay at a clinic.

• Measures regarding the creation of an effective remedy: If placement in a custodial clinic is not possible within six months, the person awaiting admission may receive compensation for each month spent waiting in detention. The Netherlands authorities also refer to a recent appeal judgment in which a waiting period of more than four months was found excessive and therefore needs to be compensated. In this judgment, reference was made to the findings of the European Court in these cases.

• Information awaited: on the ongoing expansion of the capacity of custodial clinics. Statistics regarding the average waiting period for placement in such clinics would be useful. In addition, information would be useful on whether the pilot programme mentioned above will become permanent practice. Finally, clarification would be useful as to whether the respondent state has appealed against the appeal judgment mentioned on points of law. If so, information on the outcome of this appeal is awaited. If not, information is awaited on whether the judgment of the Court of Appeal is now applied in all cases, in other words, whether persons waiting for placement in a custodial clinic receive compensation for their detention in cases where the waiting period is longer than four months.

- 171 cases against Poland

77710/01          H.N., judgment of 06/09/2005, final on 06/12/2005

The case concerns a violation of the applicant’s right for respect of his family life (violation of Article 8).

The applicant, a Norwegian national, was married to a Polish national, M.C. They lived in Norway and had three children together (A., B. and C.). After their divorce in 1998, a Norwegian court granted the applicant custody of the three children. In August 1999, M.C. abducted the children and took them to Poland. On the basis of the provisions of the Hague Convention of 1980 on the Civil Aspects of International Child Abduction, the applicant applied to the Polish Ministry of Justice for assistance in securing the return of the children. In March 2000, the Warsaw District Court rendered a decision ordering the return of the children to the applicant (decision upheld in July 2000). Consequently, enforcement proceedings began and the bailiff referred the case to the district court, which once again ordered M.C. to return the children, this time by April 2001. Despite the applicant’s fears and his request to accelerate the proceedings, the bailiff and the Ministry of Justice did nothing and M.C. disappeared with the children before the date fixed for their return.

Thus the Norwegian Central Authority and the applicant intervened several times before Polish authorities, but to no avail. In June 2002, the applicant succeeded, with the help of a relative, in tracing his daughter A, who subsequently joined him in Norway. In February 2003, the Warsaw District Court was informed that M.C. had been arrested and charged with a criminal offence, B and C being removed from her care by a guardian and returned to their father in April 2003.

The European Court concluded that the Polish authorities had failed to make adequate and effective efforts to enforce the applicant’s right to the return of his children. It criticised in particular the periods of inactivity before courts, the bailiff’s omissions in preventing the escape of M.C with the children and the lack of action by the Ministry of Justice and the police following the information received from the Norwegian Central Authority. 

Moreover, the European Court concluded that the proceedings brought by the applicant on the basis of the Hague Convention lasted too long (three years, seven months and 16 days), given that the Polish authorities should have acted with exceptional diligence in view of what was at stake for the applicant and the irreversible character of the measures concerned (violation of Article 6§1).

Individual measures: None: the three children have been returned to the applicant.

General measures:

            1) Violation of Article 6§1: The issue of excessive length of proceedings before civil courts is being examined in the context of the Podbielski group (judgment of 30/10/1998, Section 4.2).

            2) Violation of Article 8

• Information provided by the Polish authorities: The Ministry of Justice has sent out the judgment of the European Court to presidents of district courts with a view to its dissemination to judges and guardians. A similar letter has been sent out to the human resources office of the National Police Chief Commander for the dissemination of the judgment to police officers.

The European Court’s judgment has been published on the internet website of the Ministry of Justice www.ms.gov.pl.

Moreover, it has been discussed by civil servants dealing with the application of the Hague Convention in the Ministry of Justice (acting as the Central Authority in the meaning of the Hague Convention). The issue of expediting proceedings conducted on the basis of the Hague Convention will be included in the programme of the training for judges dealing with family law.

• Additional information is awaited on the dissemination of the judgment to judges, guardians and the police (and in particular a written confirmation of it).

• Bilateral contacts between the Secretariat and the Polish delegation are under wayon whether other measures would be necessary in order to ensure an expeditious examination of applications lodged on the basis of the provisions of the 1980 Hague Convention as well as the enforcement of the decision delivered on its basis.

*           *           *

48542/99          Zawadka, judgment of 23/06/2005, final on12/10/2005

This case concerns the violation of the applicant’s right to respect for his family life (violation of Article 8).

The applicant had the right to visit his youngest son, P, born in 1994, in accordance with a settlement concluded with the mother of the child in 1996. In 1997, after obstacles were posed by the mother, he tried in vain to obtain assistance from the court. In the meantime, the mother brought proceedings to establish her parental authority. In May 1997, the applicant took the child. By a decision of 24/02/1998 the Białystok Regional Court limited his visitation rights and on 19/06/1998 the District Court stripped him of all parental rights. In August 1998 the police removed the child from him.

The applicant subsequently seised the Białystok Regional Court to complain of the way in which the exercise of his visiting rights had been obstructed asked the court to help him in enforcing them, but without success. In March 2001, the court informed him that his son had gone to London in May 2000. In August 001, it suspended proceedings concerning his visiting rights because the mother could not be found.

The European Court found that the authorities had been remiss in their obligation to provide the applicant the assistance he would have needed to exercise his parental visitation rights effectively. In particular, the authorities had omitted to encourage the parties to co-operate in implementing the access arrangements. They also omitted to secure concrete and appropriate assistance by competent state agents within a specific legal framework suited to the needs of the separated parents and their under-age child. The Court underlined, that as a consequence, the applicant has permanently lost contact with his child.

Individual measures: Following the information provided by the Polish authorities (letter of 23/05/2006), bilateral contacts are under way in order to clarify the applicant’s current situation, and in particular the possible development of the proceedings suspended in August 2001.

General measures:

• Measures taken: The European Court’s judgment has been published on the internet website of the Ministry of Justice www.ms.gov.pl and sent out to the presidents of courts of appeal with a circular drawing judges’ attention to the Court’s reasoning in this case. It has been also sent out to the National Police Commander-in-Chief, who in turn requested the competent directors and commanders to publish it on the Police internet site and to include it in the police officers’ training programme.

• Evaluation: in these circumstances no additional measure appears to be necessary.

*           *           *

31443/96          Broniowski, judgment of 22/06/2004 - Grand Chamber and le 28/09/2005 - Friendly settlement (Article 41) Interim Resolution ResDH(2005)58

The case relates to the violation of the applicant's right to the peaceful enjoyment of his possessions (Article 1 of Protocol No. 1), in that his entitlement to compensation for property abandoned in the territories beyond the Bug River (the Eastern provinces of pre-war Poland) in the aftermath of the Second World War had not been satisfied.

By adopting both the 1985 and 1997 Land Administration Acts, the Polish State reaffirmed its obligation to compensate the “Bug River claimants” and to incorporate into domestic law obligations it had taken upon itself by virtue of international treaties concluded in 1944. However, the Polish authorities, by imposing successive limitations on the exercise of the applicant's right to compensation, and by resorting to practices which made it unenforceable in concrete terms, rendered that right illusory and destroyed its very essence.

Moreover, the right was extinguished by legislation of December 2003 under which claimants in the applicant's position who had been awarded partial compensation (2% of the value of the property, in the applicant's case) lost their entitlement to additional compensation, whereas those who had never received any compensation were awarded an amount representing 15% of their entitlement.

In the light of these considerations, the European Court concluded that the applicant had to bear a disproportionate and excessive burden which could not be justified in terms of the legitimate general community interest pursued by the authorities.

Individual measures: Under the friendly settlement on Article 41 the parties agreed that the payment of a lump sum of 237,000 PLN (about 60 000 euros) shall constitute the final settlement of the case. This sum has been paid.

General measures:

            1) Principal judgment: The Court concluded in the operative provisions of the judgment that:

- the violation found had originated in a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the failure to set up an effective mechanism to implement the “right to credit” (according to the terminology used by the Polish Constitutional Court) of Bug River claimants;

- the respondent state must, through appropriate legal measures and administrative practices, secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu, in accordance with the principles of protection of property rights under Article 1 of Protocol No. 1;

The Court recalled that the violation of Article 1 of Protocol No. 1 originated in a widespread problem which resulted from deficiencies in the domestic legal order which has affected a large number of persons (nearly 80 000 people) and which may give rise in future to numerous subsequent, well-founded applications.

Referring to the Committee of Ministers' Resolution of 12/05/04 on judgments revealing an underlying systemic problem (Res(2004)3) and to the Recommendation of the same date on the improvement of domestic remedies (Rec(2004)6), the Court decided to indicate the measures that the Polish State should take, under the supervision of the Committee of Ministers and in accordance with the subsidiary character of the Convention, so as to avoid being seised of a large number of similar cases.

It should further be emphasised that this is the first time that the Court has ruled in the operative provisions of a judgment on the general measures that a respondent state should take to remedy a systemic defect at the origin of the violation found.

On 06/07/2004 the Court decided that all similar applications (240 at present) - including future applications - should be adjourned pending the outcome of the leading case and the adoption of the measures to be taken at national level. It also decided that the Polish government and the Committee of Ministers should be informed of the adjournment and supplied with a list of the adjourned cases.

            2) Interim Resolution adopted by the Committee of Ministers:

On 05/07/2005 the Committee of Ministers adopted Interim Resolution ResDH(2005)58, taking stock of the measures adopted so far and pointing out the outstanding questions.

The Committee:

Welcomed the fact that on 15/12/2004 the Polish Constitutional Court, basing itself in particular on the Court's judgment, declared several provisions of the law of December 2003 contrary to the Polish Constitution with the result that claimants in the applicant's situation (those who had been awarded partial compensation) will no longer meet any legal obstacles to obtaining at least a proportion of their entitlement on an equal footing with the remaining Bug River claimants;

Noted that a new draft law had been submitted to the Polish Parliament to improve compensation conditions for all Bug River claimants so as to ensure full compliance with the Convention and the Court's judgment;

Noted with concern that, pending the entry into force of this new law, the implementation of Bug River claimants' rights is to a large extent suspended,

Called upon the Polish authorities to intensify their efforts rapidly to finalise the legislative reform and create the conditions necessary for its effective implementation.

            3) Friendly settlement under Article 41:

It should be noted that for the first time that one of the European Court's judgments under Article 41 sets out not only the individual measures but also the general measures adopted in execution of the principal judgment.

a) General measures adopted: On 08/07/2005 Parliament passed the Law on the realisation of the right to compensation for property left beyond the present borders of the Polish State. The statutory ceiling for compensation for Bug River property was set at 20% instead of the 15% envisaged in the Bill. According to this law the “right to credit” may be realised in two forms, depending on the claimant's choice: either, as previously, through an auction procedure or through cash payment to be distributed from a special compensation fund.

b) Undertakings of the government:

- to implement as rapidly as possible all the necessary measures in terms of domestic law and practice to secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu;

- to intensify their efforts to make the new Bug River legislation effective and to improve the practical operation of the mechanism designed to provide the Bug River claimants with compensation;

- to ensure that the relevant State agencies do not hinder the Bug River claimants in enforcing their “right to credit”;

- to make available to the remaining Bug River claimants some form of redress for any material or non-material damage caused to them by the defective operation of the Bug River legislative scheme.

In this friendly settlement the European Court noted the development of the specific civil-law remedies enabling the remaining Bug River claimants to seek compensation before Polish courts for any material and/or non-material damage caused by the systemic situation found in the principal judgment. The Court observed furthermore that the measures taken by the government had demonstrated an active commitment to remedying the systemic defects found in this case.

The European Court's judgment has been published on the Internet site of the Ministry of Justice www.ms.gov.pl.

            4) Latest developments: The authorities are in the course of adopting the measures necessary to implement the new Bug River legislation of 2005. For instance, a regulation concerning the management of the compensation fund was adopted in December 2005 by the Treasury Minister and in April 2006 an agreement concerning the conditions of payment of compensations was concluded between the Treasury Ministry and the Bank of National Property.

It remains to bring into operation the IT system which will transfer information on the personal files from the local registries to the Central register within the Treasury Ministry and then to the Bank of National Property which will make the payments. Installation of the IT system is expected for the end of 2006.

In the meantime, the Polish authorities have selected 50 priority cases amongst those pending before the European Court with a view to testing the new compensation mechanism. Negotiations are under way between the applicants in the selected cases and the Polish government, in co-operation with the Registrar of the European Court.

▪ Information is awaited on the progress in setting up the IT system, as well as on the time-table scheduled for collecting data concerning the files of the entitled claimants.  

*           *           *

                       - Cases of length of detention on remand

25792/94          Trzaska, judgment of 11/07/00

28358/95          Baranowski, judgment of 28/03/00

49929/99          Chodecki, judgment of 26/04/2005, final on 26/07/2005

75112/01          Czarnecki, judgment of 28/07/2005, final on 28/10/2005

38654/97          Goral, judgment of 30/10/03, final on 30/01/04

28904/02          Górski, judgment of 04/10/2005, final on 15/02/2006

38227/02          Harazin, judgment of 10/01/2006, final on 10/04/2006

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

36258/97          J.G., judgment of 06/04/2004, final on 06/07/2004

33492/96          Jabłoński, judgment of 21/12/00

15479/02          Jarzyński, judgment of 04/10/2005, final on 04/01/2006

10268/03          Kankowski, judgment of 04/10/2005, final on 04/01/2006

31575/03          Kozłowski, judgment of 13/12/2005, final on 13/03/2006[38]

17732/03          Krawczak, judgment of 04/10/2005, final on 04/01/2006

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

44722/98          Łatasiewicz, judgment of 23/06/2005, final on 23/09/2005

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

42643/98          Paszkowski, judgment of 28/10/2004, final on 28/01/2005

44165/98          Skrobol, judgment of 13/09/2005, final on 13/12/2005

9013/02            Świerzko, judgment of 10/01/2006, final on 10/04/2006

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

29687/96          Wesołowski, judgment of 22/06/2004, final on 22/09/2004

These cases, except the Baranowski case, concern the excessive length of the applicants’ detention on remand between 1991 and 2005, 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 cases of Trzaska and Wesołowski, the European Court also found that the proceedings to review the lawfulness of the applicants’ detention on remand were not adversarial (violations of Article 5§4).

In the cases of Baranowski and Łatasiewicz, the European Court found that the applicants’ detention was irregular in that it was not based on a judicial decision (violation of Article 5§1).

The cases of Jabłoński, Szeloch, Iłowiecki, Kreps and Olstowski also concern the excessive length of the criminal proceedings brought against the applicants (violations of Article 6§1).

In addition, in the Góral case the European Court found that the supervision of the applicant’s correspondence with the European Commission of Human Rights was not “provided by law” as it stood at the material time (violation of Article 8).

Individual measures:

• Information provided by the Polish authorities: In the Olstowski and Iłowiecki cases, the proceedings were closed respectively on 03/02/2004 and 14/09/2004. In the Jarzyński, Kankowski and Krawczak cases the applicants were released on 19/10/2005.

• Information is awaited concerning the applicant’s situation in the Kozłowski case.

General measures:

1) Violations of Article 5§3:

• Information provided by the Polish authorities: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.

In a letter dated 21/03/2006 the Polish authorities provided information on the recent practice of criminal courts concerning the imposition and extension of detention on remand. Out of the 26 district appeal courts in the country six have made express reference in their decisions in 26 cases to the case-law of the European Court and also in some cases to the circular sent out by the Ministry of Justice. In most of these cases the courts decided to bring an end to the detention on remand and replace it by some alternative measure of constraint, such as the obligation to report to the police or prohibition on leaving the country. In two other appeal court districts, similar decisions have been handed down in three cases, but without reference to the case-law of the European Court.

• Bilateral contacts are under way concerning courts’ practice with regard to the extension of detention on remand, and other possible measures to prevent new, similar violations.

2) Violation of Article 5§4 (prompt examination of appeals against detention pending trial:

• Information provided by the Polish authorities: 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 under way to examine possible additional measures to guarantee that the time-limits indicated are respected in future.

            3) 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.

            4) Violation of Article 5§1 in the Baranowskiand Łatasiewicz cases: The European Court found that the domestic practice of keeping someone in detention on the sole basis of a criminal charge was the result of the lack at the material time of any precise rule in national law governing the situation of detainees during judicial proceedings, after expiry of the period of detention fixed by the detention order issued at the investigatory stage. This practice is no longer possible in the light of the provisions of the Code of Criminal Procedure to the effect that any extension of detention must be on the basis of a court decision.

            5) Violations of Article 6§1: The cases present similarities to other cases concerning the length of judicial proceedings before criminal courts (see Kudła , judgment of 26/10/00, Section 4.2).

            6) Violation of Article 8 in the Góral case: The case presents similarities to that of Niedbała, judgment of 4/07/00 (see above).

• Publication and dissemination of the judgments:The judgments in the cases of Trzaska, Baranowski, Chodecki, Goral and Iłowiecki 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 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.

Decision: The Deputies agreed to resume examination of these items at their 982nd meeting (5-6 December 2006) (DH) in the light of further information to be provided by the authorities of the respondent state concerning, if necessary, the payment of the just satisfaction awarded in these cases, the general measures proposed to prevent new, similar violations and individual measures to put an end to the violation and to the extent possible erase its consequences for the applicant in the Kozłowski case.

*              *              *

                       - Cases of length of criminal proceedings - Effective remedy

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

34220/96          A.W., judgment of 24/06/2004, final on 10/11/2004

43316/98          B.R., judgment of 16/09/03, final on 16/12/03

49035/99          Bzdyra, judgment of 15/11/2005, final on 15/02/2006

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

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

38663/97          Panek, judgment of 08/01/04, final on 08/04/04

46002/99          Wróbel, judgment of 20/07/2004, final on 15/12/2004

55233/00          Wojda, judgment of 08/11/2005, final on 08/02/2006[39]

                       CM/Inf/DH(2004)31

These cases concern the excessive length of criminal proceedings against the applicants, which began between 1990 and 2001 and lasted between 5 years and 3 months and 11 years and 1 month[40] (violations of Article 6§1).

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: None. All domestic proceedings have been terminated.

General measures:

            1)violation of Article 5§3: the case of Kudła presents similarities to those of Trzaska and others against Poland (Section 4.2).

            2) violation of Article 6§1:

• Measures taken: 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.

On 01/04/2004, the Polish authorities announced additional measures including 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. Furthermore, the functions of associate judges and law clerks were 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 of the 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.

• Additional information is awaited on the actual implementation of the provisions announced on 01/04/2004, as well as on other general measures to reduce the length of judicial proceedings.

            3) 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).

• Measures taken: On 17/06/2004 the Polish Parliament adopted a law on complaints against excessive length of judicial proceedings entered into force on 17/09/2004, which allows those involved in court proceedings to file a complaint concerning the length of their proceedings while those proceedings are still pending. The appellate court may find a violation of Article 6 of the Convention and instruct the lower court to take measures to accelerate the proceedings. The appellate court can also award the complainant compensation of up to 10,000 zlotys (approximately 2,550 euros). On 17/06/2004, the Polish Parliament also adopted an amendment to the Civil Code on 01/09/2004 concerning the civil liability of the State Treasury for actions or omissions of public authorities.

• Information provided by the Polish authorities: The Polish authorities have provided additional information on the first months of implementation of the new law on effective remedy of 2004 (letters of 01/12/2004, 13/01/2005, 05/10/2005 and 22/03/2006), namely until 31/12/2005.

Moreover, it should be noted that on 01/03/2005 the European Court declared inadmissible two Polish test cases concerning the length of judicial proceedings (Charzyński and Michalak), because the applicants had not made applications under a new 2004 law which could have provided them with an effective remedy.

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.

Decision: The Deputies agreed to resume examination of these items at their 982nd meeting (5-6 December 2006) (DH) on the basis of a draft interim resolution setting out the measures already taken and/or in course of adoption, to be drawn up by the Secretariat and in the light of further information to be provided by the authorities of the respondent state concerning, if necessary, the payment of the just satisfaction awarded in these cases and in any event the general measures proposed to prevent new, similar violations.

- Cases of length of civil proceedings

Application	Case	Case still pending when the European Court delivered its judgment
27916/95	Podbielski, judgment of 30/10/98	No
49975/99	Adamscy, judgment of 27/07/04, final on 10/11/04	No
47627/99	Badowski, judgment of 08/11/2005, final on 08/02/2006[41]	No
53413/99	Bednarska, judgment of 15/07/04, final on 15/10/04	No
38328/97	Bejer, judgment of 04/10/01, final on 04/01/02	No
52040/99	Biały, judgment of 27/07/04, final on 27/10/2004	No
39597/98	Biskupska, judgment of 22/07/03, final on 03/12/03, rectified on 11/09/03	Yes
38665/97	Bukowski, judgment of 11/02/03, final on 11/05/03, rectified on 10/07/03	No
27918/95	C., judgment of 03/05/01	No
71893/01	Cegielski, judgment of 21/10/03, final on 21/01/04	Yes
52037/99	Ciborek, judgment of 04/11/03, final on 04/02/04	Yes
13557/02	D.M., judgment of 14/10/03, final on 14/01/04	No
57468/00	Dańczak, judgment of 21/12/2004, final on 21/03/2005	No
47402/99	Dojs, judgment of 02/11/2004, final on 2/02/2005	No
74073/01	Domańska, judgment of 25/05/04, final on 25/08/2004	No
2560/02	Dudek, judgment of 05/10/04, final on 05/01/05	No
6735/03	Durasik, judgment of 28/09/04, final on 28/12/04	No
71894/01	Dybo, judgment of 14/10/03, final on 14/01/04	No
52524/99	Falęcka, judgment of 05/10/04, final on 05/01/05	No
57670/00	Fojcik, judgment of 21/09/04, final on 21/12/04	Yes
9446/02	Gęsiarz, judgment of 18/05/04, final on 10/11/2004	No
24559/94	Gibas, Interim Resolution DH(97)242	No
75872/01	Gidel, judgment of 14/10/03, final on 24/03/04	No
48001/99	Goc, judgment of 16/04/02, final on 16/07/02	Yes
38811/97	Góra, judgment of 27/04/04, final on 10/11/2004	No
53698/00	Górska, judgment of 03/06/03, final on 03/09/03	Yes
73003/01	Grela, judgment of 13/01/04, final on 13/04/04	No
29695/96	Gronuś, judgment of 28/05/02, final on 28/08/02	No
46034/99	Gryziecka and Gryziecki, judgment of 06/05/03, final on 06/08/03	No
55383/00	Guzicka, judgment of 13/07/04, final on 13/10/04	No
44181/98	Hajnrich, judgment of 25/05/04, final on 10/11/2004	No
35656/97	Hulewicz, judgment of 30/03/04, final on 30/06/04	Yes
77831/01	I.P., judgment of 14/10/03, final on 14/01/04	No
7530/02	Iżykowska, judgment of 28/09/04, final on 28/12/04	Yes
60225/00	Jablonska, judgment of 09/03/04, final on 09/06/04	No
61454/00	Janas, judgment of 21/09/04, final on 21/12/04	No
38564/97	Janik, judgment of 27/04/04, final on 27/07/2004	Yes
72048/01	Jastrzębska, judgment of 28/09/04, final on 28/12/04	No
29691/96	Jedamski, judgment of 26/07/01, final on 26/10/01	No
13026/02	Kaczmarczyk, judgment of 24/01/2006, final on 24/04/2006[42]	No
35577/97	Kaszubski, judgment of 24/02/04, final on 07/07/04	No
59445/00	Koblański, judgment of 28/09/04, final on 28/12/04	Yes
46243/99	Kolasiński, judgment of 01/02/2005, final on 01/05/2005	No
52518/99	Koral, judgment of 05/11/02, final on 21/05/03	No
57672/00	Korbel, judgment of 21/09/04, final on 21/12/04	No
12888/02	Kranc, judgment of 31/01/2006, final on 01/05/2006[43]	No
6214/02	Kranz, judgment of 17/02/04, final on 17/05/04	No
46245/99	Kreuz No. 2, judgment of 20/07/04, final on 20/10/04	No
75888/01	Kreuz No. 3, judgment of 24/01/2006, final on 24/04/2006[44]	No
77746/01	Kroenitz, judgment of 25/02/03, final on 24/09/03	Yes
65017/01	Król, judgment of 28/09/04, final on 28/12/04	No
67690/01	Kruk, judgment of 05/10/04, final on 02/02/05	No
51515/99	Krzak, judgment of 06/04/04, final on 07/07/04	Yes

