Ministers’ Deputies

Agenda

CM/Del/OJ/DH(2009)1051 Section 4.2 PUBLIC                       2 April 2009

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1051st meeting (DH), 17-19 March 2009

- Annotated Agenda[1]

- Decisions

Section 4.2

Public information version

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

Action

For each case or group of cases, the Deputies adopted the decision presented in a ruled box.

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

- 3 cases against Albania

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

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

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

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

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

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

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

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

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

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

41153/06           Dybeku, judgment of 18/12/2007, final on 02/06/2008

This case concerns the ill-treatment suffered by the applicant as a result of inadequate detention conditions (violation of Article 3).

The applicant suffers from chronic paranoid schizophrenia. In 2003 he was convicted of homicide and sentenced to life imprisonment. The applicant was transferred between 3 different prisons to serve his sentence. Despite his health problems the applicant was detained with other healthy prisoners and was treated like other inmates.

The European Court found that, taking into account the cumulative effects of the entirely inappropriate conditions of detention to which the applicant was subjected and the inadequacy of the medical treatment he received, the nature, duration and severity of that ill-treatment was sufficient to qualify as inhuman and degrading.

Individual measures: The Court awarded just satisfaction for non-pecuniary damage.

• Information provided by the Albanian authorities: in June 2008, the applicant was transferred to the recently constructed detention facility at Kruja where suitable medical facilities are available. Kruja Prison was established under a special order of the Minister of Justice and offers specialised treatment for prisoners suffering from mental disorders.

The applicant’s representative confirmed that the applicant had been transferred to Kruja Prison but stated that he shared a cell with 6 other inmates all of whom were healthy; he did not have access to suitable healthcare facilities and was not provided with the necessary medicines. His state of health was serious and continued to deteriorate.

In response to the concerns outlined by the applicant’s representative the authorities stated that the applicant shared a cell with 3 other inmates all of whom receive regular medical treatment. The Prisons Directorate had confirmed that Kruja Prison was specifically for prisoners with health problems and no healthy prisoners were detained there. The Prison is separated into different sections for different categories of health problems. The authorities also stated that they had spoken to the applicant’s family and given them a copy of the judgment in Albanian. While raising concerns about the distance of Kruja Prison from their home and the consequent visiting difficulties, the applicant’s family had not expressed any concern about the applicant’s detention conditions at Kruja.

The authorities also stated that they had officially requested the People’s Advocate (an independent ombudsman) to investigate the applicant’s situation in the light of the comments made by the applicant’s representative. On 18/10/2008, the authorities confirmed that the People’s Advocate had completed his report

• Information awaited: a translation of the report, as offered by the authorities.

General measures: Under Article 46, the European Court stated that necessary measures to secure appropriate conditions of detention and adequate medical treatment, particularly for prisoners who need special care owing to their state of health, should be taken as a matter of urgency.

It took note of the Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) of 06/09/07 on prison conditions in Albania (which states that “a very great deal remains to be done to render the situation [in Albanian detention facilities] even acceptable…Plans and programmes submitted by the Albanian authorities should be implemented as a matter of priority”).

The European Court concluded that the fact that the government admitted that the applicant was treated like other inmates, despite his particular state of health, “shows the failure of the Albanian authorities’ commitment to improving the conditions of detention in compliance with the recommendations… (§48)” included in the report of the CPT and the common principles and standards set out in the Committee of Ministers’ Recommendation No. R(87)3 on the European Prison Rules, as revised and updated by Recommendation Rec(2006)2 (§§ 39-47).

• Information provided by the Albanian authorities: the judgment of the European Court has been translated and published in the Official Gazette.

• Other relevant information:

The CPT report of June 2008 (CPT/Inf (2009) 6 was published on 21/01/09 (http://www.cpt.coe.int/documents/alb/2009-06-inf-eng.htm). The CPT report notes the construction of the new prison facility at Kruja (§15). Section 4 of the report sets out a detailed evaluation of the availability of healthcare in the Albanian prison system stating “the provision of general health care appeared on the whole to be adequate in most of the establishments visited” (§32).However, the report identified “a number of deficiencies in all establishments visited” (§35) and made a number of recommendations relating to medical screening, medical examinations and records and training for prison doctors (see page 21 of the report).

The importance of regular medical examinations and records appears particularly relevant to this case, in which the European Court noted that “the last assessment of the applicant’s health dated back to 2002. The applicant’s medical notes show that he has repeatedly been prescribed the same treatment and that no detailed description has been given of the development of his illness” (§46). Regular medical checks would appear to be a key measure in the treatment of mentally ill prisoners, particularly in light of the European Court’s finding on the failure of the Albanian authorities’ commitment to providing health care for such prisoners (§48, see above).

• Information is awaited on the measures taken or envisaged to provide appropriate conditions of detention, and in particular adequate medical care to prisoners suffering from mental disorders. In this respect, the Secretariat recalls once again the common principles and standards set out in CM Recommendation Rec(2006)2 and the recommendations included in the abovementioned report of the CPT. Information would also be welcome on the date of publication of the judgment and confirmation of its dissemination to the relevant ministries and prison authorities.

10508/02           Gjonbocari and others, judgment of 23/10/2007, final on 31/03/2008

The case concerns the non-execution of a judgment of 06/03/2003 given by the Supreme Court, ordering the Land Commission to take a decision regarding the applicants' claims on land appearing to have belonged to their parent and confiscated during the communist period (violation of Article 6§1). In this respect, the European Court noticed that this judgment still has not been executed more than four years after having been given and that, furthermore, the proceedings had been suspended while waiting for documentation to be provided by the government.

The case concerns moreover the excessive length of one of the three proceedings of real-estate claims advanced by the applicants (violation of Article 6§1) as well as the absence of and effective recourse for complaint during this period (violation of Article 13 together with Article 6§1). These proceedings which were introduced on 18/04/2000 were still pending and suspended when the European Court delivered its judgment (more than 7 years).

Individual measures: The applicants were awarded just satisfaction for non-pecuniary damages. Regarding pecuniary damages, the European Court indicated that the government should ensure the execution of the judgment of 06/03/03 in an appropriate manner and in the shortest possible time.

The Supreme Court’s judgment of 06/03/2003 has been executed. As required by the judgment, the Land Commission considered the applicants’ claims in relation to the property and declared them inadmissible on 31/07/07. According to the applicants the property in question has been seized by a third party. The authorities stressed that following the Supreme Court’s judgment, the Land Commission was required to come to a decision in relation to the applicants’ claim but that such a decision would not necessarily grant the applicants rights over the property.

• Assessment: As the Supreme Court’s judgment of 06/03/2003 has been enforced, no further measures appear necessary. However, confirmation of whether the decision has become final, would be welcome (a translation of the Land Commission’s decision, offered by the authorities, is awaited).

General measures:

1) Violation of Article 6§1 – non-enforcement of domestic final decisions: This issue is considered in the case of Beshiri and others in which the Albanian authorities have recently provided information on measures taken and/or envisaged (1059th meeting, June 2009).

• The Secretariat is currently assessing this information.

2) Violations of Article 6§1 (excessive length of proceedings) and of Article 13 (lack of effective remedy in this respect): The European Court noted that the judicial system failed to manage properly the multiplication of proceedings on the same issue where it could have combined all the proceedings.

Concerning the lack of effective remedy, this violation arose from the lack of any provision in national law which the applicant’s could have used to obtain redress for the excessive length of the proceedings.

• Information is awaited in relation to steps which are envisaged or have been taken in order to accelerate domestic civil proceedings and provide an effective remedy against their excessive length.

- 2 cases against Armenia

36549/03           Harutyunyan, judgment of 28/06/2007, final on 28/09/2007

The case concerns a violation of the applicant’s right to a fair trial on account of the use of statements obtained from him and two witnesses under duress (violation of Article 6§1).

In April 1999 the applicant, in the army at that time, was accused of killing a soldier, found guilty of premeditated murder and sentenced to ten years’ imprisonment. The European Court noted that the applicant and the two witnesses had been coerced into making confessions and that that fact had been confirmed by the domestic courts when the police officers concerned were convicted of ill-treatment. The Court concluded that, regardless of the impact the statements obtained under torture had on the outcome of the applicant's trial, the use of such evidence rendered his trial as a whole unfair.

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

The applicant was found guilty of premeditated murder and sentenced to ten years’ imprisonment (final decision of the Court of Cassation of 8/05/2003) and was detained from 17/04/1999 to 22/12/2003 when he was released on parole.

• Information provided by the Armenian authorities (30/06/2008): Article 408 of the Code of Criminal Procedure of Armenia provides reopening of criminal proceedings in the event of “new circumstances” and sets out the grounds for reopening cases

• Letter from the applicant’s lawyer, 20/11/2008: On 25/12/2007, the applicant lodged a request for reopening with the Court of Cassation on the basis of Article 410.1 of the Code of Criminal Procedure (CCP) in force at that time, which provided that applications for reopening of proceedings had to be lodged with the Court of Cassation on grounds of “new circumstances”. According to the new provisions of the CCP which entered into force on 27/12/2007, requests for reopening have to be lodged with the first-instance court which examined the case. The applicant therefore also lodged a request for reopening on 25/12/2007, with the First-instance Court of Syunik Marz. This request was rejected on the ground that, according to Article 410.1 of the CCP, the court which gave the final decision was competent to decide on the reopening request. In addition, on 21/01/2008 the Court of Cassation referred the applicant’s case to the Southern Criminal Court. The applicant’s lawyer further mentions that during the hearing which was held on 14/03/2008, the presiding judge stated that the previous decisions of the Court of Appeal and the Court of Cassation remained in force. The applicant’s lawyer doubts that the Southern Criminal Court is competent to quash decisions of the Court of Appeal and the Court of Cassation.

• Information has been awaited since the first examination of the case on the possibilities, both in law and in practice, to reopen criminal proceedings following a judgment of the European Court finding a violation of the right to a fair trial. Moreover, information is awaited on the fate of the proceedings lodged by the applicant.

General measures:

• Information provided by the Armenian authorities (23/01/2008 and 30/06/2008): According to Article 105 of the Code of Criminal Procedure, which concerns “facts inadmissible as evidence”, “in criminal procedure it is illegal to use as evidence or as a basis for an accusation facts obtained: by force, threat, fraud, violation of dignity, as well with the use of other illegal actions, (…) by violation of the investigatory or other essential court proceedings. (…)  Any violation of the constitutional rights, freedom of a person and citizen, or of any requirements of this Code in the form of restriction or elimination of the rights guaranteed by law to the persons involved in the case, that influenced or could have influenced the reliability of the facts, shall be considered an essential violation in the process of obtaining evidence (…)”.

Moreover, the European Court’s Judgment has been translated and published in the Official Bulletin of the Republic of Armenia No 65 of 12/12/2007, on the official website of the Office of the Prosecutor of the Republic of Armenia (www.moj.am) as well as on the official website of the Prosecutor’s office of the Republic of Armenia (www.genproc.am) and in the official website of the Judiciary of the Republic of Armenia (www.court.am).

• Information awaited: Examples of application of Article 105 of the Code of Criminal Procedure would be useful; it is recalled furthermore that dissemination of the European Court’s judgment was requested, to draw the attention of military and civil courts and of the police to the Convention’s requirements.

21638/03           Paykar Yev Haghtanak Ltd, judgment of 20/12/2007, final on 02/06/2008

The case concerns a violation of the right of access to court due to the refusal by the Court of Cassation to examine the applicant company’s request for deferral of payment of court fees (violation of Article 6§1).

Individual measures: The European Court awarded the applicant company just satisfaction in respect of non-pecuniary damage. As regards pecuniary damage, the Court stated that it could not speculate as to what the outcome of the trial would have been if the Court of Cassation had examined the applicant company’s cassation appeal. The Court recalled that the finding of a violation imposes on the respondent state a legal obligation to adopt individual measures among others and that in the case of a violation of Article 6 of the Convention, the applicant should as far as possible be put in the position in which he would have been had the requirements of this provision not been disregarded. The Court noted in this connection that Article 241.1 of the Code of Civil Procedure allows the reopening of the domestic proceedings.

• Information has been awaited since the first examination of the case in September 2008 on measures taken or envisaged in favour of the applicant. Information on the applicability of Article 241.1 of the CCP would be welcome (who can ask for reopening? is there a deadline for asking for reopening? etc…)

General measures: The European Court noted the Court of Cassation was prevented from making any assessment of the applicant company’s ability to pay court fees by the express provisions of Article 70§3 of the Code of Civil Procedure which flatly prohibits commercial entities from being exempted from payment of court fees. The Court considered that such a blanket prohibition raised of itself an issue under Article 6§1 of the Convention.

• Information provided by the Armenian authorities (letter of 8/01/2009): The judgment was translated into Armenian and published on the websites of the Ministry of Justice (www.moj.am), of the Prosecutor’s Office (www.genproc.am), of the Judicial authority of Armenia (www.court.am), of Police of the Republic of Armenia (www.police.am) and of the Court of Cassation, on 2 September 2008.

It is recalled that the Court concluded in this case that because it flatly prohibits commercial entities from being exempted from payment of court fees, Article 70 § 3 of the Code of Civil Procedure is not in conformity with Article 6§1 of the Convention.

• Information is awaited on a possible amendment to this Article.

- 3 cases against Austria

12643/02           Moser, judgment of 21/09/2006, final on 21/12/2006

The case concerns a violation of the right to respect for family life of the applicants (mother and son, both Serbian nationals). On 03/12/2000 the Juvenile Court transferred custody as regards the care and education of the son, who had been placed with foster parents 8 days after his birth in June 2000, to the Youth Welfare Office. The European Court found this transfer of custody to be in violation of Article 8 for three reasons: first, because the authorities had failed to consider alternative measures allowing the applicants to stay together such as placing them in a mother & child centre; secondly, because regular contacts between the applicants had not been ensured while the proceedings were pending and thirdly, because the first applicant had not been sufficiently involved in the decision-making process (§ 73 of the judgment). The Youth Welfare Office based its request for a transfer of custody on the first applicant’s inadequate financial means, her lack of an appropriate accommodation and her unclear residence status, these reasons being endorsed by the Juvenile Court’s decision.

During the proceedings, the first applicant was not given the opportunity to comment on reports of the Youth Welfare Office, thus not involving her sufficiently in the decision-making process, this failure leading to a violation of the principle of equality of arms. Furthermore, the applicant did not receive a public hearing nor were the domestic courts' decisions publicly pronounced (3 violations of Article 6§1).

Individual measures:

• Information provided by the Austrian authorities and the applicants’ counsel: The 2005 agreement providing 2 hours’ visiting rights per month between the first and second applicants is still in place (§37 of the judgment). The foster-parents had moved to Tulln, a town situated 36km from Vienna, where the visits are taking place since 2005. The visits are conducted with the help of the social services (Association for foster and adoptive parents) to ensure that the relationship between the applicants is continued without putting the child in a situation of conflict. The foster-parents are not present during the visits due to the tense relationship between the first applicant and the foster-mother. A member of the association for foster and adoptive parents accompanies the visits. The foster parents divorced on 05/06/2008. Since then the foster mother has the sole custody in respect of care and education of the second applicant.

            1) Proceedings on the first applicant’s request for extended visiting rights: On 12/07/2007 the first applicant requested an extension of her visiting rights, which the Tulln District Court dismissed. On appeal, the Regional Court quashed this decision in January 2008 and referred the matter back to the District Court. The proceedings were adjourned (between 15/04 and 1/12/2008) for an expert opinion to be obtained from a child psychologist. On 24/09/2008 the expert submitted her opinion recommending that visiting rights should not be extended beyond the existing ones. On 1/12/2008 a hearing took place at which the court ordered the expert to complement the opinion.

            2) Proceedings on the first applicant’s residence status: On 15/10/2008 the Ministry of the Interior rejected the first applicant’s request to prolong her residence permit (proceedings having already been pending at the time of the European Court’s judgment) for failure to submit the necessary documents requested by the authorities or to give reasons for not doing so. On 4/11/2008 the Vienna Federal Police Authority informed her that proceedings had been initiated with a view to her expulsion, as she has been residing unlawfully in Austria since at least 18/10/2008.

• Information provided by the Austrian authorities (letter of 1/12/2008): The Minister of Interior has instructed the competent authorities not to expel the first applicant as long as the proceedings on extended visiting rights to her son are pending.

The applicants’ counsel submitted on 2/12/2008 that the first applicant had been offered a job as a kitchen assistant, which she could, however, only take up if she were in possession of the necessary permits (lawful residence, work permit).

• Information is awaited on the state of the proceedings on the applicant’s request for extended visiting rights. In particular, it would be desirable to receive information as to which further measures (including possible psychological assistance) are envisaged to tackle the existing obstacles against extended visiting rights. Information is also awaited on the developments concerning the first applicant’s residence status, and whether she has lodged a complaint to the Constitutional Court concerning the refusal to prolong her residence permit.

General measures:

1) Equality of arms: In 2002, the Austrian authorities provided several decisions of the Supreme Court to illustrate its constant jurisprudence according to which the principle of equality of arms is fully implemented, even in proceedings conducted on a non-adversarial basis (see Buchberger case (Section 6.2)).

2) Lack of a public hearing: The reformed Austrian Non-Contentious Proceedings Act gives the judge discretion to hold family-law and guardianship proceedings in public and contains criteria for the exercise of such discretion.

3) Publication and dissemination: Judgments of the European Court against Austria in respect of cases under the code of civil procedure are automatically transmitted to the President of the Supreme Court and the Presidents of the 4 Courts of Appeal (Oberlandesgerichte) with the request to disseminate it to all subordinate judicial authorities as appropriate as well as to inform the authorities directly involved in the violation. On 06/02/2007 the Federal Chancellery sent out a summary of the European Court’s judgment to the relevant Austrian authorities as well as Parliament and courts (see http://www.bka.gv.at/DocView.axd?CobId=20443).

The European Court’s judgment was published in German in a summary version in the Human Rights Newsletter, NL 2006, p. 226 (NL 06/5/02), available online at http://www.menschenrechte.ac.at/docs/06_5/06_5_02 together with a link to the Court's judgments in English.

• Information is awaited on measures taken or envisaged to prevent new, similar violations in particular through dissemination of the European Court's judgment to all Youth Welfare Offices, possibly with a circular. Moreover, information would be useful on the possibility to pronounce decisions in family-law and custody proceedings publicly.

The Deputies: 1.             took note of the information provided by the Austrian authorities and welcomed the general measures taken by Austria; 2.             decided to resume consideration of this item at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), with a view to examining the closure of the case.

23960/02          Zeman, judgment of 29/06/2006, final on 29/09/2006 and of 10/01/2008 (Article 41) - Friendly settlement

The case concerns sexual discrimination against the applicant due to the application of the Amended Pension and Pension Allowance Act, entitling widowers to 40% of the pension their deceased wife had acquired before January 1995 while widows would be entitled to 60%, without basing this distinction on any objective and reasonable justification (Article 14 in conjunction with Article 1 of Protocol No. 1).

Individual measures: In the judgment of 10/01/2008 (Article 41) the European Court noted that a friendly settlement had been reached between the applicant and the competent authorities covering all the applicant’s claims in respect of his widower’s pension.

•Assessment: No further individual measure seems necessary.

General measures: As with all judgments of the European Court against Austria the judgment was automatically transmitted to the Presidency of the domestic court concerned. A summary of European Court judgments and decisions concerning Austria is regularly prepared by the Federal Chancellery and disseminated widely to relevant Austrian authorities as well as Parliament and courts. Furthermore, judgments of the European Court are accessible to all judges and state attorneys through the internal database of the Austrian Ministry of Justice (RIS). Judgments of the European Court concerning Austria are habitually published in a summary version via www.menschenrechte.ac.at together with a link to the Court's judgments in English.

• Information is awaited on further legislative or other measures envisaged or taken to prevent new, similar violations and ensuring an equal treatment of survivor's pension rights acquired prior to 1995.

                       - Case concerning the lack of oral hearing

30003/02           Stojakovic, judgment of 09/11/2006, final on 09/02/2007

The case concerns the lack of an oral hearing before a ministerial Appeals Commission, in October 2000, in disciplinary proceedings to demote the applicant (violation of Article 6§1).

The European Court noted that the applicant was in principle entitled to a hearing before the first and only tribunal, i.e. the Appeals Commission. It considered there was no exceptional circumstance to justify dispensing with a hearing in the this case, the more so in that the applicant had asked the Appeals Commission to hear a witness in the context of a hearing and later complained to the Constitutional Court that the Appeals Commission had taken its decision after a private hearing.

Individual measures:

• Information is expected on the current situation of the applicant and in particular whether he may request reopening of the proceedings in question.

General measures: According to Article 40§1 of the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz), which governs hearings before Appeals Commissions, “oral hearings shall be held in the presence of all known parties and the necessary witness and experts”. The European Court noted that it was a consistent practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise, as it was commonly understood that the principle of publicity did not extend to administrative proceedings.

• Information is expected on current practice before Appeals Commissions with respect to the right to a hearing and on measures taken or envisaged to adapt it to the European Court's requirements in similar situations.

A summary of the European Court's judgments and decisions concerning Austria is regularly prepared by the Federal Chancellery and disseminated widely to relevant Austrian authorities as well as Parliament and courts. Furthermore, judgments of the European Court are accessible to all judges and state attorneys through the internal database of the Austrian Ministry of Justice (RIS). Judgments of the European Court concerning Austria are habitually published in a summary version via www.menschenrechte.ac.at together with a link to the European Court's judgments in English.

- 3 cases against Azerbaijan

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

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

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

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

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

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

General measures:

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

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

- Cases concerning the failure or substantial delay by the administration in abiding by final domestic judgments[2]

33343/03           Tarverdiyev, judgment of 26/07/2007, final on 26/10/2007

31556/03          Efendiyeva, judgment of 25/10/2007, final on 25/01/2008 and of 11/12/2008, final on 11/03/2009

- 24 cases against Belgium

29787/03+         Riad and Idiab, judgment of 24/01/2008, final on 24/04/2008

This case concerns the unlawful detention of two Palestinian nationals after their arrival without the necessary visas, at the Bruxelles-National Airport in December 2002 (violation of Article 5§1).

In January and February 2003, the applicants were held in the transit zone of the Airport for 15 and 11 days respectively, on the basis of a decision delivered by the Aliens Office for an undetermined and unpredictable period. The European Court noted that this detention took place despite court decisions ordering an immediate release of the applicants and was not based on any concrete legal provision. It considered, in this respect, that the Aliens Office “knowingly exceeded its powers”. The unlawful detention of the applicants in a Closed Detention Centre for Illegal Aliens in Merksplas was subsequently extended for other reasons with a total disregard for the above court decisions against which the authorities did not appeal.

The case also concerns the inhuman and degrading treatment suffered by the applicants due to the fact that they were held in detention for more than 10 days in the transit zone (violation of Article 3). The European Court found it unacceptable that a person may be detained, as were the applicants, under conditions where their basic needs were not attended to. The Court also added that the humiliation felt by the applicants was increased because, after obtaining a decision ordering their release, the applicants had been deprived of their liberty in other premises. The Court found that the feelings of arbitrariness, inferiority and anguish associated with the circumstances increased the humiliation caused by of being obliged to live in a public place, without assistance.

Individual measures: The applicants were repatriated on the 5th and 8th March 2003. The European Court granted their claim for just satisfaction for non-pecuniary damage in full and with particular regard to the undoubted distress that the applicants had suffered.

• Assessment: Under these circumstances, no other measure seems necessary

General measures:

1) Continued detention of the applicants in spite of court decisions ordering their immediate release: The court decisions ordered the immediate release of the applicants (among other things, indicating clearly that they should be authorised “to move about the territory freely”). Despite this, the Aliens Office continued detaining the applicants in the transit zone. Immediately after the applicants left the transit zone, the Aliens Office detained the applicants in the Closed Detention Centre for Illegal Aliens in Merksplas, further depriving them of their liberty.

The European Court noted (§13), on the basis of different national and international sources, including the observations of the UN Human Rights Committee, the 2004 Report of the Federal Ombudsmen and the report of the CPT of 2005, that this kind of behaviour is far from being limited to the present case. The Aliens Office has developed a real “practice” of transferring aliens who are subject to orders of repatriation, from the detention centre where they were detained pending their transfer to the transit zone of the airport, following the delivery of a decision by a judicial authority releasing them.

• Information seems necessary on measures taken or envisaged to ensure that court orders to release those in a similar situation to the applicants are taken into account and to stop the “practice” of placing the parties concerned in the transit zone.

2) Conditions of the applicants’ detention in the transit zone of the airport: The European Court considered that by its very nature, the transit zone was a place designed to accommodate people for only a few days. It had no external area for walking or taking exercise; no internal catering facilities nor means to contact the outside world. Such conditions were likely to give rise to profound loneliness and were in no way adapted to the requirements of a stay lasting more than ten days.

Furthermore, the European Court also noted that even though the possibility of being detained in the airport at a more appropriate facility known as the ‘INADS Centre’ existed, the conclusions of the CPT report of 1997 (confirmed in its 2005 report) indicate that this centre is not adapted to the requirements of a stay of more than a few days and the applicants were held for more than ten days in the transit zone. In reaching its conclusions, the CPT noted in particular the limited visitation and the lack of access to fresh air.

• Information seem necessary on measures taken or envisaged to ensure that no one is held in the transit zone for anything exceeding “… extremely short periods of time”.

13178/03           Mubilanzila Mayeka and Kaniki Mitunga, judgment of 12/10/2006, final on 12/01/2007

The case concerns the refusal of the Belgian authorities to authorise a Congolese child, then aged five (the second applicant), to enter Belgium. Arrived in August 2002 at Brussells-National Airport without the necessary travel and immigration papers, she was on her way to Canada, where her mother (the first applicant) had first obtained refugee status in July 2001, then in 2003 permanent residence. The child’s request for asylum was declared inadmissible by the Aliens Office, which refused her leave to enter and gave directions for her removal. She was detained for two months in a closed centre for adults then expelled to her country of origin.

The European Court considered that both applicants had undergone inhumane treatment, first because of the detention (in a closed centre for adults) of the child – who, the European Court noted, was in an extremely vulnerable situation, and secondly because of the child’s deportation, for which no adequate preparation, supervision and safeguards had been provided (violations of Article 3).

The Court also found that both applicants had suffered a breach of their right to their family life, also on account of the child's detention and expulsion, because far from assisting her necessary reunification with her mother, the authorities' actions in fact hindered it (violations of Article 8).

Furthermore, the Court found, in particular in view of child’s conditions of detention, that the Belgian legal system at the time and as it functioned in this instance did not sufficiently protect the second applicant's right to liberty (violation of Article 5§1).

Finally, the Court found that the child had no effective remedy, as she has been deported notwithstanding the application lodged by her lawyer to have the deportation order annulled (violation of Article 5§4).

By the end of October 2002, the second applicant joined her mother in Canada following interventions by the Belgian Prime Minister and his Canadian counterpart.

Individual measures: The second applicant is no longer detained, mother and daughter now lawfully residing in Canada. In addition, the European Court awarded just satisfaction to each of the applicants in respect of non-pecuniary damage sustained.

• Assessment: accordingly, no further individual measure seems necessary.

General measures: The findings of the Court all concern the detention and the deportation of an unaccompanied foreign minor (mineur étranger non accompagné, so called “MENA”), “a category in respect of which there was a legal void at the time” (§ 82 ; see also § 56).