Application	Case	Case still pending when the European Court delivered its judgment
37770/97	Krzewicki, judgment of 27/04/04, final on 27/07/2004	No
37437/97	Kubiszyn, judgment of 30/01/03, final on 30/04/03	No
50424/99	Kusiak, judgment of 21/09/04, final on 21/12/04	Yes
10675/02	Kuśmierek, judgment of 21/09/04, final on 21/12/04	No
63442/00	Kuśmierkowski, judgment of 05/10/04, final on 05/01/05	No
44189/98	Ł., judgment of 27/07/04, final on 27/10/04	No
47551/99	Leszczyńska, judgment of 22/06/04, final on 22/09/2004	No
37761/97	Lisławska, judgment of 13/07/04, final on 15/12/2004	No
71625/01	Lizut-Skwarek, judgment of 05/10/04, final on 05/01/05	No
77757/01	Łobarzewski, judgment of 25/11/03, final on 25/02/04	No
43779/98	Mączyński, judgment of 15/01/02, final on 15/04/02	Yes
64204/01	Majewski and others, judgment of 08/11/2005, final on 08/02/2006[45]	No
52690/99	Majewski, judgment of 11/10/2005, final on 11/01/2006	No
52168/99	Majkrzyk, judgment of 06/05/03, final on 06/08/03	No
22072/02	Małasiewicz, judgment of 14/10/03, final on 14/01/04	No
76446/01	Malinowska Henryka, judgment of 14/10/03, final on 14/01/04	Yes
35843/97	Malinowska, judgment of 14/12/00, final on 14/03/01	No
63390/00	Malinowska-Biedrzycka, judgment of 05/10/04, final on 05/01/05.	Yes
40887/98	Maliszewski, judgment of 06/05/03, final on 06/08/03	No
51768/99	Młynarczyk, judgment of 14/12/2004, final on 14/03/2005	No
27833/02	Nowak, judgment of 05/10/2004, final on 30/03/2005	No
74816/01	Orzeł, judgment of 25/03/03, final on 25/06/03	No
53029/99	Pachnik, judgment of 30/03/04, final on 30/06/04	Yes
49176/99	Palka, judgment of 11/10/2005, final on 11/01/2006	No
36250/97	Parciński, judgment of 18/03/01, final on 18/03/02	No
51429/99	Paśnicki, judgment of 06/05/03, final on 06/08/03	No
42042/98	Peryt, judgment of 02/12/03, final on 24/03/04	No
40330/98	Piechota, judgment of 05/11/02, final on 05/02/03	No
62179/00	Pieniążek Irena, judgment of 28/09/04, final on 28/12/04	No
39619/98	Piłka Andrzej and Barbara, judgment of 06/05/03, final on 06/08/03	No
29455/95	Pogorzelec, judgment of 17/07/01, final on 12/12/01	No
68930/01	Politikin, judgment of 27/04/04, final on 27/07/2004	No
77759/01	Porembska, judgment of 14/10/03, final on 14/01/04	Yes
65719/01	Przygodzki, judgment of 05/10/04, final on 05/01/05	No
77597/01	R.O., judgment of 25/03/03, final on 25/06/03	No
77681/01	R.P.D., judgment of 19/10/04, final on 19/01/05	Yes
41033/98	R.W., judgment of 15/07/03, final on 15/10/03, rectified on 11/09/03	No
38804/97	Rawa, judgment of 14/01/03, final on 14/04/03	No
45299/99	Romanow, judgment of 21/09/04, final on 21/12/04	No
51599/99	Rychliccy, judgment of 18/05/04, final on 18/08/2004	No
37645/97	Sawicka, judgment of 01/10/02, final on 01/01/03	Yes
64207/01	Sibilski, judgment of 04/10/2005, final on 04/01/2006	No
52468/99	Sienkiewicz, judgment of 30/09/03, final on 30/12/03	No
64764/01	Sikora, judgment of 05/10/04, final on  05/01/05	No
46004/99	Sikorski, judgment of 09/11/2004, final on 09/02/2005	No
42078/98	Sitarek, judgment of 15/07/03, final on 15/10/03, rectified on 11/09/03	No
40694/98	Sobański, judgment of 21/01/03, revised on 23/01/03, final on 09/07/03, rectified on 17/09/03	No
25693/94+	Sobczyk, judgment of 26/10/00, final on 26/01/01	Yes
49349/99	Sobierajska-Nierzwicka, judgment of 27/05/03, final on 27/08/03	No
28616/95	Styranowski, judgment of 30/10/98	No
52478/99	Surman-Januszewska, judgment of 27/04/04, final on 10/11/2004	No
40835/98	Szarapo, judgment of 23/05/02, final on 23/08/02	No
73864/01	Szczeciński, judgment of 11/10/2005, final on 11/01/2006	No
48684/99	Uthke, judgment of 18/06/02, final on 18/09/02	No
39505/98	W.M., judgment of 14/01/03, final on 14/04/03	Yes

Application	Case	Case still pending when the European Court delivered its judgment
65660/01	W.Z., judgment of 24/10/02, final on 24/01/03	No
32734/96	Wasilewski, judgment of 21/12/00, final on 06/09/01	No
41431/98	Wierciszewska, judgment of 25/11/03, final on 25/02/04	No
33082/96	Wojnowicz, judgment of 21/09/00, final on 22/01/01	No
45211/99	Wojtkiewicz, judgment of 21/12/2004, final on 21/03/2005	No
33334/96	Wylęgły J. and J., judgment of 03/06/03, final on 03/09/03, rectified on 04/06/03	No
72161/01	Wyszczelski, judgment of 29/11/2005, final on 28/02/2006	Yes
48114/99	Zarjewska, judgment of 21/12/2004, final on 21/03/2005	No
46072/99+	Zaśkiewicz, judgment of 30/11/2004, final on 30/03/2005	No
34158/96	Zawadzki, judgment of 20/12/01, final on 27/03/02	No
52039/99	Zmaliński, judgment of 22/03/2005, final on 22/06/2005	No
66096/01	Zynger, judgment of 13/07/04, final on 15/12/2004	No
70213/01	Zys-Kowalski, judgment of 28/09/04, final on 28/12/04	No

These cases concern the excessive length of certain civil proceedings (violations of Article 6§1). In the Lizut-Skwarek case, the European Court also found a violation of the right to an effective remedy (Article 13).

In the Górska, Kroenitz, Krzak and Zynger cases, the European Court found that, having regard to the applicants’ age special diligence was required from the Polish authorities in handling the case. Also, in the Durasik, R.P.D., Koblański, Sibilskiand Irena Pieniążek cases, the European Court noted that having regard to what was at stake for the applicants (respectively compensation for bad medical treatment in the first two cases, compensation for wrongful conviction and unjustified detention, divorce and protection of personal rights) special diligence was required from the domestic courts in handling them.

As far as the Orzeł, Pachnik and Rychliccy cases are concerned, the Court indicated that the proceedings (which dealt with compensation claims for medical malpractice and in respect of an accident) were of considerable importance for the applicants.

Individual measures: The Polish authorities have provided information on the progress of the proceedings which were still pending when the European Court rendered its judgments (see table above). Moreover, the Polish authorities indicated that measures to accelerate the proceedings (e.g. the cases were placed under the administrative supervision of the president of the court and of the ministry of justice; the president of the competent court was urged by the Ministry of Justice to give priority to the applicants’ cases, etc.) had been taken in most of these cases.

• Information is expected on the acceleration of the proceedings in the cases of Hulewicz and Wyszczelski.

General measures:

1) Structural measures to cut the duration of court proceedings and reducing the existing backlog

• Measures taken : The reform of the court system, changes to simplify the rules of court procedure, recruitment of new judges, assessors and judicial assistants (referendarze sądowi), better administrative organisation of courts and case-management, improvement of the efficiency of the activity of court experts and of the execution of judgments, implementation of information technology resources, adoption of special measures to reduce the backlog of certain specific courts (particularly in Warsaw), etc.

            2) Creation of an effective remedy in case of excessive length of proceedings, information has been provided by the Polish authorities in the context of the examination of the case of Kudła against Poland (see above).

Decision: The Deputies agreed to resume examination of these items at their 982nd meeting (5‑6 December 2006) (DH), on the basis of a draft interim resolution setting out the measures already taken and/or in course of adoption, to be drawn up by the Secretariat and in the light of further information to be provided by the authorities of the respondent state concerning: - the payment of the just satisfaction awarded in these cases, if necessary; - the individual measures to put an end to the violation and to the extent possible erase its consequences for the applicants in the Hulewicz and Wyszczelski cases, and - the general measures proposed to prevent new, similar violations

45972/99          Siemianowski, judgment of 06/09/2005, final on 15/02/2006

The case concerns the excessive length of two sets of proceedings concerning the applicant’s visitation rights in respect of his daughter following his divorce (violation of Article 6§1).

In the absence of an agreement with his ex-wife concerning visiting rights, the applicant brought an action in 1992; a decision was rendered in February 1994 fixing the modalities for the exercise of this right. This decision was not observed by the applicant’s ex-wife, so he brought proceedings to enforce it, in vain despite the fines the court imposed on the ex-wife. A fourth application for enforcement was rejected in July 1998.

In the meantime, in October 1994, the applicant brought further proceedings, regarding the modification of his visiting rights in which, in March 1997, the court reaffirmed its decision of February 1994. The applicant continued in vain to try to secure enforcement of this decision until, in May 2002, his daughter reached the age of majority.

The European Court found that the length of these proceedings (more than 4 years, 5 months and more than 7 years, 6 months respectively, for two levels of jurisdiction in both cases) had been excessive, particularly regarding the duration of the execution phase and considering what was at stake for the applicant. Moreover, in the Court’s view the suspension of the first set of proceedings pending a new decision on the merits of the visiting rights was unnecessary whilst the psychological report ordered in the second set had taken too long to prepare.

Individual measures: None: both sets of proceedings are closed and the daughter has reached the age of majority.

General measures: The problem of the excessive length of civil proceedings in Poland is under examination in the context of other cases raising the same problem (such as Podbielski, judgment of 30/10/98, Section 4.2, Volume I).

• Information is awaited concerning publication of the European Court’s judgment on the internet site of the Ministry of Justice and its dissemination to courts competent for family law.

*              *              *

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

Applications	Cases	Length of the proceedings at the date of the judgments delivered by the European Court	Cases pending when the European Court delivered its judgments	Proceedings began
57467/00	Lipowicz, judgment of 19/10/2004, final on 19/01/2005	9 years, 4 months; 3 degrees of jurisdiction	yes	27/05/1995
63391/00	Marszał, judgment of 14/09/2004, final on 14/12/2004	Civil proceedings before labour courts: 7 years, 3 months and 3 weeks; 4 degrees of jurisdiction.	no	02/09/1994
		Criminal proceedings: nearly 7 years, 8 months; 3 degrees of jurisdiction	no	30/12/1995
62109/00	Mejer and Jałoszyńska, judgment of 19/10/04, final on 19/01/2005	8 years, 6 months and 12 days; 7 degrees of jurisdiction.	no	24/05/1994
52074/99	Wiatrzyk, judgment of 26/10/2004, final on 26/01/2005	10 days and 29 days[46]; 3 degrees of jurisdiction.	no	21/10/1991
49034/99	Czech, judgment of 15/11/2005, final on 12/04/2006[47]	nearly 5 years and one month, two degrees of jurisdiction	no	12/01/1994

These cases concern the excessive length of certain proceedings concerning civil rights and obligations before labour courts (violations of Article 6§1). All the applicants had instituted reinstatement proceedings.

In the Wiatrzyk case, the applicant had already been reinstated in his former post by a judgment which became final on 06/08/1996, but compensation for the loss of earnings was only finally granted on 19/11/2001. The outcome of the dispute before the labour courts depended on criminal proceedings instituted against the applicant for an alleged theft of glue, which lasted 4 years.

In the Czech case the applicant requested reinstatement in his position in the Office of the President of the Republic of Poland.

In all the cases, the European Court noted that the domestic courts should have handled the cases with special diligence, taking into consideration what was at stake for the applicants.

Individual measures: In the Lipowicz case, information was requested concerning the state of proceedings and, if appropriate, their acceleration. By letter of 3/10/2005, the Polish authorities indicated that the proceedings had been concluded on 27/09/2004.

▪ Additional information awaited: A copy of the final decision of 27/09/2004 is awaited.

General measures: These cases present similarities to other cases concerning the excessive length of civil proceedings (including Podbielski against Poland judgment of 30/10/98, Section 4.2, above). The Marszał case presents similarities to the Kudła group relating to the excessive length of criminal proceedings (judgment of 26/10/2000; Section 4.2, above).

By letter of 15/11/2006, the Polish authorities indicated that the Minister of Justice had sent a circular to the presidents of all appeal courts, drawing their attention to the European Court’s conclusions in the first four judgments and had requested them to inform all judges under their administrative jurisdiction of these conclusions.

The first four judgments of the European Courts have been published on the Internet site of the Ministry of Justice www.ms.gov.pl.

*              *              *

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

Application	Case	Object of proceedings	Length of proceedings (within European Court’s jurisdiction)	Proceedings still pending when the European Court gave judgment
33870/96	Fuchs, judgment of 11/02/03, final on 11/05/03	Building permit + demolition order	Right of individual petition entered into force: 1/05/93	Yes
				Yes
77741/01	Piekara, judgment of 15/06/2004, final on 15/09/2004	“2nd world war” status	6 years, 8 months and 21 days	No
51837/99	Beller, judgment of 01/02/2005, final on 06/06/2005	Right of usufruct on nationalised land in Warsaw	Right of individual petition entered into force: 1/05/93	Yes
49961/99	Bogucki, judgment of 15/11/2005, final on 15/02/2006[48]	Closure of expropriation proceedings  + compensation	8 years, 2 months	No
40732/98	J.S. and A.S., judgment of 24/05/2005, final on 12/10/2005	Restitution of nationalised property	Right of individual petition entered into force: 1/05/93	Yes
38049/02	Kaniewski, judgment of 08/11/2005, final on 08/02/2006	Right of usufruct on nationalised land in Warsaw	Began 14/10/93	Yes
36431/03	Skowroński, judgment of 24/01/06, final on 24/04/06[49]	Closure of expropriation proceedings  + compensation	Began 19/04/99	Yes

Application	Case	Object of proceedings	Length of proceedings (within European Court’s jurisdiction)	Proceedings still pending when the European Court gave judgment
67979/01	Szenk, judgment of 22/03/2005, final on 22/06/2005	Right of usufruct on nationalised land in Warsaw	Right of individual petition entered into force: 1/05/93	Yes
33777/96	Urbańczyk, judgment of 01/06/2004, final on 01/09/2004	Building permit	6 years, 8 months and 13 days	No

These cases concern the excessive length of certain proceedings concerning civil rights and obligations before the administrative authorities and the Supreme Administrative Court (violations of Article 6§1).

In all these cases, the European Court indicated that the length of proceedings was due to the inactivity of administrative authorities (particularly local administrative authorities in the Beller, Kaniewski and Szenk cases) which were examining the applicants' requests and of the Supreme Administrative Court when examining the appeals against the administrative decisions.

Individual measures:

            1) Fuchs case: Both sets of proceedings at issue are now closed.

            2) Beller case:

• Information provided by the Polish authorities (letter of 8/03/2006): On 14/10/2005, following an appeal brought by the applicant, the Warsaw District Administrative Court overturned the vojvod decision of 23/07/2001 and referred the matter to the Mayor of Warsaw to be reconsidered. This nonetheless requires the Minister of Transport and Construction to consider an appeal made to it; this should have taken place before the end of June 2006.

            3) Szenk case: The matter is still pending before the Mayor of Warsaw pending the outcome of court proceedings to remove the communal status of the building at issue, which is a necessary condition for its restitution to the applicant.

            4) J. S. and A. S. case:

• Information provided by the Polish authorities (letter of 05/02/2006): On 24/01/2006 and 21/03/2006 the Ministry of Agriculture and Rural Development issued a decision partially annulling the nationalisation of the land at issue. The decision of 21/03/2006 is enforceable, but an appeal against it may still be lodged before the administrative court. In the framework of the enforcement of this decision, the applicants may be granted a part of the disputed property and they may obtain compensation for the remaining part.

Additional information is awaited on the state of domestic proceedings in the Beller, Szenk and A.S. and J.S cases. Concerning the Kaniewski and Skowroński cases, information is awaited on the progress of domestic proceedings and on their acceleration, if needed.

General measures:

• Measures taken:

            1) Publication and dissemination

The Fuchs and Piekara judgments have been sent out to the authorities competent for construction matters and published on the internet site of the Ministry of Justice (www.ms.gov.pl). All the judgments (with the exception of J. S. and A. S.) have been sent out to the Supreme Administrative Court and to Voivodship Administrative Courts.

            2) Excessive length of proceedings before the Supreme Administrative Court: The Act on the Organisation of Administrative Courts and of the Act on Proceedings before Administrative Courts entered into force on 1/01/2004. These laws institute a two-instance system of administrative courts (the newly created voivodship administrative courts and the Supreme Administrative Court) and provide solutions to accelerate procedures, such as mediation and summary proceedings.

Before their entry into force, some two years were required for the Supreme Administrative

Court or one of its 11 satellites throughout the country to consider an appeal, taking into account the constantly growing backlog of cases (around 70 000 new cases a year) and the insufficient number of judges (300). The reform set up 16 Voivodship Administrative Courts and personnel numbers were increased so that, as of 30/09/2005 there were 424 judges, 125 trainee judges (asesorzy) and 84 judicial assistants (referendarze sądowi). On 1/01/2004, some 92 600 cases were transmitted to the voivodship administrative courts and during the first year about 59 000 new cases were brought before them. In the course of the year they examined around 83 000 cases, leaving a backlog of approximately 68 000 cases.

At 30/09/2005, this figure had been reduced to about 52 000 and the Supreme Administrative Court estimates that it will have further reduced to 47 000 at the end of 2005, i.e., half the backlog on 0/01/2004. The present mean duration of an appeal has been estimated at between 3 and 7 months.

In his letter mentioned above, the President of the Supreme Administrative Court takes the view that the excessive length of some administrative proceedings which took place in the 1990s was also linked to the structural reorganisation of the Polish state which took place at the beginning of the decade.

Moreover, the law of 17/06/2004 on complaints against excessive length of judicial proceedings (examined in context of the Kudła case, see above, Section 4.2) also concerns proceedings before administrative jurisdictions.

            3) Excessive length of proceedings before administrative bodies: As far as building law is concerned, the Polish authorities have indicated that following decentralisation, i.e. the administrative reform which entered into force on 01/01/1999, the powers of the central administrative building supervision body were restricted. Proceedings under the Building Act are conducted at first instance before the building supervision inspector of the powiat or the starosta and at second instance before the building supervision inspector of the voivodship or the voivod. An important amendment to the Building Act, aiming at simplifying and accelerating proceedings, entered into force on 11/07/2003 and introduced a disciplinary provision in respect of the administrative authorities. According to this provision, an administrative authority dealing with a building permit issue shall give its decision within 65 days, otherwise the superior authority may impose a financial penalty on it.

▪ Outstanding issues:

• Information is awaited concerning the publication of the judgments in cases of Beller, Szenk and J. S. and A. S. and their dissemination to the competent administrative authorities as well as concerning whether any specific problem remains in respect of the October 1945 legislation concerning Warsaw.

• Bilateral contacts are under wayto establish whether other general measures are necessary or envisaged to ensure reasonable length of administrative proceedings.

*           *           *

38064/97          Turczanik, judgment of 05/07/2005, final on 30/11/2005

The case concerns the excessive length of proceedings relating to the registration of the official address of the applicant’s law firm (a necessary condition for starting any activity in this field) due to a persistent refusal of the Bar to observe the Supreme Administrative Court’s directions (violation of Article 6§1). These proceedings began on 25/11/1983, when the applicant was registered as a practicing barrister, and ended on 21/04/1999, when the Bar Council finally registered his law firm’s address in Wrocław (nearly 15 years and five months, out of which nearly six years falling within the jurisdiction of the European Court).

The case also concerns a violation of the applicant’s right to access to a tribunal due to a lack of means to ensure the observance of the Supreme Administrative Court’s directions (violation of Article 6§1). In this respect, the Supreme Administrative Court had three times – in 1993, 1995 and 1998 – set aside the Bar’s decisions, including one refusing to register the law firm’s address of the in Wrocław and two others refusing registration in Wołów and Trzebnica. The Supreme Administrative Court noted among other things that the Bar had failed to take account of the applicant’s state of health.

The European Court found that by ailing to observe these directions, the Bar had shown a clear intention to disregard a decision by a competent higher judicial authority and deprived the applicant of effective protection.

Individual measures: On 21/04/1999, the domestic proceedings were terminated and the address of the applicant’s law firm was registered in Wrocław. The European Court granted the applicant just satisfaction for non-pecuniary damage and dismissed his claims in respect of pecuniary damages.

General measures:

            1) Excessive length of proceedings

• Measures taken: the European Court’s judgment has been published on the internet website of the Ministry of Justice www.ms.gov.pl. Moreover, the Minister of Justice has requested the National Bar Council (Naczelna Rada Adwokacka) to inform its members of the European Court’s conclusions in this judgment through a draft circular. Finally, it should be recalled that the general issue of excessive length of proceedings before administrative courts is being examined in the context of the Fuchs group (Section 4.2).

• Additional information is awaited on what happens next following this request of the Minister of Justice.

            2) Violation of the right to access to a tribunal: The European Court found that the applicant did not dispose of any effective measure to oblige the Bar to take into account the Supreme Administrative Court’s opinion in the proceedings concerning the registration of the official address of his law firm (§ 51).

• Measures taken: Following an amendment of 30/06/2005, the provisions of the 1982 Act on Barristers have been modified as regards the registration of barrister law firms. Nowadays these questions are regulated by the provisions of Articles 70, 71, 71a, 71b and 71 c of the Act. According to these provisions, a barrister registered on the list of practicing barristers chooses the address of his or her law firm and informs the bar about it, without asking for its consent (Article 70). He or she may also freely change the address of his or her law firm if the change takes place within the territorial competence of the same bar (Article 71).

• Evaluation: bilateral contacts are under way to assess whether any additional measure is necessary.

- 12 cases against Romania

46430/99          Anghelescu Barbu No. 1, judgment of 05/10/2004, final on 05/01/2005

42066/98          Bursuc, judgment of 12/10/2004, final on 12/01/2005

The cases concern the ill-treatment inflicted on the applicants by police officers (violations of Article 3).

In the Bursuc case, the applicant was subjected, while in police custody in January 1997, to particularly serious violence, which was capable of causing severe pain and suffering, regarded by the European Court as “torture”. In the Barbu Anghelescu case, in April 1996 at a roadside checkpoint, the applicant was subjected to injuries qualified by the European Court as degrading treatment.

These cases also deal with the lack of effectiveness of the investigations conducted by the domestic authorities into the accusations against the police officers, investigations which had led to decisions not to prosecute any officers (violations of Article 3). First of all, the European Court noted that the investigations had been conducted by military prosecutors, whose independence was open to doubt in view of their status of active officers within the military. At the time of the events, the policemen had the same status of active officers.

Moreover, in the Bursuc case, the European Court also criticised the fact that, within the framework of the domestic investigation, evidence and statements were obtained by the local criminal investigation department, even though the police officers under investigation were serving in the police station of the same town. That state of affairs was incompatible with the rule that there should be no hierarchical or institutional link between the persons called upon to conduct the investigation and those implicated in the offence under investigation. What is more, the European Court criticised the military prosecutor’s office failure to make any reference, in his order discontinuing the proceedings, to the findings of the forensic experts’ reports drawn up in the Bursuc case, as well as the fact that the prosecutor’s office failed to carry out supplementary investigations, as instructed by the court before which the applicant lodged a complaint against the decision not to prosecute, in the Barbu Anghelescu case.

Finally, the Bursuc case also deals with the excessive length of the criminal proceedings brought against the applicant for allegedly insulting police officers, proceedings which began on 27/01/1997 and ended on 24/01/2001, when the applicant died (violation of Article 6§1).

Individual measures: In July 2005, the Minister of Justice asked the General Prosecutor to conduct an investigation on the persons responsible for the violations found by the European Court.

1) Barbu Anghelescu: The General Prosecutor’s Office at the High Court for Appeal and Justice, after the re-examination of the case, had decided to discontinue it on 29/09/2005 due to the prescription of the criminal responsibility. This decision was communicated to the applicant who may appeal against it to a judicial body.

• Information is awaited whether the applicant appealed against the decision of 29/09/2005 and whether it has become final.

2) Bursuc: By a decision of 12/06/2006, the General Prosecutor’s Office at the High Court for Appeal of Bacau decided to discontinue the case after a new analysis of the criminal issue in the light of the statements of the European Court, after hearing of eight police officers involved in the incident at issue, the widow of the applicant, the witnesses proposed by the parties and after having examined all appropriate proofs. The decision was communicated to the interested parties and may be challenged before the head of the Prosecutor’s Office, and then before judicial organs.

▪ Information is expected whether the interested parties appealed against the decision of 12/06/2006 or whether it has become final.

General measures:

            1) Violation of Article 3: Measures adopted: Ministry of Administration and Home Affairs has disseminated the text of the two judgments to the police units. Moreover, sessions of in-service training in the field of human rights have been initiated at the level of territorial police units, aimed at preventing abuses. Police officers are also kept informed in connection with the cases highlighted by public or private bodies dealing with the protection of human rights. Moreover, work sessions take place regularly at the level of territorial police units, involving in particular social workers and experts in psychology and human rights, in view of creating a multidisciplinary network able to react to human rights violations.

            2) Effectiveness of the investigations into alleged police abuses:

Following the reform of the status of police officers undertaken in 2002, they now have the status of civil servants, so that the competence to investigate and prosecute acts committed by them now belongs to ordinary prosecutors and courts. Nevertheless, in the light of the findings of the European Court in the Bursuc case (§104), information was requested on the measures envisaged by the domestic authorities to ensure that enquiries concerning police officers are no longer conducted by members of criminal investigation departments serving in the same police units as the persons under investigation.

• Measures adopted: The law on the organisation of the police and the Code of Criminal Procedure has been modified in respect to the investigations concerning offences allegedly perpetrated by police officers.

• Bilateral contacts are under way in order to assess these modifications and to determine whether those measures are sufficient.

• Information is also awaited on statistical data concerning the number of police officers prosecuted for allegations of ill treatment, as compared to the number of complaints of this kind lodged by persons claiming to have been subjected to such abuses.

            3) Violation of Article 6§1: The Bursuc case presents similarities to the Pantea case (Section 4.2).

The judgments delivered by the European Court in these cases have been translated and published in the Official Gazette in May 2005. They have also been sent to the Superior Judicial Council, to the Prosecutor General, to the Ministry of Justice and to the Ministry of Administration and Home Affairs, which have ensured their dissemination to courts of appeal, prosecutors and police units.

Decision: The Deputies, having examined progress made in ensuring execution, agreed to resume consideration of these cases at their 992nd meeting (3-4 April 2007) (DH), at the latest, on the basis of further information to be provided by the authorities of the respondent state concerning general measures proposed to prevent new, similar violations and, if possible, to put an end to the violation and erase, as far as possible, its consequences for the applicants.

*           *           *

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 in 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:

            1) Violation of Article 6§1: information is awaited on the progress of the criminal proceedings brought against the applicant, as well as on the measures adopted to accelerate them. The Romanian authorities have indicated that they have tried to accelerate the proceedings by contacting the competent court and that the case has been transferred to another court, at the applicant's request. The case is currently pending at appeal before the Regional Court of Dolj, to which it was remitted following the judgment of the Court of Appeal of Craiova of 24/11/2004. On several occasions, in February and March 2005, the trial court postponed the examination of the case following requests in this respect lodged by the applicant. In a letter of 7/10/2005 the Romanian authorities informed the Secretariat that the case-file was transferred on 22/07/2005 before the Craiova Court of Appeal for examination of the applicant’s appeals.

▪ Information is expected on the progress of the criminal proceedings brought against the applicant as well as on the measures adopted for their acceleration.

            2) Possibility of launching a new investigation or remedying the shortcomings of the initial one:

• Information provided by the Romanian authorities: 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 statutory limitation period for the relevant criminal offences (5 years, counting from the date of the events).

By letter of 4/02/2005, the Romanian authorities indicated that a report had been drawn up on 13/06/2003 following an internal investigation. This revealed shortcomings in the conduct of the warders and of the deputy commander of the prison, who failed to prevent the incident, to intervene adequately to protect the applicant and to conduct a prompt internal investigation. Nevertheless, in view of the expiry of the statutory limitation period for disciplinary action against the warders, they were not punished. In any event, the Romanian authorities indicated that none of the prison officials involved in the events is still serving today in the National Penitentiary Administration.

General measures:

            1) Violation of Article 3 caused by the ill-treatment inflicted on the applicant: Information was requested on the measures envisaged, beyond the publication of the judgment of the European Court, to prevent vulnerable detainees being placed with dangerous inmates and on measures to ensure that prison authorities can intervene effectively in cases of violent conflict between detainees. The Romanian authorities have pointed out that the findings of the European Court have been disseminated among the staff of the National Penitentiary Administration. To avoid any repetition of this kind of incidents, the Penitentiary Administration has instructed its staff to inform the competent authorities immediately of any physical aggression against prisoners and stressed the obligation of medical staff to note any finding concerning ill-treatment inflicted on prisoners, as well as their statements, in their medical records. The strict prohibition of the excessive use of force has been reiterated, as well as the need to give particular protection to more vulnerable prisoners.

            2) Violations of Article 5: 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.

            3) Violation of Article 6§1:

• Information provided by the Romanian authorities: on 03/04/2006, the Romanian authorities, in cooperation with the Venice Commission for Democracy through Law, organised a conference on possible remedies in respect of excessive length of proceedings. The discussions concerned the identification of reasons of excessive length of proceedings and remedies to this problem. The results of the conference will be partially reflected in the conclusions of a study, planned to be published by the Venice Commission by the end of this year. The Romanian authorities have the intention to examine the adoption of possible practical solutions in order to resolve the problem of the excessive length of proceedings taking into account the conclusions of the Venice Commission.

• Further information is awaited on the measures envisaged to prevent new violations due to excessive length of proceedings and on possibilities of establishing effective domestic remedies in this respect, taking into account the Recommendation of the Committee of Ministers to member states Rec(2004)6 on the improvement of domestic remedies.

The Romanian authorities confirmed the publication of the judgment of the European Court in the Official Journal, as well as its large dissemination among the courts and public prosecutors’ offices.

*           *           *

48102/99          Popescu Sabin, judgment of 02/03/04, final on 02/06/04, rectified on 05/07/2004

57810/00          Costin, judgment of 26/05/2005, final on 26/08/2005[50]

54400/00          Croitoriu, judgment of 09/11/2004, final on 30/03/2005

78047/01          Dragne and others, judgment of 07/04/2005, final on 07/07/2005

67289/01          Sandor, judgment of 24/03/2005, final on 24/06/2005

2911/02            Popescu Mihai-Iulian, judgment of 29/09/2005, final on 29/12/2005[51]

746/02              Tacea, judgment of 29/09/2005, final on 29/12/2005[52]

All these cases concern the failure over many years by the administrative authorities to enforce judicial decisions ordering the restitution of certain property or the payment by the state of sums of money to the applicants (violations of Article 6§1 in all cases and violations of Article 1 of Protocol No. 1 in the cases of Popescu Sabin, Dragne, Sandor and Croitoriu).

- In the Popescu Sabin case the decision at issue, delivered in 1992, recognised the applicant's title to a specific plot of land and ordered the administrative authorities to issue the corresponding title to him. In 1994 the local administration offered the applicant an equivalent plot of land, which he refused. The applicant was subsequently informed that the plot of land which was the object of the 1992 court decision had been allocated to a third person, who subsequently sold it to someone else.

- The decision at issue in the Costin case, delivered in August 1993, ordered the restitution of an apartment which had been confiscated by the state in 1948.

- In the Croitoriu case, two final court decisions, delivered in 1995 and 1996, concerned the restitution of two plots of land to the applicant, one of which the administrative authorities had granted to third persons in 1993.

- In the Dragne and Sandor case, court decisions between 1995 and 1999 ordered the administrative authorities to restore a plot of land to the applicants (Dragne and others) and to pay sums of money due to the applicants (Sandor and Dragne and others).

- In the case of Mihai-Iulian Popescu, in spite of various steps to obtain enforcement, the applicant has not been given possession of the plots of land granted to him by court decisions delivered in 1992, the land at issue having been given to other persons between 1992 and 1993. In July 1999, the administrative authorities granted the applicant ownership titles in respect of plots of land other than those indicated in the 1992 judgments.

Following an appeal by the applicant, these titles were quashed in 2001 by the Craiova Court of First Instance, which acknowledged the failure to enforce and ordered the administrative authorities to issue to the applicant ownership titles on the original locations. The applicant lodged a new request for enforcement, but this was rejected in June 2002 by the same court, which found that, as long as the third persons' ownership titles had not been annulled, the local authorities were faced with an objective impossibility to grant the applicant the plots of land at issue.

- In the Tacea case, although the Patîrlagele Court of First Instance had ordered the local authorities to surrender possession of a specified plot of land to the applicant in April 1999, it was not until November 2003 that a certificate of restitution was drafted, and that in the absence of the applicant. The latter alleged that it concerned a different plot of land from that he had claimed.

Individual measures:

• Measures adopted:

            1) Popescu Sabin: Under Article 41, the European Court found that the damage sustained by the applicant was compensated by the allocation of a plot of land equivalent to that to which he was entitled. Nevertheless, the Court granted the applicant just satisfaction for pecuniary damage covering the lack of use of his property for several years. Furthermore, the prefect was informed of the necessity not to request the annulment of the applicant's title to the equivalent plot of land granted to him. In response, he replied that no measure has been initiated to annul the applicant’s title.

            2) Costin: By letter of 17/08/2006, the applicant’s lawyer informed the Secretariat that she had obtained the effective possession of her building in accordance with the court’s decision of 1993.

            3) Croitoriu: The competent domestic authorities (prefecture and local mayor’s office) were informed about the judgment of the European Court and of the necessity to find a solution in order to restore the property in question or to grant the applicant an equivalent property.

            4) Dragne: The European Court found that the question of the application of Article 41 was not ready for decision and decided to reserve it.

            5) Sandor: On 03/04/2006, the decision mentioned in the European Court’s judgment was executed: the sum of 28 329 RON was paid to the applicant’s lawyer with a view to implementing the decision 615/1999 of the Hunedoara Court of First Instance.

            6) Tacea: It transpires from the European Court’s judgment that the applicant obtained the possession of the plot on 29/11/2003.

▪ Complementary information is awaited on the execution of the judgments in question in the cases Croitoriu and Mihai-Iulian Popescu.

General measures:

• Information submitted by the authorities:

            1) Legislative reform: On 19/07/2005 Parliament adopted Law No. 247 on the reform of property and justice. This law modified Law No. 18/1991 and the subsequent Acts concerning the restitution of land. According to the government, it contributes to improving and accelerating proceedings. Moreover, it imposes sanctions on local authority representatives who do not respect its provisions.

According to additional information submitted by the Romanian authorities by letter of 9/09/2006, the statistical reports of March and August 2006 and a preliminary analysis concerning the application of Law No. 247/2005 reveal a significant increase in problems resolved by local commissions, either by admitting or dismissing requests.

Moreover, departmental commissions accepted an increasing number of proposals made by the local commissions. It should also be underlined that there is a preference for the restoration of plots of land (increase of area approved by departmental commissions). Finally, the reform also provides the verification of the validity of property titles.

• Additional clarifications are expected in this respect

In addition, in order to ensure the respect of legal provisions by the administration, a “Control Body” was created within the “Department for co-ordination and control of the application of the legislation in the field of the restitution of the land property”; in first eight months of 2006, this body carried out more than 300 controls and sanctioned approximately 6% of all acting mayors in Romania. The value of the imposed fines amounted to 1 330 000 RON (380 000 euros).

            2) Publication and dissemination of the judgments of the European Court:

The judgment in the case of Popescu Sabin was translated and published in the Official Journal in August 2005. In addition, a summary was published in the first issue of Themis, a journal of the National Institute of Magistrature, and later distributed free to all courts. Finally, the administrative authorities have received a copy of the judgment.

The Costin judgment was translated and is to be published in the Official Journal (letter from the Romanian authorities of 27/03/2006).

In addition, the Ministry of Public Finance addressed a circular letter to all Local Finance Administrations presenting the Sandor case to them in order to avoid similar situations. The text of the judgment was translated and is to be published in the Official Journal.

Finally, by a circular letter of 18/11/2005 addressed to the prefects of all departments, the Romanian authorities explained the principles of the European Court’s case-law regarding the execution of judicial decision concerning land. They also underlined the need to execute judicial decisions ordering the setting of the ownership and/or the issue of the title deed and the importance of a transparent dialogue with the beneficiaries of the judicial decisions concerning land. Prefects were invited, in their capacity as presidents of the departmental commissions for the application of land law, to transmit this circular letter to local commissions.

*           *           *

23878/02          Strungariu, judgment of 29/09/2005, final on 29/12/2005

The case concerns the late enforcement, in January 2003, of a court decision delivered in October 2001 ordering the applicant’s reinstatement in his post in a state agency (the Agency for Privatisations and Administration of State Shareholdings) and the payment of salary arrears for the period during which he was unemployed. The European Court concluded that the fourteen-month period during which the obligation to reinstate the applicant was not complied with was not reasonable, while also noting that no formal direct explanation for this delay had been given to the applicant (violation of Article 6§1).

Individual Measures: None. The European Court found that the applicant had been reinstated in his post according to the requirements of the court decision at issue and noted that the salary arrears – including those in respect of the period during which the decision remained unenforced – had been paid to him within a reasonable time.

General Measures:

• Information provided by the Romanian authorities (letter 08/09/2006): The judgment of the European Court is being translated and will be then published in the Official Journal. The Government also expressed the intention to address the National Agency for Public Servants in order to identify other relevant institutions and to inform them on the context and the implications of this judgment.

• Information is awaited in this respect. Moreover, the dissemination measures could usefully be accompanied by a reminder of the relevant principles established in the case-law of the European Court (see, in this respect, the case of Croitoriu against Romania, judgment of 09/11/2004, Section 4.2). Information on possible additional measures envisaged or already adopted would also be useful.

*           *           *

54062/00          Androne, judgment of 22/12/2004, final on 06/06/2005[53]

The case concerns the infringement of the principle of legal certainty and consequently of the applicants’ right to a fair trial on account of the delayed reopening of certain civil proceedings which had resulted in 1997 in a final court decision ordering the restitution to the applicant of a building which had been confiscated by the state. The revision proceedings, which were initiated in March 2000 by the General Prosecutor on the grounds that the state had not been represented at the earlier proceedings resulted, in 2002, in the annulment of the 1997 decision (violation of Article 6§1).

The case also concerns a violation of the applicants’ right to enjoyment of their possessions due to the late reopening of these proceedings (violation of Article 1 of Protocol 1).

Individual Measures: Under Article 41 of the Convention, the European Court indicated that the return of the property at issue, as ordered by the court decision of 1997, would put the applicants as far as possible in the situation equivalent to that in which they would have been if there had been no breach of Article 1 of Protocol No. 1. Failing such restitution, the defendant state was to pay the applicants a sum of money corresponding to the value of the building, within three months from the date at which the judgment became final.

• Information provided by the Romanian authorities: The Romanian authorities have indicated that the Mayor of Bucharest ordered the restitution of the building to the applicants on 02/09/2005. Nevertheless, the applicants challenged the terms of this restitution, complaining that the Mayor’s decision, delivered on the basis of Law 10/2001, required them to conclude a five-year lease with the sitting tenants in the building. They have therefore refused to accept the material restitution of the building.

In reply, the Romanian authorities have stressed that prior to the violation of the Convention, the applicants were in a similar situation. In fact, the domestic law in force at the relevant time (Law 17/1994) had extended until 1999 the period during which the sitting tenants of nationalised properties could continue to live in their apartments by virtue of leases which they had concluded with the state, even if the buildings had meanwhile been returned to their former owners. Subsequently, this period has been extended on several occasions. Government Order 40/1999 provided a procedure through which persons to whom buildings had been returned might conclude new leases with tenants. According to the latest information provided by the Romanian authorities, on 25/04/2006, the applicants obtained the possession of the property whereas a restoration report was drafted.

The Romanian authorities have also indicated that proceedings lodged by the applicants to obtain the expulsion of the tenants are currently pending before the Romanian courts.

In the light of the information available, the Secretariat is of the opinion that the return of the property, even combined with the obligation to conclude a lease with the tenants, appears to be capable of restoring the applicants, as far as possible, to a situation equivalent to that in which they would have been in the absence of the violation of the Convention.

General Measures:

In the context of the adoption of general measures, the Romanian authorities have indicated that they consider that the violation found by the European Court in this case was caused by the way in which the code of civil proceedings regulates the legal regime of the one-month time limit during which revision proceedings may be lodged.

Although the Secretariat notes that the measures to ensure that revision proceedings are not lodged after the expiry of the one-month time-limit are relevant to the execution of this judgment, it considers that the violation found by the European Court in this case might also require additional measures to prevent new, similar violations. In this respect, in its letter sent to the Romanian authorities on 19/10/2005, the Secretariat recalled the Committee’ position according to which it should no longer be possible for public prosecutors to question the final character of court judgments in civil cases (see Interim Resolution ResDH(2004)14 of 11/02/2004, concerning the execution of the judgment delivered by the European Court on 25/07/2002 in the case of Sovtransavto Holding against Ukraine). Moreover, as regards the possibility provided by the Romanian Code of Civil Procedure to request the revision of final court decisions if the interests of the state or of other public-law bodies were not represented or were represented in bad faith, the Secretariat raised doubts as to its compatibility with the case-law of the European Court, according to which final judgments delivered by courts should not be reviewed unless this is made necessary by “circumstances of a substantial and compelling character” (see case of Ryabykh against Russia, judgment of 24/07/2003, §52).

• Additional information is awaited in this respect.

The Romanian authorities expressed their intention to take into account the modification resulting from this case, in particular with respect to the possibility to challenge the final courts’ decisions by public prosecutor, in a working group for the amendment of the Romanian Code of Civil Procedure established by the Ministry of Justice.

• The information is awaited on the progress of this working group, in particular, on the project of the amendment of the Code of Civil Procedure mentioned by the Government.

The judgment of the European Court was published in the Official Journal in September 2005 and has been disseminated by the Superior Council of Magistracy to courts and prosecutors’ offices, together with the recommendation that all the court decisions involving the state or bodies established under public law are communicated to the prosecutor’s offices.

- 28 cases against the Russian Federation

49790/99          Trubnikov, judgment of 05/07/2005, final on 30/11/2005

The case concerns the ineffectiveness of the inquiry into the death of the applicant's son in 1998 in the correctional labour colony OZH 118/8 in Rossosh, Voronezh Region, due to the lack of promptness, exemplary diligence, initiative on the part of the authorities and the lack of public scrutiny (procedural violation of Article 2). The European Court also found a violation of the respondent state's obligation to furnish all necessary facilities to the Court in establishing the facts, given the failure to provide the original medical file concerning the psychiatric supervision of the applicant's son prior to his death without any convincing explanation (violation of Article 38§1a).

Individual measures: The European Court noted that the authorities had taken a number of important steps to establish the true circumstances of the death of the applicant's son after he had lodged his application with the Court (§ 94 of the judgment). The second investigation conducted by the Voronezh City Special Prosecutor's Office, i.e. more than three years after the death, confirmed that the applicant's son had committed suicide. The applicant received official notification of closure on 3/03/2003, without however being granted the official status of a victim in criminal proceedings, contrary to the usual practice under national law.

General measures:

            1) Violation of Article 2: It results from the Court's judgment that the second investigation (see above) conducted after the entry into force of the new Code of Criminal Procedure (1/07/2002) was closer to meeting the Convention's requirements, except that it took place three years after the death of the applicant's son. It remains to be assessed, however, to what extent the current legislative provisions, together with the regulations and instructions based on them, meet the requirements of prompt, thorough and effective investigation, thus preventing new violations of the same kind.

• Information awaited: The Russian authorities were accordingly invited, by letter of 09/02/2006, to provide clarifications:

- on the current rules governing investigations into offences committed in prison; and

- in particular on the bodies competent to carry out such investigations;

- on whether victims are granted the same procedural status as in ordinary criminal proceedings.

            2) Violation of Article 38§1a: the case presents similarities with the Shamayev case (see Agenda of the 966th meeting, June 2006, Volume I, Section 4.2) in which the Committee is supervising the adoption of general measures to prevent new, similar violations.

As regards the particular issue of the cooperation of correctional facilities with the Court, the authorities indicated that on 26/08/2004, the Deputy Minister of Justice issued an instruction, No. 18/6/2-691т, to all correctional and detention facilities increasing the time-limits for storage of documents which might be requested by the European Court, to ensure that these documents will be available in future.

• Information awaited: Given the particular importance of the principle embodied in Article 38§1a, the authorities are invited to ensure, through issuing of appropriate instructions, wide dissemination to all competent authorities, in particular to the Federal Service for the Execution of Sentences and to its subdivisions, of the Committee's Resolutions ResDH(2001)66 and ResDH(2006)45 stressing the fundamental importance of the principle of cooperation with the Court for the proper and effective functioning of the Convention system and the governments’ consequent commitment to ensuring that all relevant authorities comply strictly with this obligation. The judgment was published in the Russian edition of the Bulletin of the European Court, No. 2 2006. Its publication in a specialised law journals would be welcome.

Decisions: The Deputies, 1.         expressed concern with the increasing number of cases concerning the Russian Federation in which delays were registered in providing the Committee with information regarding the execution of the Court’s judgments; 2.         noted that these delays were not necessarily indicative of any failure in taking the measures required by the judgments; 3.         invited the Russian authorities to inquire into the reasons for this situation and to remedy any problems identified; 4.         decided to resume consideration of all these cases at their 982nd meeting (5‑6 December 2006) (DH).

*           *           *

6847/02            Khudoyorov, judgment of 08/11/2005, final on 12/04/2006[54]

The case concerns a number of violations in connection with the applicant's detention at the facility N°OD-1/Т-2 in Vladimir in 1999-2002.

The European Court considered that the poor conditions of the applicant's detention went beyond the threshold tolerated by Article 3, due in particular to the lack of space, poor sanitary conditions, combined with the length of his detention in such conditions (violation of Article 3). The Court also found that the conditions of the applicant's transport between the facility and the courthouse, a 20-hour trip undertaken 200 times in 4 years, amounted to treatment incompatible with Article 3. In this respect, the European Court noted that while the individual compartments in the prison van would not appear to be in breach of the CPT's standards, they were used by the authorities in an inappropriate way, e.g. two men for one seat. Moreover, on those days the applicant received no food and missed outdoor exercise (violation of Article 3).

The Court further considered that the applicant's detention from 8/08/2001 to 9/01/2002 and from 13/03/2002 to 4/12/2002 was unlawful due to the shortcomings of the judicial decisions ordering the detention. It found among other things:

- a failure to indicate any legal grounds and any time-limit in the decision quashing the initial detention order and confirming the applicant's detention;

- a lack of sufficient protection from arbitrariness since the detention orders were delivered with retrospective effect and beyond the time-limits provided for detention “pending investigation” by domestic law;

- finally, no sufficiently clear basis in the Russian legislation for detention during the period when the investigation was already over and the trial had not yet begun (violations of Article 5§1).

The Court noted that the fact that the new Russian Code of Criminal Procedure limits such detention to 14 days maximum would not have prevented the Court from finding a violation.

The Court further considered that by failing to address concrete facts or consider alternative “preventive measures” and by relying essentially on the gravity of the charges, the authorities prolonged the applicant's detention on grounds which cannot be regarded as “relevant and sufficient”. Moreover, the authorities failed to display “special diligence” in the conduct of the proceedings (violation of Article 5§3).

The case also concerns the violation of the applicant's right to a speedy judicial review of the lawfulness of his detention and the insufficient scope of its examination (violation of Article 5§4).

Finally, the Court found that the length of the proceedings, which lasted 6 years and 2 months, did not satisfy the “reasonable-time” requirement (violation of Article 6§1).

Individual measures: None (see the Kalashnikov group).

General measures:

            1) Conditions of detention: See the Kalashnikov group.

            2) Conditions of transport to court:

• Measures taken: it transpires from the information provided by the Russian authorities to the Committee on Legal Affairs and Human Rights (Rapporteur: Mr Jurgens) in the framework of the preparation of the Parliamentary Assembly Report on the Implementation of the judgments of the European Court that the Federal Service for the Execution of Sentences is now taking a number of important measures to improve the conditions of transport of detainees.

The authorities informed the Secretariat that the findings of the European Court in this case were subject to a working meeting organised on 6/06/2006 at the Department of the Ministry of the Interior in the Vladimir region. The authorities also submitted information on the modalities of providing transported detainees with food during the court days.

• Information awaited: More details on the aforementioned measures would be useful together with copies of relevant instructions. The authorities were also invited to issue appropriate instructions to all penitentiary authorities setting up clear rules for transport of prisoners and drawing their attention to the Convention's requirements and the CPT's standards referred to by the European Court in its judgment (§ 117). Information in this respect is awaited.

3) Violation of Article 5§1:

• Measures taken before and after the events at issue:

- Articles 108, 109 and 255 of the new Code of Criminal Procedure (CCP), in force since July 2002, impose a clear obligation to give adequate reasons for detention on remand and establish strict time-limits for detention pending investigation and pending trial;

- on 5/03/2004 the Plenum of the Supreme Court issued a special Ruling providing lower courts with guidelines on the application of the provisions of the Code of Criminal Procedure, stressing in particular their obligation to justify detention, to comply strictly with the procedural time-limits provided for detention and to release detainees held in custody after expiry of the statutory time-limits;

- on 22/03/2005 the Constitutional Court, in its decision regarding the same issues raised in the present judgment, emphasised the obligation of different state officials, particularly prosecutors, investigating authorities, courts and heads of detention facilities, to ensure that suspects and accused are detained only on the basis of a valid judicial decision and within a time-limit established by such decision or otherwise to release them immediately. It also stated that the general requirements for detention and extension of detention orders provided by Articles 108 and 109 of the CCP must be observed by all jurisdictions, including cassation and nadzor courts, irrespective of the stage of criminal proceedings or the fact that the provisions concerned did not directly refer to them. Finally, it condemned the practice of holding defendants in custody solely on the basis that a bill of indictment had been lodged with the trial court, on the ground that such interpretation of the relevant Articles of the CPP was incompatible with constitutional principles and the European Court's case-law.

While these guidelines are binding upon all authorities and therefore destined to prevent new, similar violations, the Constitutional Court nonetheless invited the legislature to consider modifying the provisions of the CCP related to the procedure and time limits for detention at different stages of criminal proceedings. Such a reform would contribute to bringing the provisions of law into line with the requirements of legal certainty and protection from arbitrariness.

• Outstanding issues: The authorities are invited to ensure publication and wide dissemination of the present judgment to all competent authorities and to translate the above-mentioned decision of the Constitutional Court into in-service instructions through circular letters

-      from the Federal Service for Execution of sentences, in implementation of Article 50 of the Law “On custody”, to all heads of detention facilities, stressing their obligations to release detainees held in custody without a judicial decision or in breach of the time-limits provided by the Code of Criminal Procedure;

-      from the Prosecutor General to all prosecutors, clarifying their obligations under Article 32 “On the Prosecutor's office” and Article 37 of the Code of Criminal Procedure;

-      from the Supreme Court to all lower courts, stressing their role in ensuring compliance with the time- limits provided for detention.

The authorities are also invited to organise appropriate training; awareness-raising measures have been organised for all state officials concerned, in particular judges.

Finally, the authorities are invited to consider a reform of the relevant provisions of the Code of Criminal Procedure which would introduce the guidelines established by the Constitutional Court in the decision mentioned.

• Information in this respect is awaited.

            4) Violations of Article 5§§ 3 and 4 and Article 6§1: See the Klyakhin group.

*           *           *

46082/99          Klyakhin, judgment of 30/11/05, final on 06/06/05

31008/02          Fedorov and Fedorova, judgment of 13/10/2005, final on 13/01/2006

47095/99          Kalashnikov, judgment of 15/07/2002, final on 15/10/2002, Interim Resolution ResDH(2003)123

6847/02            *Khudoyorov, judgment of 08/11/2005, final on 12/04/2006[55]

63378/00          Mayzit, judgment of 20/01/2005, final on 06/07/2005

45100/98          Panchenko, judgment of 08/02/2005, final on 08/05/2005

54071/00          Rokhlina, judgment of 07/04/2005, final on 12/10/2005

63993/00          *Romanov, judgment of 20/10/2005, final on 20/01/2006

46133/99+        Smirnova, judgment of 24/07/2003, final on 24/10/2003

The violations in these cases are summarised in the tables below; a case may appear in several tables. In addition, the cases marked with an asterisk are the subject of separate notes (together with draft decisions) dealing with violations other than those covered in the present group. Finally, some of these cases also concern violations of Article 3; they are dealt with in respect of these violations in a separate group below.