1) Detention (violations of Articles 3, 5§1 and 8): With regard to this detention, the European Court noted in particular that the child was in an extremely vulnerable situation on account of her very young age, the fact that she was an illegal immigrant in a foreign land and the fact that she was unaccompanied by her family from whom she had become separated.

• Measures adopted: Since the material time, there have been substantial changes concerning the way in which MENA are taken into care. They are now assisted by a guardian and they may no longer be detained in closed centres.

- A system of legal representation of MENA has been set up since 01/05/2004. A guardian is attributed to each MENA. The guardian’s mission is to represent the MENA for all legal steps and in all proceedings (e.g. applications for asylum or leave to remain in Belgium, appeals, request the assistance of a lawyer, search members of the MENA’s family, etc.) and to take him or her into care during his or her  whole stay in Belgium (e.g. aftercare, psychological counselling, educational support, looking for lasting solutions in accordance with the MENA’s interest, explaining the decisions taken in respect of him of her, manage their  property etc.). The guardian makes a report on the personal situation of the MENA within 15 days from his appointment. A specific pool of guardians has been set up with a view to ensuring legal representation of MENAs as soon as they are intercepted at the Belgian border.

A Guardianship Department (“service des tutelles”) co-ordinates and controls the material organisation of the guardians’ work. Agents of the Department are constantly on duty, it can be contacted any time. Amongothers, the Guardianship Department appoints the guardians, identifies the MENA, if their real age is contested it organises medical examination to determine the age, it co-ordinates the contacts with the relevant Belgian authorities (asylum, entrance on the territory, leave to stay, housing etc.) and with the authorities of the MENA’s country of origin (in particular in order to find the family or any other structure to take the MENA into care), etc.

- The housing of the MENA has also been modified, in particular by the law of 12/01/2007 on asylum seekers (entry into force 07/05/2007) and the Royal Decree of 09/04/2007. The law provided for the creation of Observation and Guidance Centers (“Centres d’observation et d’orientation”, so called “COO”). The stay in the COO must allow the MENA to be observed, in order to draw his first medical, psychological and social profile, and to detect a possible vulnerability in order to direct him/her towards a structure that can take him most adequately into care. All MENA are treated equally in the COO, whatever their administrative situation (asylum seekers or others).

Concerning in particular the case of MENA arriving at the border without the necessary papers (as in this case), the law puts an end to their detention in closed centres. The MENA – whose minor status is not contested – is directed within 24 hours to a COO and the Guardianship Department immediately appoints his final guardian. If it is contested that the young person concerned is really minor, he/she is maintained in a closed centre for the period strictly necessary to organise a medical examination to determine his or her age, which must take place within three working days from arrival at the border. This delay may be in exceptional circumstances extended by three further working days if the medical examination could not take place due to unforeseen circumstances. The Guardianship Department organises the examination and appoints a provisional guardian. Following identification, if it is established that they are minor, the MENA are transferred within 24 hours (from the notification of this decision) to a COO.

If no decision to deport has been implemented within 15 days (plus 5 days in case of exceptional circumstances duly motivated), the MENA is authorised to enter in Belgium.

It can finally be noted, concerning MENA who are already in Belgium, that after their stay in COO, a second stage takes place: in view of the first psychological and social profile of the MENA, he/she is directed to a centre “adapted to his/her specific needs” and must define, together with the guardian, a project for his life, a “lasting solution”.

• Bilateral contacts are under way with regard to these measures.

            2) Deportation (violations of Articles 3, 5§4 and 8): The deportation was censured by the European Court on account of following elements. First, it noted that the Belgian authorities made arrangements for the second applicant's deportation on the day after the child’s lawyer lodged an application to the competent Court (“chambre du conseil“) for release, that is to say even before it had delivered its decision. It also noted that the Belgian authorities stood by their decision to proceed with the second applicant's deportation on the date arranged in advance, despite new factual developments, namely: the competent court’s decision of the previous day to order the child’s immediate release on the grounds that her detention was unlawful. The child was deported even though the twenty-four hour period for an appeal by Crown counsel, during which a stay applied, had not expired. Finally, the United Nations High Commissioner for Refugees (HCR) had informed the authorities that the first applicant had acquired refugee status in Canada. The Court also censured the way in which the deportation had taken place: the child travelled alone; no satisfactory care in Congo had been organised; the mother has only been informed a posteriori of the deportation. Finally, the Belgian state failed to comply with its positive obligations, including an obligation to take care of the second applicant and to facilitate the applicants' reunification.

• Measures adopted by the authorities: The Law of 12/01/2007 mentioned above provides that the MENA’s deportation towards his/her country of origin may only be envisaged if this is in conformity with “the best interests of the child” (Article 37 of the Law, and Article 4 of the Royal Decree of 09/04/2007) and if it aims at re-unifying the child and his/her family, who can take care of him adequately. Furthermore, no deportation is possible if the MENA’s guardian has not been associated effectively in searching for a lasting solution in conformity with the best interests of the child (on the guardian’s role, see above). If need be, the guardian may appeal to challenge a deportation order and request a leave to remain in Belgium.

Concerning the measures taken so that the competent authorities are informed of the Convention’s requirements, it may be noted that the judgment of the European Court has been published in the three official languages on the Internet site of the Ministry of Justice (Service Public Fédéral de la Justice); furthermore, the case has been widely reported in the media and widely disseminated and discussed in relevant academic and professional circles (in particular, several articles have been published). The judgment has also been widely disseminated to the authorities concerned, in particular: the Office for Foreigners - Ministry of Internal Affairs (Service Public Fédéral Intérieur). Public Prosecutors General have been requested to send the judgment out to all courts in Belgium (several Courts of Appeal confirmed the dissemination). The Ministry of Foreign Affairs has also been asked to disseminate the judgment.

• Bilateral contacts are under way with regard to these measures.

11287/03           Lelievre, judgment of 08/11/2007, final on 31/03/2008

This case concerns an excessive length of detention on remand from August 1996 to June 2004, in the context of highly publicised court proceedings relating to the kidnapping of minors (violation of Article 5§3).

In finding a violation, the European Court established that the length of detention, 7 years and 10 months, appeared to be prima facie unreasonable and unacceptable and could only be justified in exceptional circumstances. In this regard, the Court recalled that under the circumstances of the case, the wide range of reasons which formed the basis for refusal to release the applicant (such as the risk of flight and the applicant’s appearance at the proceedings) remained relevant throughout the procedure. The Court nonetheless concluded that the reasons did not justify such a long period of detention on remand and in particular, the fact that the responsible authorities never contemplated any alternative to the detention despite the fact that the applicant suggested he be released under a number of surveillance controls. Finally, although the Court was able to refrain from examining this issue in the light of these findings, it indicated that the detention proceedings were not conducted with the ‘particular care’ that was required in such a case.

Individual measures: In a final judgment given in 2004, the applicant was convicted and sentenced to 25 years imprisonment, which he is currently serving. The damage suffered by the applicant due to the unreasonable length of his detention on remand was compensated by the grant of just satisfaction. It should also be noted that according to Article 30 of the Criminal code, if following arrest for a given offence a person is detained prior to his/her final conviction, the period of pre-trial detention shall be deducted from the term of imprisonment to which he/she is sentenced on grounds of the same offence.

• Assessment: in the circumstances, no other measure seems necessary.

General measures: Concerning the absence of researching an alternative solution to pre-trial detention, the European Court noted that the responsible authorities were entitled to impose alternatives to detention on remand and, in fact, the Belgian law (Law of 20/07/1990) allows them a wide scope for deciding what type of alternative measures might be available in the circumstances. In regard to the failure to manage the procedure with sufficient care, the Court detailed the main problems (§107 of the judgment).

• Information appears necessary on the measures taken or envisaged to avoid new, similar violations. In order for the criminal courts to take into account the Court’s conclusions in this case, it appears necessary for the judgment to be widely disseminated and published.

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: 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.

Striking-out of criminal sentences is possible in Belgian Law: prison sentences of up to 6 months (peines de police) are automatically erased after three years starting from the final judgment. Persons convicted of crimes which cannot be erased may be “rehabilitated” after a certain period of good behaviour. Nevertheless, “rehabilitation” is not automatic. The applicant must apply it to the Attorney General (Procureur du Roi), in accordance with the procedure provided in Articles 628 et seq. of the Criminal Code.

• Assessment: In the light of the above, no further individual measure seems necessary.

General measures:

• Information provided by the Belgian authorities: 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 establishing 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 (letter of 07/02/2006).

It appears from information received in in the framework of the examination of the Wynen case May 2007 that this reform is “postponed”.

• Information is awaited as to whether adoption of the Bill amending the Code of Criminal Procedure is still intended and if so when. Information is also awaited, if appropriate, concerning possible alternative measures.

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 and dissemination to the Cour de cassation of the European Court's judgment.

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

49525/99           Dumont, judgment of 28/04/2005, final on 28/07/2005

24731/03           Barbier, judgment of 20/09/2007, final on 20/12/2007

41881/02           Beheyt, judgment of 13/05/2008, final on 13/08/2008

50575/99           De Landsheer, judgment of 15/07/2005, final on 15/10/2005

27535/04           De Saedeleer, judgment of 24/07/2007, final on 24/10/2007

51788/99           De Staerke, judgment of 28/04/2005, final on 28/07/2005

31634/03           Denée, judgment of 04/12/2007, final on 04/03/2008

21861/03           Hamer, judgment of 27/11/2007, final on 27/02/2008

28171/04           Heremans, judgment of 24/04/2008, final on 24/07/2008

6203/04            Iwankowski and others, judgment of 27/11/2007, final on 27/02/2008

5950/05 Jouan, judgment of 12/02/2008, final on 12/05/2008, rectified on 13/02/2008

18211/03           Lenardon, judgment of 26/10/2006, final on 26/01/2007

52098/99           Leroy, judgment of 15/07/2005, final on 15/10/2005

46046/99           Marien, judgment of 03/11/2005, final on 03/02/2006

40628/04           Nagler and Nalimmo B.V.B.A., judgment of 17/07/2007, final on 17/10/2007

11013/05           Nicolai de Gorhez, judgment of 16/10/2007, final on 31/03/2008

25864/04           Raway and Wera, judgment of 27/11/2007, final on 27/02/2008

52112/99           Reyntiens, judgment of 28/04/2005, final on 28/07/2005

50236/99           Robyns de Schneidauer, judgment of 28/04/2005, final on 28/07/2005

29198/05           Schinckus, judgment of 01/04/2008, final on 01/07/2008

These cases concern the excessive length of civil proceedings, as well as of criminal proceedings in which the applicant were either accused or civil parties (violations of Article 6§1).

Eight of these twenty cases concern only or mostly excessively lengthy proceedings before the Brussels Tribunal de première instance. Proceedings began between 1982 and 2002 and were all closed when the European Court delivered its judgments, except in the cases listed below (individual measures).

One of the sets of proceedings concerned in the Beheyt case concerns specifically the excessive length of a pre-trial investigation.

The cases of Beheyt and Raway and Wera also concern the absence of an effective remedy to obtain the finding of a violation on account of the excessive length of civil proceedings (violations of Article 13).

Individual measures:

• Information is still awaited on the acceleration of the proceedings in the following cases – if still pending :

- Barbier (civil proceedings that had already lasted more than 25 years when the European Court delivered its judgment);

- Beheyt (criminal sets of proceedings against the applicant, that had already lasted more than 7 and 10 years respectively when the Court delivered its judgment);

- Denée (criminal proceedings against the applicants, that had already lasted more than 15 and 13 years respectively when the Court delivered its judgment);

- Heremans (criminal proceedings against the applicant, that had already lasted more than 21 years when the European Court delivered its judgment);

- Leroy (civil and criminal proceedings against the applicant, that had already lasted more than 15 years when the European Court delivered its judgment).

In the other cases: no measure necessary (proceedings closed).

General measures: The Belgian authorities state that there is no structurel problem in Belgium with regard to the length of proceedings, be they civil or criminal. However, it has been found that the length of certain criminal proceedings poses problems, both at the preliminary stage of proceedings (this question is being examined separately by the Committee, see the case of Stratégies et Communications and Dumoulin against Belgium, in section 6.2) and before the Courts when deciding on the merits.

Brussels Courts nevertheless constitute a specific problem. Concerning the Brussels first instance courts, the authorities indicated that the excessive length of proceedings is in particular the result of the difficulty of recruiting magistrates, a problem related to the conditions of use of languages in the judicial field. Concerning the Brussels Court of Appeal, the question of the length of proceedings has been examined separately by the Committee – see the case of Oval S.P.R.L. against Belgium and other similar cases in section 6.2).

1) Measures to avoid excessive length of judicial proceedings

            a) At national level: The Belgian authorities have adopted measures in recent years to ensure reasonable length of judicial proceedings. A number of measures have already been presented in the context of, inter alia, the Oval S.P.R.L. case (see above). Among others: the setting-up of a system of supplementary chambers and additional judges, procedural measures to give judges inter alia a more active role in proceedings, increase in staff, etc. Most of these measures come within the scope of a general plan (Plan Thémis) drawn up by the Belgian Minister of Justice.

Further to these measures, the Law of 26/04/2007 amending the Judicial Code with a view to reducing the judicial backlog has been adopted (published in the Belgian Official Journal - Moniteur Belge -  on 12/06/2007). It contains several provisions to reduce the length of proceedings, from the preliminary stage to the moment where the judgment is delivered. The law sets out to enhance the sense of responsibility of both judges and parties by, for example: accelerating the exchange of arguments between parties and ensuring that judges determine from the beginning a schedule for the most important steps of the proceedings. Sanctions (fines) are also provided against parties who manifestly waste time or otherwise abuse the proceedings. Better control is also established of the time taken by the judges to deliver judgment: the law laws down time-limits for judges’ deliberations. If these limits are exceeded, judges are answerable to their hierarchical superiors. I f no solution or valid justification is found the delay, disciplinary sanctions may be imposed in the form of deductions from salary.

Finally, the budget of the Ministry of Justice has been increased. In 2008, it was raised by 4,7% compared to 2007, providing more means for logistics (e.g. further development of IT systems, fitting out of courts and tribunals) and increases in staff (e.g. for the courts and tribunals, with a priority for the courts responsible for the execution of sentences. Between 1998 and 2008, the budget of the courts and tribunals increased from 485,8 million euros to 846,6 million euros. In 2007, almost 2 500 computers were delivered and installed in various courts and tribunals.

Positive results are registered (see Justice en chiffres 2008, a publication of the Service Public Fédéral Justice, www.just.fgov.be). For example, concerning the tribunaux de première instance: in civil matters, the number of registered new cases rose by 3% between 2000 and 2006, whereas the number of closed cases rose by 23% during the same period. In criminal matters, the number of cases pending on the 1 January diminished by 15% between 2000 and 2006. Concerning Courts of Appeal, in civil matters, the number of pending cases reduced by 41% between 1999 and 2007.

            b) Brussels courts: In addition to the measures taken nationally to ensure speedier proceedings (including the Law of 26/04/2007), measures have also been taken for the benefit of Brussels courts.

Concerning first instance courts and in particular the difficulties of recruiting magistrates, a problem related to the conditions of use of languages in the judicial field, specific measures have been taken (see also the information provided by the Belgian authorities to the Venice Commission (document CDL(2006)026) ). In particular, the Law of 18/07/2002 amending the provisions regulating the conditions of use of languages in the judicial field to simplify the requirements of bilingualism for magistrates and give more means to judge cases in the French language, in the majority before the Brussels courts.

Concerning the Brussels Court of appeal, the Committee of Ministers has already been informed of the measures taken (Oval S.P.R.L. case, mentioned above, in Section 6.2). In this respect, the Committee was informed in particular that the problem of the backlog of the Court of Appeal had been solved (see agenda of the 914th meeting (February 2005), Section 6.1, Volume I).

• Information would be useful as to the situation before the Brussels first-instance courts, with respect to length of proceedings and backlog.

            2) Remedies in respect of the excessive length of judicial proceedings

            a) In civil justice: in its decision on the admissibility in the case of Depauw against Belgium (application No.2115/04, decision of 15/05/2007), the European Court held that since the 28/03/2007, there exists an action for damages which constitutes a remedy to complain about the excessive length of civil proceedings. This remedy relies on case-law having a sufficient degree of legal certainty (judgment of the Court of cassation of 28/09/2006). Furthermore, it is recalled that the Law of 21/04/2007 amending the Judicial Code with a view to reducing the judicial backlog contains certain provisions enabling a request for acceleration of civil proceedings.

            b) In criminal justice: the examination of this question is in line with the spirit of Recommendation Rec(2004)6 of the Committee of Ministers to member states (improvement of domestic remedies) and with the practice which developed within the Committee. According to the information provided in the above-mentioned Venice Commission document there is no specific remedy whereby the acceleration of criminal proceedings may be requested or compensation awarded for their excessive length. On the other hand, Article 21 ter (entered into force on 12/12/2000) of the preliminary part of the Code of Criminal Procedure provides a penalty in respect of excessive length of criminal proceedings. According to this article, “if the length of criminal proceedings exceeds a reasonable time, the judge may pass sentence by means of a simple finding of guilt or impose a lighter sentence than the minimum sentence stipulated by law”

In its decision on the admissibility in the case of Hermanus against Belgium (application No. 49195/99, decision of 18/09/2001) among others, the European Court held that in Belgium it is possible for a person having criminal charges against them to request the Court to find, at the stage of the examination of the merits, that the principle of reasonable delay has been infringed, and to redress such violation of Article 6, which constitutes an internal remedy within the meaning of Article 35§1 of the Convention.

- 75 cases against Bulgaria

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

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

1365/07            C.G. and others, judgment of 24/04/2008, final on 24/07/2008

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

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

These cases concern violations of the applicants’ right to respect for their family life as Mr Al-Nashif, Mr Bashir and Mr C.G. were deported and Mr Hasan and Mr Musa were ordered to leave the territory between 1999 and 2005 pursuant to a legal regime that did not provide sufficient safeguards against arbitrariness (violations of Articles 8 and 13).

The European Court considered that even in cases where national security is at stake, as in all these cases, the concept of lawfulness requires that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information (see §123 of the Al-Nashif judgment). The Court noted that in four of the cases, none of the applicants had had access to independent supervision of the measures imposed on them, since at the material time such measures taken on grounds of national security were excluded from judicial review. Furthermore, in some of the cases the applicants were not informed of the factual basis of the measures against them and some of the orders at issue did not disclose any reasons to the applicants, to their lawyers or to an independent body competent to examine the matter.

In the C.G. and others case, although the first applicant had the formal possibility of seeking judicial review of the decision to expel him (the facts are subsequent to 2003 when judicial review against such measures was introduced), the competent courts confined themselves to a purely formal examination of his case. In particular, they did not subject the executive’s assertion that the applicant presented a national security risk to meaningful scrutiny and relied solely on uncorroborated information in a classified report of a covert surveillance operation. The European Court noted in this connection that Bulgarian law on such surveillance did not provide the minimum guarantees required under Article 8. The European Court also found that the allegations against the first applicant, although serious, could not reasonably be considered to be capable of threatening Bulgaria’s national security. Finally, the Court criticised the fact that the national courts also failed to consider the question of the proportionality of the interference with the applicants’ family life compared with the aim pursued.

The Al-Nashif and Bashir and others cases also concern the fact that the applicants had, under the applicable law, been given no opportunity to challenge the lawfulness of their detention while awaiting deportation or expulsion (violations of Article 5§4). The European Court noted in particular that the detention orders stated no particular reasons and that the applicants were not given the possibility to discuss with their lawyer any possible legal challenge to the measures against them. The case of Bashir and others also concerns the failure to inform the first applicant promptly of the reasons for his detention (violation of Article 5§2).

Finally, the case of C.G. and others also concerns the fact that the first applicant’s expulsion failed to satisfy the various requirements of Article 1 of Protocol No.7. The Court noted in particular that the expulsion was not “in accordance with the law” since the applicant did not enjoy the minimum degree of protection against arbitrariness. Furthermore, the applicant was not given the opportunity to have his case reviewed before being deported from Bulgaria. Expulsion of an alien lawfully resident in the territory of a state before his/her case is heard or reviewed is permitted under Article 1§2 of Protocol No. 7 only if that “expulsion is necessary in the interests of public order or is grounded on reasons of national security”. The European Court had already found that the first applicant’s expulsion had not been based on any genuine national security interests, and the government had not put forward any convincing arguments that it had been truly necessary to deport him in the interests of public order before he was able to challenge the measure.

Individual measures:

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

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

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

2) Case of Bashir and others: Mr Bashir was expelled from Bulgaria in 2000.

As of 20/03/2008 the applicants have lodged no application with the Supreme Administrative Court to have the expulsion order and other relevant measures revoked.

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

            3) Case of C.G. and others: the first applicant was expelled from Bulgaria in 2005.

• Information is expected on the situation of the first applicant with a view to withdrawing the measures taken against him.

4) Case of Hassan: As a result of the measures undertaken by the authorities, Mr Hasan left Bulgaria in October 1999.

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

• Information is expected on the withdrawal of the other measures taken against M. Hasan (i.e. the revocation of his residence permit).

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

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

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

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

            1) Violations of Articles 8 and 13:  The attention of the Bulgarian authorities was drawn to a number of problems in the legislation and regulations which were the basis for the violations found by the European Court in the Al-Nashif case. Indeed, at the relevant time concerning this case Bulgarian law did 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 on expulsion itself, when such reasons are evoked (cf. Article 47 of the Aliens Act, in force at the material time).

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

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

- Legislative reform:

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

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

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

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

• Bilateral contacts are under way on this issue (particularly in light of the violation of Article 1 of Protocol No.7 found by the European Court in the C.G. and others case: see point 2 below).

• Information is awaited on the issue of the effectiveness of judicial review in such cases in the light of the finding of a violation of Articles 8 and 13 by the European Court in the C.G. and others case owing to the purely formal examination by the domestic courts (including the Supreme Administrative Court) of the applicant’s complaint regarding the decision to expel him. It should be noted that the question of the compatibility of the legal framework and the practice related to secret surveillance with the requirements of the Convention is being examined in the framework of the case of the Association for European Integration and Human Rights and Ekimdzhiev (1065th meeting, September 2009).

2) Violation of Article 1 of Protocol No.7 (C.G. and others case): 

• Bilateral contacts are under way in this issue, in particular, with respect to Article 1§1 (b) of Protocol No. 7, regarding the possibility given to persons in the position of the first applicant in the C.G. and others case to challenge an expulsion order before its execution.

            3) Violation of Article 5§4: Clarifications have been requested concerning whether Bulgarian law at present provides for judicial review of the lawfulness of detention in specialised centres in cases of expulsion on the grounds of national security (see Article 44§6 in conjunction with Article 46§1 of the Aliens Act). The Bulgarian authorities indicated that the lawfulness of the detention imposed under the Aliens Act may be reviewed by the competent administrative organs and courts in accordance with the provisions of the Code of Administrative Procedure.

In addition, the authorities consider that following the judgment in the Al-Nashif case the domestic courts are already obliged to provide the guarantees provided for in Article 5§4.

• Additional information is awaited on the practice relating to the judicial supervision of detention pending deportation.

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

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

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

75157/01           Sadaykov, judgment of 22/05/2008, final on 22/08/2008[3]

- Case concerning the lack of effective investigation into the death of the applicants’ relatives, of Roma origin[4]

55523/00           Angelova and Iliev, judgment of 26/07/2007, final on 26/10/2007

- Cases mainly concerning deaths or ill-treatment which took place under the responsibility of the forces of order[5]

Interim Resolution CM/Res/DH(2007)107

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

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

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

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

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

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

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

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

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

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

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

59548/00           Dodov, judgment of 17/01/2008, final on 17/04/2008[6]

- Cases mainly concerning the length of detention on remand[7]

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

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

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

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

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

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

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

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

55861/00           Svetloslav Dimitrov, judgment of 07/02/2008, final on 07/05/2008[8]

53321/99           Karamitrov and others, judgment of 10/01/2008, final on 10/04/2008[9]

57045/00           Zhechev, judgment of 21/06/2007, final on 21/09/2007[10]

64209/01           Peev, judgment of 26/07/2007, final on 26/10/2007[11]

65755/01           Stefanov Iliya, judgment of 22/05/2008, final on 22/08/2008[12]

47579/99           Raichinov, judgment of 20/04/2006, final on 20/07/2006[13]

51343/99          Angelov Angel, judgment of 15/02/2007, final on 15/05/2007[14]

68490/01           Stankov, judgment of 12/07/2007, final on 12/10/2007[15]

56891/00          Borisova, judgment of 21/12/2006, final on 21/03/2007[16]

50479/99          Yordanov Stanimir, judgment of 18/01/2007, final on 18/04/2007[17]

49429/99           Capital Bank AD, judgment of 24/11/2005, final on 24/02/2006[18]

- Cases concerning the failure or substantial delay by the administration in abiding by final domestic judgments[19]

CM/Inf/DH(2007)33

44076/98          Angelov, judgment of 22/04/2004, final on 22/07/2004

39609/98          Mancheva, judgment of 30/09/2004, final on 30/12/2004

45466/99+        Rahbar-Pagard, judgment of 06/04/2006, final on 06/07/2006

67353/01          Sirmanov, judgment of 10/05/2007, final on 10/08/2007

47797/99+        Kehaya and others, judgment of 12/01/2006, final on 12/04/2006 and of 14/06/2007, final on 14/09/2007 (Article 41)[20]

- Cases concerning the failure to deliver real properties as compensation for expropriated properties[21]

42908/98+        Kirilova and others, judgments of 09/06/2005, final on 09/09/2005 and of 14/06/2007, final on 14/09/2007 (Article 41)

21352/02           Lazarov, judgment of 22/05/2008, final on 22/08/2008

- Cases concerning the violation of the applicants' right to the peaceful enjoyment of their possessions due to the annulment of their title to property acquired under the communist regime[22]

43278/98+         Velikovi and others, judgment of 15/03/2007, final on 9/07/2007, judgment of 24/04/2008 (just satisfaction), final on 24/07/2008

45116/98          Kalinova, judgment of 08/11/2007, final on 08/02/2008 and of 27/11/2008, possibly final on 27/02/2009

39084/97          Yankov, judgment of 11/12/03, final on 11/03/04[23]

47823/99          Georgiev, judgment of 15/12/2005, final on 03/07/2006

58971/00          Popov Radoslav, judgment of 02/11/2006, final on 02/02/2007

57847/00          Navushtanov, judgment of 24/05/2007, final on 24/08/2007

                       - Cases of length of civil proceedings and lack of an effective remedy[24]

45950/99           Djangozov, judgment of 08/07/2004, final on 08/10/2004

56793/00           Babichkin, judgment of 10/08/2006, final on 10/11/2006

47829/99           Dimitrov, judgment of 23/09/2004, final on 23/12/2004

15154/02           Givezov, judgment of 22/05/2008, final on 22/08/2008, rectified on 30/09/2009

62722/00           Gospodinov, judgment of 10/05/2007, final on 10/08/2007

58497/00           Hadjibakalov, judgment of 08/06/2006, final on 08/09/2006

55350/00           Kambourov, judgment of 14/02/2008, final on 14/05/2008

9143/02            Jeliazkov and others, judgment of 03/04/2008, final on 03/07/2008

60939/00           Karcheva and Shtarbova, judgment of 28/09/2006, final on 28/12/2006

74487/01           Kavalovi, judgment of 17/01/2008, final on 17/04/2008

44626/98           Kiurkchian, judgment of 24/03/2005, final on 24/06/2005

76763/01           Kostova, judgment of 03/05/2007, final on 03/08/2007

57641/00           Kovacheva and Hadjiilieva, judgment of 29/03/2007, final on 29/06/2007

77147/01           Kuiyumdjiyan, judgment of 24/05/2007, final on 24/08/2007

50954/99           Maslenkovi, judgment of 08/11/2007, final on 02/06/2008

69316/01           Merdzhanov, judgment of 22/05/2008, final on 22/08/2008

72855/01           Parashkevanova, judgment of 03/05/2007, final on 03/08/2007

47877/99           Rachevi, judgment of 23/09/2004, final on 23/12/2004

16880/02           Sheremetov, judgment of 22/05/2008, final on 22/08/2008

59523/00           Simizov, judgment of 18/10/2007, final on 18/01/2008

58828/00           Stefanova, judgment of 11/01/2007, final on 11/04/2007

39832/98           Todorov Nikolai Petkov, judgment of 18/01/2005, final on 18/04/2005

55956/00           Vatevi, judgment of 28/09/2006, final on 28/12/2006

63778/00          Zeleni Balkani, judgment of 12/04/2007, final on 12/07/2007[25]

- 33 cases against Croatia

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

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

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

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

Individual measures: As the police could not identify the attackers, the investigation into the attack was conducted against unknown perpetrators and was still pending when the European Court gave its judgment. In the meantime, the possible criminal offences have been subject to prescription (6 years for similar cases). The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

• Bilateral contacts are under way in order to assess the information provided.