                        a. Insufficient grounds for extending detention on remand: justified solely by the gravity of the accusations without consideration of the facts (violations of Article 5§3)

Application	Case	Period of detention	Length of detention
47095/99	Kalashnikov	29/06/95 - 03/08/99	4 years, 1 month, 4 days
6847/02	Khudoyorov	22/01/99 – 28/05/04	5 years, 4 months, 6 days
46082/99	Klyakhin	26/08/97 - 16/08/99 and 02/12/99 - 09/02/01	3 years, 2 months
45100/98	Panchenko	31/08/95 - 17/07/98 and 03/06/99 - 29/02/00	3 years, 7 months, 8 days
54071/00	Rokhlina	07/98 - 12/99	1 year, 6 months
63993/00	Romanov		1 year, 5 months
46133/99+	Smirnova	4 times for each applicant between 1995 and 2002	4 years, 4 months and 1 year, 6 months respectively

In the Khudoyorov judgment, the European Court pointed out the following shortcomings of the judicial review:

- failure to address concrete facts, in particular to specify what were the “sufficient grounds to believe that the defendant would abscond”;

- notwithstanding the express requirement of the new Code of Criminal Procedure, failure to consider alternative “preventive measures” to ensure the applicant’s presence at trial;

- persistent use by domestic courts of a stereotyped formula to justify extensions of detention;

- an established practice of issuing collective extension orders, thereby ignoring the personal circumstances of individual detainees (§§181-187 of the judgment).

b. Limited scope and excessive length of judicial review of the lawfulness of detention (violations of Article 5§4)

Application	Case	Court involved
46082/99	Klyakhin	Armavir Town and Regional Courts
6847/02	Khudoyorov	Vladimir Regional Court and Supreme Court
63378/00	Mayzit	Moskovskiy District Court of Kaliningrad
45100/98	Panchenko	Smolninskiy District and City Courts of St. Petersburg

The European Court found that the violations were in particular due to:

- the limited scope of judicial review by the domestic courts, not least by the Supreme Court itself, which failed to address the applicant’s relevant arguments challenging the lawfulness of his detention, (Klyakhin and Khudoyorov cases);

- the excessive length of the examination of the applicants’ applications for release (137 days and 99 days respectively in the Mayzit case and 1 year and 8 months, 125 days and 134 days respectively in the Khudoyorov case) which were moreover in breach of the time-limits provided by domestic law.

c. Excessive length of criminal proceedings (violations of Article 6§1) and lack of effective domestic remedy in this respect in the Klyakhin case (violation of Article 13)

Application	Case	Length of proceedings	State of proceedings
47095/99	Kalashnikov	5 years, 1 month and 23 days	Closed
46082/99	Klyakhin	3 years and 4 months	Closed
6847/02	Khudoyorov	6 years and 2 months	Discontinued
31008/02	Fedorov and Fedorova	8 years, 6 months and 29 days and 6 years and 2 months respectively	Discontinued for the 1st applicant; 2nd applicant acquitted
45100/98	Panchenko	8 years and 5 months	Closed
54071/00	Rokhlina	7 years	Pending
46133/99+	Smirnova	3 years and 4 months and 2 years and 6 months respectively	Closed

The Klyakhin case also concerns the opening and censoring of the applicant's correspondence with the European Court (violation of Article 8) and the hindrance of the applicant's right to individual petition as his letters to the Court were either not sent, or posted months later, without their enclosures, and letters he received from the Court were mostly not given to him or given without enclosures (violation of Article 34).

Individual measures: In the Rokhlina case, information is required on the outcome of the proceedings before the Naro-Fominsk Town Court of the Moscow Region, which were still pending at the time of the Court's judgment.

General measures already taken:

1) Violations of Article 5

• Measures already taken: the Russian authorities informed the Committee of a number of general measures taken to prevent new, similar violations (see in particular Interim Resolution ResDH(2003)123 in the Kalashnikov case).

- The new Code of Criminal Procedure, in force since July 2002 gives courts competence to order and to prolong pre-trial detention. In particular, the Code introduced stricter time-limits for investigation and trial and specific grounds that should be relied upon by courts to justify detention and its extension (such as a danger of absconding, of pressure on witnesses, etc);

- On 05/09/2002, the Vice-President of the Supreme Court sent out a circular letter stressing the precedent value of Kalashnikov judgment and requesting that all courts ensure strict compliance with the time-limits set by the Code of Criminal Procedure for investigation and trial;

- On 10/10/2003, the Plenum of the Supreme Court drew all courts' attention to their obligation to prevent new violations similar to those already found by the European Court and in particular to the requirements of Article 5 of the Convention regarding the time-limits and permissible grounds for detention on remand (§14 of Decision N°5);

• Other information available: it transpires from the information provided by the Russian authorities to the Committee on Legal Affairs and Human Rights (Rapporteur: Mr Jurgens) in the framework of the preparation of the Parliamentary Assembly Report on the Implementation of the judgments of the European Court that:

- in June 2006 the 36% of those placed in detention were prosecuted for offences of minor or average importance and 20-25% were released after the verdict;

- the judgments in the Panchenko, Klyakhin and Fedorov and Fedorova cases had been sent out to all prosecutors with an information letter inviting them to take account of the findings of the European Court in their daily practice, particularly with regard to proceedings relating to detention;

- the European Court’s case-law was regularly summarised and disseminated through information letters to all prosecutors and discussed within the Institute of in-house training of the Procuratura.

• Recent developments:

- on 5/03/2004 the Plenum of the Supreme Court issued a special Ruling providing guidelines for lower courts on the application of the provisions of the Code of Criminal Procedure, stressing in particular their obligation under Article 108 of the Code to justify detention orders irrespective of the stage of proceedings and to comply strictly with the procedural time-limits provided for detention;

- in its ruling No. 253-O of 27/05/2004, the Constitutional Court recalled courts' obligation, when prolonging detention, to take into consideration not only the grounds justifying detention on remand (see above) but also the applicant's character, his family situation, etc.

- in its ruling No 4-П of 22/03/2005 the Constitutional Court emphasised the obligation of prosecutors, particularly under Article 32 “On the Prosecutor’s office” and Article 37 of the Code of Criminal procedure, and judges, in particular under Article 108 of the same Code, to specify at each stage of proceedings and during each review of detention, the circumstances and the reasons justifying the detention and its subsequent extension, and to rule expressly on the detainees’ arguments challenging their detention.

On 11/09/2006 the Russian authorities submitted a draft law amending the Criminal Code, the Code of Criminal procedure and the law “On custody” and aiming at reducing the prison population, in particular through reform of existing conditions in which detention may be ordered. This draft law is currently being examined by the Secretariat.

• Additional information requested: Additional details as regards the scope and nature of courses related to the European Court’s case-law delivered within the Institute of in-house training and examples of the information letters mentioned above would be useful. Information on similar measures taken in respect of judges is awaited.

• Additional measures awaited: Recent cases show that further general measures are needed to prevent new similar violations. Moreover, the statistics provided for the Assembly’s Report (see above) demonstrate that this situation is due to the fact that judges and prosecutors continue to apply the gravity of charges as the sole criterion for detention regardless of the provisions of the Code of Criminal Procedure, thus contributing to the overcrowding of pre-trial detention facilities.

The Russian authorities are therefore invited to consider, within the scope of the expected action plan requested in the Secretariat’s letter of 19/10/2005, additional measures, possibly:

- new guidelines by the Plenum of the Supreme Court dedicated to Article 5 issues on the basis of the decision of the Constitutional Court of 22/03/2005;

- improvement of in-service training of judges, prosecutors and heads of detention centres (see the Committee’s Recommendation (2004)4 of 12 May 2004 on the ECHR and professional training);

- strengthening of their disciplinary and professional responsibility.

2) Violations of Article 6§1: In the letter requesting an action plan, the authorities were also invited to introduce an effective domestic remedy allowing acceleration of proceedings and/or compensation for delays (a similar issue is raised with regard to civil proceedings in the Kormacheva group of cases (Section 4.2)).

            3) Violations of Articles 8 and 34: As regards the opening and hindrance of the applicant's correspondence while in jail, the Klyakhin case present similarities to that of Poleshchuk (Section 6.2, Volume I) in which general measures to prevent new similar violations have already been taken.

*           *           *

                  

- Cases concerning poor conditions of detentions, amounting to degrading treatment

Application	Case	Facility involved	State of the applicant
47095/99	Kalashnikov, judgment of 15/07/02, final 15/10/02, Interim Resolution ResDH(2003)123	Detention facility IZ-47/1 in Magadan	Released
6847/02	*Khudoyorov, judgment of 08/11/05, final on 12/04/06	Facility N°OD-1/Т-2 in Vladimir	Released
62208/00	Labzov, judgment of 16/06/05, final on 16/09/05[56]	Remand facility IZ-21/2 in Tsivilsk	Released
63378/00	Mayzit, judgment of 20/01/05, final on 06/07/05	Remand Centre IZ-39/1	Released
66460/01	Novoselov, judgment of 02/06/05, final on 02/09/05[57]	Facility no IZ-18/3 of Novorossiysk	Released
63993/00	*Romanov, judgment of 20/10/2005, final on 20/01/2006	Pre-trial detention facility IZ-48/2 « Butyrskiy »	Released

The cases marked with an asterisk are also the subject of separate notes (together with draft decisions) dealing with violations other than those covered in the present group.

These cases concern the poor conditions of the applicants' pre-trial detention between 1995 and 2001 which was found by the European Court to amount to degrading treatment, due in particular to severe prison overcrowding and an unsanitary environment. The Court notably took into account their detrimental effect on the applicants' health and well-being, combined with the length of the period during which the applicants were detained in these conditions (violation of Article 3).

The Kalashnikov case also concerns the excessive length of this detention, which lasted 4 years, 1 month and 23 days, of which 1 year, 2 months fell within the Court's jurisdiction (violation of Article 5§3) and the excessive length of criminal proceedings brought against the applicant, which lasted 5 years, 1 month and 23 days, of which 1 year, 10 months fell within the Court's jurisdiction (violation of Article 6§1).

The Mayzit case also concerns the excessive length of examination of the applicant's request for release from pre-trial detention (4 months and 15 days) in breach of the Convention's requirements, as well as those of domestic law, which provide that such a request shall be examined “speedily”, within 5 days under Russian domestic law (violation of Article 5§4).

Individual measures: No individual measure is required in any of these cases as the applicants have been released and the damage they sustained in relation to the violations found was compensated by the European Court through just satisfaction.

General measures:

            1) Violation of Article 3

▪ Measures taken before the adoption of Interim Resolution ResDH(2003)123:

a) adoption of the Federal Programme for reforming the Ministry of Justice's penitentiary system for 2002‑2006;

b) adoption of the new Code of Criminal Procedure, in force since 01/07/2002, which transferred the power to order detention to the courts and imposed stricter criteria for allowing pre-trial detention and stricter time-limits on investigation and trial;

c) a circular letter from the Vice-President of the Supreme Court sent on 05/09/2002 stressing the precedent value of Kalashnikov judgment and requesting that all courts ensure strict compliance with the time-limits set by the Code of Criminal Procedure for investigation and trial and prevent unjustified delays in proceedings.

▪ Developments in response to the Interim Resolution:

-               Measures taken:

a) new amendments to the Criminal Code and to the Codes of Criminal Procedure and of Execution of Sentences adopted in December 2003 to further improve, inter alia, the conditions of detention;

b) continuous increase in budgetary means allocated to the Penitentiary Department of the Justice Ministry (approximately 20% increase is planned in the draft budget for 2005 (61 billion roubles - 1.7 billion euros) compared to the 2004 budget (48.3 billion roubles - 1.4 billion euros));

c) construction of new and reconstruction of old pre-trial detention centres (SIZO) or equivalent facilities resulting in an increase in in-cell space (presently 4 m² per detainee; cf. less than 1m² per detainee in 2000);

the improvement of medical treatment in pre-trial and other detention centres resulting among other things in a continuous decrease in the number of persons affected by serious diseases.

-               Statistics provided show an improvement compared to 2003: On 01/09/04, average overcrowding in pre-trial detention in Russia was only 1% above the facilities' normal capacity. In some regions however pre-trial detention centres remained overcrowded at different levels in 34 regional entities (compared to 57 entities in this situation at the beginning of 2003 - see Interim Resolution ResDH(2003)123). In 15 of them, overcrowding is less then 20%, in 16 between 20 and 50%. In three regions the pre-trial detention (SIZOs) or equivalent facilities remain more severely overcrowded (Tiva Republic, Chita and Kostroma regions).

• Current situation: it transpires from the information provided by the Russian authorities to the Committee on Legal Affairs and Human Rights (Rapporteur: Mr Jurgens) in the framework of the preparation of the Parliamentary Assembly Report on the Implementation of the judgments of the European Court that:

-               Statistics provided show a deterioration compared to 2004: on 1/06/2006 the average rate of overcrowding in pre-trial detention was 13.9% above the facilities' normal capacity with an average in-cell space of 3,5 m² per detainee in 56 regions of Russia. The analysis of the statistics for the first 6 months of 2006 shows that in 38 regions there is an upward trend in the prison population, of between 5 and 30% while in 19 regions the prison population is constantly decreasing (by 0,4 to 17%).

It would appear that this alarming situation is mostly due to the failure of judges and prosecutors to comply with the requirements of the new Code of Criminal Procedure regarding permissible grounds for ordering or extending detention. In numerous cases the detention on remand seems to be decided either solely on the basis of the gravity of charges or with only formal reference to the relevant provisions of the CCP. Recent statistics show that 36% of detainees are charged with offences of minor or average importance and 20 to 25% are released after the verdict.

-               Measures taken or under way:

a) the Federal Programme for reforming the Ministry of Justice's penitentiary system for 2002-2006 resulted in the creation of new detention facilities (10 988 places already created and 4 688 places planned before the end of the year). A similar programme for 2007-2016, which provides for the construction of 26 new detention facilities and for the modernisation of 97 already existing ones, has been recently adopted.

b) Other federal programmes aiming at improving the material conditions of detention, and in particular detainees' sanitary environment, are being implemented, e.g. “Prevention and fighting against diseases of social character (2002-2006)”, etc.

c) Other measures aim to improve the work of the Federal Service for execution of sentences which is now more involved in the legislative process on the relevant issues, in particular in relation to amnesty laws and with the current reform of criminal legislation.

d) The draft law on the reform of the Criminal Code and of the Code of Criminal Procedure, providing new punishments such as release on probation, was submitted to Parliament on 28/04/2006.

- Other measures envisaged in order to reverse this situation, On 11/09/2006 the Russian authorities submitted a draft law amending the Criminal Code, the Code of Criminal procedure and the law “On custody” and aiming at reducing the prison population, notably through reform of existing conditions in which detention may be ordered. This draft law is currently being examined by the Secretariat.

-               Effective remedies: According to the law of 15/07/1995 N°103-FZ “On custody”, suspects and accused enjoy a number of rights, not least the right to submit proposals, applications and complaints to heads of the detention centres, to courts, prosecutors, ombudsmen, etc. Article 17§7 particularly provides the right to complain to a court of violations of detainees' legal rights and interests.

• Clarifications would be useful on whether detainees may complain of their conditions of detention and obtain compensation, in particular on the basis of the Convention which has a direct effect in Russian law according to the Constitution.

• Information awaited: the authorities are invited to keep the Committee informed about the progress of the measures reported above and to provide the relevant statistics on a regular basis. The authorities are also invited to rapidly take additional measures to reverse this alarming development.

            2) Violations of Articles 5§3 and 6§1 found in the Kalashnikov case and the violation of Article 5§4 found in the Mayzit case, these aspects of the cases are dealt with in the Klyakhin group (Section 4.2).

*           *           *

68443/01          Baklanov, judgment of 09/06/2005, final on 30/11/2005

58254/00          Frizen, judgment of 24/03/2005, final on 30/11/2005

The cases concern the violation of the applicants' property rights on account of confiscatory measures taken against them without precise legal justification in the framework of criminal proceedings in 1997 (violations of Article 1 of Protocol No.1).

In the Baklanov case, a person transporting a large sum of money on the applicant's behalf without having declared the fact was arrested by the customs authorities for smuggling. The money was confiscated on the basis of a Ruling of the Supreme Court of 3/02/1978 authorising the confiscation of smuggled goods (to be placed in the case-file as an exhibit). The ruling at issue was given in relation with Article 169-1 of the Criminal Code of the RSFSR of 1960. However the Criminal Code of 1996, which was in force at the material time, provided no such measure. Given the ambiguity in domestic law, the European Court concluded that the applicant had been deprived of his property on a legal basis not formulated with sufficient precision to enable the applicant to foresee, to a degree that is reasonable in the circumstances, the consequences of his actions.

In the Frizencase, the courts confiscated the applicant's car in respect of a criminal offence of which her husband had been convicted. The domestic courts did not refer to any legal provision authorising the confiscation.

Individual measures:

            1) Baklanov case: Following the application lodged by the President of the Supreme Court under Article 413 of the Code of Criminal Procedure (newly discovered circumstances) the Plenum of the Supreme Court of Russia took the findings of the European Court into account and consequently, pursuant to Article 415§ 5of the Code of Criminal Procedure, reversed the judgment of 13/09/2000 of the Golovinskiy Court as regards confiscation of the applicant’s money and ordered resumption of the criminal proceedings in this case.

According to the applicant, on 04/07/2006 the Golovinskiy Court decided that the sums at issue have to be restituted to the applicant and issued a writ of execution to that effect. On 26/06/2006 these documents were submitted to the Ministry of Finance of the Russian Federation for enforcement.

• Information is awaited on whether this decision in the applicant’s favour has been executed so as to put an end to the continuing violation of his property right.

            2) Frizen case: no further claim has been lodged by the applicant since then.

General measures:

            1) Baklanov case: Article 81 of the new Code of Criminal Procedure in force since 1/07/2002 qualifies smuggling as an offence. In its decision of 8/07/2004, the Constitutional Court specified that, in the light of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (8/11/1990) and the UN Convention against Transnational Organised Crime (15/11/2000), both ratified by the Russian Federation, the term “confiscation” means not only punishment but also “a measure ordered by a court following proceedings in relation to a criminal offence resulting in the final deprivation of property” as provided for by Article 86-4 of the Code of Criminal Procedure. Domestic courts are expected to follow this interpretation given by the Constitutional Court which is binding in Russian law.

            2) Frizen case:  it seems that the forfeiture of the applicant's car constituted an additional punishment related to the conviction of the applicant's husband for a large-scale fraud. However, no legal grounds were indicated under domestic law then in force. Should similar actions of forfeiture still take place today, clarifications would be necessary as regards the legal grounds relied upon by domestic courts under the law presently in force.

The letter requesting clarifications has been sent to the Russian authorities on 03/02/2006, their reply is awaited.

The wide dissemination of the European Court's judgments to all relevant authorities including the domestic courts and publication also appear necessary.

Decisions: The Deputies, having examined progress made in ensuring execution, 1.             welcomed the decision of the Russian Supreme Court to re-open proceedings in the Baklanov case, following the judgment of the European Court, as well as the new judgment delivered as a result of these new proceedings ; 2.             encouraged the Russian authorities rapidly to enforce this new judgment so as to put an end to the continuing violation of the applicant's property rights and invited them to inform the Committee of the progress made in this respect; 3.             invited the Russian authorities to provide information concerning possible general measures required to prevent new similar violations; 4.             decided to resume consideration of these cases at their 982nd meeting (5‑6 December 2006) (DH) on the basis of the information to be provided by the authorities

58255/00          Prokopovich, judgment of 18/11/2004, final on 18/02/2005

This case concerns the forcible eviction, without a court order, of the applicant from the flat she had occupied for ten years with her partner, upon the death of the latter who was the sole lessee under the lease concluded with the state.

The European Court noted that Article 90 of the Housing Code in force at the material time only permitted eviction of the lessee or of the members of his/her family on grounds established by law and on the basis of a court order. The government recognised that the procedure established by this Article should have been followed in the applicant’s case. As this had not been the case, the European Court found that the interference in the applicant's right to respect for her home was not in accordance with the law (violation of Article 8).

Individual measures:The European Court awarded the applicant just satisfaction covering the non‑pecuniary damage she sustained as a result of the forcible eviction. No further claim has been lodged by the applicant since then.

General measures:It appears that the violation was due to the uncertainty existing in Russian law on whether an unmarried partner should be considered as “family member”, in particular for purposes of Article 90. The new Housing Code, in force since 1/03/2005, does not clarify the situation. This uncertainty needs to be remedied. To this end, the Russian authorities have among other things been invited to publish the judgment of the European Court and to send it to all domestic courts, prosecutors' offices and public authorities competent for housing and other matters, accompanied by an appropriate instruction drawing their particular attention to the fact that unmarried partners should be considered as “family members’ and that the procedure of eviction provided for by the Housing Code must therefore be applied to them as well.

Decisions: The Deputies, 1.         expressed concern with the increasing number of cases concerning the Russian Federation in which delays were registered in providing the Committee with information regarding the execution of the Court’s judgments; 2.         noted that these delays were not necessarily indicative of any failure in taking the measures required by the judgments; 3.         invited the Russian authorities to inquire into the reasons for this situation and to remedy any problems identified; 4.         decided to resume consideration of all these cases at their 982nd meeting (5‑6 December 2006) (DH).

*           *           *

- Cases of length of civil proceedings

Application	Case	Length of the proceedings	State of proceedings
53084/99	Kormacheva, judgment of 29/01/2004, final on 14/06/2004, rectified on 29/04/2004	6 years and 6 months and 15 days[58] (2 degrees of jurisdiction)	Closed
55520/00	Baburin, judgment of  24/03/05, final on 24/06/05	more than 6 years and 2 months	Pending
22118/02	Kuzin, judgment of 09/06/05, final on 09/09/05	6 years, 10 months and 26 days[59]	Closed
63527/00	Levshiny, judgment of 09/11/2004, final on 30/03/2005	6 years and 2 months[60] (2 degrees of jurisdiction)	Closed
14949/02	Plaksin, judgment of 29/04/2004, final on 10/11/2004	6 years and 7 months[61] (2 degrees of jurisdiction)	Information is awaited
28954/02	Rash, judgment of 13/01/2005, final on 13/04/2005	4 years and 3 months (1 degree of jurisdiction)	Closed
14983/04	Rybakov, judgment of 22/12/05, final on 22/03/06	6 years, 3 months and 28 days	Closed
33914/12	Skorobogatova, judgment of 01/12/2005, final on 01/03/2006[62]	6 years and 8 months [63]	Closed
3734/02	Sokolov, arêt du 22/09/2005, final on 22/12/2005	More than 7 years and 7 months[64]	Enforcement proceedings still pending
20496/04	Tusashvili, judgment of 15/12/05, final on 15/03/06	4 years, 8 months and 26 days	Closed

Application	Case	Length of the proceedings	State of proceedings
75475/01	Vasyagin, judgment of 22/09/2005, final on 22/12/2005	10 years, 2 months and 18 days	Closed
26384/02	Vokhmina, judgment of 09/06/05, final on 09/09/05	3 ans, 7 mois and 9 jours	Closed
42138/02	Yaroslavtsev, judgment of 02/12/2004, final on 02/03/2005	3 ans and 11 mois (2 degrees of jurisdiction)	Closed
60408/00	Yemanakova, judgment of 23/09/2004, final on 02/02/2005	9 years and 5 months[65] (2 degrees of jurisdition)	Closed
70190/01	Zimenko, judgment of 23/06/2005, final on 23/09/2005	6 years, 10 months and 26 days[66]	Closed

All these cases concern the excessive length of civil proceedings regarding employment, property and housing disputes (violations of Article 6§1). Some of the cases also concern the lack of an effective remedy to expedite the proceedings or provide the applicants with adequate redress for delays incurred (violations of Article 13).

The excessive length of proceedings was inter alia due to:

-           understaffing and the work overload of courts,

-           lack of automatic time-limits,

-           repeated procedural omissions,

-           poor technical conditions of court buildings,

-           numerous adjournments of hearings, due in particular to the failure to notify the claimants about the hearings in due time.

Individual measures: As regards the cases mentioned in bold in the table hereabove, the authorities are invited to accelerate the proceedings, if still pending.

• Information is awaited in this respect.

General measures: By the Secretariat's letter of 02/03/2005, the Russian authorities were invited to present an action plan with respect to the possible measures taken or envisaged to ensure that the requirement of reasonable length of court proceedings is respected and to set up adequate domestic remedies allowing victims to obtain compensation before domestic courts and/or acceleration of the pending proceedings.

• An action plan has been awaited since March 2005.

In this context, the authorities' attention should be drawn to the need to ensure the availability of effective domestic remedies (preventive and/or compensatory) at the national level, as emphasised in Recommendation Rec(2004)6 of the Committee of Ministers on the improvement of domestic remedies. As regards the remedies currently available under Russian law (see §§ 40-45 of the Kormacheva judgment), it should be noted that the European Court considered that the disciplinary action against the judge responsible for delays before the higher judicial or other authorities could not constitute an effective remedy for the purposes of Article 13 (see § 61-62 idem).

In this respect, the Russian authorities may wish to consider the experience of other countries which took comprehensive general measures to solve the problem of excessive length of civil proceedings (e.g. Interim Resolutions ResDH(2005)114 and ResDH(2004)72 concerning certain judgments against Italy and Resolution ResDH(2005)60 concerning the judgment in Horvat against Croatia).

Several of these judgments were translated and published in the Bulletin of the judgments of the European Court and sent out to all courts with a circular letter by the Deputy President of the Supreme Court of the Russian Federation.

Decisions: The Deputies, 1.             expressed concern with the increasing number of cases concerning the Russian Federation in which delays were registered in providing the Committee with information regarding the execution of the Court’s judgments; 2.             noted that these delays were not necessarily indicative of any failure in taking the measures required by the judgments; 3.             invited the Russian authorities to inquire into the reasons for this situation and to remedy any problems identified; 4.             decided to resume consideration of all these cases at their 982nd meeting (5‑6 December 2006) (DH).

*           *           *

63993/00          Romanov, judgment of 20/10/2005, final on 20/01/2006[67]

The case concerns the poor conditions of the applicant’s detention on remand in pre-trial detention facility IZ‑48/2 “Butyrskiy”, also referred to as SIZO-2, in Moscow between 1999 and 2000.

The European Court considered that these detention conditions amounted to degrading treatment, due in particular to severe prison overcrowding combined with the length of the period of detention under such conditions (violation of Article 3).

The case also concerns the excessive length of the applicant’s detention on remand (1 year, 5 months). The Court found that the detention was based solely on the seriousness of the alleged offence, i.e. the acquisition of drugs for personal consumption and possession, and that as such it could not justify the continued detention (violation of Article 5§3).

Finally, the case concerns the violation of the applicant’s right to a fair trial in that, despite the numerous requests made by the applicant, the District Court failed to take any step to secure his attendance at the hearings on the ground that the detention facility did not transport sick detainees to court and the testimony of a mentally disturbed person could not be accepted as evidence. The European Court considered that the applicant’s presence at his counsel’s side was essential to the fairness of the proceedings, since the District Court had to determine whether he had committed the offence he was charged with and assess his mental health at the time of the facts. The applicant’s participation in the hearings was particularly important in this case because the District Court was seised of two divergent expert opinions on the modalities of his medical care, which had an impact on his liberty (violation of Article 6§1 and §3c).

Individual measures: None (see the Kalashnikov group)

General measures:

            1) Violation of Article 3 see the Kalashnikov group

            2) Violation of Article 5§3, see the Klyakhin group

            3) Violation of Article 6§1 and §3c:

• Measures taken: as regards the facility’s failure to transport the applicant to the court, it transpires from information provided by the Russian authorities to the Parliamentary Assembly in the framework of the preparation of its “Report on the Implementation of the Decisions of the European Court of Human Rights” (Rapporteur: Mr Jürgens) that on 21/04/2006 the Federal Service for execution of sentences issued instruction N°10/1-1046 to all heads of its subdivisions inviting them to take measures to eliminate the shortcomings pointed out by the European Court in its judgment.

• Information awaited: on the concrete measures taken as a result of this instruction.

The new Code of Criminal procedure entered into force in July 2002, after the events at issue. Its chapter 51 provides for particular rules specifying conditions in which measures of compulsory medical treatment may be decided by a judge. Article 441 only provides for the compulsory attendance of a lawyer at the hearing and offers the defendant the possibility to ask to appear in person. On the other hand, Article 34 of the Law “On psychiatric help and guarantees of citizens’ rights when undergoing psychiatric treatment” provides the right for the patient to take part personally in hearings concerning forcible hospitalisation.

• Clarification would be useful as to whether this law also applies is case of criminal proceedings.

Otherwise, information is awaited on measures taken or envisaged by the authorities to ensure the personal appearance of the defendant in court when facing the risk of psychiatric placement in criminal proceedings.

• Confirmation is also awaited of publication and wide dissemination of the judgment of the European Court, in particular to all courts and prosecutor's office.

Decisions: The Deputies, 1.             expressed concern with the increasing number of cases concerning the Russian Federation in which delays were registered in providing the Committee with information regarding the execution of the Court’s judgments; 2.             noted that these delays were not necessarily indicative of any failure in taking the measures required by the judgments; 3.             invited the Russian authorities to inquire into the reasons for this situation and to remedy any problems identified; 4.             decided to resume consideration of all these cases at their 982nd meeting (5‑6 December 2006) (DH).

*           *           *

- 1 case against Slovenia

23032/02          Lukenda, judgment of 06/10/2005, final on 06/01/2006

This case concerns the excessive length of proceedings concerning the applicant’s disability benefits before civil courts between 1998 and 2004 (violation of Article 6§1). Under Article 46, the Court underlined that due to the persistent backlog in Slovenian courts, the length of judicial proceedings remained a major problem in that country (nearly 500 similar cases against Slovenia are currently pending before it).

The case also concerns the absence of an effective remedy in this respect, the Court having found that the legal remedies invoked by the Slovenian government (administrative action, tort claim, request for supervision or a constitutional appeal) may not be regarded as effective remedies against the excessive length of proceedings (violation of Article 13)

Individual measures: None (proceedings closed).

General measures: In response to the Secretariat’s letter of 27/03/2006, the Slovenian authorities provided an action plan for the implementation of measures aiming at avoiding further similar violations (letter of 06/06/2006).

            1) Violation of Article 6§1: The Slovenian authorities are preparing a “Lukenda Project” on faster resolution of court procedures and reducing court arrears (inter alia by increasing the number of judges and hearings). Measures have also been taken to accelerate proceedings before labour courts. A new Labour and Social Courts Act entered into force on 01/01/2005 setting up specialist jurisdictions for social and labour litigation which are now beginning to examine cases. This act also contains a specific provision for appeal proceedings in such cases (Article 30): in case of mistaken or incomplete finding of the material circumstances or an essential violation of procedural provisions, the appellate court may itself correct any irregularity in the first-instance judgment by collecting supplementary or new evidence or by other procedural acts.

• Information is awaited on the implementation of the “Lukenda Projec”’ and other possible measures envisaged or taken in order to shorten the length of judicial proceedings.

            2) Violation of Article 13: In its judgment, the European Court encouraged the defendant state either to amend the existing range of legal remedies or to add new remedies so as to secure genuinely effective redress for violations of that right (§ 98).

In their letter of 06/06/2006 the Slovenian authorities indicated that a new law on the Protection of the Right to Trial without Undue Delay was adopted on 26/04/2006 (published in the Official Gazette of the Republic of Slovenia, No 49/2006, of 12/05/2006) and it will take effect on 01/01/2007. This law provides the following remedies against excessive length of proceedings:

-           a supervisory complaint with a proposal for expediting the hearing of a case;

-           a motion for a deadline for the purpose of specifying a time-limit: it may be lodged with the president of the higher court if a supervisory complaint has been rejected or has not been examined;

-           a claim for fair satisfaction: pecuniary compensation, amounting from 300 to 5 000 euros may be granted for damages caused. It is therefore accompanied by a written statement of the State Attorney’s Office that the party’s right to trial without undue delay has been violated and the publication of the judgment.

The Slovenian authorities announced that an English translation of this law would be sent to Secretariat in due course.

• Additional information is awaited on the content of this law, in particular the scope of its application and the conditions to be met for using the remedies provided.

Decision: The Deputies, having examined the progress made in ensuring execution, decided to resume consideration of this case at the 992nd meeting (3-4 April 2007) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning measures proposed in order to prevent new, similar violations.

- 3 cases against Spain

77837/01          Saez Maeso, judgment of 09/11/2004, final on 09/02/2005

55524/00          Stone Court Shipping Company S.A., judgment of 28/10/03, final on 28/01/04[68]

These cases concern a breach of the applicants’ right of access to a court (violations of Article 6§1).

In the Stone Court Shipping Company S.A. case, the applicant company’s right of access to a court had been infringed on account of the Supreme Court’s particularly strict interpretation of its own rules of procedure resulting in 1997 in the rejection 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.

In the Saez Maeso case, the applicant’s appeal against a decision of the University of Valencia not to grant him a diploma was dismissed by the High Court, after which the applicant took his case to the Supreme Court. On 10/06/1993 the Supreme Court declared his case admissible. On 26/06/2000 (seven years after the admissibility decision) the Supreme Court dismissed his appeal, stating that his complaint should have been declared inadmissible because he had not reasoned the appeal according to the relevant legal provisions. In April 2001 the Constitutional Court confirmed this decision.

The European Court found in both cases that the particularly strict interpretation by domestic courts of a procedural rule had deprived the applicants of the right of access to a court for an appeal. 

Individual measures: In both cases, the European Court awarded to the applicants a just satisfaction for the non-pecuniary damages. Moreover, no claim for individual measures to erase possible consequences of the violation has been submitted by the applicants either to domestic courts or to the Convention organs following the judgments of the European Court.

• In these circumstances, no need for further specific individual measures arises in these cases.

General measures:

• Information submitted by the Spanish authorities: The Judgment of the European Court has been published in Spanish in the Official Bulletin of the Ministry of Justice and disseminated to the authorities concerned.

• Additional information awaited: 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. Information on other possible measures taken or envisaged to prevent new, similar violations would also be useful.

Decisions: The Deputies 1.             decided to resume consideration of these cases at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction if necessary; 2.             decided to resume consideration of these cases at their 992nd meeting (3-4 April 2007) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning the general measures proposed to prevent new, similar violations.

*           *           *

4143/02            Moreno Gómez, judgment of 16/11/2004, final on 16/02/2005

The case concerns a breach of the applicant’s right to respect for her home and private life due to the failure of the city authorities of Valencia to take action to deal with night-time disturbances near her home, where many night clubs and discotheques have opened since 1974 (violation of Article 8). Many reports have indicated noise levels above the permissible limits.

Individual and general measures:

• Information provided by the Spanish authorities:In 1996, the City Council designated the applicant’s neighbourhood as an “acoustically saturated zone”, and therefore no new establishment could be opened that would contribute further to this saturation. In 1997 however, the Council issued a license for the opening of another discotheque, in the applicant’s building but this decision has been declared invalid by the Supreme Court in 2001.

Moreover, the European Court’s judgment has been published in Spanish in the Official Bulletin of the Ministry of Justice and disseminated it to all relevant authorities.

• Assesment and additional information awaited: According to the Court’s judgment (§ 19), the noise level still seems to be above the accepted level. Therefore, information is awaited on measures envisaged, in particular with a view to decreasing the noise level in the applicant’s neighbourhood, thereby ensuring respect for residents’ right to respect for their home and private life.

- 1 case against Sweden

59129/00          Tibbling, judgment of 11/10/2005, final on 11/01/2006

The case concerns excessive length of certain civil proceedings, which began in 1995 and apparently have not yet ended (at least 6 years and 3 months for one level of jurisdiction).

The European Court found that the proceedings lasted too long. In addition, the fact that the case was adjourned and an ongoing sequestration order upheld pending the outcome of another case, had an unavoidable, serious and detrimental impact for the applicant (violation of Article 6§1).

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

General measures: In view of the direct effect of the Convention and its case-law in Swedish law, the publication and dissemination of the European Court’s judgment to all judicial authorities appears useful to prevent new, similar violations.

Decision: The Deputies decided to resume consideration of this case at the 987th meeting (13-14 February 2007) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning the general measures proposed to prevent new, similar violations, and the individual measures to put an end to the violation and erase, as far as possible, its consequences for the applicant.

- 2 cases against the “former Yugoslav Republic of Macedonia”

- Cases of length of proceedings concerning civil rights and obligations before labour or civil courts (and lack of an effective domestic remedy)

Application	Case	Duration of proceedings	Courts involved		State of proceeding
58185/00	Janeva, judgment of 03/10/2002 - Friendly settlement[69]	Since December 1991		Štip Labour Court; Supreme Court	Pending at time of friendly settlement
13886/02	Atanasovic and others, judgment of 22/12/05, final on 12/04/06	Since March 1991		Kumanovo Municipal Court	Pending

These cases concern the excessive length of proceedings concerning civil rights and obligations before labour or civil courts (violations of Article 6§1). The case of Atanasovic and others also concerns the lack of an effective domestic remedy in respect of this violation (violation of Article 13).

Individual measures: Information is awaited on urgent measures required to accelerate the proceedings pending since March 1991 in the Atanasovic and others case.

General measures:

            1) Violation of Article 6§1:

• Information is awaited on measures adopted or envisaged by the respondent state for the acceleration of proceedings in civil and labour courts.

            2) Violation of Article 13:

• Information is awaited on general measures adopted or envisaged for an effective domestic remedy in cases of excessively lengthy proceedings, in accordance with the judgment of the European Court.

The authorities’ attention is also drawn to the Recommendation Rec(2004)6 to of the Committee of Ministers to member states on the improvement of domestic remedies and to measures adopted by other countries confronted with similar problems (see e.g. Resolutions ResDH(2005)60 on Horvat and 9 other cases against Croatia; ResDH(2005)67 on Jóri and 18 other cases against the Slovak Republic).

Decision: The Deputies agreed to resume consideration of these items at their 982nd meeting (5‑6 December 2006) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning payment of the just satisfaction in the Janeva case, the general measures proposed to prevent new, similar violations as well as the individual measures to be taken in order to put an end to the violations and erase, as far as possible, their consequences for the applicants in the case of Atanasovic and others.

- 5 cases against Turkey

*8803/02+         Doğan and others, judgment of 29/06/2004, final on 10/11/2004, rectified on 18/11/2004, and of 13/07/2006, final up to 13/10/2006

The case concerns the denial to the applicants of access to their property in South-East Turkey since 1994 on security grounds. The applicants allege that security forces forcibly evicted them from their village in October 1994 and destroyed their property. Many of the applicants moved with their families to Istanbul, where they are currently living under difficult conditions.

Between 1999 and 2001, the applicants filed petitions with the Turkish administrative authorities requesting permission to return to their village and to use their property. In response to petitions by 5 of the applicants, submitted in 1999 and 2000, the authorities informed them that their petitions would be considered in the context of the "Return to Village and Rehabilitation Project", a scheme to re-settle villagers evicted in the context of security operations. In response to their petition of 2001, 3 of the applicants received letters from the authorities informing them that any eventual return to their village was prohibited for security reasons. The other applicants received no response.

The European Court observed that it was unable to determine the exact cause of the applicants' displacement because of insufficient evidence and the absence of an independent investigation into the alleged events. However, the fact that they were denied access to their village deprived them of all their resources from which they derived their living and thus constituted an interference with their right to the peaceful enjoyment of their possessions. The Court further observed that applicants live in conditions of extreme poverty, with inadequate heating, sanitation and infrastructure in other areas of Turkey and that the authorities had not provided them with alternative housing, employment or financial help. While the Court acknowledged the government's efforts to remedy the situation of the internally displaced generally, for the purposes of the present case it considered them inadequate and ineffective in that the return to village and rehabilitation project has not been converted into practical steps to facilitate the return of the applicants to their village (violation of Article 1 of Protocol No. 1).

In the light of the above findings, the Court concluded that the refusal of access to the applicants' home and livelihood constituted a serious and unjustified interference with the right to respect for family life and home (violation of Article 8).

Lastly, the Court found that the applicants did not have an effective remedy in respect of their complaints (violation of Article 13).

There are approximately 1 500 similar cases from South-East f Turkey (in which the applicants complain of their inability to return to their villages) registered before the European Court. This figure constitutes 25% of the total applications filed in respect of Turkey.

Individual measures: In its judgment of 13/07/2006 concerning the just satisfaction (not final yet), the Court considered that the ability of the applicants to return to their village of Boydaş in South-East Turkey and compensation of the loss sustained by them during the period in which they were denied access to their homes and land would put the applicants as far as possible in a situation equivalent to the one in which they would have been if there had not been a breach of the Convention. However, it appeared from the parties’ submissions that the applicants were no longer willing to return to their homes and land and to start a new life in Boydaş (see § 26 of the judgment). Thus, the Court considered that the compensation for the pecuniary loss in question would be the most appropriate just satisfaction for the applicants (§§48 – 49 of the judgment) and awarded certain sums in this respect). Therefore, no further individual measure appear to be necessary.

General measures:

• Information submitted by the Turkish authorities: the Turkish authorities submitted the following information by letters of 23/02/2005, 10/03/2005, 04/05/2006 and 23/07/2005:

1. Law on Compensation of the Losses Resulting from Terrorism and from the Measures Taken against Terrorism (Law No. 5233 adopted on 17/07/2004, amended by Law No. 5442 of 28/12/2005) and relevant Regulations:

a) The scope of the Law and Regulation: The law provides an alternative possibility to obtain, directly from the administration, compensation for pecuniary damages caused to natural or legal persons as a result of terrorist activities and operations carried out in combating terrorism during the period 1987 to 2005 with a possibility of judicial review of decisions taken in this respect. The law does not cover the damages settled by the state by other means, damages compensated by the judgments of the European Court, damages resulting from social and economical reasons or damages sustained by those laving their residences

voluntarily (reasons not related to concerns of security), damages caused by intentional acts and damages of those who were convicted under Articles 1, 3 and 4 of the Anti-terrorism Law or of aiding and abetting terrorist organisations. On 20/102004 the “Regulation on the Compensation of the Losses Resulting from Terrorism and from the Measures taken against Terrorism” entered into force, which lays down the rules governing the functioning of “damage assessment and compensation commissions” and their working methods. The Regulation further lays down the rules relating to methods of determining the amounts of compensation to be awarded.

b) The work carried out by the Damage Assessment and Compensation Commissions: The commissions are composed of 6 experts on finance, public works and settlement, agriculture, sanitation, industry and commerce, as well as a lawyer appointed by the Administrative Board of the Bar Association. There are 76 commissions established in 76 provinces.The Turkish authorities have also submitted the following documents relevant to the work carried out by the commissions:

- List of applications lodged with the Damage Assessment and Compensation Commissions in 76 provinces;

- List of provinces to which compensation funds were transferred;

- List of applications (not exhaustive) in which compensation was granted;

- Examples of decisions of the Commissions and settlement declarations (The reasoning employed by the Commissions in refusing claims of compensation is based on the facts presented by applicants, namely, the incidents at the origin of the compensation claims took place prior to 19/07/87 or compensation claims had already been reimbursed by the Social Aid and Solidarity Fund. There are also examples of decisions where additional compensation is paid in cases where the previous reimbursements were found to be insufficient. These decisions also indicate that the amounts of compensation awarded are mainly related to physical harm or death. Assessment on property damages could not yet be completed because of the difficulties encountered in holding onsite visits due to harsh winter conditions.)

- Information relevant to the working methods of the Commissions and the application procedure before the Commissions (Article 6 of Law No. 5233 lays down the rules to be observed for those wishing to lodge an application with the Commission. The proceedings begin with an application to be lodged by a victim or his/her heir or his/her representative with the competent Commission or to the Deputy Governor. Applications lodged with offices of Governors in other provinces or any other offices or with the Turkish Consulates or Embassies are referred to the competent Commissions).

c) Updated information on the work carried out by the Commissions: The Turkish authorities informed the Secretariat on 27/04/2006, 05/05/2006 and 08/08/2006 of the figures (latest as at June 2006) in relation to the applications lodged with the Compensation Commissions by virtue of Law No. 5233:

1. Applications lodged with the Compensation Commission under Law No. 5233

Total number of applications	204 500
Number of applications decided	30 586
Number of applications declared admissible (see table 2 below)	14 031 (A total amount of  37 292 893 euros was paid to the applicants)
Number of applications rejected (see table 3 below)	16 555

2. Applications admissible

Total number of applications	14 031
Damages due to death	2 458
Damages due to wounds	853
Damages due to disability	379
Damages on movable and immovable property	3 797
Damages due to loss of livelihood  (loss of agricultural activity or animals)	906
Damages due to inability to have access to property	5 594
Other	44

3. Applications rejected

Total number of applications	16 555
Request for compensation did not fall under Law No. 5233	5 533
Received compensation previously	5 921
Time-barred	731
Lack of relevant documents or information	1 399
Other	2 971

4. Applications lodged in the department of Diyarbakır

Total number of applications lodged	40 427
Number of applications decided	6 191
Number of applications compensation paid	4 659 (4 226 friendly settlements)

5. Applications lodged in the department of Tunceli

Total number of applications lodged	16 837
Number of applications decided	1 544
Number of applications compensation paid	334 (285 friendly settlements)

2. Project carried out concerning the situation of displaced persons: The Turkish authorities submitted an outline of a project carried out by the Institute of Population Studies at the University of Hacettepe in Ankara. The project concerns issues related to the internally displaced persons (IDP) from south and south-east of Turkey who left their villages after 1980s. The aim of the project is to determine the following points, which will assist the Turkish Government to improve the situation of IDPs in Turkey:

- Population movements in the region and its demographic structure

- Regions where IDPs choose to settle

- Demographic, social and economic structure of the IDPs

- Socio-economic structure of the regions from where the IDPs migrate

- Socio-economic structure of the regions to where the IDPs migrate

- Reasons of internal displacement

- Problems IDPs face at their new settlement

- Expectations and the degree of satisfaction of those who return

The research project started in December 2004 and is planned to be completed by February 2006. 

3. The effectiveness of the new remedy acknowledged by the Court (decision of 12/01/2006 in İçyer against Turkey, Application No.18888/02): In this case the applicant complained of the authorities' refusal to allow him to return to his home and land in the south-east of Turkey. The European Court observed that: 

- the compensation commissions established with the entry into force of the Law on Compensation seemed to be operational in seventy-six provinces in Turkey;

- there were already 170,000 persons seeking a remedy before these commissions;

- it appears from a substantial number of sample decisions furnished by the government that persons who have sustained damage in cases of denial of access to property, damage to their property or death or injury can successfully claim compensation by using the remedy offered by the Compensation Law.

Referring to its findings in the case of Doğan and others, the Court noted that where it points to structural or general deficiencies in national law or practice it is incumbent on the respondent government to review, and where necessary, set up effective remedies to avoid repetitive cases being brought before it. Once such a defect has been identified, it falls to the national authorities, under the supervision of the Committee of Ministers to take, retroactively if appropriate, the necessary remedial measures. Noting that in the case of Doğan and others it has already identified the presence of a structural problem with regard to internally displaced persons and indicated possible measures to be taken to put an end to this systematic situation in Turkey, the Court concluded that the Turkish government have taken several measures, including enacting the Compensation Law, and may therefore be deemed to have fulfilled the duty to review the systemic situation at issue and to introduce an effective remedy. Accordingly, the Court rejected the applicant's complaints on the ground of non-exhaustion of domestic remedies.

            4. The question of displaced persons’ right to return. In the aforementioned Icyer against Turkey decision, the Court observed that the applicant can at present return to his village without any hindrance by the authorities (§75). This observation was made on the basis of the assurances given by the Turkish authorities (§60), which were not disputed by the applicant. Hence the Court strictly limited its examination to the other remaining question of domestic remedies, which have been found effective. In the context of the Committee’s examination of general measures, a confirmation would be useful that other persons claiming the right to return are also able at present return to their villages without any hindrance by the authorities.

*              *              *

46347/99          Xenides-Arestis, judgment of 22/12/2005, final on 22/03/2006

The case concerns the fact that the applicant is denied the right to respect for her home (situated in Famagusta), which she has been unable to gain access to, use or enjoy since 1974 (continuing violation of Article 8). The case also concerns the fact that the applicant is denied access to and control, use and enjoyment of her property and any compensation for the interference with her property rights (continuing violation of Article 1 of Protocol No.1).

Individual and general measures:

                   1) Just satisfaction: The European Court has awarded an amount in costs and expenses to the applicant and the Turkish authorities have made a payment in this respect. The applicant’s representative (who practices in Cyprus), has claimed however that payment of the VAT on this sum is still due. At the 970th meeting (July 2006) the Turkish authorities stated that they were of the opinion that no VAT was due, since, in summary, member states could not be compelled to pay sums in just satisfaction that find their origin in the (fiscal) legislation of another state.

                   2) Other measures: The European Court has reserved judgment as regards pecuniary and non-pecuniary damages, pending settlement of this question in the context of measures to be taken by the respondent state. The Court found that the violation of the applicant’s rights guaranteed by Articles 8 and 1 Protocol No. 1 originates in a widespread problem affecting large numbers of people and makes reference to the large number of similar cases currently pending before it. The Court therefore considered “that the respondent State must introduce a remedy, which secures genuinely effective redress for the Convention violations identified in the instant judgment in relation to the present applicant as well as in respect of all similar applications pending before the Court, in accordance with the principles for the protection of the rights laid down in Articles 8 of the Convention and 1 of Protocol No. 1 and in line with its admissibility decision of 14 March 2005.” The Court further stated that such a remedy should be available within three months from the date on which the present judgment would be delivered, that is 22/03/2006, and that redress should occur three months thereafter, that is 22/06/2006. In a letter of 23/06/2006, the applicant has indicated that “the Turkish Government has failed to provide redress to the applicant as directed in the […] judgment. It continues to refuse to allow unrestricted access, use and enjoyment to the applicant’s home and property in the fenced up area of Famagusta.”

• Information provided by the Turkish authorities at the 970th meeting (July 2006):

Within the deadline set, the Turkish authorities submitted to the Court the information required in its judgment regarding both the remedy and the redress. The authorities received the observations of the applicant and are now awaiting the judgment of the Court. Furthermore, on 21/06/2006, 17 applications had been submitted to the Immovable Property Commission (established on the basis of Law 67/2005 on immovable property) and the Commission had already taken three decisions, two of which contained a proposal for the restitution of the property in question and one a proposal for compensation. Other applications have been submitted since. Finally, the constitutional challenges to this law had been rejected by the courts.

The Deputies took note of the information submitted by Turkey and noted in this context a number of issues regarding the interaction between the Court and the Committee of Ministers in judgments of this kind.

• Information is awaited on the state of progress of redress.

46827/99          Mamatkulov and Askarov, judgment of 04/02/2005 - Grand Chamber[70]

The case concerns the applicants' extradition to Uzbekistan on 27/03/1999 following a decree issued by the Turkish Cabinet on 19/03/1999 despite the European Court's request for interim measures (Rule 39) indicating on 18/03/1999 to the Government that “it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to extradite the applicants to Uzbekistan until the Court had had an opportunity to examine the application further at its forthcoming session on 23 March”. Both applicants, who were charged in Uzbekistan of murder and a terrorist bomb attack on the Uzbek President, were convicted by the Uzbek courts on 28/06/1999 to 20 and 11 years' imprisonment respectively.

Pending their extradition, the applicants complained before the European Court that there were substantial grounds for believing that they will be subjected in Uzbekistan to treatment proscribed by Article 3. They further complained under Article 6 of the unfairness of the extradition proceedings in Turkey and of the criminal proceedings in Uzbekistan.

On 19/04/1999 the Turkish Government informed the Court that it had received assurances from the Uzbek authorities that the applicants' property would not be liable to general confiscation and that the applicants would not be subjected to acts of torture or sentenced to capital punishment. The Uzbek authorities further noted that the Republic of Uzbekistan was a party to the United Nations Convention against Torture and accepted and reaffirmed its obligation to comply with the requirements of the provisions of that Convention.

The European Court, reiterating the Contracting States' undertaking to refrain from any act or omission that may hinder the effective exercise of an individual applicant's right of application, found that a failure by a Contacting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant's complaint and as hindering the effective exercise of his or her right (violation of Article 34). The Court also found that, as a result of Turkey's failure to comply with its obligation under Article 34, it was prevented from assessing the applicants' complaints under Articles 3 and 6 of the Convention.

Individual measures: The case raises the general question of the extent to which the respondent state can and should rectify the consequences of its failure to comply with interim measures ordered by the Court especially when this failure has as a result that the Court cannot rule on the merits of the applicants' claims. The aforementioned question is all the more relevant in the light of the Court's new conclusion that the failure to comply entails a violation of the Convention.

At the 922nd meeting (April 2005) the Turkish authorities informed the Committee that the Turkish Ambassador in Uzbekistan has been following the developments concerning the applicants' situation and that the Committee will be informed of any new developments. 

General measures:

• Information is awaited on legislative or other measures envisaged to ensure in the future that all competent authorities comply with their obligation under the Convention to abide by the Court's decisions imposing interim measures, thus ensuring the effective exercise of the right of individual application guaranteed under Article 34.