General measures:

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

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

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

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

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

• Bilateral contacts are under way in order to assess the measures adopted.

9056/02            Radanović, judgment of 21/12/2006, final on 21/03/2007

22344/02           Kunić, judgment of 11/01/2007, final on 23/05/2007

These cases concern the violation of the applicants’ right to the peaceful enjoyment of their possessions in that, living abroad at the material time, they were prevented from using their privately owned properties as result of their allocation by state authorities, in 1996, to third persons on the basis of the Act on the Temporary Take-over and Management of Certain Property (“the Take-over Act”) (violation of Article 1 of Protocol No. 1).

In 2000, the Housing Commissions ordered the occupants of the applicants’ properties to vacate them within 15 days. However, both decisions remained unenforced until December 2003. With respect to the Radanović case, the relevant legislation and the case-law of the Supreme Court required the authorities to provide the temporary occupant with alternative accommodation. Although the European Court recognised that the Croatian authorities faced an exceptionally difficult task in having to balance the rights of owners against those of temporary occupants in the context of the return of refugees and displaced persons, it considered that the applicant had been subjected to an excessive restriction of her property rights for which, moreover, she had received no compensation for the damage sustained.

The Radanović case also concerns the ineffective response to the complaints the applicant introduced over a period of 6 years to have her flat back (violation of Article 13).

The Kunić case also concerns the excessive length of enforcement proceedings (from September 1997 to December 2003, namely 6 years and 1 month within the European Court’s jurisdiction rationae temporis) (violation of Article 6§1).

Individual measures: Both applicants have recovered their properties. In addition, the European Court awarded them just satisfaction for pecuniary and non-pecuniary damages.

• Assessment: it therefore seems that no other measure is necessary.

General measures:

1) Violation of Article 1 of Protocol No. 1: According to Section 2(3) and 2(4) of the Act repealing the “Take-over Act”, which entered into force in August 1998, the Programme for the Return of Refugees and Displaced Persons, adopted by the Parliament in June 1998 was applicable in proceedings concerning the temporary use, management and control of the property of persons who had left Croatia. Such proceedings were to be conducted by housing commissions at first instance and by municipal courts at second instance.

According to the Act on Areas of Special State Concern, a temporary occupant has a right to housing. It also provides that a temporary occupant whose right to housing is to be satisfied by providing him with construction material, must vacate the house or flat provided for his temporary use within 90 days of the final shipment of such material (Section 18(1)). Section 18(2) provides that if a temporary occupant fails to observe this time-limit, the State Attorney will, within 15 days following the expiry of the time-limit, institute civil proceedings for his eviction. Such action may be also independently brought by the owner (Section 18(5)). Section 27 provides that the Ministry shall pay compensation for the damage sustained by owner who applied for repossession his or her property prior to 30/10/2002 but to whom the property was not returned by that date.

• Clarification is expected on the relevant legislation (see above) and possible measures to avoid future violations.

2) Violation of Article 13: The European Court noted that although the applicant in the Radanović case had remedies at her disposal to obtain repossession of her flat, i.e. civil action or application to the local (administrative) authorities, those remedies were revealed to be ineffective at the material time.

• Information is expected on measures taken or envisaged to ensure that remedies are effective in similar situations.

3) Violation of Article 6§1: The issue of the excessive length of enforcement proceedings is examined in the context of the Cvijetić group of cases (71549/01) (Section 4.2).

4) Publication and dissemination:The judgments of the European Court in the Radanović and Kunić cases have been published in Croatian on the Internet site of the government www.pravosudje.hr. They have been also sent to the Constitutional Court, the Supreme Court and to the courts dealing with the case.

25774/05           Bistrović, judgment of 31/05/2007, final on 31/08/2007[26]

- Cases concerning the lack of access to a court in civil proceedings stayed automatically by a provision of law- inadequate compensation awarded by domestic courts

38303/02          Hajduković, judgment of 12/04/2007, final on 12/07/2007

41751/02          Milašinović, judgment of 24/05/2007, final on 24/08/2007

43446/02          Novaković Radivoj, judgment of 12/04/2007, final on 12/07/2007

43437/02          Novković, judgment of 05/04/2007, final on 05/07/2007

41567/02          Pasanec, judgment of 03/05/2007, final on 03/08/2007

38292/02          Petrović, judgment of 12/04/2007, final on 12/07/2007

11072/03          Popara, judgment of 15/03/2007, final on 15/06/2007

43362/02          Terzin-Laub, judgment of 12/04/2007, final on 12/07/2007

These cases concern violations of the applicants’ right of access to a court to obtain a determination of their civil claims filed between 1992 and 1996 for damage caused by the members of the Croatian army or police during the Homeland War in Croatia (1992-1995) or resulting from terrorist acts. In 1996 and 1999, before the adoption of a final court decision at national level in these cases, legislation was adopted ordering all proceedings of this kind to be stayed until new provisions were enacted to regulate the matter. In all those cases the applicants successfully lodged complaints with the Constitutional Court about the length of proceedings in question. However, the European Court found the amount of compensation awarded to the applicant at domestic level, which was approximately 15% of what the European Court was generally awarding in similar Croatian cases, to be manifestly unreasonable (violations of Article 6§1).

Individual measures: All the proceedings had been resumed by domestic courts before the European Court gave its judgments. In addition, the European Court awarded the applicants just satisfaction in respect of non-pecuniary damage.

• Assessment: No other measure appears necessary.

General measures: The problem of the access to a court in similar situations was examined in the context of the Kutić group of cases (Final Resolution ResDH(2006)3). On 14/07/2003 the Croatian Parliament adopted the Act on the Responsibility of the Republic of Croatia for Damage caused by Members of the Croatian Army and Police during the Homeland War and the Act on the Responsibility of the Republic of Croatia for Damages resulting from Terrorist Acts and Public Demonstrations (Official Gazette No. 117 of 23/07/2003). These laws provided the resumption of civil proceedings which had been stayed in accordance with the law of 1996 and 1999.

• Information is expected on the current practice concerning the award of compensation in similar situations and measures taken or envisaged to guarantee the effectiveness of the remedy against the excessive length of the proceedings in question.

All the judgments were translated and disseminated to the Constitutional Court, the Supreme Court and to the courts or authorities dealing with the cases. They are also available on the Internet site of the Ministry of Justice (www.pravosudje.hr) and were to be published in a periodic on case-law of the European Court of Human Rights.

- Cases of length of civil proceedings – inadequate compensation awarded by domestic courts

12419/04           Jakupović, judgment of 31/07/2007, final on 31/10/2007

43429/05           Balen, judgment of 25/10/2007, final on 25/01/2008

14878/04           Husić, judgment of 25/10/2007, final on 25/01/2008

27846/05           Letica, judgment of 18/10/2007, final on 18/01/2008

43714/02           Skokandić, judgment of 31/07/2007, final on 31/10/2007

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

When the European Court gave its judgments, the proceedings were pending in all cases with exception of the Balen case.

In all these cases the applicants successfully lodged complaints with the Constitutional Court about the length of proceedings in question. However, the European Court considered that the compensation offered by the Croatian Constitutional Court was manifestly unreasonable having regard to the European Court’s case-law (§17 of the Jakupović judgment).

Individual measures:

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

• Information is awaited on the current state of the pending proceedings and, if appropriate, on their acceleration.

General measures: These cases present partial similarities to that of Horvat (judgment of 26/07/2001) closed by Final Resolution ResDH(2005)60.

• Information is expected on the current practice concerning the award of compensation in similar situations and measures taken or envisaged to guarantee the effectiveness of the remedy against the excessive length of the proceedings in question.

                       - Cases of length of enforcement proceedings

71549/01          Cvijetić, judgment of 26/02/04, final on 26/05/04

4899/02            Kvartuč, judgment of 18/11/2004, final on 18/02/2005

39810/04          Lukavica, judgment of 05/07/2007, final on 05/10/2007

29759/04          Măcinković, judgment of 07/12/2006, final on 07/03/2007

9505/03            Mahmutović, judgment of 15/02/2007, final on 15/05/2007

33593/03          Majski, judgment of 01/06/2006, final on 01/09/2006

39299/02          Mužević, judgment of 16/11/2006, final on 16/02/2007

36071/03          Omerović, judgment of 01/06/2006, final on 01/09/2006

75139/01          Pibernik, judgment of 04/03/04, final on 04/06/04

14898/04          Šamija, judgment of 07/12/2006, final on 07/03/2007

39659/04          Šoštarić, judgment of 12/04/2007, final on 12/07/2007

All these cases concern the excessive length of enforcement proceedings (violations of Article 6§1).

The Cvijetić, Pibernik and Majski cases relate to the eviction of the occupants of the applicants' flats. The Kvartuč and Lukavica cases concern the excessive length of certain civil proceedings, including the enforcement proceedings stage. The Mačinković, Mahmutović, Mužević, Omerović, Šamija and Šoštarić cases concern the payment of certain sums to the applicants (the Mužević case also concerns the handing over of certain movable property).

In the Cvijetić and Pibernik cases the European Court also found that the delay in certain appeal proceedings and in executing eviction orders meant that the applicants were prevented from living in their homes for a very long time (violations of Article 8).

The Omerović case also concerns the lack of an effective remedy against the excessive length of the enforcement proceedings (violation of Article 13).

The Lukavica case also concerns the violation of the right to peaceful enjoyment of possessions due to non-execution of an in-court settlement of 11/03/2004 in part related to the return of the applicant’s vehicle (violation of Article 1 of Protocol No. 1). The European Court noted that under domestic law the applicant was already entitled to have her car returned as from November 1997 and its continued retention was unlawful.

Individual measures: In the cases of Cvijetić, Pibernik and Majski, the applicants regained possession of their flats following the execution of the eviction orders in 2002, 2003 and 2004 respectively. Furthermore, the European Court awarded all of them just satisfaction in respect of the non-pecuniary damage and in the cases Cvijetić and Pibernik the Court also awarded just satisfaction in respect of pecuniary damage suffered due to the impossibility of living in their homes, including the expenses related to their accommodation during the period concerned.

The European Court also awarded just satisfaction in respect of non-pecuniary damage in all those cases. The domestic proceedings are closed in the Kvartuč, Mahmutović and Omerović (decision of 31/05/2007) cases but were still pending in the Lukavica, Mačinković, Mužević, Šamija and Šoštarić cases when the European Court gave its judgment.

• Information is awaited on the state of the domestic proceedings in the Lukavica, Mačinković, Mužević, Šamija, Šoštarić cases and if appropriate on their acceleration.

General measures:

            1) Excessive length of enforcement proceedings and the existence of effective remedies against this length

• Information provided by the Croation authorities: The Croatian Parliament has adopted amendments to the Enforcement Act, which entered into force in 2005. The aim of the amendments is to simplify and accelerate enforcement proceedings, in particular by limiting the possibilities of suspending them. The possibility for the competent authorities to request the assistance of the judicial police in the event of a refusal to execute their orders is also provided.

Concerning the specific problems related to the late execution of eviction orders against squatters, the authorities consider that these could for the most part be solved by better application of the legislation in force. For that purpose the Judges' Academy organised seven two-day training meetings on the implementation of the new Enforcement Act.

Since then, the Croatian authorities have provided decisions of the Constitutional Court confirming that constitutional complaints against the excessive length of judicial proceedings are also applicable to enforcement proceedings (No. U-IIIA/1128/2004 of 02/02/2005 and No. U-III/A/1978/2002 of 24/02/2005).

They also indicated that the Ministry of Justice had initiated series of meetings between representatives of the competent courts and persons in charge from the relevant police departments with a view to improving the efficiency of police assistance in enforcement proceedings. The overall conclusion is that the co-operation between courts and police is satisfactory. However, it seems that better preparation of intervention when the police are involved is needed in some cases. The Ministry of Justice therefore will continue to encourage periodic coordination meetings on this issue at local level.

• Information awaited: statistical data on the average length of enforcement proceedings would be useful in order to confirm the efficiency of the measures already adopted.

            2) Excessive length of civil proceedings and the existence of effective remedies against this length: the cases of Lukavica, Pibernik and Kvartuč present similarities to the Horvat case (judgment of 26/07/2001) closed by resolution ResDH(2005)60 following:

- the adoption of general measures aimed at improving the efficiency of the judicial system and avoiding 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, into force since 15/03/2002).

3) Violation of Article 1 of Protocol No. 1: It seems that it was an isolated violation. The judgment of the European Court in the Lukavica case has been published in Croat and sent out to the Constitutional Court, the Supreme Court and to the courts concerned. It is also available on the Internet site of the Ministry of Justice www.pravosudje.hr.

• Assessment: Taking into account the direct effect of the European Convention in Croatia, no further measure seems necessary.

            4) Publication: The judgments of the European Court in the Cvijetić and Pibernik cases have been published in Croatian on the internet site of the Government www.vlada.hr. Extracts of these judgments were published in the legal magazine The Informer, Nos. 5226/04 and 5236/04. The Supreme Court sent these judgments out to courts and they were also sent to the Constitutional Court.

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

38550/02           Počuča, judgment of 29/06/2006, final on 29/09/2006

22457/02           Božić, judgment of 29/06/2006, final on 11/12/2006

28074/03           Smoje, judgment of 11/01/2007, final on 11/04/2007

35384/04           Tomljenović, judgment of 21/06/2007, final on 21/09/2007

These cases relate to the excessive length of proceedings concerning civil rights and obligations before administrative authorities and courts (violations of Article 6§1). The proceedings began between 1996 and 1999.  All the proceedings were still pending when the European Court delivered its judgments.

In the Počuča and Božić cases the European Court recalled its case-law according to which special diligence is required in the examination of pension disputes.

Individual measures: In the Počuča case the proceedings before administrative courts have been closed (but are pending before the Constitutional Court). In the Božić case the proceedings were closed on 8/05/2007 after the rejection of the applicant's complaint by the Constitutional Court.

• Information is awaited on the state of the proceedings in the Počuča, Smoje and Tomljenović cases and if appropriate on their acceleration.

General measures:

1) Excessive length of administrative proceedings: The violation found in the Počuča case is due to a great extent to a complex situation created following a decision of the Constitutional Court of 1998 declaring the unconstitutionality of certain legislative provisions concerning the adjustment of pensions. According to the Government, following to this decision, more than 427 809 applications have been lodged with the local Pension Fund's regional offices by those seeking adjustment of their pensions (§7 of the judgment of the European Court).

The difficulties in the examination of these requests would come in particular from the lack of a special legislation replacing the provisions declared unconstitutional. Such legislation intervened only in 2004 and 2005 (Act on the Implementation of the Constitutional Court's decision of 12 May 1998 and Pensioners Fund Act). It finally established a mechanism for compensation of the reducing of some pensions and thus resolved the legal gap created by the decision of the Constitutional Court of 1998.

▪ Information is awaited on the present situation at national level concerning the implementation of this new legislation in order to evaluate the risk of new violations of the Convention related to the excessive length of administrative proceedings on account of the application of the new procedure. Information is also expected on possible reasons for the violation found in the Smoje case and measures taken or envisaged to avoid similar violations.

2) Effective remedy against the excessive length of proceedings before administrative organs: The issue concerning the effective remedies against the excessive length of judicial proceedings was examined in the framework of the Horvat case (judgment of 26/07/2001) closed by Resolution ResDH(2005)60, following the introduction of a constitutional preventive and compensatory remedy. Additional questions on this issue are examined at present in the framework of the Raguž case (Section 4.1).

With respect to proceedings before administrative organs, the European Court found in the Počuča case that the remedies existing at the relevant time could not provide redress to the applicant for the following reasons:

-           even if the administrative remedy at the applicant's disposal (Administrative Procedure Act of 1991) was found to be effective in principle (decision in the Štajcar case of 20/01/2000), it did not function in the Počuča case because it took more than three years for the Administrative Court to decide on the applicant's complain against the excessive length of the proceedings before the administration,

-           as to the constitutional complain against the excessive length of judicial proceedings, it was not applicable to the length of the proceedings before the administrative organs (Art. 63 of the Constitutional Court Act and several decisions of the Constitutional Court, e.g. No. U-IIIA/3638/2003 of 18/02/2004).

However, subsequently, by a decision of 20/06/2007, the Constitutional Court changed its case-law as regards the time to be taken in consideration when deciding on the length of administrative proceedings. Thus, following the case-law of the European Court, it established that in all future cases regarding the length of the administrative proceedings, the period during which the case was pending before the administrative authorities should also be taken into consideration.

▪ Assessment: no further measure appears necessary.

3) Publication and dissemination of the judgments of the European Court: The judgments in the Božić, Smoje and Tomljenović cases were translated and sent out to the Constitutional Court, the Supreme Court and to the courts dealing with the case. It is also available at the internet site of the Ministry of Justice (www.pravosudje.hr) and were to be published in a periodical publication on the case law of the European Court.

30431/03          Vajagić, judgment of 20/07/2006, final on 11/12/2006 and of 16/10/2008, final on 16/01/2009[27]

- 22 cases 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 of 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; try the issues arising from the applicant's conduct; determine his guilt and impose the sanction. Second, 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. Taking also into account the unfair procedure described above, the European Court 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.

• Information is awaited as to whether this conviction has been erased from the criminal record of the applicant.

General measures:

            1) Violation of Article 6§1: The offence in question is set out in 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 provided by the Cypriot authorities (15/10/2008): The Legal Service for the Human Rights Sector of the Attorney General’s Office has prepared a Bill which will amend the Courts of Justice Law 1960. The bill will amend Section 44(2) of the Law, which permitted summary trial and punishment for contempt of court.

The amendments contain three key provisions, these provide that:

(i)         Cases of contempt are tried by a court separate from that where the alleged contempt was committed. The separate court will be designated by the President of the Supreme Court on the request of the court where the alleged contempt was committed.

(ii)         The designated court must give a copy of the court record to the person alleged to have committed contempt. The record must indicate exactly which words conduct or act amounted to the alleged contempt of court. The designated court must also indicate possible sanctions, provide every opportunity for the alleged offender to have legal representation and also provide the possibility for the alleged offender to apologise and/or explain their conduct.

(iii)        Before requesting the President of the Supreme Court to designate another court, the court in which the alleged contempt occurred must also inform the alleged offender of the exact words, conduct or act that constituted contempt and explain the applicable sanctions.

The draft legislation also contains a provision to ensure that, where a prison sentence is a possible sanction, the domestic courts must carefully balance the need to protect the authority of the judiciary against the need to protect the exercise of the right to freedom of expression.

The Bill is in the final stages of consultation. Once this has completed, it will be considered for wider governmental approval before being passed to Parliament.

• Information is awaited on the passage of the Bill by Parliament.

            2) Violation of Article 10: 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. The judgment was also translated and published in the Cyprus Law Tribune of the Cyprus Bar Association, 2005, 1st issue, p 38 ff.

• Information is awaited: on any guidance or training given to judges following the European Court’s judgment and the application of the new, draft legislation.

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

62242/00          Gregoriou, judgment of 25/03/03, final on 09/07/03

34579/05          A.J. Hadjihanna Bros (tourist enterprises) Ltd and Hadjihannas, judgment of 18/01/2007, final on 18/04/2007

43151/04          Charalambous Aresti, judgment of 19/07/2007, final on 19/10/2007

6470/02            Cichowicz, judgment of 19/01/2006, final on 19/04/2006

35128/02          Clerides and Kynigos, judgment of 19/01/2006, final on 19/04/2006

15940/02          Gavrielides, judgment of 01/06/2006, final on 01/09/2006

73802/01          Gavrielidou and others, judgment of 06/04/06, final on 06/07/06

2647/02            Josephides, judgment of 19/01/2006, final on 19/04/2006

33761/02           Josephides, judgment of 06/12/2007, final on 02/06/2008

2669/02            Kyriakidis and Kyriakidou, judgment of 19/01/06, final on 19/04/06

68448/01          Lerios, judgment of 23/03/06, final on 23/06/06

30503/03          Odysseos, judgment of 08/03/2007, final on 08/06/2007

2418/05            Ouzounian Barret, judgment of 18/01/2007, final on 09/07/2007

20429/02          Papakokkinou, judgment of 19/01/2006, final on 19/04/2006

4403/03            Papakokkinou, judgment of 14/12/2006, final on 14/03/2006

20435/02          Paroutis, judgment of 19/01/2006, final on 19/04/2006

19106/03          Pastellis, judgment of 02/03/06, final on 02/06/06

47119/99          Shacolas, judgment of 04/05/2006, final on 04/08/2006

35698/03          Tengerakis, judgment of 09/11/2006, final on 09/02/2007

21322/02          Tsaggaris, judgment of 19/01/2006, final on 19/04/2006

38775/02          Waldner, judgment of 19/01/2006, final on 19/04/2006

These cases concern excessive length of civil proceedings (violations of Article 6§1). The cases of Clerides and Kynigos, Gavrielides, Gavrielidou and others, Lerios and Ouzounian Barret also concern the lack of an effective domestic remedy (violations of Articles 13). The violations occurred in cases running from prior to 1989 (when Cyprus accepted the individual right of petition) up to the present.

Individual measures: In all cases except that of Shacolas, proceedings are closed.

• Information is awaited concerning the state of these proceedings in that case.

General measures:

            1) Violations of Article 6§1:

• Measures adopted: In the context of the Gregoriou case regulatory measures (in particular a series of circulars issued by the Supreme Court from 1995-2003) were adopted for the prevention of similar violations. In 2005 the average length of proceedings in the District Courts and in the Supreme Court was 2½ years.

Seven judgments from this group were promptly disseminated by the Human Rights Sector of the Government Agent to judicial authorities, the Justice Ministry, the Cyprus Bar Association and the Legal Affairs and Human Rights Parliamentary Committees.

At the 1035th meeting (September 2008), in addition to providing information on the draft bill, the Cypriot authorities confirmed that the Supreme Court was undertaking research on the causes of the excessive length of proceedings.

• Information is awaited on any further measures envisaged to develop the ability of the court system to process cases in reasonable time and on the current trends concerning length of judicial proceedings. Information on the progress and outcome of the research undertaken by the Supreme Court would be welcome.

            2) Violation of Article 13:

• Measures under way: A draft bill has been produced with the direct aim of addressing the issue of length of proceedings in civil cases and the absence of a right to an effective remedy. The bill is currently out to consultation and has been agreed by the Ministry of Justice and the Law Commissioner. The bill is currently being considered by the Supreme Court as part of the consultation procedure. It is intended that the bill will be laid before parliament at the end of 2008 and come into force in early 2009.

The bill is designed to address the issue of lack of an effective remedy for excessive length of procedure in civil cases. The bill has retrospective application and provides for cases which have suffered from unreasonable delay to be accelerated, or compensation awarded where the case is no longer pending.

Finally, it is noted that the judgment in the case of Paroutis was translated into Greek and published in the Cyprus Law Tribune of the Bar Association, 2006, 2nd issue, p 39 ff.

• Information is awaited on the possibility of creating an effective remedy where excessive delay has occurred in criminal cases. In the context of the legislative process under way, the authorities' attention is drawn to Committee of Ministers' Recommendation Rec(2004)6 to member states on the improvement of domestic remedies and to measures adopted by other countries confronted with similar problems (see e.g. Final 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).

- 77 cases against the Czech Republic

18642/04           Smatana, judgment of 27/09/2007, final on 31/03/2008

This case concerns the applicant’s continued pre-trial detention for more than 2 years between 2000 and 2002 without sufficient reasons justifying such measure.

The European Court held that the motivation behind the decisions appeared abstract and did not refer to the concrete activities of the applicant (violation of Article 5§3).

The case also concerns the lack of a speedy examination of the appeal lodged by the applicant on 20/08/01 against his continued detention, settled as a last resort by the decision of the Constitutional Court served on 19/12/2003 (almost two years before this court, and almost two months for the service of the High Court decision of 11/10/2001) (violation of Article 5 § 4).

Finally, the European Court considered that the applicant’s effective use of his right to obtain compensation for detention contrary to Article 5 of the Convention was not, at the time, ensured with a sufficient degree of certainty (violation of Article 5§5).

Individual measures: Since 2003, the applicant is serving his sentence, from which has been deducted the period he had spent in pre-trial detention. The European Court awarded him just satisfaction for non-pecuniary damage but not for pecuniary damage as it considered that the reduction of his prison sentence was a sufficient compensation.

• Assessment: no further individual measure seems necessary.

General measures:

1) Violation of Article 5§3: The Czech Code of Criminal Procedure has since 01/01/2002 included new provisions to limit the length of detention on remand (see case of Punzelt, Final Resolution ResDH(2004)33 adopted on 15/06/2004, and cases of Singh and Vejmola, Final Resolution CM/ResDH(2007)119, adopted on 31/10/2007). In addition, the Czech courts have to reassess at regular intervals whether continued detention is still justified. Furthermore they have to examine whether there are serious reasons why criminal proceedings are still outstanding. This case was probably an isolated violation resulting from its particular circumstances.

• Assessment: no further general measure seems necessary.

2) Violation of Article 5§4: On 01/01/2002, additional guarantees have been introduced into the Code of Criminal Procedure to ensure that proceedings concerning the lawfulness of detention are carried out promptly (see the above Final Resolutions). However the violation in this case resulted mainly from a delay that occurred in the proceedings before the Constitutional Court which are not subject to the Code of Criminal Procedure. According to information provided by the Czech authorities, the Constitutional Court’s judges have been familiarised with the European Court’s judgment and are henceforth paying increased attention to complaints relating to detention. Every month an overview of all such complaints pending before the Constitutional Court is submitted to the plenary which checks periodically the durations of detention.

• Information and statistics are expected on the concrete effects of the internal measures taken by the Constitutional Court. Further information would be useful on the possible incorporation of these measures into the legislation and on measures taken or envisaged to reduce the periods of notification of decisions on appeals against the detention.

3) Violation of Article 5§5: At the material time, Czech law did not provide, with a sufficient degree of certainty, compensation in cases where a violation of Article 5 of the Convention was found. On 27/04/2006 amendment No. 160/2006 to Act No. 82/1998 entered into force, which explicitly provides the possibility of compensation for pecuniary and non-pecuniary damage resulting from an unjustified pre-trial detention, in cases where criminal proceedings are stayed or end in an acquittal or a decision concerning the detention has been quashed as being unlawful.

In order to allow applicants to benefit from this possibility, the plenary of the Constitutional Court adopted (on 06/05/2008) an opinion No. Pl.ÚS 25/08 to unify its jurisprudence on this matter. Accordingly, whenever the Constitutional Court grants a constitutional complaint challenging the lawfulness of detention, it also has to quash the decision on detention, regardless of whether the person concerned is still in detention or not.

The Czech authorities stated furthermore that compensation could also be claimed on the basis of incorrect procedure by the competent authority, as provided in Section 13(1) of Act No. 82/1998 which refers, among others, to Article 5 of the Convention. This remedy does not require any prior quashing of the decision relating to detention. The European Court held nevertheless that no example of a decision on this issue has been submitted thus far (see §91 in fine of the judgment).

• Information is expected on the new decision-making practice of the Constitutional Court and on the functioning of the compensatory remedy provided in Act No. 82/1998 as far as Article 5 claims are concerned.

4) Publication and dissemination: The European Court’s judgment has been translated and published on the website of the Ministry of Justice (www.justice.cz). It has also been sent out to the judges of the Constitutional Court and to the presidents of all regional courts who have been invited to inform other judges, so that similar violations may be prevented.

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

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

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

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

In the Havelka case, the applicant's three children (the other applicants) had been taken into public care in March 2004 on the sole ground that the family's economic and social conditions were not satisfactory and the family was threatened with eviction from a flat owned by the municipality of Prague because of outstanding rent payments. The first applicant was evicted in the beginning of 2007.

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

Individual measures:

            1) Wallovà and Walla case: As of 2009, the two eldest children are of age. The care order concerning the third child had been annulled in February 2006 and he returned to live with his parents. The custody of the two youngest children was given to foster parents in January 2005, with whom they have been living since then. They are today 8 and 11 years old.

• Information provided by the Czech authorities (letters of 22/05/ and 5/12/2007, 26/05 and 21/11/2008): In June 2007 the Ceske Budejovice Regional Court dismissed the applicants’ request for a re-transfer of custody of their two youngest children on the grounds that the children have built strong emotional ties with the foster parents and that their outright removal would endanger the psychological development of the children. The applicants did not apply for review to the Constitutional Court. Meanwhile, the authorities were working together progressively to restore ties between the two youngest children and the applicants and create conditions for their eventual reunion. The applicants had regular written contact with the two youngest children.

A first positive meeting between the first applicant, the mother, and the foster-parents took place on 27/02/2008. A visit of the mother in the foster family was held on 5/07/2008 to re-establish contacts with the two younger siblings. While the meeting with the youngest daughter was positive, serious emotional and psychological problems were encountered between the mother and her 11-year-old son.

The applicants (letter of 5/09/2008) stated that they renounced on seeking visiting rights to their children placed in foster care.

• Assessment: In these circumstances, no further individual measure appears to be necessary at this stage.

2) Havelka case: In 2009, the applicant will turn 59 years and his children 15, 16 and 17 years.

• Information provided by the Czech authorities (letters of 5/12/2007, 3/03, 26/05 and 21/11/2008): The children are still in public care. However, their placement is subject to judicial review at six-month intervals and the court has to establish whether the conditions for public care still exist (Article 46§3 of the Family Code). The President of the competent court, the Prague 10 District Court, has promised to take into account the European Court's judgment when reviewing the situation of the applicant's children.

In March and April 2008, two meetings with the applicant, his legal representatives, and representatives of the Prague 15 City District took place at the Family Policy Department of the Ministry of Labour and Social Affairs to address the applicant's situation. The applicant is in regular contact with the children via telephone and he regularly sees them during holidays, when they are all staying together at the applicant's sisters’. As the applicant can not afford the travelling expenses to visit the children for weekends, he was informed of the opportunity to apply for an extraordinary travel allowance. For the moment he has not applied at the courts for the termination of the children's institutional care because he intends to find appropriate housing for himself and the children first. This is difficult due to his economic situation and health problems. His only regular income is his partial disability pension and he has not yet succeeded in finding stable employment.

In January 2008, a request for a rented flat in Varnsdorf, in the Decin area where his sisters live, was dismissed on the grounds that he had previously been evicted for unpaid rent from a flat in Prague. His debts amount to 40 000 EUR (unpaid rent and interest rates, already accumulated at the time of the European Court’s judgment, see §40 of the judgment). On 12/11/2008 the Housing Commission of the Prague 15 Municipal District Authority considered the applicant’s request for a municipal welfare flat, but reached an unfavourable conclusion. The final formal decision has yet to be delivered by the Municipal Council. A further possibility would be to contact the Prague City Hall, and if this approach failed, the Ministry of Labour and Social Affairs would assist him in finding accommodation in one of the asylum houses. Talks on this matter have already taken place between representatives of the Ministry and the Prague Archdiocese Charity.

• Information is awaited on the final decision of the Municipal Council, and, if necessary, whether further measures (including the possibility of debt release or reduction) have been taken to help the applicant to find suitable housing for him and the children. Further information is awaited on whether there has been a judicial review of the placement of the children in public care since 2005 and on the outcome of the decisions.

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

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

• Measures taken:

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

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

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

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

The Deputies: 1.             recalled that in these cases the European Court found that the placement of children in public care motivated only by material and economic grounds constituted a disproportionate measure with respect to Article 8 of the Convention; 2.             noted that in the case of Wallovà and Walla the applicants had renounced further proceedings to obtain visiting rights in relation to their two children placed with a foster-family, as well as the authorities’ commitment to support the applicants in case they change their mind, and considered that, in these circumstances, no further individual measure appears necessary; 3.             noted with concern that in the Havelka case the first applicant has not yet found suitable housing, and that consequently his three children are still in public care; and encouraged the Czech authorities to undertake concrete steps to help the applicant to find a solution to his situation; 4.             invited the Czech authorities to provide further information on general measures, in particular the developments as regards the announced national action plan addressing inter alia the systemic problem of placement of children in public institutions on economic grounds, and on the follow-up mechanism applicable after the placement of a child, to reassess periodically whether the measure is still well founded; 5.             decided to resume consideration of these items: - at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of information to be provided on individual measures in the Havelka case, - at the latest at their 1072nd meeting (1-3 and 4(morning) December 2009) (DH), in the light of information to be provided on general measures.

7550/04            Reslová, judgment of 18/07/2006, final on 18/10/2006[28]

1633/05            Koudelka, judgment of 20/07/2006, final on 20/09/2006

26141/03           Fiala, judgment of 18/07/2006, final on 11/12/2006

26634/03           Kříž, judgment of 09/01/2007, final on 09/04/2007

27726/03           Mezl, judgment of 09/01/2007, final on 09/04/2007

14044/05           Zavřel, judgment of 18/01/2007, final on 18/04/2007

                        - 68 cases of length of judicial proceedings[29]

                        (See Appendix for the list of cases in the Bořánková and Hartman group)

- 4 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. A working group was expected to be appointed in March 2007 to examine the overall renewal of the Coercive Measures Act. In this context it will also examine what kind of measures should be taken on the basis of the present judgment and on the jurisprudence of the European Court in general. An extensive preliminary report has already been made on this issue also referring to the present judgment.

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 results of the working group, on the nature of the measures to be taken and on the proposed timetable for their adoption.

10163/02           Johansson, judgment of 06/09/2007, final on 06/12/2007

This case concerns a violation of the applicant’s right to respect for their private and family life due to the refusal of the Finnish authorities (the Population Registration Authority) to register the name “Axl” for their son born in 1999, on the ground that the spelling did not comply with Finnish name practice (violation of Article 8).

The European Court’s finding of a violation was based not least on the fact that the name thus spelt had already gained acceptance in Finland. Three people with the same name were found in the official Population Information System when the applicants' son was born. Subsequently, at least two more children have been given this name and four of these children were Finnish nationals.

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

• Information is awaited on the situation of the applicants’ son.

General measures:

• Information is awaited on publication and dissemination of the European Court’s judgment, as well as on other measures, if appropriate, to prevent future similar violations of the Convention.

68050/01           Ekholm, judgment of 24/07/2007, final on 24/10/2007

This case concerns the excessive length of certain proceedings before administrative courts (violation of Article 6§1). The proceedings, which concerned a dispute between neighbours, began in 1991 and were still pending when the European Court gave its decision (almost 16 years).

The case also concerns the competent authorities’ failure to enforce final judicial decisions (violation of Article 6§1). During the proceedings at issue, the case was referred back five times to the competent administrative authority (South Åland Municipal Health Board). For almost ten years, this board refused to comply with the final judicial decisions taken in the proceedings, ordering it to issue appropriate instructions to the applicants’ neighbours with (violation Article 6§1).

Individual measures: The European Court awarded the applicants just satisfaction in respect of both pecuniary and non-pecuniary damages suffered. In April 2006, the Health Board finally complied with the judicial decisions and ordered the applicants’ neighbours to take certain measures before the date on which its decision gained legal force. In 2007, the Administrative Court rejected the appeals introduced by both parties.

• Information is awaited on whether the decision of the Health Board has gained legal force and, if appropriate, on any measure taken to speed up the proceedings at issue.

General measures:

1) Failure to comply with a final judicial decision:

• Information is awaited on measures taken or envisaged by the Finnish authorities to prevent future similar violations and in particular on effective remedies available to applicants in domestic proceedings to complain of non-compliance with final judicial decisions by administrative authorities. 

At any event, publication and dissemination of the European Court’s judgment to competent authorities in these kind of cases seem necessary, to draw attention on the requirements of the Convention in this respect.

2) Length of the proceedings: See the Kangasluoma group (48339/99) (1059th meeting, June 2009).

40412/98           V., judgment of 24/04/2007, final on 24/07/2007

The case concerns the unfairness of the criminal proceedings instituted against the applicant due to the fact that he had been unable to argue fully and in due time his allegations that he had been entrapped by the police into committing the drug offences he was charged with (violation of Article 6§1). The European Court noted in particular that by refusing to disclose the telephone metering information concerning the applicant’s telephone the police denied him the opportunity to prove that the drugs in question were ordered by a person being held in police custody.

As a result of the proceedings in question the applicant was convicted in 1996 for drug related offences and sentenced to three years and six months’ imprisonment.

Individual measures:The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. The practice of the domestic courts demonstrates that reopening of criminal proceedings is possible under general provisions of the Code of Judicial Procedure in cases in which the European Court has found a violation (see, e.g., case Z. v. Finland, Resolution DH(99)24).

• Assessment: No further measure appears necessary.

General measures: The Police Act was amended in 2001 and in 2005, adding explicit provisions on certain unconventional preventive methods and investigative techniques, including undercover operations and induced deals. The legislation on telephone tapping has also been amended subsequently and now contains specific rules. Permission for telephone tapping is given by a court for a limited time only and only in relation to the most serious crimes. It is not allowed to intercept conversations between a suspect and their lawyer, doctor or priest. At the conclusion of the preliminary investigation, the suspect must be informed about the telephone tapping and all irrelevant information gathered must be destroyed.

Furthermore, the judgment of the Court has been published in the legal database Finlex (www.finlex.fi).

• Information is awaited as to whether any further general measures have been taken or are envisaged.

- 13 cases against France

18497/03           Ravon and others, judgment of 21/02/2008, final on 21/05/2008

This case concerns the violation of the applicants’ right of access to a court in order to obtain a decision in respect of their complaint regarding search and seizure measures undertaken by the tax authorities in 2000 at the premises of the applicants’ business and at the home of the applicants who controlled the businesses (violation of Article 6§1).

The European Court noted that the only avenue of appeal available to the applicants was under Article L.16B of the Code of Tax Procedure. Such an appeal was on points of law only. It did not permit an examination of the facts in question and did not provide sufficient guarantees of the right to a fair hearing (see §29 of the judgment). The fact that search and seizure can only be undertaken following a judge’s order is not sufficient to overcome this gap. Furthermore, the fact that article L.16B of the Code of Tax Procedure provides that such operations must take place under the supervision of the judge who has ordered them does not provide any independent control of the authorisation itself, and in any case the access to this judge appears theoretical rather than real. Moreover, it is not possible to have access to the judge who authorised the search proceedings once the searches have been completed. Allegations of irregularities affecting the proceedings still could be heard by the courts possibly ruling upon the merits of tax proceedings relying on the documents taken during the searches, but this can only be the case where proceedings are indeed brought against the persons concerned, which did not happen in the applicants’ case.

Individual measures: The applicants had not been the focus of any tax proceedings once the litigation had completed (paragraph 11). The European Court considered that for the two applicant companies the finding of the violation satisfied their claim for non-pecuniary damage. Under the same ruling, the Court awarded 5 000 euros to the individual applicant, Mr Ravon.

• Evaluation: It seems that there are no serious negative consequences for the applicants. In light of this, no individual measure appears necessary.

General measures: The European Court recalled that Article 6§1 implies that, in relation to search and seizure proceedings, those concerned should be able to challenge before an effective court, in fact and in law, the regularity of the decision ordering the proceedings and, if needed, the measures taken because of it. The avenue of appeal available should permit, in case of irregularity, the supervision of the proceedings in the event that if an operation is found to be irregular, those affected can obtain suitable redress (§ 28).

• Information provided on legislative measures adopted is being examined.

6253/03            Vincent, judgment of 24/10/2006, final on 26/03/2007, rectified on 25/09/2008

This case concerns the degrading treatment of the applicant during his detention from 17/02/2003 until 11/06/2003 at the Fresnes prison. Being a disabled person in a wheelchair, he could not move about and, in particular, leave his cell on his own (violation of Article 3).

The European Court took particular account of the fact that, to get through doors, the applicant had to be carried while one wheel of his wheelchair was dismantled, then reassembled once the wheelchair had passed the doorway, which may be considered as humiliating and demeaning in addition to the fact that the applicant was completely at the mercy of others' availability.

Individual measures: The applicant is currently detained in Liancourt prison which, although old, has among other things individual cells on the ground floor, where the medical department is situated and detainees' activities are held. The applicant complains of his present detention conditions, which he finds inappropriate to his disability and seised the administrative judge of his complaint. The Administrative Tribunal of Amiens, by an ordinance of its President, rejected the applicant's appeal, considering that it is possible for the applicant to move without assistance in his cell and in the prison and in particular that he may enter and leave his cell on his own (which was not the case in Fresnes). The applicant has lodged an appeal to the Conseil d'Etat against this decision.

Finally, the European Court awarded just satisfaction to the applicant for the non-pecuniary damages suffered.

• The information given to the Committee of Ministers shows that, unlike the conditions existing from February to June 2003 in Fresnes prison, criticised by the European Court (no violation having been found for the conditions of detention in other prisons), the applicant can now move and, in particular, leave his cell on his own. In any case, there exist sufficient guarantees concerning the applicant’s detention. National courts are seised of his complaints: in applying the Convention directly, it is their task to ensure, in particular following the European Court’s judgment, that the applicant’s conditions of detention comply with the Convention’s requirements.

• Information was provided by letter of 03/02/2009. It is currently being dealt with.

General measures: The Court found (§101) “that applicant and government agreed on the fact that the short-stay prison of Fresnes, a very ancient establishment, is particularly inappropriate for the detention of physically disabled persons”.

• Information provided by the French authorities: It is possible to avoid new, similar violations by ensuring, on a case-by-case basis, of the detention of disabled persons in one or another prison on the French territory, depending from their specific facilities. The prisons administration has 118 cells at its disposal for motor disabled detainees. These cells are predominantly situated in short-stay prisons. However, in order to optimise the existing system the directorate of the prisons administration has recently introduced a management system for the cells for disabled persons. A map of existing places is kept up to date in order to best reconcile the penal, penitentiary and health requirements in each given case. This system also makes it possible to anticipate situations.

In old prisons which are to be kept in operation, works are scheduled each year. Each time it is technically possible, cells for disabled persons will be created. At the Liancourt detention centre, where Mr Vincent is currently detained, there will be a new building of 80 places, with 20 cells specially conceived for disabled persons. The reorganisation of the establishments of Fleury-Merogis, Marseille and Nantes foresees the creation of respectively 26, 6 and 3 cells for disabled persons before 2014.

A construction program of 13 200 extra places in the French penitentiary system has begun. These places will include 1% cells adapted for disabled persons. The movement and all the activities and conveniences have been examined with a view to the presence of the disabled, be they detainees, visitors, contributors or staff. Finally, under the 11/02/2005 Act, all forms of handicap must be taken into account in establishments receiving public within ten years. Disability provision in prisons will be specifically handled by a joint decree of the Ministries of Equipment and of Justice which will fix accessibility rules for future constructions and for existing prisons. The situation is evolving towards adjusting of all French prisons to the presence of handicapped persons as of 2015.

The efforts by the French authorities to improve the conditions of treatment of prisoners will continue, not least in the framework of their cooperation with the CPT. In this respect, the French authorities recall that in its answer to the CPT's report on its visits to French prisons (document CPT/Inf(2007)45 of 10/12/2007), the government expresses its conviction that the CPT's visits, combined with the other similar mechanisms, contribute to the improvement of the treatment of persons deprived of liberty and to the respect for their fundamental rights. The adoption by the French Parliament of Law No. 2007-1545 of 30/10/2007, creating the post of General Controller of Places of Detention, apart from implementing the Optional Protocol to the Convention against torture and other cruel, inhuman or degrading treatment or punishment, also shows the will of the French authorities to work towards better respect for the fundamental rights of prisoners.

Concerning measures taken to give broad exposure to the European Court's judgment, so that it can be taken into account in practice by the competent authorities, first, it should be noted that all judgments against France are sent out to the courts and to the directorates of the Justice Ministry concerned; secondly, the present judgment was presented in detail in the Bulletin d'information of the Cour de cassation No. 651 of 01/12/2006. Various specialist articles were also published in widely read legal journals.

• To avoid new, similar violations without further delay, the authorities will make sure on a case-by-case basis that the imprisonment of disabled persons is made in appropriate prisons on French territory so as to ensure that the available equipment responds to the need of the persons concerned.

The Directorate of Prison Administration, directly responsible to the Ministry of justice, is the authority competent in this respect. Its attention has been drawn to the conclusions of this judgment. The judgment has been communicated to the courts concerned and also presented in a table published on the Ministry of Justice intranet site (table listing all the judgments and decisions delivered by the Court during the year, indicating in particular the complaints in respect of which the Court found a violation or a non-violation, as well as the complaints declared inadmissible).

• Information was provided by letter of 03/02/2009. It is currently being dealt with.

25389/05          Gebremedhin (Gaberamadhien), judgment of 26/04/2007, final on 26/07/2007

The case concerns the absence of an effective remedy whereby the applicant, an Eritrean journalist who had sought asylum in France at Paris-Charles de Gaulle Airport, might challenge the decision not to admit him to French territory so that he might defend his complaint concerning the risk of ill-treatment under Article 3 if he were to be repatriated (violation of Article 13, in conjunction with Article 3).

The European Court said that, given the importance it attached to Article 3 of the Convention and the irreversible nature of the harm that might occur if the risk of torture or ill-treatment materialised (which is obviously also the case where a state decides to send a foreigner back to a country where there are serious reasons to believe that he would be at such a risk), it was a requirement of Article 13 that the persons concerned should have access to a remedy with automatic suspensive effect.

Individual measures: After the applicant had lodged his application in this case, the European Court indicated to the French government, on 15/07/2005, pursuant to Rule 39 (interim measures) of the Rules of Court, that it was desirable not to remove him to Eritrea prior to the forthcoming meeting of the appropriate Chamber. On 20/07/2005 the French authorities granted him leave to enter France and then issued him with a temporary residence permit.

On 7/11/2005 the applicant was granted refugee status. The Court noted that Article 33 of the Geneva Convention of 28/07/1951 on the status of refugees now stands in the way of his deportation to his country of origin and accordingly concluded, in its admissibility decision of 10/10/2006 (§36) that the applicant had lost the quality of victim of the alleged violation of Article 3.

Furthermore, the Court held that, in the circumstances of the case, the non-pecuniary damage suffered by the applicant is sufficiently compensated by the finding of a violation of Article 13.

• Assessment: In these circumstances, the judgment would not appear to call for individual measures, other than payment of the just satisfaction.

General measures:

• Origin of the violation: The “frontier asylum procedure“ is used to authorise or refuse territorial access to asylum-seekers arriving at airports without the necessary documents. This procedure comes under the Ministry of Immigration, Integration, National Identity and Development in Solidarity (at the material time, it came under the Ministry of the Interior) which decides whether or not to grant leave to enter France following an advisory opinion by OFPRA (the French authority for the protection of refugees and stateless persons). The alien is held in a “waiting area” for the time needed to examine whether or not their planned asylum application was “manifestly ill-founded”; if the authorities deem the application to be “manifestly ill-founded”, they reject the request for leave to enter the country, and the individual concerned is automatically liable to be removed.

At the material time, the individuals concerned by this procedure could appeal against the ministerial decision refusing them leave to enter, but could also apply to the urgent applications judge. While this procedure appeared on the face of it to offer solid guarantees, it did not have an automatic suspensive effect, with the result that the person concerned could, quite lawfully, be deported before the urgent applications judge had given a decision. Hence there was no remedy “with an automatic suspensive effect”, required by the Convention.

• Measures adopted following the judgment: The authorities rapidly took provisional measures to avoid new, similar violations. In particular, on 26/07/2007, Air and Border Police officers were instructed to apply the provisions of the draft law, in course of adoption at the time, in advance (see below).

On 20/11/2007, the Law on the control of immigration, integration and asylum was adopted and promulgated (see articles L213-2, L213-9, L221-3 of the Code on Foreigners' Entry and Asylum, and article L777-1 of the Code of Administrative Justice).

The new provisions provide that foreigner who have been refused access to French territory in order to request asylum have 48 hours from the notification of this decision to request its annulment in a reasoned application to the Administrative Tribunal, which, with a single judge sitting (the President of the Tribunal or a substitute designated by him), must deliver judgment within 72 hours of being seised. The applicant may request the assistance of an interpreter. He may be assisted by his lawyer if he has one. If he does not, he may ask the judge to appoint him a lawyer. Decisions refusing leave to enter on grounds of asylum may not be executed before the expiry of a 48-hour delay following notification or, if the judge has been seised, before he has delivered its judgment. If the decision refusing leave to enter is annulled by the judge, the applicant is authorised to enter France so as to take the relevant steps before OFPRA.

Judgments of the President of the Administrative Tribunal or his substitute may be appealed within 15 days, before the President of the local Administrative Court of Appeal, or a substitute designated by him. This appeal has no suspensive effect.

The government is of the opinion that these provisions draw all the consequences of the Gebremedhin judgment, and stress the rapidity of the French authorities' reaction.

• Comments relating to these measures. Three sets of comments of ANAFE (“association nationale d'assistance aux frontières pour les étrangers”) and a joint comment by the National Human Rights Advisory Board (“Commission nationale consultative des droits de l'Homme”) and the Ombudsman (“Médiateur de la République”) have been brought to the attention of the Committee of Ministers, together with observations of the delegation. They concern among other things the scope of the measures resulting from the European Court's judgment and the effectivity of the appeal provided for by the above-mentioned law. These comments have been made in conformity with Rule No. 9 (Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements).

• The European Court has been seised of applications relating to the question of the effectiveness of the appeal provided by the law of 20/11/2007. These applications concern in particular the cases of Ma against France (4920/08; decision to communicate to the government on 13/02/2008) and Se against France(10085/08, decision to communicate to the government on 13/02/2008). As Rule 39 of the Rules of Court (interim measures) has been applied in each of these cases, they will be treated as priorities by the European Court. In the context of the supervision of the execution of the Gebremedhin case, it appears relevant for the Committee of Ministers to await the Court’s final determination of these applications.

70204/01           Frérot, judgment of 12/06/2007, final on 12/09/2007

The case concerns degrading treatment of the applicant, a former member of Action directe, a left-wing armed faction, who is serving a life-sentence, when he was detained in Fresnes prison between September 1994 and December 1996 (violation of Article 3).

During this period, the applicant was obliged to submit several times to total body searches without any convincing security requirement either to keep order or prevent offences.

The case also concerns a violation of the applicant’s right to respect of his correspondence, due the refusal by the governor of Fleury-Mérogis prison to forward a letter of the applicant’s to a detainee in another prison as it was, in his view, not in accordance with the definition of the notion of correspondence (violation of Article 8).

The case further relates to the absence of a remedy whereby the applicant might complain of this latter violation (violation of Article 13).

Lastly, it concerns the excessive length of certain proceedings before the Conseil d’Etat (violation of Article 6§1).

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. The administrative proceedings are closed. The applicant is no longer detained at Fresnes, but at Lannemezan.

• Assessment: no further measure seems necessary.

General measures:

            1) Violation of Article 3: The European Court acknowledged that physical searches and even total body searches may sometimes be needed to ensure security in prison, to maintain order or to prevent the commission of crimes, and that the search methods laid down in a circular of 14/03/1986 are, generally speaking, neither inhuman nor degrading.

The Court noted nonetheless that the applicant had only been subjected to total searches during his period at Fresnes, where policy is based on the presumption that any prisoner returning from the visiting suite is potentially hiding objects or substances in the most intimate parts of his body. This being the case, the Court understood that detainees subject to such a regime, like the applicant, might feel they were victims of arbitrary measures, not least as the regime was laid down by a circular giving the governor wide discretion.

The judgment of the European Court has been sent out to the Director of the prison authorities (on 29/06/2007) and to the Ministry of Justice for dissemination to all prisons.

• Further information appears necessary on other measures taken or envisaged to avoid repetition of the violation found (e.g.: instructions, circular, awareness raising measures). In any event, it seems necessary to confirm that the judgment has been disseminated to all prisons.

            2) Violation of Article 8: The European Court found that the interference with the applicant’s right was not based on any provision of the Code of Criminal Procedure, nor was there any legislative or regulatory text or case-law containing a definition of the notion of correspondence. The interference with the applicant’s correspondence was therefore not provided by law. In addition, the Court noted that the definition of the notion of correspondence in the circular of 29/12/1986 is incompatible with Article 8 of the Convention in that it is based on the content of the “correspondence”.

• Information is awaited on measures taken or envisaged to avoid repetition of the violation found, particularly alignment of the notion of correspondence with Article 8 of the Convention.

            3) Violation of Article 13: The European Court noted that in 2000 the Conseil d’Etat had declared inadmissible the applicant’s request to set aside the refusal by the Governor of Fresnes to forward his letter to another prisoner on the sole ground that it had been an “internal measure” and therefore not subject to appeal on the ground of exceeding of powers (recours pour excès de pouvoir). The Court noted that the government had not contended that the applicant had any other remedy at his disposal and thus concluded that the applicant had been deprived of a remedy to deal with his complaint concerning the violation of his right to respect for his correspondence.

The judgment of the European Court has been transmitted to the Conseil d’Etat.

The authorities provided certain details concerning the decisions that can, or cannot (“internal measures”) be subject to appeal on the ground of exceeding of powers before the administrative judge. In particular, the decisions of the Conseil d’Etat in the cases of Marie and Hardouin (17/02/1995, No. 97754 and 107766) radically changed the case-law with regard to prison conditions. They established the principle that, in order to decide whether or not a decision may be subject to appeal on ground of exceeding of power, the nature and the gravity of the measure at issue has to be taken into account. Furthermore, since the judgment in the case of Centre hospitalier spécialisé de Sarreguemines (12/03/1980), the Conseil d’Etat judges that failure respect the secrecy of correspondence between a detainee and his lawyer is likely to be subject to an appeal on the ground of exceeding of power. The authorities’ conclusion is that detainees have an effective remedy at their disposal within the meaning of Article 13, with regard to respect for their correspondence.