In this context, the authorities' attention could be drawn to the Committee's Resolutions ResDH(2001)66 and ResDH(2006)45 stressing that the principle of co-operation with the Court embodied in the Convention is of fundamental importance for the proper and effective functioning of the Convention system and calling upon the governments of the Contracting States to ensure that all relevant authorities comply strictly with this obligation.

• Information is also expected concerning the publication and wide dissemination of the judgment of the European Court, in particular to the Council of Ministers and to all other relevant authorities.

Decisions: The Deputies, having considered progress made in the execution, 1.             agreed to resume consideration of this case if need be at their 982nd meeting (5‑6 December 2006) (DH) for supervision of payment of the just satisfaction which is now overdue together with any default interest applicable; 2.             agreed to resume consideration of the case at their 992nd meeting (3-4 April 2007) (DH), on the basis of further information to be provided by the authorities of the respondent state concerning general measures proposed to prevent new, similar violations.

*           *           *

                        - Two cases concerning non-enforcement of court decisions in cases of environmental protection

1) 46117/99      Taşkın and others, judgment of 10/11/2004, final on 30/03/2005, rectified on 01/02/2005

2) 36220/97      Okyay Ahmet and others, judgment of 12/07/2005, final on 12/10/2005

1) 46117/99      Taşkın and others, judgment of 10/11/2004, final on 30/03/2005, rectified on 01/02/2005

The case concerns the violation of the applicants' right to their private and family life due to decisions by the executive authorities to allow continuation of a gold-mining operation in Bergama using a sodium cyanide leaching process, in contravention of a Supreme Administrative Court decision of 13/05/1997 annulling the operation permit on account of the risk to the local ecosystem and to human health and safety posed by the chemicals.

In 1994 the Ministry of the Environment authorised the exploitation of the mine and granted permission for the use of sodium cyanide leaching after a preliminary public consultation and on the basis of an impact study, as required by the Environment Act.

Following the decision of the Supreme Administrative Court of May 1997, a report drawn up at the Prime Minister's request concluded that the threats to the ecosystem listed in the Supreme Administrative Court's decision had been reduced to a level below the threshold of acceptability. On the basis of that report, the authorities granted permission to continue operations using cyanide leaching at the mine, on a provisional basis. However, the courts overturned the report and imposed stays of execution on administrative decisions based on its conclusions.

In a “decision of principle” which was not made public, the Council of Ministers decided that the gold-mine could continue its activities. In March 2004 the Supreme Administrative Court ordered a stay of execution of that decision on the grounds that it had neither been published in the Official Gazette nor made public. An application for judicial review of the Council of Minister's decision is pending before the Supreme Administrative Court.

The European Court found that the government had failed in its obligation to guarantee the applicants' right to respect for their family life by annulling any useful effect of the procedural guarantees afforded to them by the applicable law and the judicial decisions taken. In so declaring, the Court based itself in particular on the fact that the administrative authorities had not ordered the closure of the mine immediately upon the Council of State's decision, but had on the contrary continued to issue operating permits despite the judicial decisions and the applicable law, most recently with the decision of the Council of Ministers (violation of Article 8).

The European Court also found that the administration's refusal to carry out the decision of the Council of State within the deadlines fixed by law and the fact that a further operation permit was issued as a direct result of the Council of Ministers' intervention, which was tantamount to circumventing a judicial decision, had constituted a breach of the applicants' right to effective judicial protection (violation of Article 6§1).

Individual measures: The applicants have informed the Secretariat that the Ministry of the Environment granted a new operating permit to the same private company on 26/08/2004. During the 933rd meeting (July 2005) the Turkish authorities informed the Committee that the Ministry of Environment's permission in question was granted on the basis of a fresh environmental impact report dated the same day in order to eliminate the possible danger of the mining operation. On 14/09/2005 the Turkish authorities reported that the Izmir Administrative Court had decided on 14/03/2005 to stay the execution of the decision to grant a new operating permit. This decision was annulled by the Izmir Regional Court on 14/04/2005 following an appeal lodged by the mining company. These proceedings are still pending before the Izmir Administrative Court. In the meantime, the applicants in the present case and more than 1500 others have lodged applications with the European Court alleging violation of their rights under Articles 2, 6 and 13 of the Convention as a result of the resumption of the mining activity in Bergama. These applications are pending before the European Court.

• Information is awaited on the outcome of the domestic proceedings pending before administrative courts. Information is also awaited concerning the extent to which the applicants or any another persons concerned had been implicated in the decision-making process on the environmental impact report as required under the Convention (see §§ 118 and 119 of the judgment of the European Court). 

General measures: See below

2) 36220/97      Okyay Ahmet and others, judgment of 12/07/2005, final on 12/10/2005

The case concerns the national authorities' failure to enforce domestic courts' orders to shut down three thermal power plants which pollute the environment in the province of Muğla, in south-west Turkey.

The administrative authorities have neither complied with an interlocutory injunction of June 1996 ordering the suspension of the power plants' operation, nor have they enforced, within the prescribed time-limits, the decisions of the Supreme Administrative Court of December 1996 upholding the first-instance court decisions finding that the power plants were polluting the environment. On the contrary, by a decision of September 1996, the Council of Ministers decided that the three thermal power plants should continue to be operated despite the court decisions.

The European Court found that the national authorities failed to comply in practice and within a reasonable time with the decisions of domestic courts. The Court noted in particular that the decision of the Council of Ministers had no legal basis and was obviously unlawful under domestic law. It was tantamount to circumventing the judicial decisions, a situation which adversely affects the principle of a law-based state, founded on the rule of law and the principle of legal certainty (violation of Article 6§1).

Individual measures: At the 955th meeting (February 2006), as well as in their reply of 09/03/2006 to the Secretariat's initial-phase letter, the Turkish authorities informed the Committee that a desulphurisation filter system had been installed in the Kemerköy plant, which now operates without causing any damage to the environment. As regards the other two plants, filter systems are in the process of being installed. The plants are now being operated at minimum capacity in order to maintain the gas emission at the lowest level. The emission levels are checked regularly and the plants will be shut down if the emission of gas exceeds the permissible levels. The filter systems are planned to be installed in the course of 2006.

• Information is awaited concerning the measures taken by the Turkish authorities to eliminate fully any pollution risk, in line with domestic court decisions.

General measures (in respect of both cases):

• Information provided: The Turkish authorities drew the Committee’s attention to Article 138 of the Constitution and reiterated that the bodies of executive and the authorities must comply with court decisions. Furthermore, Article 28§3 of Law on Administrative Judicial Proceedings provides for the possibility of bringing compensation proceedings before the Council of State against the administration or the civil servant deliberately refusing to comply with court decisions. The Turkish authorities also provided examples of case-law of the Council of State to that effect. Lastly, the Turkish authorities provided information on the provisions concerning criminal sanctions against public officials who refuse to carry out a public duty or fail to enforce court decisions, as well as supporting examples of decisions of domestic courts where public officials were sanctioned.

The judgment of the European Court in the case of Ahmet Okyay and others has been translated and disseminated. The judgment is also available at the internet site of the Turkish Court of Cassation (http://www.yargitay.gov.tr/). The Turkish authorities have reported that the judgment of the European Court in the case of Taşkın and others will be translated into Turkish and published. Confirmation of the publication and dissemination of the judgment is awaited.

• Information is awaited concerning measures taken in response to the judgments with a view to preventing future similar violations. In fact, all provisions and practice quoted above by the authorities were already in existence at the time of the facts of the present cases but did not prevent the violations here at issue. General measures, therefore, remain to be taken. The authorities may notably wish to draw the attention, in particular of the Council of Ministers and of the Ministry of Environment to their obligations under the Convention to prevent new similar violations. Information would also be necessary about the reaction of these authorities to the present judgments and possible other measures taken or envisaged

*           *           *

- 134 cases against Ukraine

61406/00          Gurepka, judgment of 06/09/2005, final on 06/12/2005[71]

The case concerns the fact that the applicant had no means of appeal against a decision of the Supreme Court of the Autonomous Republic of Crimea ordering seven days' administrative detention for the applicant's for contempt of court in civil defamation proceedings brought against him.

According to Article 297 of the Code of Administrative Offences, in force at the relevant time, only a prosecutor or the president of a higher court could introduce such an appeal. The European Court accordingly found that, given the fact that this procedure was not directly accessible to a party to the proceedings and did not depend on his or her motion and arguments, it was not a sufficiently effective remedy for the purposes of the Convention (violation of Article 2 of Protocol No. 7).

Individual measures: The applicant served the sentence from 25 to 31/12/1998. The European Court granted the applicant just satisfaction in respect of the non-pecuniary damage sustained.

General measures:

• Information provided by the Ukrainian authorities in September 2006: the Ministry of Justice prepared a draft Law on Amendments to the Code of Administrative Offences of Ukraine, which provides for a remedy directly accessible to a party in administrative proceedings. In particular, an appeal procedure against the courts’ judgments in administrative matters is foreseen. The draft law is to be submitted to the Ukrainian Cabinet of Ministers for consideration by the end of October 2006 and, subsequently, to the Ukrainian Parliament.

• Information is awaited on further developments in this respect, and, in particular, on the draft law in question.

*           *           *

54825/00          Nevmerzhitsky, judgment of 05/04/2005, final on 12/10/2005

The case concerns the unlawful pre-trial detention of the applicant between April 1997 and February 2000 (in particular in view of the lack of judicial control of this detention and the fact that it exceeded the maximum statutory duration for detention on remand), the unacceptable conditions in which he was detained (including being forcibly fed while on hunger strike), and the failure to give him medical treatment (violations of Articles 3, 5§1 and 5§3). The case also concerns shortcomings in the response by the Ukrainian authorities to their obligation under the Convention to furnish all necessary facilities to the Court in its task of establishing the facts (violation of Article 38§1(a)).

Under Article 3, the European Court found that the applicant had been detained in unacceptably overcrowded and unsanitary conditions amounting to degrading treatment, and that this situation was aggravated by his subjection to disciplinary punishment in an isolation cell for ten days while he was on hunger strike. The European Court reached the same finding concerning the lack of adequate medical treatment and assistance which should have been provided to the applicant, who had contracted skin diseases while in detention and while on hunger strike. This conclusion was also based on the government’s failure to provide the relevant medical records. The European Court also found that, in the absence of proof of an established medical necessity in this respect, the force-feeding of the applicant during his hunger strike was arbitrary and was conducted in circumstances amounting to torture (involving the use of handcuffs, a mouth-widener and a special rubber tube inserted into the oesophagus).

Under Article 5§1, the European Court found that the applicant had been detained without lawful grounds between 1/10/1997 and 1/11/1999, as the decisions ordering the extension of his detention had been taken by prosecutors, and not based on a court order. Moreover, the applicant’s detention between 16/02 and 23/02/2000 was also unlawful since it exceeded the maximum statutory period of detention.

On the ground of Article 5§3, the European Court first noted that the applicant’s detention was reviewed by a judge only three times, on 28/05/1997, 1/11/1999 and 16/12/1999, stating that it could not be accepted that it had been necessary to detain the applicant for so long in pre-trial detention without either prompt or regular judicial supervision.

Furthermore, it indicated that the relevant provisions of the Code of Criminal Procedure (Article 156) were in themselves contrary to the principle of legal certainty enshrined in Article 5, since the time allowed for the applicant to familiarise himself with the case-file was not regulated by domestic law with sufficient precision and was not taken into account when calculating the overall period of the applicant’s pre-trial detention.

Moreover, bearing in mind the applicant’s state of health, the conditions of detention and the fact that no alternative preventive measures were considered by the authorities, the Court concluded that the applicant’s continued detention on remand for more than two years and five months was not based on relevant and sufficient reasons, while mentioning inter alia that no factual circumstances were indicated by the domestic authorities in support of the conclusion that the preventive measures should be maintained.

Finally, the European Court found that the respondent government fell short of its obligation under Article 38§1(a) of the Convention to furnish all necessary facilities to the Court in its task of establishing the facts, by failing to comment on particular questions, or failing to provide relevant documents and medical reports.

Individual Measures: The applicant was released from detention on remand on 23/02/2000.

General Measures:

1) Violations of Article 3: The case presents similarities to the Kuznetsov group of cases (see 966th meeting, June 2006, Section 4.2, Volume I) in which the Committee examines measures taken by the Ukrainian authorities to ensure that the living and medical conditions of remand detention facilities meet the standards of Article 3 of the Convention.

- Force-feeding: It should be noted that the European Court qualified the procedure prescribed in the Decree of the Ministry of Internal Affairs of 4/03/1992 No. 122, concerning specifically the issue of force-feeding of detained persons who on hunger strike, as “torture”.

Different amendments to provisions of the Code of Criminal Procedure, Code of Criminal Execution and other legislative acts dealing with the matter of forced-feedings are planned by the Ukrainian authorities. A special working group, established in April 2006, is finalising a draft law providing for a new procedure for force-feeding. The group concluded that the procedure should be unified for all confined persons and the decision ordering force-feeding should only be taken by courts. The draft law is to be submitted to the Cabinet of Ministers by the end of November 2006 and, once approved, to the Ukrainian Parliament.

• Information is awaited on further developments in this respect, and, in particular, the draft law in question. Information is also expectedon whether the impugned provisions of the Decree of the Ministry of Internal Affairs of 4/03/1992 No. 122 are still in force.

- Medical treatment and assistance: The Penitentiary Department prepared the State Program for 2006-2010 aimed at the adjustment of detention conditions to international standards (approved on 03/08/2006 by the Cabinet of Ministers in its Resolution No. 1090). It foresees, in particular, improvement of medical and sanitary conditions of penitentiary institutions.

• Information is awaited on the provisions of the Program and its current state of adoption.

2) Violations of Article 5§1 and 5§3: It is to be noted that the Ukrainian Constitution provides that, as from 2001, detention on remand must be based on substantiated court decisions.

• Clarifications are awaited on the legislative provisions currently governing the procedure of ordering and prolonging detention on remand, as well as on measures envisaged to ensure that the legal provisions concerning the maximum period for detention on remand are respected in practice.

• Information is also awaited on measures envisaged by the Ukrainian authorities in response to the European Court’s criticism of the provision included in Article 156 of the code of criminal procedure (see above), and on measures to ensure that court decisions ordering extension of detention on remand are dully reasoned and explicitly indicate the factual and legal grounds.

            3) Violation of Article 38§1(a): Given the particular importance of the principle embodied in Article 38§1a, the authorities' attention must be drawn to the Committee's Resolution ResDH(2001)66 stressing that the principle of co-operation with the Court embodied in the Convention is of fundamental importance for the proper and effective functioning of the Convention system and calling upon the governments of the contracting states to ensure that all relevant authorities comply strictly with this obligation. The publication and wide dissemination of the judgment, together with the Resolution mentioned above and accompanied by a circular letter, to courts, prosecutors and penitentiary authorities, would also be helpful to prevent new, similar violations.

The authorities’ attention was also drawn to the Memorandum on the failure to co-operate with the organs of the Convention (Article 38, paragraph 1 of the Convention) prepared by the Secretariat for the 960^th meeting (CM/Inf/DH(2006)20).

• Information is awaited on legislative or other measures envisaged to ensure that the state authorities fully cooperate with the European Court in the process of establishing the facts of the cases brought before it.

All these issues have been raised in the Secretariat’s letter of 12/12/05 to the Ukrainian authorities inviting them to draw up a plan of action for the execution of this judgment.

• The authorities’ reply is awaited.

*           *           *

38722/02          Afanasyev, judgment of 05/04/2005, final on 05/07/2005

The case concerns the inhuman and degrading treatment inflicted to the applicant during his detention in custody in March 2000 at a District Police Station in Kharkiv where he was allegedly beaten by police officers seeking his confession of a swindling offence. The injuries caused in detention were subsequently confirmed by a medical examination shortly after the incident (violation of Article 3). The Court also found a violation of the right to an effective remedy due to the authorities' serious omissions during the investigation, such as the one year's delay in opening the investigation and in interrogation of witnesses, or the failure to call certain witnesses. The Court found in addition that any claim for compensation would have been futile without the facts being established in pending criminal proceedings (violation of Article 13).

Individual measures: The domestic courts have twice remitted the case for additional examination. The criminal proceedings against the police officers, identified by the applicant, were again discontinued on 30/03/2004, while another investigation concerning the bodily harm is still pending because the offender has not yet been found. On 31/05/2006 the prosecution office discontinued the investigation concerning the applicant’s complains due to lack of corpus delicti. However, according to the most recent information provided by the Ukrainian authorities, the investigation has again been resumed.

• Details are awaited on the progress of this new investigation.

General measures: The problem of the authorities' failure to conduct an effective investigation into alleged ill-treatment in a prison has been raised within the Committee of Ministers in the context of Poltoratskiy and Kuznetsov cases, in which the general measures were examined by the Committee of Ministers at its 966th meeting (June 2006). The Afanasyev case concerns a problem in the context of police custody.

In a letter of 28/09/2006 the Ukrainian authorities informed the Secretariat about the measures already taken in order to remedy the problems identified by the judgment of the European Court. The Secretariat is presently examining this information.

Given the nature and complexity of the issues involved, the Secretariat is preparing a memorandum summarising the experience of the other countries in this field in order to allow the Ukrainian authorities to deal in greater depth with the issues raised by the present judgment.

*           *           *

- Cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

Application	Case	Date of domestic judgments	Outcome of the domestic proceedings
56848/00	Zhovner, judgment of 29/06/04, final on 29/09/04	01/01/98	Enforced
10558/03	Anatskiy, judgment of 13/12/2005, final on 13/03/2006[72]	26/09/2002	Enforced
22597/02	Antonovskyi, judgment of 13/12/2005, final on 13/03/2006[73]	01/06/1999 19/01/2001	Enforced
14201/02	Bakalov, judgment of 30/11/04, final on on 28/02/05	06/06/00	Enforced

Application	Case	Date of domestic judgments	Outcome of the domestic proceedings
67647/01	Bakay and others, judgment of 09/11/2004, final on 09/02/2005[74]	13/05/98	Enforced
1093/02	Belanova, judgment of 29/11/2005, final on 01/03/2006[75]	07/10/1999	Enforced
20837/02	Belitskiy, judgment of 04/10/2005, final on 04/01/2006[76]	25/05/2001	Enforced
19603/03	Bezugly, judgment of 20/12/2005, final on 20/03/2006[77]	09/12/1999 24/12/2000	Enforced
5788/02	Bitkivska, judgment of 04/10/2005, final on 04/01/2006[78]	16/06/1997	Enforced
3446/03	Bozhko, judgment of 04/10/2005, final on 04/01/2006[79]	19/03/2002	Enforced
22098/02	Bukhovets, judgment of 08/11/2005, final on 08/02/2006[80]	13/12/2000, 13/03/2001	Enforced
9693/02	Bulynko Alexandr, judgment of 21/06/2005, final on 21/09/2005	26/02/2001	Enforced
74432/01	Bulynko Raisa Petrovna, judgment of 21/06/2005, final on 21/09/2005[81]	07/08/2000	Enforced
26892/03	Buza, judgment of 29/11/2005, final on 01/03/2006[82]	15/03/2001	Enforced
7302/03	Cheremskoy, judgment of 08/11/2005, final on 08/02/2006[83]	12/06/2000	Enforced
37296/03	Cherginets, judgment of 29/11/2005, final on 01/03/2006[84]	20/11/2001 05/02/2003	Enforced
11324/02	Chernobryvko, judgment of 04/10/2005, final on 04/01/2006[85]	11/06/2001	Enforced
15366/03	Chernyayev, judgment of 26/07/2005, final on 30/11/2005[86]	04/08/2000 03/07/2001 17/05/2004	Not enforced
25989/03	Chernysh, judgment of 08/11/2005, final on 08/02/2006	27/12/2002	Enforced
6962/02	Chizhov, judgment of 17/05/05, final on 17/05/05	29/01/99	Enforced
35282/02	Demchenko, judgment of 03/05/05, final on 03/08/05	23/01/02	Enforced
34297/02+	Derkach and Palek, judgment of 21/12/04, final on 06/06/05	05/03/02 and 15/05/02	Enforced
72704/01	Dolgov, judgment of 19/04/05, final on 19/07/05	11/11/99, 16/05/00	Enforced
22219/02	Drobotyuk, judgment of 20/09/2005, final on 20/12/2005[87]	02/11/1998 24/04/2004	Not enforced Not enforced
74221/01	Dubenko, judgment of 11/01/05, final on 06/06/05	26/04/00	Enforced
23778/03	Dunda, judgment of 10/01/2006, final on 10/04/2006[88]	23/07/2002	Not enforced partielle
71186/01	Fuklev, judgment of 07/07/2005, final on 30/11/2005[89]	24/02/1998	Enforced partielle
4629/03	Garkusha, judgment of 13/12/2005, final on 13/03/2006[90]	15/01/2002	Enforced
24596/02	Gavrilenko, judgment of 20/09/2005, final on 20/12/2005[91]	7/07/1999 07/07/1999 15/02/2002	Enforced Enforced Enforced

Application	Case	Date of domestic judgments	Outcome of the domestic proceedings
18949/03	Gayday, judgment of 22/11/2005, final on 22/02/2006	09/03/1999 21/12/1999 29/12/1999	Enforced
3216/02	Golovin, judgment of 04/10/2005, final on 04/01/2006[92]	4/05/2001	Enforced
27370/03+	Gordeyevy and Gurbik, judgment of 17/01/2006, final on 17/04/2006[93]	17/08/2000 28/09/2001	Enforced Not enforced
41125/02	Gouzovskiy, judgment of 06/09/2005, final on 06/12/2005[94]	06/11/2001	Enforced
18858/03+	Grachevy and others, judgment of 29/11/2005, final on 01/03/2006[95]	07/06/1999 30/03/2001 07/06/1999 04/05/2001 15/08/2001 31/03/2000 29/03/2001 19/02/1999	Enforced
26131/02	Grishechkin and others, judgment of 03/05/05, final on 03/08/05[96]	09/03/99 and 11/09/01 30/06/99 and 13/01/00 21/12/99 09/12/99 and 26/04/01 09/12/99 and 16/11/01	Enforced
17303/03	Ilchenko, judgment of 29/11/2005, final on 01/03/2006[97]	28/05/1999 18/10/2000	Enforced
23390/02+	Ishcenko and others, judgment of 08/11/2005, final on 08/02/2006[98]	20/02/2001 26/07/2001 17/09/1998	Partially enforced
12884/02	Karpova, judgment of 29/11/2005, final on 01/03/2006[99]	08/12/1998	Enforced
22289/02	Kasperovich, judgment of 08/11/2005, final on 08/02/2006[100]	16/06/1999 11/04/2001	Enforced
58928/00	Katsyuk, judgment of 05/04/05, final on 05/07/05	07/12/99	Enforced
10174/02	Khanenko, judgment of 13/12/2005, final on 12/04/2006[101]	16/02/2000 21/11/2000	Clarification requested
29872/02	Kim, judgment of 29/11/2005, final on 01/03/2006[102]	24/07/2000	Enforced
1858/03	Konyukhov, judgment of 17/01/2006, final on 17/04/2006[103]	18/06/2002	Not enforced
17304/03	Kosareva, judgment of 13/12/2005, final on 13/03/2006[104]	07/05/1999, 30/08/2001	Enforced
29459/03+	Kosarevskaya and others, judgment of 06/12/2005, final on 06/03/2006[105]	03/03/2003 08/01/2003 06/10/1999	Enforced
12170/03	Koshchavets, judgment of 10/01/2006, final on 10/04/2006[106]	30/01/2002	Enforced

Application	Case	Date of domestic judgments	Outcome of the domestic proceedings
21726/03	Kotelnikova, judgment of 10/01/2006, final on 10/04/2006[107]	09/11/2000	Enforced
43593/02	Kotlyarov, judgment of 13/12/2005, final on 13/03/2006[108]	26/05/2000	Enforced
27349/03	Kozhanova, judgment of 22/11/2005, final on 22/02/2006[109]	06/09/2000	Enforced
22246/02	Krutko, judgment of 22/11/2005, final on 22/02/2006	18/01/2000	Enforced
27347/02	Kucherenko, judgment of 15/12/2005, final on 15/03/2006	18/07/2000 04/07/2001	Enforced
41030/02	Kurshatsova, judgment of 29/11/2005, final on 01/03/2006[110]	02/11/1999 25/04/2002	Confirmation requested
39164/02	Kuzmenkov, judgment of  08/11/2005, final on 08/02/2006[111]	08/07/1997 22/02/2000	Enforced
35741/04	Litovkina, judgment of 22/11/2005, final on 22/02/2006	05/04/2002	Enforced
70898/01	Lupandin, judgment of 20/09/2005, final on 15/02/2006[112]	20/03/1997	Enforced
22972/02	Lyutykh, judgment of 13/09/2005, final on 13/12/2005[113]	26/03/2001	Not enforced
6028/02	Malinovskiy, judgment of 31/01/2006, final on 01/05/2006[114]	10/01/2000	Enforced
24626/03	Melnikova, judgment of 22/11/2005, final on 22/02/2006[115]	14/04/1999	Enforced
44379/02	Mikheyeva, judgment of 04/10/2005, final on 04/01/2006[116]	09/08/2001	Enforced
32551/03+	Miroshnichenko and Grabovskaya, judgment of 13/12/2005, final on 13/03/2006[117]	25/11/2002 03/03/2003 03/03/2003	Not enforced
29420/03	Miroshnichenko, judgment of 22/11/2005, final on 22/02/2006[118]	24/12/2002	Enforced
68897/01	Molchan, judgment of 04/10/2005, final on 04/01/2006[119]	08/04/1998 17/06/1999	Enforced
10072/03	Morkotun, judgment of 04/10/2005, final on 04/01/2006[120]	04/12/2000	Enforced
35091/02+	Mykhaylenky and others, judgment of 30/11/04, final on 06/06/05[121]	1) 14/04/98 2) 15/12/00 and 16/04/02 3) 13/07/98 4) 11/09/97 and 19/09/01 5) 18/11/98 6) 24/03/99 7) 17/04/01 8) 04/02/99 9) 01/04/99 10) 10/06/99 11) 16/10/01	Enforced
9670/02	Nazarchuk, judgment of 19/04/05, final on 19/07/05	16/08/99	Enforced