Finally, the authorities mentioned three Conseil d’Etat decisions delivered on 14/12/2007, which further reduced the scope of “internal measures” concerning other aspects of life in prison (No. 306432; 290730; 290420).

• Assessment: These developments in the case-law of the Conseil d’Etat case law concerning generally the concept of “internal measures” or the secrecy of prisoners’ correspondence go back to 1980 and 1995. In the present case, the Conseil d’Etat decision at issue was delivered in 2000 and appears to have been followed on 24/03/2005 (Nancy Administrative Court of Appeal, No. 00NC01402).

• Information would be useful on any further changes to the case-law of the Conseil d’Etat in the meantime.

            4) Violation of Article 6§1: In this respect, the case presents similarities in particular to that of SAPL and other cases of length of proceedings before administrative courts, closed by Resolution ResDH(2005)63 following the measures announced by the respondent state, concerning among others the Conseil d’Etat at issue in this case (in particular Law No. 2002-1138 of 09/09/2002, providing inter alia recruitment of staff, budgetary resources and procedural measures). Complementary measures have been presented in the case of Raffi and other similar cases (Final resolution CM/ResDH(2008)12).

70456/01           Sayoud, judgment of 26/07/2007, final on 26/10/2007

This case concerns a violation of the applicant’s right to private and family life (violation of Article 8). The applicant was born in Algeria when it was French territory. He lived in France as from 1965 and is the father of two minor children who are French nationals and live in France with their mother, also a French national. In 2000, he was sentenced to exclusion from French territory for five years, following criminal proceedings for drug trafficking in which he had been wrongly supposed to be Algerian, despite his French nationality. In 2002, the applicant was placed on a flight to Algiers. Taking into account that neither national nor international law authorises the expulsion of nationals, the European Court held that the measures taken against the applicant had not been “in accordance with the law”.

Individual measures: The applicant was readmitted to France in April 2006. In October 2006, a certificate of nationality and a national identity card were delivered to the applicant by the French authorities (respectively the Registry of the Rheims Tribunal d’instance and the Rheims Sub-Prefect’s office). The European court rejected the applicant’s request for just satisfaction which was not lodged in conformity with the Rules of the Court.

• Assessment: No further individual measure would appear necessary.

General measures: According to the judgment (§ 24), the violation originates in the authorities’ manifest negligence. The Court said that it did not question the government’s good faith in stating that the authorities would not have deported the applicant had they known that he was a French national. It even added that there is little doubt that the applicant himself contributed to the complexity of his own situation by being dilatory in obtaining documentary proof of his French nationality. It insisted however that the authorities should have made sure that the interference with the applicant’s rights under Article 8 was “in accordance with the law”. Considering in particular the date and place of the applicant’s birth and the existence of national regulations entitling persons born in Algeria at that time to take French nationality (Order No. 62‑825 of 21/07/1962, see § 17), the authorities should have ascertained whether or not the applicant had made use of those provisions before they deciding to exclude him from French territory and executing the decision.

• Information provided on the general measures is being examined.

- Cases concerning the equality of arms in criminal proceedings (extension of the time-limit in which the prosecutor could make an appeal, without a possibility for the applicant to lodge a cross-appeal)

63879/00           Ben Naceur, judgment of 03/10/2006, final on 03/01/2007

1092/04            Gacon, judgment of 22/05/2008, final on 22/08/2008

These cases concern infringements of the principle of equality of arms (violations of Article 6§1). In the Ben Naceur case, on 22/02/1999 Lyons Criminal Court sentenced the applicant to 7 years' imprisonment and imposed a permanent exclusion order on him. Neither the applicant nor the public prosecutor appealed against the judgment within the ten days permitted under Article 498 of the Code of Criminal Procedure. However, the principal public prosecutor lodged an appeal on 16/03/1999 under Article 505 of the Code of Criminal Procedure, which allows the principal public prosecutor 2 months from the date of delivery of the criminal court judgment in which to lodge an appeal. The Lyons Court of Appeal upheld the exclusion order in respect of the applicant and increased his prison sentence to 12 years. The applicant appealed unsuccessfully on points of law.

The European Court held that, in the specific circumstances of the case, the junction of two elements put the applicant in a situation of clear disadvantage in comparison with the public prosecution, thus breaching the equality of arms, namely:

- first, the fact that a longer time is allowed to the public prosecution - which has distinct and conflicting interests to those of the applicant;

- second, the fact that it was not possible, according to the domestic legislation, for the applicant to lodge a cross-appeal. Indeed, although the fact that, notwithstanding this circumstance, the applicant has had the possibility to contest again his guilt before the Court of appeal, in fact the possibility for him to be acquitted or to have his sentence reduced was largely theoretical and illusory in the specific circumstances of the case (indeed his sentence was noticeably increased). Particularly, the mere fact that the applicant made no appeal in the ten days period appeared as a signal that he was of the opinion that he had few chances to have his conviction changed in his favour before the Court of appeal.

In the Gacon case, on 30/03/2001 Lyons Criminal Court found that the offence of which the applicant had been charged was time-barred. The civil parties appealed against this decision within the delay provided in Article 498 of the Code of Criminal Procedure, but the public prosecutor did not. However, the principal public prosecutor lodged an appeal under Article 505, as in the Ben Naceur case. In appeal, the applicant’s discharge in respect of an offence was upheld, but the court of appeal convicted him of another offence. The European Court held that, although in this case the applicant had been discharged at first instance, the case presented similarities with the Ben Naceur case (§ 34). The appeal lodged by the principal public prosecutor under Article 505 exposed the applicant to a risk even greater than that of Mr Ben Naceur, namely annulment of the discharge. The fact that the public prosecutor’s office had more time to appeal placed the applicant at a clear disadvantage compared with the prosecution, in breach of the principle of equality of arms.

Individual measures; the applicants may ask for re-examination of their cases under articles L 626-1 ss. of the code of criminal procedure. The non-pecuniary damage suffered has been compensated by the just satisfaction granted by the European Court.

• Assessment: no further measure appears necessary.

General measures: The authorities have indicated that the Ben Naceur judgment had been disseminated to the First President of the Cour de cassation, to the Prosecutor General of the Cour de cassation, to the Prosecutor General of the Lyons Court of Appeal and to the Directorate of Criminal Affairs and Pardons (Ministry of Justice). On 4/12/2004, this Directorate also sent a note (“dépêche”) on the European Court's judgment to the Prosecutors General of all Courts of Appeal, drawing their attention to the consequences of France's condemnation by the European Court. This note specifies that if Prosecutors General lodges an appeal within the time-limit set by Article 505 of the Code of Criminal Procedure, they must make sure that the admissibility of any appeal lodged by the accused is requested within in a supplementary limit of 5 days.

The French authorities have provided certain details orally concerning the legal basis of this possibility of cross-appealing.

• Bilateral contacts are continuing concerning theses measures (among others the “dépêche” mentioned above). 

53640/00           Baucher, judgment of 24/07/2007, final on 24/10/2007

This case concerns the unfairness of certain criminal proceedings against the applicant in 1999, in particular an infringement of his defence rights (violation of Article 6§§1 and 3 b)). The applicant could not obtain disclosure of the reasons for a first-instance (tribunal correctionnel) judgment before the expiry of the 10-day time-limit for lodging an appeal. All he knew at the material time i.e. the fact of his conviction and the damages he had to pay, had resulted from the “particularly laconic” reading at a hearing of the operative part of the judgment (§46). He was unable to obtain the full text of the judgment in writing before the expiry of the time-limit for appeal, despite provisions in French law according to which this should not occur. The only solution for the applicant would have been to lodge an appeal as an interim measure, without knowing any of the reasons adduced by the court in convicting him. However, according to French law as it stood at the material time, this could have incurred the risk of the appeal court’s increasing the severity of his sentence, and he would have had no means of assessing his chances of success.

Individual measures: The applicant asked the European Court to grant just satisfaction compensate pecuniary damage equivalent to the sums he had been ordered to pay in the proceedings at issue. The European Court, considering that it could not speculate as to the outcome of the proceedings had the violation not taken place, rejected this request. Under Article L 626-1 ff. of the Code of Criminal Procedure, the applicant may ask for his conviction to be re-examined following a judgment of the European Court. The European court awarded just satisfaction in respect of the non-pecuniary damage due to the inability of the applicant to assess the likely outcome of lodging an appeal.

• Assessment: no further measure appears necessary.

General measures:

1) Judges’ obligation to give clear the reasons for their judgments so that appeal may be lodged in due time: In the criminal field, Article 485 of the Code of Criminal Procedure provides that the tribunal correctionnel must give the reasons for its judgments. It also provides that judgments must be read out at a hearing – at least the operative part of the judgment, and that the operative part must indicate the offences of which the person has been convicted, the sentence and the legal provisions applied, as well as the civil aspects of the conviction. The written text of the judgment must always be deposited by the court registry within three days of the pronouncement of the judgment, although failure to respect this rule is not sufficient ground for having the judgment annulled. However, the government indicated before the European Court that in spite of these provisions, in practice “it can happen (…) that the full written version of the judgment is prepared only after the parties’ decision to lodge an appeal” (§35) and that “the workload of court registries does not always make it possible for them to finish judgments before expiry of the time-limit for appeal” (§38).

• Assessment: in these circumstances, measures appear necessary to ensure that defendants may always obtain the reasons for their conviction early enough to be in a position to lodge an appeal.

2) Details concerning the possibility of lodging an appeal as an interim measure. At the material time, lodging an appeal as an interim measure was not without risk, since doing so opened the door to a cross-appeal from the prosecution. Withdrawal of the appeal had no effect on the cross-appeal, and the appellate court might deliver a judgment either in favour or against the defendant, there being no guarantee that a decision at appeal could not aggravate the defendant’s situation, as is the case where there is no cross-appeal.

However, a law of 15/06/2000 now provides that cross-appeals – including those introduced by the prosecution –are voided if the defendant retracts their appeal within a month of its being lodged.

35787/03           Walchli, judgment of 26/07/2007, final on 26/10/2007

The case concerns the unfairness of certain criminal proceedings: the applicant could not have access to a court to have set aside certain investigation proceedings which led to his conviction, which became final in 2003 (violation of Article 6§1). The motion to annul lodged by his counsel was rejected by the domestic courts on formal grounds. The European Court considered that in the specific circumstances of this case, the domestic courts had been excessively formalistic.

Individual measures: The applicant was sentenced to pay a fine of 1 500 euros together with 2 250 euros in civil damages. He applied before the European Court for reimbursement of pecuniary damages in the amount he was ordered to pay following the proceedings at issue. The European Court declined to speculate as to the outcome of these proceedings had the violation of Article 6§1 not taken place. In French law (Article L 626-1 ss of the Code of Criminal Procedure) the applicant may apply for the reopening of these proceedings.

• Assessment: under these circumstances, no further measure seems necessary.

General measures: According to Article 173 of the Code of Criminal Procedure (CCP), a motion to set aside a judicial investigation must, on pain of inadmissibility, be the subject of a “Declaration” to the registry of the court concerned (the investigation chamber). This declaration must be duly acknowledged and dated by the registrar who must co-sign it with the applicant or his counsel. In the present case, the applicant’s counsel presented himself in person at the registry to submit his application, which was entitled “Motion to Annul” and duly signed. Its presentation was acknowledged by the registrar, who stamped the cover sheet with the court’s official stamp and signed it, recording the date and time of reception. The domestic courts contended that that the motion was inadmissible because it had not been not accompanied by the required declaration.

The European Court found that the wording of Article 173 CCP made it impossible to determine with certainty whether or not a separate declaration was required for such a motion to be admissible. However, asthe Court refrains in principle from itself taking a view on factual elements underlying national courts’ decisions, it took the domestic courts’ position (i.e. that persons under indictment are normally obliged formally to declare their applications to the registry, simultaneously with their submission and registration) as a given.

However, in the particular circumstances of the present case, and especially in the light of the formalities that the applicant’s counsel had accomplished and the clarity of the application submitted, the Court considered that the registrar, given his role as the judicial official responsible for guaranteeing procedural orthodoxy might, when accepting the advocate’s submission, at least have drawn his attention to the procedure to be followed. Accordingly, the Court concluded that the domestic courts had acted with excessive formalism with regard to the procedural requirements in respect of the applicant’s motion.

• Information seems necessary on measures taken or expected to clarify the formalities to be accomplished when presenting a motion to annul the record of investigatory proceedings, for the benefit of all concerned (lawyers, registrars, judges). In any event the publication and dissemination of the European Court’s judgment will be required.

56802/00           Baumet, judgment of 24/07/2007, final on 24/10/2007

This case concerns the unfairness of certain proceedings before courts of audit due to the disclosure of certain documents to the prosecution and the judge rapporteur of the Cour des Comptes (court of appeal) without the applicant’s knowledge (violation of Article 6§1). The verdict in the proceedings, which became final in 1999, was that the applicant was personally ordered to repay considerable sums.

The European Court found that the fact that the applicant had not been informed of the disclosure of these documents, of which “the clear intention was to influence the decision of the Court of Audit” (§ 58) gave rise to a clear bias against his case, even if (as the Conseil d’Etat affirmed when dismissing the applicant’s appeal) they contained no new facts an had not been relied on by the Court of Audit in forming its judgments.

Individual measures: The proceedings at issue resulted in the applicant’s being sentenced to pay more than 200 000 euros. He asked the European Court to grant him just satisfaction equal to this amount. The European Court, declining to speculate on the outcome of the proceedings had the violation not taken place, rejected this request. It also found that the finding of the violation constituted in itself sufficient just satisfaction in respect of non-pecuniary damage sustained.

• The authorities provided their position in respect of individual measures. This is being examined.

General measures: A decree of 27/09/2002 added a new Article R131-42 the Code of Audit which provides henceforth that all documents placed on file during en investigation before the Cour des Comptes are disclosed to all parties who may consequently present their comments on them (§§28 and 61).

• The authorities provided very detailed information on other legal provisions and decrees relating to the procedure before the Cour des comptes (and the local financial courts – Chambres régionales des comptes). This information is being examined. Reference may also be made to the measures presented under the case of Martinie (Section 6.1) (see in particular the Law of 28/10/2008, according to which proceedings are now adversarial, and the accountant and official authorising the expenditure may have access to the file upon request).

39001/97          Maat, judgment of 27/04/2004, final on 27/07/2004

This case concerns the unfairness of certain criminal proceedings against the applicant. First, it concerns a disproportionate restriction of his right of access to a court in that he was obliged to comply with an arrest warrant in order to apply to set aside an appeal judgment given in absentia in 1997 confirming his sentence to 18 months' imprisonment and a million-French-franc fine as well as compensation to the civil plaintiffs (violation of Article 6§1).

Secondly, it concerns the failure to respect of the applicant’s right of defence, in that the appeal court prohibited him from being represented on the ground of his failure to appear in court (violation of Article 6§3c).

Individual measures: No request has so far been made regarding individual measures. The applicant’s lawyer indicated that she had been unable to contact him.

General measures:

            1) Violation of Article 6§1: The European Court noted that, according to the present case-law of the Cour de cassation, a motion to have a judgment set aside is the only form of appeal in respect of which the failure to comply with an arrest warrant constitutes an obstacle to admissibility. The condition no longer applies to ordinary appeals (Zutter case-law of the Cour de cassation, judgment of 24/11/1999) or to appeals on points of law (Rebboah case-law of the Cour de cassation, judgment of 30/06/1999).

Given the direct effect granted to the Convention by French courts and the developments in national case-law described above in similar issues, similar violations should be avoided by drawing the attention of the competent courts to this judgment. This is why information on the publication and dissemination of the judgment has been requested.

• Information provided by the French authorities: Generally speaking, all judgments of the European Court against France are systematically sent out to the courts concerned; in this case the judgment must have been disseminated to the Court of Cassation and to the other courts involved in the case. 

• Assessment: it appears necessary to confirm at least that the judgment has been sent out to all courts which might be seized of similar cases, i.e. criminal courts. Examples of possible changes in judicial doctrine are awaited, if they exist.

            2) Violation of Article 6§3c.: This case presents similarities to that of Poitrimol (Final Resolution CM/ResDH(2007)154 of 19/12/2007), closed in view of the evolution of the case-law before the national courts. The Court itself stressed the contribution of the Dentico judgment, delivered by the Plenary Assembly (Assemblée plénière) 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”.

• Assessment: No further measure is awaited.

- Cases of length of proceedings concerning civil rights and obligations before military pensions tribunals of incapacity

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

76977/01          Desserprit, judgment of 28/11/2006, final on 28/02/2007

These cases concern the excessive length of certain proceedings concerning civil rights and obligations before military pensions tribunals of incapacity (violations of Article 6§1). In the Mocie case, 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.

In the Desserprit case, the proceedings began in 1988 and ended in 2004 (more than 15 years).

Individual measures: Concerning the progress of the first set of proceedings in the Mocie case: on 28/02/2006, the Cour régionale des pensions of Poitiers (appeal court) accepted the applicant’s requests. The appeal in cassation lodged by the applicant against this decision was declared admissible on 10/04/2007; the delegation undertook to inform the Committee of the progress of the case.

• Information is thus awaited on the progress of these proceedings and on their acceleration, which is necessary in particular in the light of the particular diligence required.

No measure is required for the other proceedings concerned, as they are closed.

General measures: The proceedings before military pensions tribunals are particular and take place partly before civil courts, and partly before administrative courts. Thus, reference should be made: to the measures taken to avoid excessive length of civil proceedings (see the Final Resolution CM/ResDH(2008)39 in the case of C.R. against France and 9 other cases concerning the length of civil proceedings before civil courts) and to the measures taken to avoid excessive length of administrative proceedings, including before the Conseil d’Etat (see the Final Resolution CM/ResDH(2008)121 in the case of Raffi against France and 30 other cases concerning the excessive length of certain proceedings concerning civil rights and obligations or the determination of criminal charges before administrative courts, and the lack of an effective remedy).

It should be added that, since Law No. 2002-73 of 17/01/2002 (“Loi de modernisation sociale”), the appeals on points of law against decisions delivered by the Cours régionales des pensions (appeal courts) are made before the Conseil d’Etat, the Commission spéciale de cassation des pensions (Special Pensions Appeals Commission) having been suppressed (compare with Final Resolution ResDH(98)361 in the Sass case).

• Information provided by the French authorities: Both judgments have been sent out to the authorities concerned; the Desserprit judgment in particular to the General Prosecutor of the Besançon Court of Appeal.

•Assessment: further details appear necessary as to whether this dissemination reached all the authorities intervening in cases of this kind (to which authorities were they disseminated exactly?) and not only those involved in these two cases.

- 7 cases against Georgia

73241/01          Davtyan, judgment of 27/07/2006, final on 27/10/2006

68622/01          Danelia, judgment of 17/10/2006, final on 17/01/2007

The Davtyan case concerns the lack of effective investigations into the applicant's complaints of 9/11/1999 concerning ill-treatment allegedly suffered in June 1999, while he was in police custody (violation of Article 3 in its procedural aspect). The European Court underlined the fact that the mere launching of an inquiry, which was interrupted at an early stage without ever leading to a final decision, could not be considered as complying with the requirements of the Convention.

The Danelia case also concerns the absence of investigations by the Georgian authorities to determine the possible responsibility of members of the Ministry of the Interior with regards to alleged torture inflicted on the applicant whilst in police custody in October 2000 (violation of Article 13); this case also concerns the fact that it was impossible for the applicant to be examined by independent medical experts (violation of the procedural aspect of Article 3).

In these two cases, the Court also concluded that, in particular due to the shortcomings in the investigations conducted by the authorities concerned, it could not establish a substantive violation of article 3 of the Convention.

As regards the shortcomings in the investigations, the Court noted the following:

In the Davtian case:

-           the investigator in charge of the inquiry did not ask for a medical expertise;

-           the applicant was not given the opportunity to confront the police officers despite having declared that he could recognise the police officer who tortured him ;

-           the investigator failed to interview the only member of the applicant’s family in whom the applicant had confided;

in the Danelia case:

-           it was not possible for the applicant to be examined by independent medical experts;

-           neither the applicant nor the officials responsible for the applicant during his detention were interviewed;

-           there was no confrontation between the applicant and his alleged torturers.

Individual measures: Mr Davtyan was released in September 2005. The European Court awarded him just satisfaction in respect of the non-pecuniary damages sustained. Mr Danelia is no longer in detention. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damages.

The Committee's consistent position in these kinds of cases is that there is a continuing obligation to conduct investigations where a procedural violation of Article 3 is found. Information has been requested from the Georgian authorities as to whether a fresh investigation is possible into the events at issue in these two cases.

In a letter of 27/03/2007, the Georgian authorities mainly reiterated the arguments relied on before the Court in the context of the complaint concerning Article 3 and added that the applicant, Mr Davtyan, had not lodged an appeal against the prosecutor's decision of 10/12/1999 refusing the opening of an investigation. For that reason they conclude that there is no legal basis to open the investigations in the Davtyan case again. As regards the Danelia case, no reply has been received to date.

A letter specifying Georgia's obligations regarding individual measures was sent to the Georgian authorities on 23/08/2007.

In a further letter dated 3/10/2007, the Georgian delegation reproduced part of their previous letter dated 27/03/2007.

• Assessment: In the letter dated 23/08/2007, the Secretariat recalled that “requests for fresh investigations into allegations of torture or ill-treatment are based upon Member states’ obligation to take individual measures in favour of the applicants in order to put an end to the violations found by the Court and erase their consequences so as to achieve as far as possible restitutio in integrum. Against this background, the repetition of arguments already rejected by the Court cannot constitute an adequate response.” The letter also recalled that to date, no reply has been received as regards the Danelia case and that a copy of the decision of 10/12/1999 rejecting Mr Davtyan's complaint was awaited.

• Consequently, new information is awaited on individual measures in these cases.

General measures:

• Information provided by the Georgian authorities (letters of 27/03/2007 and 22/01/2008): Numerous measures have been taken to eliminate torture and ill-treatment in detention and to improve the processing of complaints of torture or ill-treatment. Article 92 of the Law on Imprisonment provides that every person who is admitted into a penitentiary establishment must undergo a medical examination. Any information regarding injuries must be recorded in the “Krebsi” (Daily Notes) of the Penitentiary Department which must be automatically transmitted to the Unit Supervising the Penitentiary Department and Human Rights Protection Unit of the Prosecution Service of Georgia. In accordance with Article 263 of the Code of Criminal Procedure, this information is sufficient to allow the automatic opening of a preliminary investigation. An investigation is also initiated as soon as information concerning ill-treatment is received by the prosecutor whether the information emanates from physical or legal persons, local government agencies, officials, operative-investigative authorities or mass media.

Numerous training programmes have been organised for the law enforcement officers, in particular by the Training Centre of the Prosecutor's Office (created in 2006) and the Training Centre of the Ministry of Internal Affairs (created in 2004). A Code of Ethics for Prosecutors and a Code of Ethics for the Police were adopted in June 2006.

Statistical data for 2006 show an increase in the number of investigations into allegations of torture and ill-treatment. This increase is the result of the government's willingness to investigate each case of abuse. In 2006, investigation was initiated into 137 cases of torture and ill-treatment. Criminal cases against 16 officials were submitted to courts for trial. 7 officials have been sentenced in 4 criminal cases.

These two judgments were translated into Georgian, published in the Official Gazette (Matsne No. 55 dated 26/11/2007) and sent out to various state bodies. Georgian translations of the cases are also available on the official web-page of the Ministry of Justice of Georgia.

As regards the specific issue of medical examination by independent experts, the Georgian authorities mentioned in their letter dated 22/01/2008 that Article 364 of the Code of Criminal Procedure provides for the possibility to conduct an expertise at the initiative of one party.

• Assessment: Article 364 of the Code of Criminal Procedure was already in force at the material time in the Danelia case (see §16 page 3 and §30 page 7 of the European Court's judgment); information is therefore awaited on the measures taken to ensure the effectiveness of the application of Article 364 of the Code. Concrete examples of the application of this provision would be useful.

The Deputies, 1.             took note of the information provided during the meeting by the Georgian authorities on the general measures taken and envisaged in these cases; 2.             invited the Secretariat and the Georgian authorities to carry out bilateral consultations in order to clarify outstanding general and individual measures to be taken in these cases; 3.             decided to resume consideration of these cases at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of information to be provided by the Georgian authorities.

28537/02          “Iza” Ltd and Makrakhidze, judgment of 27/09/2005, final on 27/12/2005

2507/03            “Amat-G“ Ltd and Mebaghishvili, judgment of 27/09/2005, final on 15/02/2006

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.

General measures:

            1) Violation of Article 6 §1 and Article 1 of Protocol No.1: 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 as well in particular as CM/Inf/DH(2006)19-rev 2).

By letter of 07/08/2006, the Georgian authorities indicated that an action plan was being prepared. They also confirmed that both judgments have been translated into Georgian and published in the Official Gazette (Sakartvelos Sakanonmdeblo Matsne) as well as widely distributed. Furthermore, the judgments are available in Georgian on the website of the Ministry of Justice: http://www.justice.gov.ge/makrakhidze.pdf

• Information provided by the Georgian authorities (letter of 27/02/2006): Adoption of the following measures is in particular envisaged: “1. Presenting of information on the sums envisaged for the last period in the State budget for the execution of domestic judgments; 2. Presenting of timetable for the execution of judgments so that the beneficiaries will be aware when they will get the sums at issue in the unenforced domestic judgments; 3. Amendments in the legislation of Georgia according to which it would be possible to reopen the case following the violation found by the European Court and claim additional sums for delaying the execution of judgment.”

The Secretariat wrote to the Georgian authorities on 17/04/ 2007 asking for clarification about these measures and recalling that a long-term remedy should be found in order that all domestic judgments are implemented in the future. It gives examples of measures envisaged by other member states in similar situation.

• Information on measures taken or envisaged are awaited

            2) Violation of Article 13:

• Information is awaited on remedies available to challenge failure to enforce court judgments and to redress the damage created by the delay in the enforcement proceedings at issue.

The Deputies 1.             took note with interest of the information provided by the Georgian authorities on different measures taken, particularly concerning legislative changes and budgetary appropriations, with a view to preventing new, similar violations of the Convention; 2.             decided to resume consideration of these items at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of further information to be provided on general measures and on the basis of a possible memorandum to be prepared by the Secretariat.

30779/04           Patsuria, judgment of 06/11/2007, final on 06/02/2008

The case concerns an infringement of the applicant’s right to liberty and security due to his being detained on remand in 2004 on grounds which cannot be regarded as “relevant” or “sufficient” (violation of Article 5§3).

The European Court held that, because they relied essentially on the seriousness of the charges against the applicant, the Georgian courts had failed to address the specific circumstances of his case or to consider alternative pre-trial measures. The Court underlined that the fact that the last decision extending the applicant’s detention on remand was a standard template text with pre-printed reasoning was particularly worrying.

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

• Assessment: No further measure seems necessary.

General measures:

Ÿ Translation and publication of the Court’s judgment as well as its dissemination to the Prosecutor General’s Office, district courts, Regional courts and Supreme Court are awaited. Information on provisions currently applicable to detention on remand is also awaited.

40765/02           Apostol, judgment of 28/11/2006, final on 28/02/2007

The case concerns a violation of the applicant's right to a fair trial due to excessive restriction of his access to enforcement proceedings concerning a final judgment given in his favour on 21/11/2001. This judgment, remained unenforced as the applicant was unable to pay the court fees, demanded in advance, for the enforcement proceedings (violation of Article 6§1).

Because he was unable to bear “preliminary expenses associated with enforcement measures”, the authorities refused to initiate the enforcement proceedings.

Individual measures: The applicant did not submit any claim for just satisfaction. The Court held that Georgia should use all appropriate means to ensure enforcement of the judgment of 21/11/2001.

• Information provided by the Georgian authorities (30/10/2007): To date the public authorities have been unable to ensure enforcement of the judgment of 21/11/2001 because it is impossible to establish the whereabouts of the debtor and because it seems that the debtor does not possess any goods (neither vehicle, nor immovable property, he is not registered as a private entrepreneur and has no bank account). On 14/05/2008, the applicant informed the European Court that the domestic judgment remained unexecuted.

• Information is awaited:

- on further measures taken to execute the judgment of 21/11/2001;

- on the existence of an appeal in Georgian law founded on the state's responsibility for defective functioning of the public justice service

General measures: The Court stated that by placing the responsibility of funding the organisation of the enforcement proceedings on the applicant, the state tried to escape its positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice.

• Information provided by the Georgian authorities (30/10/2007): The European Court’s judgment has been translated into Georgian, published in the Official Gazette No 13 of 13/03/2007 and sent out to various state bodies. The government is currently working on a draft law concerning enforcement proceedings which will incorporate international standards. Moreover, structural changes are intended, to raise the effectiveness of the Enforcement Department. 

• Information on the development of the draft and a copy of the draft are awaited. Moreover, detailed information on the administrations to which the Court’s judgment was transmitted would be very useful.

69852/01           Kidzinidzé, judgment of 29/01/2008, final on 07/07/2008

The case concerns the excessive length of proceedings brought by the applicant in February 2000 before the Supreme Court of the Autonomous Republic of Ajaria as well as a breach of his right to a tribunal due to the implicit refusal of the court of Batoumi to consider an appeal he lodged in October 2000 (violations of Article 6 §1).

The applicant was joint founder and chairman of up a company which, for a certain time imported several thousand tons of flour into the Autonomous Republic of Ajaria, at the request of President Abachidzé. The applicant and the company never obtained full payment for these imports but were, on the contrary, allegedly victims of extortion under threat by the Ajarian local authorities. The applicant brought the proceedings before the Supreme Court of the Autonomous Republic of Ajaria and the court of Batoumi to obtain payment of the sums owed and reibusement of the sums extorted, as well as to obtain compensation for the pecuniary and non-pecuniary damages.

Individual measures: The European Court held that none of the sums claimed by the applicant before it in respect of pecuniary damage reflected losses really incurred or directly resulting from the violations found and awarded no just satisfaction in this respect. It did grant just satisfaction in respect of non-pecuniary damage. The application lodged with the Supreme Court of the Autonomous Republic of Ajaria was still pending before this court when the European Court gave its judgment. The applicant never received any response to the appeal lodged with the court of Batoumi.

• Information is awaited on the following points:

- what is the state of progress of the proceedings lodged by the applicant with the Supreme Court of the Autonomous Republic of Ajaria? Have they been accelerated since the European Court’s judgment became final?

- was the appeal before the Court of Batoumi finally registered and has it been examined?

General measures:

• Information is awaited on the volume of proceedings pending before the Ajarian courts and as to whether the adoption of general measures might possibly be needed.

- 1 case against Georgia and the Russian Federation

36378/02           Shamaïev and 12 others, judgment of 12/04/2005, final on 12/10/2005

The case concerns a certain number of violations found in relation to the detention and extradition by Georgia to Russian Federation of thirteen people of Chechen origin suspected of terrorist activity in Chechnya. Five applicants have been extradited and convicted by the Russian courts to different terms of imprisonment. Six applicants have not been extradited and were liberated in accordance with the decisions given by Georgian courts. Two applicants first disappeared in Tbilisi in unclear circumstances and have been later arrested by Russian authorities. They were subsequently detained on remand with a view to a trial.

The European Court found the following violations in respect of Georgia:

-           inhuman treatment of the applicants as a result of the injuries inflicted on them during violent clashes between the Georgian prison guards and the applicants and the absence of appropriate medical care (violation of Article 3);

-           the risk of ill-treatment of the applicant in case of enforcement of the decision of the Chief Public Prosecutor of Georgia ordering the extradition of Mr. Guelogayev to Russia (risk of violation of Article 3);

-           failure to inform the applicants about their extradition and lack of communication of the relevant documents from the case-files (violation of Article 5§2);

-           lack of possibility to challenge the lawfulness of detention with a view to extradition (violation of Article 5§4);

-           absence of an effective domestic remedy in respect of the applicants' complaints about an alleged risk of violations of Articles 2 and 3 in case of their extradition in Russian Federation (violation of Art. 13);

-           failure to respect the Court's interim measure requesting the suspension of the extradition procedure (violation of Article 34).

The Court also found the following violations in respect of the Russian Federation:

-           interferences with the right to individual petition resulting inter alia from the refusal to grant the applicants access to their representatives before the Court and from hindrance of their correspondence with the Court. Consequently, the effective examination of the complaints lodged against Georgia have been hindered and the examination of the application declared admissible in respect of Russia became impossible (violation of Article 34);

-           the violation of the obligation to furnish all necessary facilities to the Court in the establishment of the facts: by a decision of the Stravropol Regional Court of 14/10/2003, a delegation from the Court was forbidden to access to the case-file on the ground that the domestic criminal proceedings had not been terminated and that the investigation carried out by the Court would thus infringe the principle of subsidiarity (violation of Article 38§1(a).

Individual measures: The Georgian authorities informed the Committee that the extradition order of 28/11/2002 in respect of Mr Guelogaev was cancelled by the Supreme Court of Georgia on 06/03/2006. It appears then that Mr Guelogaev is running no risk of extradition from Georgia to Russia.

General measures: During the first examination of the case at the 948th meeting, it was noted that the violations found by the European Court seem to call for important general measures. The Russian and Georgian authorities were accordingly requested (by letters of 8 and 20/12/2005 respectively) to provide plans of action for the implementation of the judgment.

            As regards Georgia:

            1) Violation of Article 5§2 and §4 and Article 13:the Georgian authorities indicated that the Code of Criminal Procedure (“CCP”) was amended on 25/03 and 17/06/2005 as follows:

- the time-limit for judicial review of extradition orders has been defined, and the courts competent to hear them identified;

- any person subject to extradition is granted the full defence rights recognised under Article 259 of the Georgian Code of Criminal Procedure;

- modalities of notification of extradition orders to the persons concerned and the possibility for them or their lawyers to have access to the file so as to effectively prepare their defence are provided in Articles 145, 231 and 232 of the Code of Criminal Procedure.

            2) Violation of Article 34 on account of the disregard of an interim measure indicated by the Court in application of Rule 39: The Georgian authorities were invited to inform the Committee of measures, legislative or other, ensuring that all competent authorities comply in the future 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. The authorities indicated their readiness to adopt such measures while stating that the supra-legal status of the Convention in Georgia may in itself prevent new, similar violations.

The Georgian version of the judgment has been published on the web page of the Ministry of Justice, Department of the State Representation to the European Court of Human Rights at www.justice.gouv.ge/evropis%20sasamarTlo.html <http://www.justice.gouv.ge/evropis%20sasamarTlo.html> and has been published in the Official Gazette Sakartvelos Sakanonmdeblo Matsne.

Since the case of Shamayev and others, there has been no new finding of a violation, by Georgia, of Article 34 of the Convention due to the disregard of an interim measure indicated by the Court in application of Rule 39 (nor in fact for any other reason).

On the contrary, in a recent case (Jangurazov against Georgia) concerning an individual of Kabard-Balkarian origin who was to be extradited to Russia (where he faced accusations of participating in a terrorist act) the European Court indicated an interim measure to the Georgian authorities who complied with it. The Supreme Court of Georgia quashed the decisions of the lower courts authorising the extradition of the applicant noting that he could become a victim of a treatment incompatible with Article 3. Following this decision of the Supreme Court the applicant withdrew his application, which was struck out of the European Court’s case list.

            As regards the Russian Federation:

            Violation of Article 38§1(a): the Court noted that the Convention had direct effect in the Russian Federation in accordance with the Constitution and the Code of Criminal Procedure (§ 500). This has not, however, prevented the lack of co-operation of the Stavropol Regional Court which did not allow the European Court delegation's access to the applicants in detention when the domestic proceedings were still pending. The European Court stressed that its visit to the applicants was not intended to violate the principle of subsidiarity relied upon by the Stavropol Court but to adjudicate efficiently the issues raised by the applicants under the Convention.

The authorities have therefore been invited to consider measures to ensure that the duty of co-operation with the Court is effectively implemented by all judicial and other authorities. The following avenues may be considered:

-           As an interim measure, it would be helpful if the Supreme Court could draw all courts' attention, by a ruling of the Plenum or by a circular, to their obligation under the Convention to co-operate with the European Court. In this context, courts' attention may also be drawn to Resolution ResDH(2001)66 mentioned abive, which should furthermore be widely disseminated to all authorities concerned (General Prosecutor's Office, Ministry of Interior, Ministry of Justice, etc.);

-           Appropriate legislative or regulatory measures may be subsequently envisaged to ensure compliance by all relevant authorities with the European Court's requests for co-operation. The role of the Representative of the Russian Federation before the Court may in particular be strengthened to allow him to ensure that the authorities provide the necessary information and assistance in the European Court's proceedings. To that effect, the ministries and agencies concerned may be invited to establish the appropriate procedures and/or to revise the existing ones (see for example, the General Prosecutor's Ruling on the procedure of consideration of the Representative of the requests of the Russian Federation before the European Court by Prosecutor's offices).

The authorities’ attention was also drawn to the Memorandum on the failure to cooperate with the organs of the Convention (Article 38, paragraph 1 of the Convention) issued by the Secretariat at the 960th meeting (CM/Inf/DH(2006)20).

• The Secretariat was informed in July 2006, that this judgment will soon be published in Russian in the Russian edition of the Bulletin of the European Court of Human Rights, and sent out to all authorities including courts; written confirmation of this information is awaited; moreover, information on other measures taken or envisaged to prevent new violations of Article 34 and Article 38 is awaited.

- 7 cases against Germany

            - Cases mainly concerning the length of judicial proceedings

75529/01          Sürmeli, judgment of 08/06/2006 - Grand Chamber

1679/03 Glüsen, judgment of 10/01/2008, final on 10/04/2008

20027/02          Herbst, judgment of 11/01/2007, final on 11/04/2007

19124/02          Kirsten, judgment of 15/02/2007, final on 09/07/2007

14635/03          Laudon, judgment of 26/04/2007, final on 24/09/2007

39741/02          Nanning, judgment of 12/07/2007, final on 12/10/2007

76680/01          Skugor, judgment of 10/05/2007, final on 24/09/2007

These cases concern the excessive length of certain judicial proceedings concerning civil rights and obligations (violations of Article 6§1).

The cases of Sürmeli and Kirsten case also concern the lack of an effective remedy. The Sürmeli case concerns the lack of an effective remedy in German law in respect of lengthy civil proceedings; the Kirsten case concerns the lack of an effective remedy against the excessive length of proceedings before the Federal Constitutional Court (violations of Article 13).

Individual measures: All proceedings at issue have been closed.

• Assessment: no further individual measure appears necessary.

General measures:

            1) Violations of Article 6§1:

• Information provided by the German authorities (letter of 16/01/2009): The average length of civil proceedings before district courts in 2006 (as compared to 2005) was 4,5 months (4,4 months), before regional courts 8 months (7,4 months). For appeal cases before the regional courts the average length of civil proceedings was 5,3 months (4,9 months), which amounted to 16 months (15,5 months) including the length of procedure at first instance. Before the higher Court of Appeal the average time of appeal was 7,3 months (7,5 months), but including the length of proceedings before the previous instances it amounted to 22,7 months (23,2 months).

• Information is awaited on more recent statistics to allow an assessment of trends.

            2) Violations of Article 13 in the cases of Sürmeli and Kirsten: According to the European Court in the Sürmeli judgment, a bill to introduce into German written law a new remedy in respect of inaction was tabled in September 2005 (§138 of the judgment). In the view of the European Court the proposed preventive remedy would address the root cause of the problem of length of proceedings and therefore the European Court considered it unnecessary to indicate any general measures for the execution of this case under Article 46 (§139 of the judgment).

• Information provided by the German authorities: As the draft proposal for the preventive forced acceleration remedy (“Tu was”-Beschwerde) had given rise to a very controversial debate amongst legal practitioners, the Ministry of Justice is currently working on a new draft proposal for a compensatory remedy for which there appears to be a broader political consensus.

• Information is awaited on further progress of the legal reform as well as on all other measures taken or envisaged to provide for an effective remedy against excessive length of proceedings.

3) Publication and dissemination: All judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice (http://www.bmj.de, Themen: Menschenrechte, EGMR) which provides a direct link to the European Court's website for judgments in German (http://www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch). Furthermore, the Sürmeli judgment was published in Neue Juristische Wochenschrift (NJW) 2006, p. 2389 ff and Europäische Grundrechtezeitschrift (EuGRZ 34 10-14/2007, p. 255 ff.) and was further sent out by letter of the Government Agent of 09/06/2006 to the courts and justice authorities concerned, i.e. the Federal Constitutional Court, the Federal Court of Justice and all state justice administrations, all Ministries of Justice of the Länder (Landesjustizverwaltungen). The other judgments were also sent out to the courts concerned by letter of the Government Agent.

- 29 cases against Greece

40907/98          Dougoz, judgment of 06/03/01, final on 06/06/01

                       Interim Resolution ResDH(2005)21

This case concerns the conditions of the applicant's detention in 1997, in the Alexandras Avenue (Athens) Police Headquarters and the Drapetsona (Piraeus) police detention centre, which amounted to degrading treatment (violation of article 3) in particular due to the considerable overpopulation and the lack of bedding, combined with the excessive length of his detention under such conditions. The case also concerns the fact that the applicant's detention pending expulsion was not in accordance with a procedure “prescribed by law” in the sense of Article 5§1 of the Convention. The Court noted in this respect that the applicant’s detention, which had been ordered by a judicial decision, was based on the application by analogy of a ministerial decision applicable to the administrative expulsion of foreigners (violation of Article 5§1). Finally, the case concerns the fact that the domestic legal system did not afford the applicant an opportunity to have the lawfulness of his detention pending expulsion determined by a national court (violation of Article 5§4).

Individual measures: The applicant is no longer detained in Greece. He was expelled in 1998.

General measures:

            1) Violations of Article 5§§1 and 4: The detention and expulsion of aliens following a court order are now regulated by Inter-ministerial Decision 137954 (OJHR B 1255/16.10.2000), issued under Immigration Law 1975/1991 and making express reference to Article 5§1f of the Convention. According to this Decision, the detention of aliens under expulsion following a court order is now subject to control by the public prosecutor and the courts.

            2) Violation of Article 3: On 14-15/10/2008, there was a high-level meeting in Athens between the Secretariat and the Greek authorities, including an exchange of views to assess the measures that had already been taken to execute the present case in particular and clarify any questions these measures might raise. The possible need for further measures was also addressed. The Greek authorities provided written information relating to the points raised during the meeting.

In the area of immigration, Laws Nos. 2910/2001, 3386/2005 and 3536/2007 have been adopted. Henceforth, detention pending expulsions may not exceed three months (articles 44§3 and 76/3). Special reception centres with appropriate medical staff are also envisaged so as to accommodate adults, minors and families. One such centre was opened in 2007 in the Prefecture of Evros in Northern Greece. It has a capacity of 500. A second reception centre, which is viewed as model of its kind, has been in operation in Samos since November 2007. As regards the old detention centres ad Rhodope, Mytilini and Piraeus, improvements have been carried out in line with the observations of the committee for the Prevention of torture and of inhuman or degrading treatment or punishment (CPT). The number of persons detained in the Piraeus centre must not exceed 30.

In 2006, a new centre for the transfer of detainees has opened in Athens (Petrou Ralli Avenue). It has a total area 25,000m² and one of its wings is used solely for detainees pending expulsion. This wing has a capacity of 208 men, 150 women and 20 minors. Since 2008, two new centres are operational: the first, at Amygdaleza Attikis is intended to accommodate minors and has 54 places; the second, at Lakonia, has a capacity of 42. As a rough guide, 3.715.818 euros have been spent these last two years for the three new centres in Samos, Lakonia and Evros.

Seven new detention centres opened in various police headquarters, four of which on the border islands of Chios, Samos, Lesbos and Corfu In addition, the Central Police Station in Alexandras Avenue is no longer used for detention pending expulsion, and the Drapetsona Detention Centre has been refurbished to provide the best conditions of cleanliness and dignity for detainees (the premises are airy and have more light, adequate sleeping arrangements and sanitation/toilets have been installed). This centre accommodates detainees awaiting expulsion for very short periods only. The number of persons detained does not exceed 60, whilst the centre’s capacity is 76 places.

The authorities underlined the fact that the country, in view of its geographical position, faces an inflow of illegal immigrants which requires action at a European level (see in particular the Commissioner for Human Rights’ report following his visit to Greece on 8-10 December 2008, CommDH(2009)6,§37 and following). In this context they plan to build 27 new accommodation centres with the help of European funding. Closer co‑operation between Greece, Cyprus, Malta and Italy to deal with illegal immigration was announced by the Greek Minister for the Interior following the decisions of Council of Ministers of the Interior of the European Union, on 27/11/2008 November in Brussels.  

Finally is should be noted that access to lawyers, consular authorities and NGOs is available seven days a week in all detention centres for foreigners. In addition, leaflets outlining the rights of detainees are available in 15 languages in all centres. A personal file is set up for each person detained pending expulsion in which all events during detention are recorded.

• Assessment: underway. In the course of the adoption of additional measures concerning this case, attention was drawn to the recommendations of the various CPT reports relating, among other things, to detention conditions in prisons and in different detention centres in Greece, in particular the most recent report, CPT/Inf (2008)3.

32927/03           Kaja, judgment of 27/07/2006, final on 27/10/2006

The case concerns degrading treatment suffered by the applicant, a foreigner, due to his detention for approximately three months (July 2003 – October 2003) at a police detention centre in Larissa pending judicial expulsion. The European Court considered that this detention centre “was not suitable for periods of detention as long as that of the applicant. By its very nature, it was designed to house defendants for short periods, not for a period of three months. The centre possessed certain features liable to produce feelings of isolation among detainees, with no outdoor walking or physical exercise space, no in-house catering facilities and no radio or television to provide contact with the outside world. While the centre provided conditions which were acceptable for a short period of detention, it was not suited to the requirements of extended periods of imprisonment” (§49 of judgment) (violation of Article 3).

Individual measures: The applicant was expelled in 2004.

• Assessment: No individual measure is necessary.

General measures: The case presents certain similarities to that of Dougoz (40907/98) (section 4.2) (see §50 of judgment), in the context of which Greece has been adopting a series of general measures (see appendix to Interim Resolution ResDH(2005)21 on the cases of Dougoz and Peers).

• Information awaited: Given that the present case highlighted in particular the problem of excessively lengthy detention of aliens in police detention centres pending expulsion, information is awaited on further measures envisaged to prevent similar violations (see measures already adopted in this respect in section II.A of the appendix to the Resolution mentioned above). Information is also awaited on publication and wide dissemination of the Court’s judgment to competent judicial and police authorities.

27695/03          Serifis, judgment of 02/11/2006, final on 02/02/2007

This case concerns the authorities' delay in providing the applicant with appropriate medical treatment while in detention. The applicant, who was suffering from multiple sclerosis, was detained on remand in July 2002, then found guilty of belonging to a terrorist organisation. Even though he had informed the competent authorities of his serious illness shortly after his arrest, it was only in the summer of 2004 that appropriate treatment was provided in the form of regular medical care in a specialised hospital.

The European Court found that “the manner in which state authorities dealt with the applicant's health during the first two years of his detention subjected him to distress or hardship of an intensity that exceeded the unavoidable level of suffering inherent in detention” (§36 of judgment) (violation of Article 3).

The case concerns also a violation of the principle of equality of arms in that in 2003 the indictment chamber of the Athens Appeal Court dismissed the applicant's request to appear before it when deciding on the extension of his pre-trial detention (violation of Article 5§4).

Individual measures: The applicant was released and placed under court supervision in February 2005 so that he could receive regular medical care. The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained.

General measures:

1) Violation of Article 3:

• Information provided by the Greek authorities (letter of 17/12/2007): Dissemination of the European Court’s judgment has been confirmed: the Ministry of Justice has sent a translation of the judgment to the President and the Prosecutor before the Court of Cassation with a view to ensuring that all prosecutors are adequately informed of how similar cases should be handled. The certified translation of the judgment is also available on the internet site of the State Judicial Council (www.nsk.gr).

• The Secretariat is assessing whether further measures are required.

2) Violation of Article 5§4: The case is similar to that of Kotsaridis (Final Resolution ResDH(2006)54) which led to a change of the Code of Criminal Procedure, in accordance with the European Court's case law.

                       - Cases concerning actions of police forces

50385/99          Makaratzis, judgment of 20/12/2004 - Grand Chamber

25771/03          Alsayed Allaham, judgment of 18/01/2007, final on 23/05/2007

15250/02          Bekos and Koutropoulos, judgment of 13/12/2005, final on 13/03/2006

21449/04          Celniku, judgment of 05/07/2007, final on 05/10/2007

27850/03          Karagiannopoulos, judgment of 21/06/2007, final on 21/09/2007

44803/04          Petropoulou-Tsakiris, judgment of 06/12/2007, final on 06/03/2008

17060/03          Zelilof, judgment of 24/05/2007, final on 24/08/2007

CM/Inf/DH(2009)16

These cases concern certain violations arising from the action of the police, as follows:

            - Use of lethal force by the police in the absence of an adequate legislative and administrative framework governing the use of firearms and lack of effective investigation: The Makaratzis, Celniku and Karagiannopoulos cases concern the authorities' failure to exercise their positive obligation to set up a legislative and administrative framework governing the use of firearms by the police sufficient to protect citizens' right to life (substantial violations of Article 2). In the Celniku case, the applicants' brother was killed by a bullet and in the two other cases the applicants received gunshot wounds during police operations in 2001, 1995 and 1998 respectively. The European Court noted that at the material time the use of firearms was governed by legislation dating from 1943, since acknowledged to have been obsolete and incomplete in a modern, democratic society. It considered that the lack of clear rules relating to the use of force and of firearms could account for the rash initiatives of the police, which might not have happened if they had received adequate training and instructions. These three cases also concern the absence of effective investigation of the events in question (procedural violations of Article 2). In the Celniku case, the European Court expressed doubts as to the independence of the investigation, as it had been carried out by policemen working in the same department as the incriminated officers. It also indicated that certain shortcomings of the investigation were due to the absence of clear rules and instructions on the steps to be taken to guarantee that evidence is gathered promptly following a death during a police operation.

            - Ill-treatment by members of police forces and absence of effective investigation: The Bekos and Koutropoulos, Alsayed Allaham and Zelilof cases concern the ill-treatment of the applicants whilst in police-custody in 1998 and 2001 (substantial violations of Article 3). The Bekos and Koutropoulos, Zelilof and Petropoulou-Tsakiris cases also concern the absence of effective investigation of the applicants' credible allegations of police ill-treatment (procedural violations of Article 3). Finally, the Bekos and Koutropoulos and Petropoulou-Tsakiris cases also concern the authorities' failure to exercise their obligation to take all possible steps to investigate whether or not possible racist motives may have played a role in the events (violations of Article 14 combined with Article 3 in its procedural aspect).

Individual measures:

Summary of the measures (for more details see CM/Inf/DH(2009)16): the European Court awarded the applicants just satisfaction for the pecuniary and/or non-pecuniary damages sustained. Concerning the continuing obligation of the defending State, following the findings of violations in the judgments, to carry out effective investigations into the events in question, the Greek authorities indicated that the possibility of carrying out a new investigation had been considered in all these cases. The Head of the Greek Police office, which is the competent authority as regards the administrative investigations indicated that it was impossible to carry out new administrative investigations in these cases, in particular in view of the fact that now the disciplinary offences are time-barred and that it is materially impossible to make up for the failures of the investigations which were raised by the European Court (for the main failures found by the Court see CM/Inf/DH(2009)16)

Concerning the criminal proceedings, the authorities indicated that Greek law did not allow the re-opening of proceedings which, at the time, ended with the acquittal of the policemen involved in the cases (Makaratsis, Celniku, Karagiannopulos, Bekos and Koutropoulos and Alsayed Allaham cases). On the other hand, the files of the cases in which the criminal proceedings ended without a decision on the merits of the case will be re-examined by the competent State prosecutor (Zelilof and Petropoulou-Tsakiris cases).

Concerning the civil proceedings for damages lodged by the applicant in the Alsayed Allaham case, the Greek authorities indicated that the Council of State granted the applicant’s appeal and sent the case back to the Athens Administrative Appeal’s Court (judgment No. 327/2008).

The 14-15/10/2008 a high level meeting took place in Athens between the secretariat and the Greek authorities during which the questions relating to the individual measures in these cases were also raised. Following this meeting the Greek authorities undertook to set up promptly and at the latest before June 2009 a comity with three independent members who would be competent to assess the possibility of opening new administrative investigations in cases where failures in investigations had been found by the European Court.

• Assessment: additional information is awaited on the possibility of resuming the criminal proceedings in the Zelilof and Petropoulou-Tsakiris cases, and on the results of the civil proceedings for damages brought by the applicant in the Alsayed Allaham case. Information is also awaited on the setting up of the independent committee, mentioned above, which is envisaged by the authorities, and on the prerogatives that the authorities plan to give to such a committee. The authorities are also invited to consider the possibility of sending to the prosecutor’s offices the European Court’s judgements which have not yet been transmitted to them, to allow them to consider the possibility of carrying out new criminal investigations in conformity with the requirements of the Convention.

General measures:

            1) Use of lethal force by police officers in the absence of an appropriate legislative and administrative framework relating to the use of firearms and ill-treatment whilst under the responsibility of the police: The Greek authorities have taken a series of general measures to establish a modern, comprehensive legal framework for the use of force and firearms by policemen, as well as their overall conduct towards citizens:

(a) A new law on carrying and use of firearms by police officers, police training in the use of firearms entered into force in 2003. The new law contains specific, strict conditions for carrying and use of firearms by police officers. It states that the use of firearms is only authorised as a last resort when dealing with a situation in which there is imminent danger of death or serious injury. Further, their use must be proportional to the seriousness of the threat (Article 3). Moreover, police officers must undergo special tests before being issued with firearms and receive ongoing training. Inter-ministerial decision No. 9008 of 14/07/2004 provided the establishment and conditions of operation of police shooting galleries, in accordance with the 2003 Law. Finally, presidential decree 189/2005, adopted in accordance with Article 5 of this law, provides that policemen's education and training in firearms will form part of their basic training in the police schools and includes further details of application.

(b) ThePolicemen's Code of Conduct (Presidential Decree 254/2004) entered into force in 2004. It contains guidelines for policemen's conduct towards all citizens, in accordance with international human rights principles. Its major provisions are:

-           Article 2 provides the obligation for policemen to respect every individual's right to life and personal security. Policemen should never use force in enforcing the law unless absolutely necessary. Firearms may be used only in cases provided for by law.