Application	Case	Date of domestic judgments	Outcome of the domestic proceedings
22993/02	Nikishin, judgment of 04/10/2005, final on 04/01/2006[122]	20/04/2001	Enforced
18378/03	Nosal, judgment of 29/11/2005, final on 01/03/2006[123]	22/05/2001	Enforced
5384/03	Oleynik and Baybarza, judgment of 20/12/2005, final on 20/03/2006[124]	26/10/2000 18/10/2000	Enforced
5578/03	Ovcharenko, judgment of 22/11/2005, final on 22/02/2006[125]	17/04/2000	Confirmation is requested
20473/02	Pastukhov, judgment of 04/10/2005, final on 04/01/2006[126]	21/07/1999	Enforced
26907/03	Patrino, judgment of 10/01/2006, final on 10/04/2006	25/04/2001 25/12/2002	Enforced
75788/01	Piryanik, judgment of 19/04/05, final on 19/07/05	25/01/01	Enforced
5497/02	Piskunov, judgment of 13/12/2005, final on 13/03/2006[127]	24/01/2001 03/03/2003	Enforced
56849/00	Piven, judgment of 29/06/2004, final on 29/09/2004	01/04/98 and 04/03/99	Enforced
39496/02	Polonets, judgment of 20/09/2005, final on 20/12/2005[128]	07/11/2001	Enforced
11025/02	Polovoy, judgment of 04/10/2005, final on 04/01/2006	22/12/1997	Enforced
25664/02	Ratnikov, judgment of 17/01/2006, final on 17/04/2006[129]	12/04/2001	Enforced
5596/03	Romanchenko, judgment of 22/11/2005, final on 22/02/2006	06/09/2000	Enforced
67534/01	Romashov, judgment of 27/07/2004, final on 15/12/2004	16/06/98 and 23/01/02	2nd judgment not enforced
11412/02	Rudenko, judgment of 29/11/2005, final on 01/03/2006[130]	18/12/2000, 17/05/2001	Enforced
3445/03	Ryabich, judgment of 04/10/2005, final on 04/01/2006[131]	25/02/2002	Enforced
26996/03	Rybak, judgment of 29/11/2005, final on 01/03/2006[132]	02/04/2001	Enforced
1805/03+	Ryzhenkov and Zaytsev, judgment of 13/12/2005, final on 13/03/2006[133]	04/10/2000	Enforced
6237/04	Savenko, judgment of 17/01/2006, final on 17/04/2006[134]	26/09/2002	Enforced
25463/03	Semenov, judgment of 13/12/2005, final on 13/03/2006[135]	05/12/2002	Enforced
35087/02	Sharenok, judgment of 22/02/05, final on 06/06/05	07/10/98	Enforced
72686/01	Sharko, judgment of 19/04/05, final on 19/07/05	01/07/99, 16/05/01, 27/06/01	Enforced
75786/01	Shcherbakov, judgment of 19/04/05, final on 19/07/05	02/11/00	Enforced
10905/03	Shevchenko, judgment of 29/11/2005, final on 01/03/2006[136]	15/11/1999	Enforced
10336/02	Shevelev, judgment of 29/11/2005, final on 01/03/2006[137]	23/03/2001 17/04/2001	Enforced
10614/02	Shiker, judgment of 31/01/2006, final on 01/05/2006[138]	24/04/1998	Enforced

Application	Case	Date of domestic judgments	Outcome of the domestic proceedings
60750/00	Shmalko, judgment of 20/07/2004, final on 20/10/2004	29/11/01	Enforced
19158/02	Sidenko, judgment of 04/10/2005, final on 04/01/2006[139]	23/03/2000 19/07/2000	Enforced Enforced
27282/03	Sivokoz, judgment of 04/10/2005, final on 04/01/2006[140]	21/05/2002	Partially enforced
41152/98	Skubenko, judgment of 29/11/2005, final on 01/03/2006[141]	04/12/1997	Enforced
29439/02	Sokur, judgment of 26/04/05, final on 26/07/05	03/05/01	Enforced
32547/03	Solovyeva, judgment of 13/12/2005, final on 13/03/2006[142]	the labour disputes commission’s decision on 02/12/1999	Enforced
59312/00	Svintitskiy and Goncharov, judgment of 04/10/2005, final on 04/01/2006[143]	13/08/1998 24/09/1998	Enforced Enforced
4773/02	Sychev, judgment of 11/10/2005, final on 11/01/2006[144]	26/04/2000	Enforced
20625/02	Tambovtsev, judgment of 08/11/2005, final on 08/02/2006[145]	15/03/2001	Enforced
70297/01	Terem Ltd, Chechetkin and Olius, judgment of 18/10/2005, final on 18/01/2006	6/06/2003	Enforced
19844/02	Toropov, judgment of 04/10/2005, final on 04/01/2006[146]	27/10/2000	Enforced
30177/02	Tribunskiy, judgment of 17/01/2006, final on 17/04/2006[147]	18/12/2000	Enforced
58312/00	Trykhlib, judgment of 20/09/2005, final on 20/12/2005[148]	several	Partially enforced
14612/03	Tsanga, judgment of 22/11/2005, final on 22/02/2006[149]	10/03/2000	Enforced
44221/04	Ushachov, judgment of 13/12/2005, final on 12/04/2006[150]	22/04/2002 22/04/2002	Not enforced
14397/02	Varanitsa, judgment of 05/04/05, final on 05/07/05[151]	19/01/00	Enforced
19872/02	Vasilenkov, judgment of 03/05/05, final on 24/05/01	24/05/01	Enforced
22766/02	Verkeyenko, judgment of 13/12/2005, final on 13/03/2006[152]	06/10/1998	Enforced
42318/02	Vigovskyy, judgment of 20/12/2005, final on 20/03/2006[153]	26/06/2001	Enforced
16881/03	Vishnevskaya, judgment of 29/11/2005, final on 01/03/2006[154]	03/07/2001	Enforced
2518/03	Vladimirskiy, judgment of 08/11/2005, final on 08/02/2006[155]	27/05/2002	Enforced
22214/02	Vodopyanovy, judgment of 17/01/2006, final on 17/04/2006[156]	01/08/2000 13/02/2001	Enforced Enforced
8794/04	Volkov, judgment of 17/01/2006, final on 17/04/2006[157]	10/05/2002 16/07/2003	Enforced Enforced

Application	Case	Date of domestic judgments	Outcome of the domestic proceedings
17686/04	Voykina, judgment of 17/01/2006, final on 17/04/2006[158]	13/06/2000	Partially enforced
18966/02	Voytenko, judgment of 29/06/2004, final on 29/09/2004	12/01/00	Enforced
2442/03	Yukin, judgment of 29/11/2005, final on 01/03/2006[159]	08/09/1998 24/11/1998 11/05/2000 03/07/2002	Enforced
17015/03	Zakharov, judgment of 29/11/2005, final on 01/03/2006[160]	03/06/2002	Enforced
10231/02	Zamula and others, judgment of 08/11/2005, final on 08/02/2006[161]	03/05/1998	Enforced
7884/03	Zhurba, judgment of 04/10/2005, final on 04/01/2006[162]	11/04/2002	Enforced
11421/03	Zolotukhin, judgment of 13/12/2005, final on 13/03/2006[163]	22/11/2000	Enforced
29570/02	Zyts, judgment of 04/10/2005, final on 04/01/2006[164]	30/01/2002	Enforced

All these cases concern violations of the applicants' right to effective judicial protection due to the administration's failure or substantial delay in abiding by final judicial decisions in the applicants' favour (violations of Article 6§1).

In some of these cases the European Court also found consequent violations of the applicants' right to the respect for their property (violations of Article 1 of Protocol No. 1) and/or violations of Article 13 due to the lack of an effective remedy allowing redress for damage created by delays in enforcement.

The lack of enforcement of domestic judgments was mostly due to:

-           failure to ensure the payment by state-owned companies of the applicants' salary arrears, disability benefits or work-related benefits and of default interest for delay in payment; or

-           the State Treasury's failure to pay the applicant compensation ordered by domestic courts for unlawful seizure and confiscation of his car; or

-           a Police Department's failure to pay the applicant compensation ordered by domestic courts for non-pecuniary damage caused by police;

Among the reasons invoked for the failure to enforce judicial decisions were:

-           the lack of funds on the debtors' accounts;

-           the impossibility of attaching any property of the state or of bankrupt companies owned by the state according to the 2001 Moratorium on the forced sale of property;

-           the impossibility of attaching any property located in the Chernobyl area without the special authorisation of the state, which was denied;

-           more generally, the lack of the appropriate enforcement procedures.

Individual measures: Urgent measures are necessary to ensure enforcement of the domestic judgments in the cases where this has not yet been done (see in the table, the cases concerned appear in bold). At the 940th meeting (October 2005) the Ukrainian authorities indicated that in some of these cases the sums granted by domestic courts to the applicants are covered by the just satisfaction paid in accordance with the European Court's judgments. Given that these domestic judgments are still enforceable, the situation remains to be solved through appropriate procedures so as to avoid continuing violations of Article 6 on account of non-execution of valid judicial decisions.

Information required on the measures envisaged in this respect since September 2004.

General measures:

- Measures under way:

a) The Department of the State Execution Service was supervising the implementation of the legislation on the payment of salaries and the execution of court judgments related to this problem. In 2004, the State Execution Service asked for criminal proceedings to be opened against the top management of companies wilfully delaying the payment of salaries in 468 cases, and in 53 of them such proceedings were opened.

b) On 10/10/2005, the authorities provided the Secretariat with a draft law dealing in particular with the enforcement of domestic judicial decisions within a reasonable time. The draft provides a new remedy making it possible to apply to a higher court to order particular procedural actions within a certain time-limit and/or award compensation for delays, of up to 15 times the minimum wage. The draft also specifies that such a decision should be dispatched to the competent authority in order to decide on disciplinary sanctions against persons responsible for the delay.

• Information provided by the Ukrainian authorities (966th meeting, June 2006): According to the action plan for the honouring by Ukraine of its obligations and commitments to the Council of Europe adopted by the President of Ukraine on 20/01/2006, the draft Law must be finalised by the Ministry of Justice before 1/11/2006 and is expected to be submitted to Parliament by the end of the year.

In this respect, it is recalled that it is the Committee's position that the setting up domestic remedies does not dispense states from their general obligation to solve structural problems underlying violations (see for example Interim Resolution ResDH(2005)114).

c) At the 955th meeting, the Ukrainian authorities indicated that, in addition to the measures mentioned above, an interdepartmental working group had been established within the Ministry of Justice to examine possible administrative measures remedying the situation, pending the adoption of legislative reform.

• Information required in this respect.

d) On 23/02/2006, the Secretariat received a submission by the applicants related to the cases of Mykhaylenky and others, Derkach and Palek, and Sharenok. All of them concern the non-enforcement of judgments against the state-owned company Atomspetsbud which had carried out construction work at Chernobyl within the zone which had been compulsorily evacuated. The applicants' representative submitted that 219 other cases concerning the non-execution of judgments delivered against the same company are currently pending before the European Court. He asked the Committee of Ministers to urge the Ukrainian authorities rapidly to take all additional measures to ensure rapid execution of all these judgments. In the light of this information, the authorities were invited to address this situation as a matter of priority (see for example the way in which a similar problem was resolved in the case of Burdov against the Russian Federation Resolution DH(2004)85).

At the 960th meeting (March 2006) the Ukrainian delegation stated that following the applicants’ letter, the Cabinet had issued a special order to the Ministries of Finance, of Fuel and Energy, of Labour and of Justice to consider the issues raised in this letter with a view to finding a solution.

• Information required: the authorities have been invited to keep the Committee informed.

e) Given the fact that in a large number of these judgments the violations occurred in relation with bankruptcy proceedings, which interfered with the enforcement of judgments ordering the payment of salary arrears, the Ukrainian authorities on 03/03/2006, submitted to Parliament a draft law amending the Bankruptcy Law and the Law on a moratorium on the forced sale of property to prevent new, similar violations.

f) The authorities expressed their confidence that the Law on the enforcement of judgments and the application of the case-law of European Court now in force would be instrumental in preventing new, similar violations as it provides an obligation to take general measures if the Court finds structural problems.

e) Finally, at the 966th meeting, the delegation informed the Committee that pursuant to the action plan mentioned above, the Ministry of Justice had prepared, with participation of the relevant authorities, the draft national plan for ensuring proper enforcement of judgments, which was submitted to the President on 28/04/2006.

• Information required: more details in this respect.

The authorities have also referred to the “Concept of Judiciary Improvement” approved by the President’s Decree on 10/05/2006 which not least provides measures encouraging debtors to enforce judgments voluntarily, improving the work of bailiffs, etc.

• Information required: more details, possibly together with the text of the “Concept”.

• Additional measures required: All these measures have been welcomed within the Committee and the authorities have been encouraged to complete these reforms rapidly to resolve the persistent, systematic problem at issue which affects a great number of people.

- As regards the other general measures required by the Court's judgments, the Ukrainian authorities are invited to take into account the experience of other countries confronted having had a similar problem in the past (see in particular Heirs of J. Dierckx against Belgium and Hornsby against Greece, which were closed by final Resolutions DH(95)105 and ResDH(2004)81 respectively and the recent Memorandum on the non-enforcement of domestic judicial decisions in Russia CM/Inf/DH(2006)19). Information is awaited about further measures envisaged or being taken, in particular in the framework of the interdepartmental working group.

Publication and dissemination of the judgments of the European Court to the competent authorities (e.g. domestic courts and executive authorities) are also awaited to ensure that they may be taken into consideration as quickly as possible in practice. The Ukrainian authorities indicated that the Ukrainian versions of the judgments of the European Court are regularly published on the web site of the Ministry of Justice as well as in the official government publication, the Official Herald of Ukraine.

*           *           *

                       - Cases of length of civil proceedings

Application	Case	Duration of proceedings	State of proceedings at the time of the Court’s judgment
41984/98	Naumenko Svetlana, judgment of 09/11/2004, final on 30/03/2005	February 1994 - May 2003 (over 5 years and 8 months within the Court’s competence ratione temporis)	closed
22431/02	Baglay, judgment of 08/11/05, final on 08/02/06[165]	November 1994 – April 2004 (over 6 years and 7 months within the Court’s competence ratione temporis)	clarification necessary
56918/00	Leshchenko and Tolyupa, judgment of 08/11/05, final on 08/02/06[166]	November 1993 – December 2003 (almost 6 years and 3 months within the Court’s competence ratione temporis)	closed
70767/01	Pavlyulynets, judgment of 06/09/2005, final on 06/12/2005[167]	started in May 1999 (5 years and 2 months)	pending
36655/02	Smirnova, judgment of 08/11/2005, final on 08/02/2006[168]	started in May 1997 (over 8 years and 3 months within the Court’s competence ratione temporis)	pending
49430/99	Strannikov, judgment of 03/05/2005, final on 03/08/2005	May 1995 – January 2004 (6 years and 4 months within the Court’s competence ratione temporis)	closed

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

The case of Svetlana Naumenko also concerns the quashing of final court decisions given in the applicant's favour by means of a supervisory review procedure (protest), following applications lodged by a State official under the Code of Civil Procedure in force at that time. The European Court found that the use of the supervisory review procedure infringed the principle of legal certainty and thus the applicant's right to a court (violation of Article 6§1). The European Court also found that the sustained non-enforcement of the final judicial decision in the applicant's favour (recognising her right to a pension and entitlement to state privileges) constituted a violation of her property rights (violation of Article 1 of Protocol No.1). In addition, it found that examination by the Deputy President of the Odessa Regional Court of the application for supervisory review that he had lodged himself with the Presidium - of which he had been a member and Deputy President - was incompatible with the requirement of impartiality (violation of Article 6§1).

Individual measures:

            1) Svetlana Naumenko: information is awaited on possible negative consequences of the violations for the applicant. Further, information is also awaited on the state of enforcement of the judgment of 24/05/2004 by the Malinovsky District Court, awarding compensation in respect of her pension losses, as well as on the need for additional remedial measures beyond the awarding of just satisfaction.

            2) Baglay: the applicant introduced a civil claim against an accused in the framework of the pending criminal proceedings, which was terminated in April 2004 on the ground that a further prosecution was time-barred.

The authorities are invited to provide information whether the applicant lodged separate civil proceedings, as advised by the Supreme Court of Ukraine and, if appropriate, on its current state.

            3) Pavlyulynets and Smirnova: the authorities are invited to provide information on the current state of the proceedings pending before the domestic courts and, if appropriate, to undertake appropriate measures in order to accelerate them.

In a letter of 28/09/2006 the Ukrainian authorities informed the Secretariat about certain measures already taken in order to remedy the problems identified by the judgments of the European Court. The Secretariat is presently examining this information.

General measures:

            1) Excessive length of court proceedings: In accordance with Articles 6 and 31 of the Law on the Status of Judges, which entered into force on 10/02/1993, disciplinary proceedings can be instituted against a judge who has not performed his or her duties in compliance with the Constitution and legislation, concerning the observation of time-limits, while administrating justice.

The Ukrainian authorities transmitted to the Secretariat a draft law on Pre-trial and Trial Proceedings and Enforcement of judgments within reasonable time setting forth a new remedy allowing to request from a higher court to order particular procedural actions within a certain time-limit and/or award compensation for delays, totalling up to fifteen minimum wages. The draft also specifies that such a decision should be dispatched to the competent authority to decide on disciplinary action against the persons responsible for the delay. After a modification in September 2006, the draft was transmitted to the Ukrainian Cabinet and should be considered by the Vekhovna Rada (Ukrainian Parliament) by the end of this year.

• The information is awaited on further developments in this respect, and, in particular, on this draft law.

            2) Sustained non-enforcement of final judicial decisions, the case of Svetlana Naumenko presents similarities with the Zhovner group (see Section 4.2) in which the Committee is supervising the adoption of general measures to prevent further similar violations.

            3) Supervisory review procedure and the related issue of impartiality, the case of Svetlana Naumenko presents similarities with the case of Sovtransavto Holding against Ukraine (966th meeting, June 2006, Section 4.3, Volume I), in which the Committee is supervising the adoption of general measures to prevent further similar violations.

*           *           *

                       - Cases of length of criminal proceedings

Application	Case	Duration within the European Court’s jurisdiction	Case pending when the European Court gave judgment
66561/01	Merit, judgment of 30/03/2004, final on 30/06/2004	> 6 years for two degrees of jurisdiction	Yes
11336/02	Yurtayev, judgment of 31/01/2006, final on 01/05/2006[169]	3 years, 3 months for two degrees of jurisdiction	No
14183/03	Antonenkov and others, judgment of 22/11/2005, final on 22/02/2006[170]	(VS) 6 years, 1 month	No
		(AA) 4 years, 10 months	Yes
		(AD) 8 years, 1 month	Yes

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

The Merit case also concerns the absence of an effective remedy against the excessive length of criminal proceedings (violation of Article 13).

Individual measures:

            1) Merit case: the Ukrainian authorities were invited to provide information on measures adopted or under way to accelerate these proceedings and bring them to an end. The applicant on several occasions complained (most recently on 27/04/2006) that the Ukrainian authorities had not complied with the judgment of the European Court. In particular, he stated that, because of the pending criminal proceedings, he has been unable to claim the property and documents seized during the prosecution. The authorities indicated that the General Prosecutor’s Office is supervising the conduct of proceedings. They also specified that the Tchernovtsi Regional Court suspended the criminal investigation due to the applicant’s failure to appear and issued a warrant for him to be brought before the investigation authorities. The Ukrainian authorities noted that a key problem affecting the length of criminal proceedings against the applicant resulted from the fact that his co-accused could not be brought before the domestic courts. Thus, following the European Court’s suggestion, they disjoined the proceedings. On 17/02/2005 the proceedings against the applicant were suspended due to the failure to find the applicant, who is currently abroad.

• Additional measure required: The authorities are invited to consider possible solutions with a view to bringing the proceedings to an end despite the non-appearance of the applicant.

            2) Yurtayev case:proceedings closed. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damages.

            3) Antonenkov and Others case: the proceedings concerning V.S. closed. The European Court awarded the applicants just satisfaction in respect of non-pecuniary damages and for costs and expenses.

• Additional measure required: The authorities are invited to provide information on the current state of the proceedings concerning A.A. and A.D. which were pending when the European Court gave its judgment and measures adopted or underway to accelerate them.

General measures:

            1) Violation of Article 6§1: Since the amendment of 21/06/2001, Article 234 of the Code of Criminal Procedure provides the possibility to complain to the courts about decisions of an investigating officer/prosecutor which violate parties’ rights in the course of an administrative hearing or of the consideration of a case on the merits. In accordance with Articles 6 and 31 of the Law on Status of Judges, disciplinary proceedings may be instituted against a judge failing to perform his or her duties in compliance with the Constitution or the legislation on time-limits for administrating justice. The Ukrainian authorities also referred to the Law on Enforcement of the Judgments of the European Court of Human Rights, which establishes a clear procedure for their enforcement. Thus, in addition to the rules on the adoption of individual and general measures, it also provides the possibility to bring action against those who contributed to the violation found by the Court.

Given the number of similar applications pending before the Court, the Ukrainian authorities are invited to inform the Deputies of any additional measures envisaged to ensure the reasonable length of criminal investigation and court proceedings. In this respect, it may be recalled the Committee's position that the setting up of domestic remedies (see below) does not dispense States from their general obligation to solve the structural problems underlying the violation (see for example Interim Resolution ResDH(2005)114).

            2) Violation of Article 13: The Ukrainian authorities transmitted to the Secretariat a draft law on Pre-trial and Trial Proceedings and Enforcement of judgments within reasonable time setting forth a new remedy allowing to request from a higher court to order particular procedural actions within a certain time-limit and/or award compensation for delays, totalling up to fifteen minimum wages. The draft also specifies that such a decision should be dispatched to the competent authority to decide on disciplinary action against the persons responsible for the delay. After a modification in September 2006, the draft was transmitted to the Ukrainian Cabinet and should be considered by the Vekhovna Rada (Ukrainian Parliament) by the end of this year.

• Information is awaited on further developments in this respect, and, in particular on this draft law.

3) Publication of the judgment: The judgment of the European Court concerning the Merit case was translated and published in the Official Bulletin of 13/08/2004. The official Ukrainian translation of the judgment has also been published in the specialised law publications, namely Legal Bulletin of Ukraine (n°24, June 2004), Bulletin of the Supreme Court of Ukraine (n° 7, 2004), Law of Ukraine and the Legal Newspaper (n° 9, May 2004). All the judgments can be found on the web site of the Ministry of Justice (www.minjust.gov.ua).

Decisions: The Deputies, having examined the progress made in ensuring execution, 1.             agreed to resume consideration of these cases at their 982nd meeting (5-6 December 2006) (DH), on the basis of information to be provided by the authorities of the respondent state concerning the payment of the just satisfaction awarded, if necessary; 2.             agreed to resume consideration of these cases at their 2nd DH meeting in 2007 at the latest, on the basis of further information to be provided by the authorities of the respondent state concerning the general measures proposed in order to prevent new, similar violations including in particular the establishment of an effective remedy against the excessive length of proceedings and if appropriate, individual measures in order to accelerate the proceedings still pending.

- 15 cases against the United Kingdom

6563/03            Shannon, judgment of 04/10/2005, final on 04/01/2006

The case concerns the applicant’s conviction on 25/02/1999, in Northern Ireland, of the offence of failing without a reasonable excuse to comply with a requirement imposed on him by a financial investigator to attend an interview to answer questions and otherwise furnish information in connection with events in respect of which he had already been charged with offences.

The European Court found that this requirement was not compatible with his right not to incriminate himself, even though such evidence was not used in criminal proceedings, or that the underlying criminal proceedings against the applicant were not pursued. Moreover, the special problems in investigating crime in Northern Ireland could not in this case justify the application of the requirement in question to the applicant (violation of article 6§1).

Individual measures: In his claims in respect of pecuniary damage, the applicant included, inter alia, the sum of 200 GBP that he was required to pay as a fine. The European Court awarded the applicant a sum in respect of pecuniary and non-pecuniary damage. Bilateral contacts are under way with a view to assessing whether additional individual measures are required.

General measures: Information is required on the general measures taken or envisaged to avoid similar violations in the future. In any event, publication of the European Court’s judgment is required, as is its dissemination to the authorities competent for this kind of situation.

On 12/04/2006 the Secretariat wrote to the delegation of the United Kingdom with a view to the presentation of an action plan for the execution of this judgment.

*           *           *

50196/99          Bubbins, judgment of 17/03/2005, final on 17/06/2005

The case concerns, inter alia, the absence of an effective remedy whereby the applicant might seek compensation for non-pecuniary damages following the death of her brother, who was shot by the police in 1998, having been mistaken for an intruder in his own house (violation of Article 13). The European Court found that the police operation was organised so as to minimise any risks, and that the circumstances (the applicant’s brother was brandishing a gun, which subsequently turned out to be an imitation) justified the force used. The Court nonetheless found that national law did not afford the applicant a realistic chance of taking a civil action against the police and, if successful, recovering compensation for non-pecuniary damage on behalf of the estate of her deceased brother.

Individual measures: The Court awarded just satisfaction in respect of the non-pecuniary prejudice resulting from the violation of Article 13.

General measures: In view of the findings of the European Court (see §§ 170 and 172), the United Kingdom authorities are invited to consider possible measures to remedy the problem of the inapplicability of existing legislation to the specific circumstances of the applicant in this case, possibly by introducing some form of civil liability upon the public power in such situations.

In December 2005, the United Kingdom authorities indicated that the following the entry into force on 2/10/2000 of the Human Rights Act 1998, a person in the situation of the applicant could bring a claim against the police under section 7 of that Act (that is to say, section 7(1) taken together with sections 7(7) and 6 (1) of that Act) in respect of allegations of a breach of Article 2 of the Convention. Such proceedings would provide a forum in which a claim for compensation for non-pecuniary damages in respect of any civil liability of the police could be assessed.

• Given that Article 13 of the Convention has not been incorporated into domestic law by the Human Rights Act, examples of case-law have been requested showing that claims may be brought against the police under section 7 of the HRA in respect of allegations of a breach of Article 2, and that such proceedings can provide a forum in which a claim for the compensation for non-pecuniary damages in respect of any civil liability of the police can be assessed.