-           Articles 3 and 4 contain detailed provisions concerning policemen's conduct during arrest and detention as well as preliminary inquiries, aimed at the effective protection of citizens' rights. In particular, Article 3 provides that during arrest and detention policemen are obliged to prevent or report immediately any act that constitutes torture or other form of inhuman, cruel or degrading treatment or punishment, every form of violence or threat thereof, as well as every prejudicial or discriminatory treatment of detainees.

            2) Absence of an effective investigation on the incriminated facts and failure in the obligations to investigate whether a racial motive may have played a role in the events:

a) A new Disciplinary Code was adopted in September 2008 (presidential decree n°120/2008). The most important changes introduced by the new provisions concern mainly the following points :

- the number of acts considered as disciplinary offences has been extended;

- heavier sanctions are introduced in cases of torture and affront to human dignity (dismissal or temporary or definitive suspension);

- complaints relating to disciplinary offences concerning civilians must be examined in priority and the person concerned has the right to be informed of the results of the administrative investigation that was carried out.

- the procedural requirements concerning the investigations are more detailed in particular to ensure the collection of evidence;

- the administrative investigations into ill-treatment, torture or affront to human dignity are carried out by agents who are independent from the unit in which the civil servant involved in the case works (Article 26§4);

- the re-examination of a disciplinary case is foreseen under certain conditions, notably when a criminal court’s decision establishes facts which are punishable by an exclusion (Article 49) 

b) The Policemen's Code of Conduct of 2004 provides that policemen in their conduct should avoid all “prejudices” due to an individual's “colour, sex, ethnic origin, ideology and religion, sexual orientation, age, disability, family situation, financial and social status or other characteristics” (Article 5§3). It also provides that policemen should “take particular care” for the protection of members of minorities or other vulnerable social groups (Article 5§4 -see also Article 3 mentioned above). An extract of the Court's judgment in Bekos and Koutropoulos was reproduced in the circular of 24/05/06 issued to all police stations. The circular mentioned in particular that this judgment is considered of major importance with regard to the obligation to examine possible racist motives during criminal, administrative or police disciplinary investigations. The circular underlines in particular that the Court's judgment must be a point of reference for the police officers who direct relevant disciplinary investigations against policemen in cases relating to vulnerable ethnic, religious or social groups or aliens. When the alleged victims belong to such vulnerable groups, it is obligatory to give consideration to possible racist motives. In a 2007 circular, the Head of the Police issued a reminder to investigating officers of their obligation to examine whether racist motives played any role in cases of disproportionate use of arms or of ill-treatment. A further circular recalling policemen’s obligations in this regard was sent out in August 2008.

(c) A 2001 circular by the Head of the Police contains clear and detailed instructions on the steps to be taken to ensure that evidence is secured immediately after the events in relation to all deaths or injuries in the context of police operations. Further, in the 2007 circular mentioned above indicated that medical certificates issued in investigations of this kind must be assessed in the light of the European Court’s case-law relative to Article 3, according to which, when an individual is taken into police custody in good health but is found on release to have been injured, it is for the state to provide a convincing explanation for the origin of the injuries.

(d) In a letter dated 04/06/2008, the Prosecutor General at the Court of Cassation, making reference to the relevant case-law of the European Court and the observations of the Committee for the prevention of torture or inhuman or degrading punishment or treatment (CPT), invited prosecutors to investigate any allegation of ill-treatment against the police with the greatest diligence.

In particular he indicated that when prosecutors are informed of cases of ill-treatment or where they have reason to believe that ill-treatment has taken place, they must register the case and order a medical examination. They must also take all other appropriate steps to facilitate the gathering of evidence and ensure that medical opinion is obtained in the interest of the effectiveness of any criminal proceedings which might result.

(e) The Greek authorities provided statistical data on administrative investigations concerning the period 2001-2005. During this period there were 86 disciplinary investigations against policemen; 11 of these cases resulted in finding disciplinary violations and penalties were imposed on the policemen responsible. Detailed statistics have been provided concerning administrative and criminal investigations in 2005-2008: there were 232 investigations into alleged police ill-treatment, of which eight resulted in the finding of disciplinary offences and appropriate sanctions administered (two officers dismissed, two suspended). At the criminal level, there were five first-instance convictions. 55 disciplinary cases and 35 criminal cases are pending.

            3) Awareness-raising measures:

(a) In the framework of the continuous training of police officers circulars have been issued by the Head of the Greek Police to all police stations:

- circular of 10/12/2005: The protection of human rights in police operations, which covers among other things police obligations at arrest and during police custody;

- circulars of 2005, 2007 and 2008 setting out in detail the violations found in the judgments in Makaratzis, Alsayed Allaham, Karagiannopoulos, Zelilof and Celniku.

(b) In 2004 the United Nations Human Rights Centre's Pocketbook on Human Rights for the Police, translated into Greek by the Greek National Commission for Human Rights, was distributed to all Greek policemen by the Ministry of Public Order.

(c) In 2007 the Head of the Police issued to all police services a CPT Handbook containing the text of the Convention for the prevention of torture and its explanatory report. A circular summarising the corresponding obligations of police officers was sent out in December 2008.

            4) Training: Since 2005 human rights have formed part of both initial and ongoing police training. With regard to initial training, police training establishments provide courses on the European Convention on Human Rights, the European convention on the rights of Children, the Convention for the prevention of torture and other treaties in the human rights field. In the context of continuous training, officers take part in workshops on, among other things, Roma rights and constitutional guarantees applicable at arrest and during detention. In addition, a committee has been set up under the aegis of the National Human Rights Commission, including a judge, a representative of the Bar, a representative of the National Human Rights Commission, ONG representatives and the police, tasked with the preparation of concrete proposals on the organisation and content of human rights training for the police. These proposals will aim in particular to help officers integrate the principles of human rights protection into their approach to the arrest and interrogation of suspects.

            5) Further publication and dissemination: The judgments in all these cases were immediately transmitted, in Greek translation, by the State Legal Council to the Ministry of Justice and afterwards to the President of the Court of Cassation and the Prosecutor General to be sent out to all judicial authorities. The Makaratzis and Bekos and Koutropoulos judgments have been published on the site of the State Legal council (www.nsk.gr).

• Assessment: Following the high-level meeting between the Greek authorities and the secretariat which took place in Athens on 14-15/10/2008, the authorities provided detailed information on general measures. The essence of this information is presented above and concerns in particular the new Police Disciplinary Code, training of police officers and the statistics on investigations. The possible need for further measures is currently being assessed. Further information would be helpful concerning the proposals by the committee tasked with assessing the organisation and content of police human rights training.

The Deputies, 1.             took note of the detailed information provided by the Greek authorities concerning the individual measures in these cases and decided to declassify the information document CM/Inf/DH(2009)16-rev resuming this information; 2.             noted in addition the information provided at the meeting relating in particular to the reopening of criminal investigations in two of these cases, as well as on the elaboration of a draft law aimed at creating an independent committee which will be competent in the future to evaluate the advisability of opening new administrative investigations following a judgment of the European Court; 3.             noted with interest the considerable number of measures adopted by the Greek authorities, including recent measures, to avoid other similar violations; 4.             decided to resume consideration of these items at the latest at their 1072nd meeting (1-3 and 4(morning) December 2009) (DH), in the light of all general measures, as well as of additional information to be provided as regards the setting up of the independent committee mentioned above, and in the light of the confirmation awaited on the individual measures in certain cases.

11919/03          Mohd, judgment of 27/04/2006, final on 27/07/2006

199/05              John, judgment of 10/05/2007, final on 10/08/2007

The Mohd case concerns the unlawful character of the police detention, pending expulsion, of the applicant, a Bangladeshi national who had been sentenced to 4 months’ imprisonment for selling fake CDs.

The European Court found that, as no expulsion order had yet been issued in respect of the applicant, his detention from 04/12/00 to 11/12/00 was not based on any decision setting out the ground, length or modalities of detention. The Court further found the applicant’s detention from 09 to 17/02/01 was not provided by law, since on 09/02/01 the Supreme Administrative Court had provisionally suspended the administrative expulsion order (violation of Article 5§1(f)).

The John case concerns the unlawful extension of the detention of the applicant, a foreign national, who was subject to administrative expulsion. On 29/03/2004, after his release had been ordered following the expiry of the maximum period for detention of foreigners under expulsion allowed by Greek law, he was re-arrested while he was still at the police station where he had been detained (violation of Article 5§1).

The European Court considered that in reality the applicant never ceased to be a detainee since, first, he was always held in the police station, and secondly, his liberty consisted solely in signing the release document, which was never implemented. In addition, the new expulsion order repeated the reasons already stated in the first expulsion order and did not provide any new reason to justify the further detention while for three months (01/01 – 29/03/2004) the Greek authorities demonstrated no diligence in enforcing the expulsion order within the deadline provided by law (§§ 33 and 35 of the judgment).

Individual measures: The applicant in the Mohd case was acquitted on appeal in 2001 and in 2003 the Council of State annulled the administrative expulsion order. The applicant requested no just satisfaction from the European Court, having reserved his right to do so under domestic law (§27 of judgment). The applicant in the John case was expelled from Greece to Nigeria (his country of origin) on 20/06/2004 (§17 of the judgment). The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained.

• Assessment: no further measure appears necessary.

General measures:

• Measures adopted: New Aliens’ Law 3386/2005, (in force as from 01/01/06) amended the law in force at the material time, introducing detailed provisions relating to aliens’ administrative expulsion and detention. The main new provisions (Articles 76-82) are the following:

(a) administrative expulsion may now in principle be ordered if an alien is sentenced to at least a year’s imprisonment;

(b) expulsion may be appealed to the Minister of Public Order who must take a decision within 3 working days;

(c) aliens detained pending expulsion are entitled to be informed of the reasons for their detention in a language they understand and access to a lawyer must be facilitated; they have the right to appeal against the detention before the First-instance Administrative Court;

(d) if, for reasons of force majeure, expulsion is not possible, the expulsion and detention are suspended;

(e) a number of vulnerable aliens, such as minors whose parents reside lawfully in the country, are now expressly excluded from administrative expulsion.

The facts in both cases occurred before the new law entered into force. It now remains to assess the extent to which the current provisions comply with the Convention’s requirements.

• Information awaited:

a) on whether the new Law provides specific safeguards concerning the detention of persons subject to administrative expulsion including in cases where administrative expulsion has been provisionally suspended by a court;

b) on further general measures envisaged or taken for the prevention of new, similar violations. In particular, information is awaited on the possibility of disseminating the Court’s judgment in the Mohd case to the Greek police and other competent authorities with a note explaining its practical consequences.

19516/06           Alexandridis, judgment of 21/02/2008, final on 21/05/2008

This case relates to an infringement of the applicant’s right to not have to divulge his religious convictions due to his obligation to reveal the fact that he was not an orthodox Christian during his taking an oath of office in 2005 (violation of article 9). Provided with a standard statement form attesting a religious oath, the applicant was forced to declare, before the tribunal where he was taking his oath of office, that he was not an orthodox Christian and did not wish to take a religious oath but wanted to make a solemn declaration. The tribunal allowed him to do so but the minutes of the ceremony did not record this request.

The European Court noted that these proceedings show the existence of a presumption that the barrister who presents himself before the tribunal is an Orthodox Christian. Indeed, by virtue of domestic law, the oath that any civil servant must take is usually a religious oath (article 19§1 of the civil service code). The person who wishes to make a solemn declaration is under obligation to declare himself as an atheist or that his religion does not permit the taking of a religious oath (§§36-37 of the judgment). Concerning the existence of two different statement forms invoked by the government, the Court noted that the copies brought before the Court are dated 2007 and that as a result it cannot come to the conclusion that such forms existed at the time. Even if the two different forms had existed, the Court considered that the applicant could not be blamed for his failure to obtain the proper document. Indeed, the President and the court’s office should have informed the applicant that there existed a specific form for the solemn declaration.

In addition, the Court considered that the applicant did not have an effective remedy regarding the violation of his religious freedom (violation of article 13). It also noted, in this respect, that the applicability and effectiveness of the correction procedure for minutes such as provided for by the criminal proceedings code had not been proven. (§§48 and 25 of the judgment).

Individual measures: The European Court awarded just satisfaction to the applicant for non-pecuniary damages.

• Information would be useful on the possibility of rectifying the minutes relating to the applicant’s oath-taking or on the annotation of the European Court’s judgment to the court’s office of the bar concerned.

General measures:

1) Breach of the right to freedom of religion:

• Information is awaited on the present practice relating to the professional oaths of barristers, especially whether the barrister is informed beforehand of the possibility of choosing between a religious oath and solemn declaration.The Greek authorities are also invited to provide information on any other measures envisaged or already taken to prevent new, similar violations and especially on possible legislative changes to the rules relating to the oath taking for barristers (see the aforementioned conclusions of the European Court in this respect). In any event, the dissemination of the European Court’s judgment to the competent courts is an appropriate measure for execution.

2) Breach of the right to an effective remedy:

• Information is needed on the existence or introduction of a remedy allowing for a domestic body to hear complaints similar to the ones raised by the applicant in the present case and offer an effective remedy. Information is particularly awaited on the possibility of rectifying the minutes of oath-taking ceremonies for barristers and on the appeal for damages if necessary.

 

8863/03            Gousis, judgment of 29/03/2007, final on 29/06/2007[30]

44858/04           Markoulaki No. 1, judgment of 26/07/2007, final on 26/10/2007

The case concerns a violation of the applicant’s right to a fair trial (violation of Article 6§1). In criminal proceedings (to which the applicant was civil party) against the applicant’s doctor for bodily harm through negligence (the applicant’s leg had been amputated), and following the doctor’s acquittal at first instance in 2004, the Prosecutor dismissed the applicant’s request that they lodge an appeal on the substance or on a point of law, by means of a handwritten note giving no reason.

Individual measures:

• Bilateral contacts are under way to assess whether individual measures are required.

General measures: The law applicable at the material time (Article 169 of the Code of Criminal Procedure) provided that “…orders by prosecutors must be specifically and clearly motivated”.

• Information has been requested on measures envisaged to achieve a change of such practice by prosecutors, including remedies available to those wishing to challenge lack of reasoning in such prosecutorial decisions. Information has also been requested on the publication of the judgment of the European Court and its dissemination to all prosecutors, possibly with a circular letter underlining the necessity to motivate appropriately the decisions.

• Information provided by the Greek authorities (letter of 7/05/2008): Dissemination of the European Court’s judgment has been confirmed: the Ministry of Justice has sent it in translation to the Prosecutor before the Court of Cassation with a view to ensuring that all prosecutors are adequately informed concerning the handling of similar cases. The certified translation of the judgment is also available on the internet site of the State Judicial Council.

• The Secretariat is assessing whether further measures are required.

- Cases mainly concerning the violation of the right to peaceful enjoyment of possessions on account of the lack of compensation for the progressive ban on any construction that affected the possessions

35332/05           Anonymos Touristiki Etairia Xenodocheia Kritis, judgment of 21/02/2008, final on 21/05/2008

14216/03           Z.A.N.T.E. Marathonisi A.E., judgment of 06/12/2007, final on 02/06/2008

These cases concern violations of the right to peaceful enjoyment of the applicant companies’ possessions caused by the lack of compensation for the progressive ban on any construction that affected their land (violations of Article 1 of Protocol No. 1). 

When the applicant companies bought their land at the beginning of the 1970s, the relevant domestic law allowed buildings to be built on land that was situated outside the urban area under certain conditions. Later, the development of this land was blocked progressively by different administrative acts adopted between 1984 and 1999, the last ones banning any building on the land. The requests for compensation of the applicant companies were rejected by the administrative jurisdictions between 2002 and 2005 on the basis that the land in question could not be built upon per se and in view of its nature. Indeed, the well established case law of the State Council states that any site situated outside the urban area is destined by its nature solely to be used for agricultural purposes, poultry farming, forestry or public entertainment.

The European Court considered that the criteria used by the administrative jurisdictions did not allow the taking into account of the specificities of each plot of land not included in the urban area, or the law governing its exploitation before the incriminated restrictions had been imposed. It also noted a certain contradiction in the domestic authorities’ behavior to ensure the protection of the natural or cultural environment. Indeed, if from the beginning, the applicant companies’ land could not be built on, it would not have been necessary for the authorities to impose construction restrictions and finally a total construction ban.

The Anonymos Touristiki Etairia Xenodocheia Kritis also concerns the excessive length of the proceedings for compensation before the State Council (violation of Article 6§1).

Individual measures: the application of Article 41 has been reserved in its entirety by the European Court. The domestic proceedings whose excessive length had been criticised by the European Court ended in 2005.

General measures:

1) Violation of the right to peaceful enjoyment of possessions:

• information is awaited on the changes in the State Council’s practice questioned in these cases or on any other measure taken or envisaged by the Greek authorities to prevent future similar violations.

2) Violation of the right to be tried within a reasonable time-limit: this issue will be examined in the Manios group (1059th meeting, June 2009).

17721/04           Perlala, judgment of 22/02/2007, final on 22/05/2007

The case concerns a violation of the applicant’s right to a fair trial in that in 2003 the Court of Cassation refused to examine the applicant’s complaint related to the taking of evidence by the Court of Appeal on the sole ground of Article 6 of the Convention. As a consequence, the guarantees provided by this Article had not been taken into consideration and applied in this case (violation of Article 6§§1 and 3) which led to the applicant’s conviction and suspended prison sentence.

Individual measures: The European Court noted that the best redress for the violation found would be new proceedings or reopening of the proceedings upon application by the interested party (§35 of the judgment). • Information provided by the Greek authorities (letter of 25/10/2007): Reopening is possible under Greek law and the applicant has the right to request it.

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

• Assessment: No further individual measure seems necessary.

General measures: It is noted that even though in principle the Convention and the European Court’s case law enjoy direct effect in Greek law and practice (see e.g. appendix to Final Resolution ResDH(2004)82 on the Tsirlis and Kouloumpas and Georgiadis cases), the Court of Cassation has held to date that the right to a fair trial as guaranteed by Article 6 of the Convention is not an independent ground of appeal on points of law and may only be invoked in combination with other grounds provided in Article 510 of the Code of Criminal Procedure (§17 of judgment).

• Information provided by the Greek authorities (letter of 25/10/2007): The text of the judgment was sent to the Ministry of Justice on 26/06/2007 and afterwards to the Prosecutor General and the President of the Cassation Court for further dissemination to all judicial authorities. The Greek translation of the judgment was placed on the internet site of the Legal Office of the State (www.nsk.gr). The authorities pointed out that the violation in this case was due to the reasoning given by the Court of Cassation in its judgment, and therefore publication and broad dissemination of the judgment represents sufficient general measures of execution.

• The question of general measures is currently being considered by the Secretariat.

35151/05           Bekir-Ousta and others, judgment of 11/10/2007, final on 11/01/2008

The case concerns the refusal of the competent courts to register the applicants’ association, on the sole basis of a suspicion that the applicants intended to promote the idea that an ethnic minority existed in Greece (violation of Article 11).

The European Court noted that the contested measure rested only on a simple suspicion concerning the true intentions of the founders of the association and concerning the actions that the association might pursue once it started to operate. Further, the European Court estimated that even if the real aim of the association was to promote the idea that an ethnic minority existed in Greece, this could not in itself constitute a threat to a democratic society. The Court noted in this connection that nothing in the statute of the association indicated that its members would engage in violence or non-democratic or anti-constitutional actions. Finally, once the association was founded, the relevant court could order its dissolution if it subsequently pursued an aim different from that stipulated in the statute or if its functioning turned out to be contrary to public order. As a result, the Court concluded that the contested measure was disproportionate to the objectives pursued.

Individual measures: The Court concluded that the finding of a violation constituted sufficient just satisfaction for the non-pecuniary damage sustained.

The applicant’s lawyer has stated that following the European Court’s judgment, the applicant association again applied for registration in the national courts. The applicant’s lawyer supplied additional information in relation to this application on 29/01/2009, which is being considered.

• Information is awaited on the outcome of the national proceedings.

General measures: Publication and wide dissemination of the European court’s judgment to all competent courts, accompanied by an explanatory letter emphasising the requirements of the Convention in the field of freedom of association as spelled out in this judgment, appear necessary.

• Information is also awaited on the possible organisation of targeted training activities for judges in this area.

 

55828/00          Satka and others, judgments of 27/03/03, final on 27/06/03 and of 02/03/2006, final on 02/06/2006[31]

- Cases concerning the failure to implement final judicial decisions

38878/03          Beka-Koulocheri, judgment of 06/07/2006, final on 06/10/2006

38752/04          Georgoulis and others, judgment of 21/06/2007, final on 21/09/2007

11325/06          Kanellopoulos, judgment of 21/02/2008, final on 21/05/2008

32636/05          Moschopoulos-Veïnoglou and others, judgment of 18/10/2007, final on 18/01/2008

The cases relate to the administrative authorities’ failure to comply with final judgments of administrative tribunals given between 1999 and 2005 (violation of Article 6§1) concerning the lifting of certain expropriation measures to allow the release of the applicants’ property.

The Kanellopoulos case also relates to the absence of a domestic remedy capable of remedying this situation (violation of Article 13).

The European Court noted that the adoption of Law No. 3068/2002 on the execution of judgments by the administration unequivocally demonstrates the state’s serious commitment to complying with judgments, but considered that the mechanism set up was unlikely to offer an effective remedy to the applicant. The Court noted that, after the applicant had appealed before the competent committee of the highest jurisdiction, this committee could only note the administration’s refusal to comply with a judgment and impose the payment of compensation to the applicant, if necessary. Yet, in the Court’s opinion, these measures are not likely to lead to the certain execution of the judgment in question and as a result cannot be considered as sufficient redress. It further noted that disciplinary proceedings against administrative officials responsible for the failure to execute the judgment did not offer sufficient direct redress in the present situation.

Individual measures: The European Court awarded the applicants just satisfaction in respect of non-pecuniary damages. The Court rejected the applicants’ claim for pecuniary damages in respect of their property rights, as they had not exhausted the domestic legal remedies to receive compensation. In the Georgouillis and others case the domestic judicial decision was enforced in 2004 (see §24 of the judgment) in the Moschopoulos and others case it was enforced in 2005 (see § 29 of the judgment)

• Information is awaited on the compliance by the administration with domestic judicial decisions in the Beka-Koulocheri and Kanellopoulos cases.

General measures: It should be recalled that Greece adopted a number of global constitutional, statutory and regulatory reforms, to remedy the structural problem relating to the non-execution of domestic judgments by the administration (see Final Resolution ResDH(2004)81 in Hornsby and other cases against Greece). These measures related in particular to the changes to Article 95§5 of the Constitution in 2001 and later the adoption of Law No. 3068/2002, which set up a new procedure guaranteeing the administration’s compliance with judgments and reinforcing the disciplinary and civil responsibility of civil servants. The law set up committees of three members each, who belong to the highest Greek jurisdictions (the special Supreme court, the Court of Cassation, the State Council and the Court of Audit), which are responsible for ensuring the proper execution of the judgments of their respective jurisdictions by the administration within a 3-month deadline. The committees may in particular nominate a magistrate to assist the administration by suggesting, amongst other things, the appropriate measures necessary to comply with the judgment. If the administration does not comply with the judgment within the deadline specified by the committee, fines will be imposed which may be renewed as long as the administration has not complied with the judgment (Article 3). The European Court’s judgments are available on the Internet site of the Legal Council of the State (www.nsk.gr) and have been sent out to all national jurisdictions.

• The authorities are invited to provide information on the results already obtained from the implementation of the mechanism set up by Law No. 3068/2002 and on the measures possibly needed to guarantee its effectiveness.

46372/99          Papastavrou and others, judgments of 10/04/03, final on 10/07/03 and of 18/11/04, final on 18/02/05

66742/01           Katsoulis and others, arrêt du 08/07/2004, définitif le 08/10/2004 et du 24/11/2005, définitif le 24/02/2006

35859/02          Housing Association of War Disabled and Victims of War of Attica and others, judgment of 13/07/2006, final on 11/12/2006 and of 27/09/2007, final on 31/03/2008

                       Interim Resolution ResDH(2006)27

The two first cases concern the violation of the 64 applicants' right to peaceful enjoyment of their possessions. In 1994 the Prefect of Athens ordered the reforestation of a part of this area ,including the disputed plots of land. This decision confirmed that taken by the Minister of Agriculture in 1934 covering the same plots of land, and was taken without a fresh assessment of whether the plots in question were forests or not. The Supreme Administrative Court declared the applicants’ appeal inadmissible on the ground that the prefect’s decision simply confirmed the decision issued in 1934.

The European Court considered that the prefect's failure to reassess the complex situation and the reasoning followed by the Supreme Administrative Court had deprived the applicants of adequate protection, in particular taking into account that there is no possibility of obtaining compensation under Greek law in such cases (where the property rights have not been finally determined by a court) (violations of Article 1 of Protocol No. 1).

In the case of Katsoulis and others, the European Court also found the length of proceedings before the Supreme Administrative Court (began in November 1994 and ended in June 2000, which lasted more than 5½ years for one level of jurisdiction) to be excessive, stressing that a chronic backlog of cases in a court's list is not a valid explanation for delays (§40 of the judgment) (violation of Article 6§1).

The third case concerns the violation of the applicant association and its 157 members’ property rights over a forest land which was initially declared reafforestable but in 1975 building licences were issued. However, subsequent different administrative decisions and Council of State judgments have not allowed the applicants to build. The European Court was “particularly struck by the fact that, although the very substance of the applicants’ ownership has been affected…the applicants were not successful in obtaining compensation under Greek law. This, combined with the State’s ultimate refusal to expropriate the applicants’ property or to exchange it for new land of equal value, aggravated considerably the adverse effects on the applicants’ situation and placed a disproportionate burden on them” (§39 of judgment) (violation of Article 1 of Protocol No 1).

Individual measures: The European Court awarded the applicants just satisfaction for the pecuniary damages sustained. In the third case the European Court delivered his judgment concerning the just satisfaction on 27/09/2007.Possible consequences of the violation still suffered by the applicants should be remedied in the context of the interim and long term general measures (see below). The applicants have not submitted any further claims.

General measures:

            1) Adopted measures: The measures adopted by the Greek authorities were summarised in the interim resolution adopted in the cases Papastavrou and Katsoulis in June 2006 (see ResDH(2006)27). The most important measures are presented here:

a. Interim measures – Direct effect: Both judgments were translated, published and sent to the Ministry of Justice and to the Council of State. The Greek government noted that the Convention and the European Court’s case-law enjoy direct effect in Greek law as proved, in particular by a judgment of the Plenary of the Court of Cassation in 2005 recognising and stressing the supra-statutory force of Article 1 of Protocol No.1 to the Convention in cases regarding reafforestation and protection of individual land property rights. The government noted that under Greek law, compensation may always be awarded to individuals after their land of forest ownership has been recognised by courts. This compensation may cover any potential damages that individuals may have suffered during the period during which they have been unable to use their property due to pending proceedings concerning ownership. This position is supported by the jurisprudence of the Supreme Courts. (Court of Cassation in plenary 21/2005 and the Supreme Administrative Court 2601/2005, 1422/2006).

b. Long-term general measures under way – progress report on the national land and forest register project

The Greek government stressed that the project of national land and forest register initiated in 1994 and consisting of 4 stages is a priority of national importance. In 2005 the Greek Technical Chamber (TEE) acting as consultant to the Greek state, submitted a study to the Ministry of the environment, Urban Planning and Public works, taking stock of the work accomplished during the first 10 years of the project and making proposals for its conclusion. It is foreseen that the second stage of the project (2005-2008) will cover all urban centres and may materialise without state funding which may instead be used for the third and fourth stages. On 5/058/2006 the Ministry of the Environment, Urban Planning and Public works submitted a new bill to the Greek parliament to accelerate the completion of the national land register, in particular by simplifying land registration procedures.

c. General measures adopted and under way to accelerate proceedings before administrative courts with a view to preventing new, similar violations of Article 6, paragraph 1: See the measures adopted in the framework of the execution of other cases (see Final Resolution ResDH(2005)65 on Pafitis and others and 14 other cases against Greece). Further measures are under way (see Manios group of cases, 1059th meeting, June 2009) concerning in particular the provision of an effective domestic remedy in case of excessively lengthy proceedings.