In April 2006, the United Kingdom authorities stated that it would not appear to be reasonable to them to wait for a test case before closing the examination of this case. Bilateral contacts are under way on this matter.

*           *           *

57067/00          Grieves, judgment of 16/12/03 - Grand Chamber

34155/96          G.W., judgment of 15/06/2004, final on 15/09/2004

35574/97          Le Petit, judgment of 15/06/2004, final on 15/09/2004

These cases concern the unfairness of naval court-martial proceedings held in 1998 (Grieves), 1996 (G.W.) and 1997 (Le Petit), and which resulted in the conviction of the applicants (violations of Article 6§1). In the G.W. and Le Petit cases, in which the proceedings were held in accordance with the law in force prior to the entry into force on 01/04/1997 of the Armed Forces Act 1996, the European Court found that the applicants had not had a fair hearing by an independent and impartial tribunal (violations of Article 6§1) mainly because of:

- the conflicting roles played by the convening authority,

- the lack of any apparent basis on which the applicants could challenge the composition of their courts-martial, and

- the fact that no appeal lay to a judicial authority where a guilty plea had been entered. 

In the Grieves case, the proceedings took place after the entry into force of Armed Forces Act 1996; 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 (violation of Article 6§1). 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.

Individual measures:

- Mr Grieves sought neither pecuniary nor non-pecuniary damages before the European Court. After having unsuccessfully sought relief at the national level after the delivery of the judgment, Mr Grieves now seeks individual measures before the Committee of Ministers, with a view to putting him in the position of achieving restitutio in integrum.

- In the G.W. and the Le Petit cases, the Court held that the finding of a violation constituted in itself just satisfaction for any non-pecuniary damage suffered by the applicants.

• The question of whether the applicants are still suffering any consequences of the violations is being clarified.

General measures: The Grieves judgment of the European Court has been published in European Human Rights Reports at (2004) 39 EHRR 2.

It should be noted that similar cases examined by the Court concerning proceedings occurring before the Armed Forces Act 1996 came into force ( B.E.V. and Lane), were closed, respectively, by Final Resolutions ResDH(2000)91 and ResDH(2000)92, following the enactment of that Act.

The facts in the G.W. and Le Petit cases having arisen before the enactment of the Act, one of the elements leading to the finding of a violation, the conflicting role played by the convening authority, should have been remedied by that Act. The Court examined in Grieves the functioning of the naval courts-martial system set up under the Armed Forces Act 1996, and found that the amended system still gave rise to objectively justified fears as to the independence and impartiality (see above).

According to the information furnished by the United Kingdom authorities (letter of 27/05/2004):

            1) The issue of the lack of a civilian in the pivotal role of Judge Advocate in a naval court martial: The appointment of serving naval personnel as judge advocates has ceased since the Court's judgment in Grieves was delivered; under the Naval Discipline Act 1957 (Remedial) Order 2004, the responsibility of appointing judge advocates was transferred to the Judge Advocate of the Fleet, a civilian, who appointed as judge advocates civilian barristers, solicitors and other individuals holding judicial appointments. The current practice is that civilian judge advocates are appointed to conduct court-martial proceedings by the Judge Advocate General (JAG), who is himself a civilian, a circuit judge, and thus the holder of judicial office. The office of the JAG sits within the Department for Constitutional Affairs. The judge advocates in court-martial trials are subject to the same rules as civilian judges.

            2) The issue of the relative lack of detail and clarity in the briefing notes for members of naval courts-martial: The briefing notes prepared for ordinary members of naval courts martial were amended in 2002 to include appropriate instructions as to the need to function independently and free from outside pressure, and amended again in 2004 to reflect the appointment of civilian judge advocates and to ensure maximum possible consistency with those of the Army and RAF. Further information furnished by the United Kingdom authorities on 12/01/2006 includes a copy of “Order of Procedure at a Trial by the Naval Court Martial” issued by the Naval Courts Administration Office in March 2005. That Order of Procedure requires, inter alia:

- the clerk of the court to inquire of the prosecutor or the Accused’s Friend (the person representing or assisting the accused) as to whether they object to any member of the court;

- the Judge Advocate to inquire whether the ordinary members of the court have read the guidance notes for Presidents and Court Members and to remind the ordinary members of their duties, of the need for them to remain independent, that their performance will not be reported on, and

-the obligation to report any attempts to interfere or to put pressure on them to the Judge Advocate. 

            3) The issue of the absence of a full-time Permanent President of Courts-Martial for the navy: The Court considered that the absence of a full-time Permanent President of Courts-Martial deprived naval courts-martial of what was considered in the air force to be an important contribution to the independence of an otherwise ad hoc tribunal (§ 81). The United Kingdom authorities consider that the above-mentioned changes suffice to obviate the need to create such a post. 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. However, the United Kingdom authorities have confirmed that there are no current plans to appoint a full-time Permanent President of Courts-Martial.

• Assessment: The adequacy of the measures adopted is being studied by the Secretariat, in collaboration with the UK authorities.

            4) The issue of an appeal to a judicial authority on the sentence in the event a plea of guilty is entered:

• Clarification is awaited: on whether an appeal lies to a judicial authority on the sentence in the event a plea of guilty is entered in naval court-martial proceedings.

*           *           *

36536/02          B. and L., judgment of 13/09/2005, final on 13/12/2005

This case concerns the violation of the right of the applicants, a father-in-law and his daughter-in-law, to marry. The applicants have been co-habiting since 1996. In June 2002 they were informed that, under the Marriage Act 1949, as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986, they could not marry unless both their former spouses had died (violation of Article 12).

Individual measures: The individual measures are linked to the adoption of the general measures.

General measures: It should be noted that even before the judgment became final, on 21/11/2005, the government responded to it in a ministerial statement, setting out its intention to amend the Marriage Act 1949. The United Kingdom authorities confirmed that legislative reform was being undertaken to lift the prohibition on marriage between persons in the position of the applicants.

- In England and Wales, the Marriage Act 1949 should be amended by November 2006. To that end, a Remedial Order amending legislation was re-laid on 3/07/2006, in accordance with standard remedial order procedure.

- In Scotland, the Family Law (Scotland) Act 2006 came into force on 04/05/2006, including section 1, which amends Scottish legislation to take account of the B. and L. judgment.

- In Northern Ireland, an order to amend the relevant legislation, the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order, was made by the Privy Council on 19/07/2006, and should begin two months after that date.

•Additional information is awaited concerning the legislative reforms in Northern Ireland as well as England and Wales.

Moreover, the judgment has been published at: (2006) 42 European Human Rights Reports 11  [2005] 3 Family Court Reports 353; [2006] 1 Family Law Reports 3 and The Times on 05/10/2005, as well as being available on Her Majesty’s Court Service website  - http://www.hmcourts-service.gov.uk.

*           *           *

32555/96          Roche, judgment of 19/10/2005 - Grand Chamber

This case concerns insufficient access to information concerning the mustard and nerve gas tests the applicant participated in at the Chemical and Biological Defence Establishment at Porton Down in 1963. In 1962 and 1963, 3000 service personnel participated in nerve gas tests and 6000 in mustard gas tests, with some participating in both. Those tests were conducted under the auspices of the British Armed Forces.

The European Court considered that the United Kingd om did not fulfill its positive obligation to provide an effective and accessible procedure enabling the applicant to have access to all relevant and appropriate information which would allow him to assess any risk to which he had been exposed during his participation in the tests (violation of Article 8).

Individual measures: Measures are required to fulfill the positive obligation to provide the applicant with access to the information in question.

In this respect, it should be noted that at the time of the delivery of the judgment, there was a further hearing pending before the PAT (Pensions Appeal Tribunal) concerning the existence of a causal link between the tests and the applicant’s claimed medical conditions in the context of the applicant’s claim for a service pension. In this context, a further expert medical opinion was provided, and a hearing should have taken place before the Pensions Appeal Tribunal in May 2006. That hearing was adjourned so that further medical evidence could be collected. A hearing was foreseen before the Pensions Appeal Tribunal shortly after 31/08/2006.

• Information is awaited on those proceedings or on any other measure permitting access to the relevant documents.

General measures: Information was requested on the measures taken or envisaged to provide access to the relevant information to persons who participated in tests similar to those in which the applicant participated.

The Action Plan supplied by the UK authorities on 05/04/2006 has three objectives:

1. The first objective: to clarify the responsibilities of persons handling requests for access to information. Work has commenced on the preparation and distribution of internal MoD guidance covering:

-               how to recognise a request triggering rights arising from Article 8 of the Convention as described in the judgment;

-               the actions required to be taken by the responding branch over and above those already required by specific domestic legislation (the Data Protection Act 1998 and the Freedom of Information Act 2000);

-               communication with the applicant to clarify the scope of the request or to explain the structured release process that will apply if all requested information cannot be released at once or if some will be sent from another part of the department; and

-               lastly, the procedure to be followed (analogous to that under the Freedom of Information Act) for handling any complaints/expression of dissatisfaction by the applicant.

The target completion date for this objective is 31/07/2006.

2. The second objective: to make it easier for applicants to make and pursue a request for information about their actual or possible hazardous exposure

-               by revising the pages on the UK Ministry of Defence Internet site (www.mod.uk) that allow applicants to submit requests;

-               by disseminating the information on the Internet site to groups representing potential applicants;

-               by revising relevant leaflets made available to staff and members of the public; and

-               by clarifying the application procedure for applicants with Article 8 rights as described in the judgment.

The target completion date for this objective is 31/10/2006.

3. The third objective: to improve public availability of information about the tests at Porton Down. It is intended to publish a historical survey of the Service Volunteer Programme at Porton Down, addressing the variety of studies undertaken together with their purpose, results and the number of individuals who participated in them. The survey will seek to put those studies into the context of the historical climate and contemporary events.

The target completion date for this objective is 31/07/2006.  

A supporting letter was furnished with the Action Plan. It states, inter alia, that the Porton Down Volunteers Helpline was set up in February 1998, with the objective of helping former volunteers/their representatives to easily gain access to information relating to their participation at Porton Down. The Helpline has a toll-free (0800) telephone number and is answered by MoD’s Defence Science and Technology Laboratory (Dstl).

• Information is awaited on the progress made in implementing this action plan.

*           *           *

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 failure by the prosecution to disclose certain evidence to the defence.

The European Court observed that a procedure, such as in this case, whereby the prosecution itself - without notifying the trial judge - assessed the importance to the defence of concealed information and weighed that against the public interest in keeping the information secret, could not comply with the requirements of a fair trial. It reiterated the importance of placing material relevant to the defence before the judge for his or her ruling on questions of disclosure at the trial stage, i.e. at the time when it could serve most effectively to protect the rights of the defence.

The Court found that the review procedure before the appeal court could not remedy the unfairness caused at the trial because in this case, in deciding whether the material in issue should be disclosed, the Court of Appeal would neither have been assisted by defence counsel's arguments nor have been able to draw on any first hand knowledge of the evidence given at trial (violation of Article 6§1 in conjunction with 6§3b).

Individual measures: The applicant, who was sentenced to life imprisonment following these proceedings, applied to have his case reviewed by the Criminal Cases Review Commission (CCRC). On 25/07/2005 the CCRC took a final decision, refusing to return the case to the Court of Appeal. On 22/06/2006, the Divisional Court granted the applicant leave to seek a judicial review of the CCRC’s decision, limited to the implications of the European Court’s judgment for the safety of the conviction.

• Information is awaited: on the judicial review proceedings.

General measures: This case presents similarities to that of Rowe and Davis (judgment of 16/02/2000) (in Section 6.2 on the basis of the domestic case-law developments noted in the judgment and of the publication of the European Court's judgment).

These common-law rules have, however, since been superseded by the Criminal Procedure and Investigations Act 1996 (CPIA), the relevant provisions of which have recently been modified by Part V of the Criminal Justice Act 2003. This Part also introduces heavier burdens of disclosure on the defence.

As regards disclosure by the prosecution, in accordance with the new Section 3 of the 1996 Act, as amended, the prosecutor will in future be under an initial duty to disclose to the accused “any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused”. In addition, by virtue of the new Section 7A, the prosecutor will be under a continuing duty to keep under review the question whether at any given time the prosecution has such material which has not been disclosed to the accused, and, if so, to disclose the material to the accused as soon as reasonably practicable. A range of measures are in place to ensure that the prosecution discharges its disclosure obligations in full. It should be recalled that under the CPIA, in neither the new text nor the former does Section 3(6) require the prosecutor to disclose material that, upon his application to a court, the court has found to be not in the public interest to disclose and orders accordingly.

Finally, although prosecution disclosure duties apply without the defence having to make an application for disclosure, in accordance with the new Section 8, a safeguard section, the accused may apply to the court for an order requiring the prosecutor to disclose material which has not been disclosed to him or her and which he or she believes is required to be disclosed.

The United Kingdom authorities indicated that these provisions came into force on 04/04/2005 under the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order SI 2005/950 made on 24/03/2005. 

The judgment of the European Court was published in European Human Rights Reports, (2004) 38 EHRR 41.

• Assessment: The measures taken would appear to prevent similar violations in the future.

*           *           *

39647/98+        Edwards and Lewis, judgment of 27/10/2004 - Grand Chamber

The case concerns violations of the applicants’ right to a fair trial due to two judicial decisions (of 1995 and 1996) to withhold certain evidence from the defence in violation of the principle of equality of arms and without adequately protecting the interest of the accused in criminal proceedings against them (violations of Article 6§1). The applicants argued that their criminal offences were the result of entrapment by undercover police officers.

The trial judges dismissed these claims on the ground that the undisclosed evidence did not prove entrapment, that it would not assist the defence and that non-disclosure was justified by genuine public interest. The European Court noted that the defence had been unable to argue the case on entrapment in full before the judges, because the evidence could not be challenged, and that the same judges who decided to withhold the evidence had also decided on an issue of fact related or possibly related to the withheld evidence. The applicants were sentenced to nine years’ and four and a half years’ imprisonment respectively.

Individual measures: Neither of the applicants is still detained. According to the information received from the applicants’ lawyers, Mr Lewis’ appeal against his original conviction was dismissed on 06/04/2005. Mr Edwards applied to the Criminal Cases Review Commission to have his case referred to the Court of Appeal. On 22/05/2006 the UK authorities indicated that his case was still under review and no decision had been made.

• Information is awaited on the progress on the application filed by Mr Edwards, and whether Mr Lewis has sought or is seeking leave to appeal against the Court of Appeal decision.

General measures: In a letter of 21/04/2005, the United Kingdom authorities indicated that on 05/02/2004 the House of Lords had delivered the decision in the case of R v H and others [2004] 2 AC 134, in which it considered the question of whether the procedures for dealing with claims for public interest immunity made on behalf of the prosecution in criminal proceedings were compliant with Article 6 of the Convention.

            1) Disclosure of sensitive evidence: the House of Lords set out in its decision a number of general guiding principles on disclosure and the procedure which must be followed when a court is faced with an application to withhold sensitive material from the defence. The House of Lords concluded that such procedure was in compliance with Article 6. The principles were summarised in the Guidance which was issued by the Director of Public Prosecutions on 13/02/2004 and circulated among lawyers, caseworkers and prosecutors. The principles were later included Chapters 12 and 13 of the Crown Prosecution Service’s Disclosure Manual issued in April 2005.

            2) Possibility of appointing a “special independent counsel”: the House of Lords held that there may be certain criminal trials where such counsel is necessary and in the interests of justice. However, such an appointment should always be exceptional and not automatic.

Moreover, the United Kingdom authorities indicated that Part 5 of the Criminal Justice Act 2003 recently amended the disclosure regime in the Criminal Procedure and Investigations Act 1996. This latter Act gave statutory force to the prosecution’s duty of disclosure. The new test requires initial and continuing prosecution disclosure of any previously undisclosed material “which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused”. The new edition of the Crown Prosecution Service’s Disclosure Manual (issued in April 2005) supersedes all previous guidance. Along other things it clearly sets out when the prosecutor’s statutory duty to disclose is triggered, the importance of scrupulously observing that duty, and sets out the consequences of failure to do so.

• Additional information would be useful on the procedure that is followed in the event a court decides that it requires the assistance of independent counsel.

*           *           *

66746/01          Connors, judgment of 27/05/2004, final on 27/08/2004

The case concerns a breach of the applicant's right to respect for his private and family life and his home on account of the eviction of the applicant and his family from a local authority gypsy caravan site in August 2000. The European Court found that their eviction was not attended by the requisite procedural safeguards, in that there was no requirement for the local authority to establish proper justification for the serious interference with the applicant's rights. The eviction therefore could not be regarded as justified by a “pressing social need” or proportionate to the legitimate aim being pursued (violation of Article 8).

Individual measures: The European Court awarded just satisfaction to the applicant in respect of non-pecuniary damages consequent upon the denial of the opportunity to obtain a ruling on the merits of his claims that the eviction was unreasonable or unjustified. The applicant's representative indicated that the applicant was seeking to establish a permanent residence on an appropriate site.

General measures: As long ago as February 2005, the United Kingdom authorities indicated their acceptance that certain legislative general measures would be necessary to give effect to this judgment.

Subsequently, in June 2006, they confirmed that the Law Commission had published a draft Bill on tenure reform in May 2006 and indicated that the government was considering the issue of taking the Bill forward. As this would imply extensive consultations on issues including that of security of tenure for gypsies and travellers on local authority sites, the Bill would be unlikely to be introduced before Parliament before autumn 2007.

The United Kingdom authorities also indicated that, in the interim, guidance on the management of gypsy and traveller sites was being prepared. The Department for Communities and Local Government (DCLG) was considering the scope for using this guidance to encourage local authorities to improve security of tenure for gypsies and travellers on their sites. DCLG expected to issue this guidance for consultation during summer 2006.

In addition to these measures, the United Kingdom authorities had already drawn attention, first, to the Housing Act 2004, which allows judges to suspend eviction orders against residents of local authority sites on certain terms (for example on condition that there is no further anti-social behaviour). Second, they indicated that the nature of judicial review has changed since the Human Rights Act came into force. In R (Wilkinson) v Broadmoor Hospital RMO [2002] 1 WLR 419, the Court of Appeal held that there should be cross-examination of witnesses to determine the factual matters at issue and that, on this basis, the judicial review procedure would be compatible with Article 6 of the Convention.

• Further information would be useful as to the progress made, since June 2006, in the implementation of the general measures envisaged.

The judgment of the European Court has been published in the European Human Rights Reports at (2005) 40 EHRR 9.

*           *           *

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 after the expiry of their tariffs reviewed by a body empowered to examine the lawfulness of their detention. At the relevant time, having been declared “technical lifers” (persons suffering from a mental disorder which influenced them to a significant extent at the time of the offence although the court had not made a hospital order on sentencing), the applicants were detained in hospital, and, in accordance with the applicable provisions of the Mental Health Act 1983, the Mental Health Review Tribunal (MHRT) could only recommend but not order their release (violation of Article 5§4).

Individual measures: The first applicant was convicted in 1983, with his tariff of six years expiring in 1989. In October 1993 he was made a technical lifer. He was released by decision of the Secretary of State on the recommendation of the MHRT on 09/01/2001.

The second applicant was sentenced in 1977; his tariff, which was set at eight years, expired in 1984. In June 1993, he was made a technical lifer and he is currently detained at a medium secure psychiatric hospital. The MHRT reviewed Mr Wilson’s case on 10/01/2006, and found that he continued to meet the statutory criteria for detention.

Clarifications were requested on how the review of Mr Wilson’s case by the MHRT or any other body satisfied the Convention requirement that the reviewing body must have the competence to decide on the lawfulness of the detention and to order release if the detention is unlawful.

The information furnished on 17/08/2006 concerning technical lifers applies to Mr Wilson’s case (see general measures below).

General measures: According to the Court’s conclusions in this case (see §§36-37 of the judgment), the MHR Tribunal did not meet the requirements of Article 5§4 of the Convention as it could only issue recommendations and was not empowered to release the applicants.

• Information provided by the United Kingdom authorities: The judgment has been published in European Human Rights Reports at (2003) 36 EHRR 1.

Furthermore, as of 02/04/2005, all future life-sentence prisoners have their discharge determined by the Parole Board and managed on discharge through “life licence” arrangements (i.e. the specific parole conditions applicable to life prisoners). 

• Further Information furnished by the UK authorities on 17/08/2006: All life-sentence prisoners held in hospitals (including the remaining technical lifers) are entitled to apply to the MHR Tribunal in the period between 6 months and 12 months following detention and in any subsequent period of 12 months. In addition, the Secretary of State may at any time refer the prisoner to the MHR Tribunal and must do so in any three-year period. Following an application or referral to the MHR Tribunal, the Tribunal will notify the Secretary of State as to whether they consider that the prisoner continues to meet the conditions for detention in hospital or should be absolutely discharged or discharged subject to conditions.

            a) Technical lifers: Technical lifers (such as Mr Wilson) are treated as patients under sections 37 and 41 of the Mental Health Act 1983, and if the MHR Tribunal recommended discharge, such patients would be discharged without referring to the Parole Board.

• Further clarifications are required: as to whether the MHR Tribunal may only recommend the discharge and not order the discharge of technical lifers. If the MHR Tribunal does not have the power to order the discharge of technical lifers, then clarifications are sought as to who or which body does.

            b) Transferred lifers: In the case of a transferred lifer (a post-02/04/2005 life-sentence prisoner currently held in a hospital), if the MHR Tribunal finds that the prisoner no longer meets the criteria for detention in a hospital, they may make a recommendation under s. 74 of the Mental Health Act 1983. Referral to the Parole Board is then mandatory. The Parole Board will then consider whether the transferred lifer should be released on life licence. It should be recalled here that whether the prisoner is discharged, remains in a hospital or is remitted to prison depends on what precisely is in the recommendation of the MHR Tribunal. 

•  Assessment: It appears that the MHR Tribunal, which has competence to review the continued detention of a transferred lifer, does not have the power to order his release. For this reason, a review of continued detention by that body does not satisfy one the requirements of Article 5§4, i.e., a body with the power to order release.

By contrast, the Parole Board, which does have the power to order the release on life licence of a transferred lifer, does not appear have the competence to review the continued detention of a transferred lifer until the matter is referred to it following a recommendation by the MHR Tribunal or when a responsible medical officer advises that the prisoner no longer requires treatment but return to prison would not be appropriate. It should also be noted that in the context of the supervision of the execution of the Stafford judgment, bilateral contacts are under way concerning the Parole Board (see below).

• Clarification is thus required, in particular on:

- how much time elapses between the expiry of the tariff of transferred lifers and the Parole Board’s first review of their continued detention; and

- whether the Parole Board then continues to review their continued detention at intervals which comply with the requirements of the Convention.

Bilateral contacts are under way concerning these issues.

*           *           *

- Cases concerning the lack of proper review of the lawfulness of the applicants' continued detention

46295/99          Stafford, judgment of 28/05/02 - Grand Chamber

19365/02          Hill, judgment of 27/04/2004, final on 27/07/2004

75362/01          Von Bülow, judgment of 07/10/03, final on 07/01/04

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, 1991 and 1993. 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).

The Wynne (No. 2) and Hill cases also concern the lack of an enforceable right to compensation for the breach of the applicants’ right to liberty (violation of Article 5§5).

Individual measures:

            1) Stafford case: It is stated in the judgment that Mr Stafford was released by the Secretary of State on 22/12/1998 (§27 of the judgment); no measure is required.

            2) Von Bülow case:  Mr von Bülow last had an oral hearing before the Parole Board on 02/02/2005. The Parole Board did not direct his release. He remains in an open prison. His next review should be concluded in February 2007.

            3) Wynne case: Mr Wynne has applied to the Parole Board and a hearing was held on 12/01/2005. The Board considered that the applicant did not meet the criteria for transfer to open and recommended that he remain in closed conditions.

            4) Hill case: The judgment indicates that Mr Hill is still serving a mandatory life sentence. 

Mr Hill’s case was last reviewed on 12/04/2006. The Parole Board did not direct release but recommended re-categorisation, which was rejected by a Home Office Minister. It should be noted that decisions relating to prisoners’ conditions of imprisonment (unlike decisions relating to release) fall within the remit of the Secretary of State. The next review by the Parole Board should be concluded in October 2007.

See also the questions raised under general measures, which are relevant for the applicants.

General measures:

                  1) Violation of Article 5§1 in the Stafford case: The violation was due to the applicant’s continued detention after the expiry of his tariff for reasons unrelated to his original conviction. It may be noted that this situation arose because of the Secretary of State’s decision to depart from the Parole Board’s recommendation that he should be released. Insofar as the Secretary of State is no longer free to depart from the recommendations of the Parole Board regarding the release of mandatory life sentence prisoners with respect to whom a minimum term order has been made, similar violations should not occur in future.

The Secretariat further notes that the Parole Board, as a public authority within the meaning of the Human Rights Act 1998, would be acting unlawfully if it now acted in a way incompatible with a Convention right in assessing the release of a prisoner in circumstances similar to those arising in the Stafford case.

            2) Violations of Article 5§4

Interim measures were initially taken, followed by legislative measures. These were set out at length in Volume I of the Annotated Agenda prepared for the 897th meeting (September 2004). As a result of the legislative amendments introduced through 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, the Parole Board is now competent to rule on the release of all mandatory life sentence prisoners; the Secretary of State is no longer free to depart from its decisions.

Once the minimum term has expired, the Secretary of State must refer the case to the Parole Board under section 28(7) of the Crime (Sentences) Act 1997. As soon as a case is referred to the Board, it has the power to direct immediate release under section 28, such direction being binding on the Secretary of State, irrespective of where a prisoner is held.

Furthermore, under the new Parole Board Rules, all life-sentence prisoners will be entitled to insist upon an oral hearing, and need not give reasons for doing so.

• Further information required:

With respect to the new Rules (available at http://www.paroleboard.gov.uk/publications/default.htm), clarification is required as to whether the Parole Board reviews of continued detention are oral hearings at which the prisoners or their representatives may examine and cross-examine witnesses concerning allegations that the prisoners remain a risk to the public.

•Bilateral contacts are currently under way with respect to the new Parole Board Rules, in particular in view of the procedural issues raised.

            3) Violation of Article 5§5 in the Wynne (No. 2) and Hill cases, the cases present similarities to that of O'Hara (in section 6.2 following the adoption of general measures).

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.