            2) Measures that remain to be taken: In its Interim Resolution ResDH(2006)27, the Committee of Ministers encouraged the rapid development of a remedy capable of providing compensation for bona fide landowners such as the applicants, affected by reforestation decisions and involved in lengthy litigation related to recognition of the ownership of forests. It also encouraged the competent Greek authorities, in particular the Ministry of the environment, Urban Planning and Public works, to intensify its efforts in setting up a cadastral and forest register. In the case of Housing Association of War Disabled and Victims of War of Attica and others given the importance of these cases the publication and wide dissemination of the Court’s judgment to all competent administrative (national and local) and judicial authorities are necessary.

• Information is awaited on these questions and in particular about the further progress of the national land and forest register project

66725/01          Fotopoulou, judgment of 18/11/2004, final on 18/02/2005

52903/99          Dactylidi, judgment of 27/03/03, final on 09/07/03

Both cases concern the lack of an effective remedy whereby the applicants might have compelled the local authorities to comply with decisions taken by administrative organs, in 1990 and 1993, ordering the demolition of illegal constructions built in the vicinity of and adversely affecting the applicants’ houses on the islands of Santorini and Folegandros (violations of Article 13). In the Fotopoulou case, the Court has accordingly found a violation also of the applicant’s right to protection of her property (violation of Article 1 of Protocol No. 1).

The Dactylidi case also concerns the excessive length of two sets of proceedings before the Supreme Administrative Court relating to the applicant’s application for annulment of administrative acts relating to her neighbour’s building permits on the island of Santorini. The first proceedings began in August 1992 and ended in October 1999 (7 years and 2 months) and the second began in April 1995 and ended in October 1999 (4 years and 6½ months) (violation of Article 6§1).

Individual measures:

            1) Dactylidi case: The European Court has awarded the applicant just satisfaction covering the non-pecuniary damage sustained. The Greek authorities have informed the Committee that, following a review of their files, the impugned constructions have in the meantime been legalised since they had been completed before the revocation of the building permits which had been granted with no fault of the beneficiaries. The applicant has not made known to the Committee any further claim.

            2) Fotopoulou case: The Court awarded the applicant the full amount of pecuniary damage she had incurred prior to the judgment, as well as non-pecuniary damages.

The Greek authorities have indicated that a legislative amendment introduced in 2002 had the effect of exempting from the obligation to demolish where a building had been initially constructed on the basis of a valid permit, subsequently declared illegal. The applicant’s neighbours applied in 2002 to have their construction legalised in accordance with this new legal provision and in 2004 the administrative authorities declared part of the disputed construction legal.

The authorities reserved their decision as regards the remainder of the construction, to be delivered once the coastal planning of the area is finalised. The applicant’s lawyer has complained that the authorities have not yet demolished the construction in question (letters of 01/11/2007, 16/09/2008 and 01/12/2008).

• Information provided by the Greek authorities (letter of 15/12/2008): The Prefect for the Cyclades region in his ruling of 17/08/2009 definitively rejected the request to regularise the remainder of the construction. This decision was sent to the planning agency which is competent as regards the demolition.

• Further information is urgently awaited on the demolition of part of the construction which was not legalised.  

General measures:

            1) Violations of Article 13 and Article 1 of Protocol No 1:

• Information provided by the Greek authorities:

(a) Law 3242/2004 provides that everyone with a legitimate interest has the right to file an application with the competent administrative organs. Within 50 days thereafter the administration must decide on the applicant’s claim and reply. If the administration does not comply with this deadline, the interested party has a right to compensation covering both pecuniary and non-pecuniary damage.

The inter-ministerial decision of 03/08/2004 (OJ B 1226, 10/08/2004) sets out the modalities of payment of compensation by the administration in cases where it fails to comply with this deadline.

Article 1§4 of this decision provides that the criteria used in awarding such compensation should include in particular: the amount pecuniary and non-pecuniary damage to the applicant caused by the delay, the reasons for the delay and, possibly, any relevant report of the Greek Ombudsman;

(b) In addition, Law 3094/2003 provides that any person affected by acts or omissions by the administration may lodge a complaint with the Ombudsman within a certain deadline. The Ombudsman may carry out an investigation and submit a report to the competent Minister and services. Then he intervenes for the finding of a solution to the problem. The Ombudsman’s findings are not legally binding but he may impose on the administration a deadline by which he must be informed of the measures taken. Public servants are obliged by law to assist the Ombudsman during his investigations. Disciplinary sanctions up to and including dismissal are provided in case of failure to cooperate.

According to information provided by the authorities based on the statistics drawn up by the Department for State/Citizen Relations of the Ministry of the Interior, 246 claims were lodged between 2005-2006, mostly concerning the administration’s failure to rule on requests submitted within the time-limit provided in Law 3242/2004. The same department confirmed that the administration must comply with the Ombudsman’s opinion.

• This information is currently being assessed by the Secretariat.

            2) Violation of Article 6§1: This issue is being examined within the framework of the Manios group of cases, 1059th meeting, June 2009).

- 94 cases against Hungary

                        - 94 cases of length of proceedings concerning civil rights and obligations

                        (See Appendix for the list of cases in the Tímár group)

These cases concern the excessive length of proceedings concerning civil rights and obligations, some before labour courts (violations of Article 6§1). The proceedings began between 1986 and 2001 and most of them ended between 2000 and 2005.

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

Individual measures: If they are still pending, acceleration of the proceedings in the cases of Czmarkó, Earl, Szilágyi, Kiss Klára, Kovács, Pepszolg, Szebellédi, Tardi and Várnai.

• Information provided by the Hungarian authorities: Domestic proceedings have been ended in the following cases: Barna, on 15/01/2007 before the Supreme Court; Kalmár, on 17/05/2007 before the Budapest Regional Court; Karalyos and Huber on 26/10/2006; Magyar, on 11/07/2007 before the Supreme Court; Tóth, on 27/02/2008 before the Supreme Court; Vass, on 07/11/2007 before the Budapest Regional Court.

Review proceedings have been instituted by the applicants before the Supreme Court in the cases of Szilágyi and Earl.

• Additional information is awaited on the state of these proceedings and on their acceleration, if still pending.

General measures:

1) Excessive length of civil proceedings: The government has indicated that the workload of the Supreme Court decreased considerably following a reform of the legal system in Hungary in 2002 which transferred appeal competence to the five Courts of Appeal created in 2003 and 2004. Before the end of 2003 the Courts of Appeal adopted final decisions in two thirds of the 5 443 cases which were transferred to them by the Supreme Court. Thus, at the end of 2003, the Supreme Court's roll of civil and criminal cases on appeal had been reduced to 1 180 cases, that is to say 16% of its workload before the reform.

As for the additional measures adopted by the authorities to reduce the length of judicial proceedings, the delegation indicated that several amendments of the 1952 Code of Civil Procedure were adopted after the changes of 1989 with the aim of accelerating civil proceedings and modernising the system of legal remedies. More strict time-limits were provided for the stay of proceedings and the drafting and notification of judgments. As from 01/01/1999, the double degree of jurisdiction for administrative cases was removed and legal competence in this kind of cases was transferred to regional courts. The possibilities of appeal against first-instance decisions in cases concerning small amounts were limited by an amendment of the Code of Civil Procedure which came into force in 1998: appeal proceedings in such cases were simplified. Moreover, the conditions of revision of judgments before the Supreme Court were modernised in 2002 in order to restrict the use of this extraordinary means and to reduce the length of this kind of proceedings. Finally, in 1999 administrators were appointed to courts to ensure better case management. The authorities also indicated that according to the Act of 1997 on the Organisation of Courts, the Office of the National Judicial Council and the presidents of courts are in charge of administrative supervision of the examination of cases and may order that certain civil or criminal cases are examined in priority. Moreover, the Office of the National Judicial Council has regularly requested from courts information on cases pending for more than two years and the respect of legal time-limits.

The authorities informed the Committee on 23/01/2008 that if an expert fails to submit his opinion within the prescribed time-limit without just cause, the court has at its disposal a number of procedural possibilities to ensure the speedy termination of the proceedings, such as appointing another expert, obliging the expert in default to reimburse the expenses or fining him or her. The court may also order the recall of any expert who failed to appear or left a hearing without permission. Moreover, the authorities indicated on 07/07/2008 that the 2008 amendments to the Code of Civil Procedure, which will enter into force on 01/01/2009, provide that a court expert responsible for unjustified delay must reimburse costs caused by him, while the court may fine him and reduce his remuneration by 1% for each day of unjustified delay.

Statistics have been provided for the year 2006: less than 1% of the cases before the Supreme Court have been pending before it for over 12 months. At the appeal level, 2% of civil cases and 1.2% of commercial cases have been pending at that level for more than 12 months. However, at first-instance, the statistics do show a higher percentage of cases pending for over 12 months.

• Assessment: The Secretariat takes note of a number of measures taken by the Hungarian government in connection. However, it appears that notwithstanding the measures taken the statistics show a higher percentage of cases pending at the first-instance courts for more than 12 months.

• Information awaited: Further statistical data regarding the cases pending before the first-instance local courts and country courts at the end of 2008 would be appreciated so as to evaluate the efficacy of the measures adopted so far.

2) Effective remedy against excessive length of judicial proceedings: The delegation has indicated that Act XIX of 2006, a law allowing parties to ask for such proceedings to be accelerated, entered into effect on 01/04/2006.

One part of the Act supplements the Code of Civil Procedure, while the other part amends the Code of Criminal Procedure. Parties to civil proceedings may complain where:

(i) a time-limit prescribed by law by which a court must end proceedings, perform a procedural act or take a decision has elapsed without result;

(ii) a time-limit set by a court itself, by which a party to proceedings must perform a procedural act has elapsed without result, and the court has failed to impose on that person the measures permitted by law; or where

(iii) a court fails to end the proceedings within a reasonable length of time by failing to perform or order the performance of a procedural act, counting from the last action taken by the court on the merits of the case.

A written complaint is filed with the court before which proceedings are pending, which must examine it within 8 days. If it finds the complaint well-founded, it has 30 days to take or order appropriate measures to put an end to the situation complained of.  The court shall inform the complainant of how the complaint has been determined.

If the court finds the complaint ill-founded, it shall forward the file within 16 days, together with the observations of the opposing party and its own reasons as to why it was impossible to perform the procedural act or take a decision, to the court empowered to determine the complaint, the superior court. The superior court has 15 days upon receipt of the files to determine the complaint. If the superior court finds the complaint ill-founded, it shall dismiss the complaint in a reasoned decision. If it finds the complaint well-founded, it shall set a time-limit and invite the court before which proceedings are pending to take the action required for the proper progress of the case or the most effective action. If the complaint concerns an omission by the lower court to perform an act within a time-limit prescribed by law, the superior court may instruct that court to do so.

• Assessment: The Secretariat takes note of the remedy introduced, which appears to provide several acceleratory remedies in lengthy proceedings. However, it cannot make any assessment at this point as to whether or not the remedy in question is efficiently applied in practice. On the other hand, the European Court has frequently noted that an acceleratory remedy offers advantages over a remedy affording only compensation. It acknowledged on a number of occasions that this type of remedy is “effective” insofar as it hastens the decisions by the court before which the lengthy proceedings are pending. However, the European Court has also observed that it is clear that for countries where length-of-proceedings violations already exist a remedy designed to expedite the proceedings – although desirable for the future – may not be adequate to redress a situation in which the proceedings have clearly already been excessively long (see e.g. the Grand Chamber judgment in Scordino v. Italy (No. 1) (application No. 36813/97), §§183-185). In this context, the authorities’ attention is also drawn to the measures taken in Lukenda group of cases (1072nd meeting, December 2009).

• Information is awaited on how the remedy introduced to accelerate proceedings is applied in practice (e.g. statistics, examples showing that the remedy is used and the pending proceedings are shortened if it is used).  The information would be also appreciated on whether the Hungarian authorities might also envisage introducing compensatory remedies.

3) Publication and dissemination: The judgments of the European Court in the cases of Tímár, Simkó, Lévai and Nagy, Nyírő and Takács, Mezötúr-Tiszazugi Vizgazdálkodási Társulat and Szilágyi were published on the website of the Ministry of Justice (www.irm.gov.hu). The judgments in the cases of Tímár and Simkó and Lévai and Nagy were also published in the human rights quarterly “Acta Humana” and were sent to the Office of the National Judicial Council in order to be disseminated to civil and labour courts.

- 2 cases against Iceland

39731/98          Sigurđsson, judgment of 10/04/03, final on 10/07/03[32]

31930/04           Eggertsdottir, judgment of 05/07/2007, final on 05/10/2007[33]

- 139 cases against Italy

                       - Cases concerning in absentia proceedings

12151/86           F.C.B., judgment of 28/08/91, Resolution DH(93)6 and Interim Resolution ResDH(2002)30

56581/00           Sejdovic, judgment of 01/03/2006 - Grand Chamber

24691/04           Ali, judgment of 14/12/2006, final on 14/03/2007

5941/04            Hu, judgment of 28/09/2006, final on 28/12/2006

25701/03           Kollcaku, judgment of 08/02/2007, final on 08/05/2007

19321/03           Pittito, judgment of 12/06/2007, final on 12/11/2007

14405/05           Zunic, judgment of 21/12/2006, final on 21/03/2007

These cases concern the unfairness of criminal proceedings brought against the applicants in Italy by which they were sentenced in absentia to several years' imprisonment (see “Individual measures”).

The European Court found that there had been denial of justice in these cases, first because it had not been shown that the applicants had been fugitives from justice or had declined to appear or to defend themselves. Subsequently, having been informed of the judgments against them, they had not been able to go before a court to determine the validity of the accusations against them (violations of Article 6§§1 and 3).

Individual measures: Article 175 the Code of Criminal Procedure (“CCP”), as amended by Act No. 60 of 22/04/2005, combined with the Court of Cassation’s case law on the subject (see judgment No. 32678 of 12/07/2006, Somogy, below) constitute the legal framework permitting the re-opening of proceedings which led to a in absentia conviction sanctioned as unfair from the European Court (see under General Measures). Under Article 175 the deadline for introducing applications for suspension of the time-limit for appeal against sentence has been extended to thirty days from the date upon which the accused has had effective knowledge of the judgment or, in case of extradition, from when he is delivered to the Italian authorities.

The Italian authorities consider that the applicants’ initiative is a pre-condition for the re-opening of the proceedings or the re-examination of the judgments.

            1) F.C.B.

• Prosecution of the applicant: the applicant, an Italian national accused of armed robbery, murder and attempted murder, was convicted in absentia in 1984 and sentenced to 24 years' imprisonment. During his trial, he had been detained in Maastricht, but the judicial authorities considered that he had nonetheless been in a position to take part in the hearings.

• Execution of the sentence: In March 1993, the Committee of Ministers adopted Resolution DH(93)6, putting an end to its examination of the case on the basis of information provided concerning the general measures taken to avoid new, similar violations. However, in 1999, the Committee decided to resume the examination of this case, the Italian authorities having requested the extradition of the applicant from Greece with a view to enforcing the conviction of 1984. In September 2000, the Italian authorities dropped this request. In 2004 the applicant, who had meanwhile returned to Italy, was arrested for other offences. The Italian authorities issued an enforcement order in respect of the conviction at issue. The applicant is currently detained in Italy where he is serving the sentence imposed in absentia in 1984.

• Reopening of the proceedings: In 2004 the applicant contested the lawfulness of his imprisonment by means of an objection to enforcement (“incidente d'esecuzione”) before the Milan Assizes Court of Appeal, which dismissed his appeal. Upon appeal by the applicant, the Court of Cassation, in a judgment of 22/09/2005, quashed the decision of the appellate court, to which it referred the case back. In doing so the Court of Cassation was careful to specify to the appellate court that, given the supranational value of the standards of the European Convention, it should determine whether on the one hand that value were of a nature to prevent the enforcement in national law of a sentence pronounced in flawed proceedings, or whether on the other hand the value of the res judicata should prevail in the absence of an appropriate means of redress. The appeal court dismissed the applicant's motion concerning the illegality of his imprisonment. Seized once more by the applicant, the Court of Cassation dismissed his appeal (judgment of 15/11/2006) on the grounds that the applicant should rather have submitted an application for suspension of the time-limit for appeal against his sentence (istanza di rimessione in termine) founded on the new Article 175 of the CCP.

In August 2007 the applicant lodged a new application before the European Court, complaining that he had been deprived of his freedom and that, moreover, as a result of proceedings found to be unfair by the European Court. He also complained of the dismissal of his “incidente d'esecuzione” and the national authorities' failure either to free him or to seize the Constitutional Court of the matter.

The European Court declared the application inadmissible on 25/11/2008 on grounds of non-exhaustion of internal remedies. It noted that, following to the Court of Cassation’s judgment of 15/11/2006, the applicant had had the possibility to lodge an application for suspension of the time-limit for appeal against sentence under Article 175 CCP, as amended by Act No. 60 of 22/04/2005. In these circumstances, as well as in the light of the Court of Cassation’s case law, the European Court considered that the possible application for suspension of the time-limit for appeal against sentence was not deemed to fail or not to guarantee the applicant, with a sufficient degree of legal certainty, the opportunity to go before a court and defend himself in a new set of proceedings.

• Assessment: under these circumstances, no further individual measure seems necessary.

2) Hu

• Prosecution of the applicant: the judicial authorities considered that the applicant, a Chinese national suspected of belonging to a clandestine criminal organisation involved in illegal immigration, had deliberately fled from justice and declared him to be latitante (“on the run”). The applicant was sentenced to 19 years' imprisonment and, in the absence of an appeal, the sentence became final in 1998.

• Execution of the sentence: in 2003, the applicant was arrested at Amsterdam airport under a warrant issued by the Italian authorities. The Netherlands authorities rejected the application for extradition on the ground that the applicant had not had the opportunity to defend himself. The applicant was then freed (25/11/2003) and resides in the Netherlands.

• Reopening of the proceedings: No application for suspension of the time-limit for appeal against sentence under Article 175 CCP to lodge a late appeal against the in absentia conviction has been received by the competent court (Turin tribunal) so far. Nonetheless, the competent court does not excluded that, upon request of the applicant, such remedy may still apply.

• Assessment: under these circumstances, no further individual measure seems necessary.

            3) Ay Ali

• Prosecution of the applicant: the applicant, a Swedish national accused of international drug-dealing and who could not be traced, was sentenced to 20 years' imprisonment and in the absence of an appeal the sentence became final in 1999. The judicial authorities considered that he had wilfully fled from justice, and was “on the run” (latitante).

• Execution of the sentence: in 2000, the applicant was arrested in Lithuania under the terms of an international warrant of arrest issued by the Italian authorities and extradited to Italy. The applicant was freed by the Verona Tribunal (for the grounds see item 2 of the general measures).

• Reopening of the proceedings: on 16/11/2000, the applicant applied for suspension of the time-limit for appeal against his sentence (istanza di rimessione in termini). This was denied by the final judgment by the Court of Cassation of 4/12/2003. Following the judgment of the European Court on 14/12/2006, the applicant applied again to the Verona Tribunal for the suspension of time-limit for appeal against sentence (istanza di rimessione in termini) and for being freed, on the basis of Articles 670 and 175 of the CCP. The Tribunal decided to accept the request for suspension of time-limit for appeal against sentence to lodge an appeal, as provided by Article 175 of the CCP, and meanwhile freed the applicant. In conformity with the tribunal decision, he lodged an appeal. 

• Assessment: under these circumstances, no further individual measure seems necessary.

            4) Sejdovic

• Prosecution of the applicant: the applicant, at the time a national of the Federal Republic of Yugoslavia who was suspected of murder and could not be traced, was sentenced to 15 years, 8 months' imprisonment. In the absence of an appeal, this judgment became final in 1997. He was deemed by the judicial authorities to have wilfully fled from justice and to be “on the run” (latitante).

• Execution of the sentence: In 1999, the applicant was arrested in Germany under a warrant issued by the Italian authorities. Extradition was subsequently denied on the ground that Italian law did not provide sufficient guarantees 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.

• Just satisfaction: opinions diverge as to the formalities needed to authorise the applicant's counsel to receive payment. The Secretariat has offered its good offices to assist the parties in finding a solution.

• Assessment: ongoing bilateral contacts as regards just satisfaction.

5) Zunic

• Prosecution of the applicant: the applicant, a national of Bosnia and Herzegovina suspected of belonging to a clandestine criminal organisation involved in prostitution, was sentenced to 10 years' imprisonment and a fine. In the absence of an appeal, the sentence became final in 1999. During the proceedings, the judicial authorities declared that he was irreperibile, i.e. he could not be found.

• Execution of the sentence: in 2002, the applicant was arrested in Croatia under the terms of an international warrant of arrest issued by the Italian authorities and extradited to Italy.

• Reopening of the proceedings: the applicant has brought several appeals against his conviction, including, on 13/02/2004, an incidente d'esecuzione (objection to enforcement) and on 13/05/2005, an application for suspension of the time-limit for appeal against his sentence (istanza di rimessione in termini), but these were all denied. At an unspecified date, the applicant issued a further incidente d'esecuzione (objection to enforcement), which was denied by the Florence Appeal Court; the decision of the Court of Cassation, seised of the case, is not known.

            6) Kollcaku

• Prosecution of the applicant: the applicant, an Albanian national accused of illegal detention of persons, sexual abuse and living on the earnings of prostitutes, became impossible to find and was sentenced to 5 year's imprisonment. In the absence of an appeal, this judgment became final in 1997. The judicial authorities considered that he had wilfully fled from justice, and was “on the run” (latitante).

• Execution of the sentence: he was arrested in Rome in 2003.

• Reopening of the proceedings: on 10/06/2003, the applicant submitted an incidente d'esecuzione (objection to enforcement), which was denied.

            7) Pititto:

• Prosecution of the applicant: The applicant, an Italian national accused of international narcotics trafficking, could not be found and was sentenced to 21 years' imprisonment. His court-appointed counsel appealed, but the appeal was declared inadmissible the advocate being unable to produce instructions duly signed by the applicant. Consequently the sentence became final as of 1999. The judicial authorities took the view that the applicant had deliberately fled from justice and declared him to be latitante (“on the run”).

• Execution of the sentence: The applicant was arrested in Spain in 2000 under an international arrest warrant issued by Italy, and was extradited.

• Reopening of the proceedings:On 30/07/2001 the applicant lodged a motion for suspension of the time‑limit for appeal against his sentence (istanza di rimessione in termine) which was dismissed.

• In these three cases information is awaited as to whether the possibility to submit an application for suspension of the time-limit for appeal against sentence has been given retroactively to those applicants who have been convicted in absentia, including for those (Zunic and Pititto) to whom the re-examination of their judgments by such means has been already refused.

General measures:

            1) Legislative measures: 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, in its chamber judgment in the Sejdovic case (10/11/2004), the European Court found the improvement brought about by the introduction of the 1989 Code was insufficient. Some months later Italy amended Article 175 of the CCP (Legislative Decree No. 17 of 21/02/2005, confirmed by Act No. 60 of 22/04/2005), to modify the parameters of the remedy referred to as istanza di rimessione in termini (application for suspension of the time-limit for appeal against sentence). Thus it is possible to appeal against judgments rendered in absentia at first instance even if the normal deadlines have expired.

Under the new law, the time-limit for appeal against a judgment pronounced in absentia is reopened upon request of the accused. There are two exceptions to this rule: where the accused has had “effective knowledge” of the proceedings against him or of the judgment, and when he/she has wilfully decided not to appear or to appeal. Moreover, the basic deadline has been extended from ten to thirty days counting from the date upon which the accused is delivered to the Italian authorities. In its Grand Chamber judgment in the Sejdovic case on 1/03/2005 - after the entry into force of the new law - the European Court considered that it was premature in the absence of any domestic case-law, to pronounce itself on this reform (§§123-124). A bill further reforming in absentia conviction (draft law AC 2664) fell following the dissolution of Parliament in February 2008.

In its recent inadmissibility decision concerning a new application from one of the applicants (F.C.B.), the European Court assessed the reform of in absentia proceedings as described above. The Court considered that the wording of the new Article 175 CCP appears to have filled the gaps it found in the past.

The European Court also recalled that, according to its constant case law, an accused convicted in absentia, who was not given the possibility of appear in court or defend himself, is not entitled to have his conviction erased. But he is entitled to a have a fresh judicial determination, after having been heard, on the validity of the accusations against him. Therefore, the Court concluded that the provision at issue combined with the Court of Cassation’s case law on the subject (see judgment No. 32678, Somogy, below) constituted an adequate remedy to guarantee with sufficient legal certainty an opportunity to those convicted in absentia to go before a court and defend themselves in new proceedings.

            2) Jurisprudential measures: By the combined application of Article 175 CCP and of the Court of Cassation’s case law it is now possible to re-examine a judgment having the status of res judicata which led to an in absentia conviction sanctioned as unfair by the European Court. According to the Court of Cassation (judgment No. 32678 of 12/07/2006, Somogy, judgment No. 4395 of 15/11/2006, Cat Berro), an application for suspension of the time-limit for appeal against sentence (istanza di rimessione in termini) is the appropriate means for the re-opening of such proceedings. To this purpose, the Court affirmed that, when a final judgment of the European Court sanctions a violation of Article 6 of the Convention, the national judge cannot dismiss an application for suspension of the time-limit for appeal against sentence on the ground of arguments excluding the unfairness of the proceedings or the fact that the judgment is final in the domestic legal order. In order to achieve this, the Court of Cassation reaffirmed the direct effect of the Convention and of the case-law of the European Court in Italian law, not least in respect of judgments having the status of res judicata. It thus affirmed the retroactive application of Article 175 of the CCP.

The case-law of the Court of Cassation has been applied by the Verona Tribunal in the Ay Ali case (order No. 202/08 of 12/03/2008), thereby indicating that it seems possible to rely directly on the direct effect of the Convention to resolve these cases. By reference to decisions Nos. 3600 (Dorigo) and 32678 (Somogy) of the Court of Cassation, the Tribunal held that the direct applicability in the internal legal order of the European Court’s judgment finding the violation of Article 6 means that the applicant had the right to ask for the re‑opening of the procedure or for the revision of the judgment; as a consequence of this right the conviction was not definitive and thus unenforceable, and detention wais illegal. The Tribunal indicated that the remedy at the applicant’s disposal in the domestic legal order is the suspension of time-limit for appeal against sentence as provided by Article 175 CPP. It noted that in the event of retroactive application, the thirty days available for applying run as from the date in which the European Court’s judgment become final.

• Assessment: in these circumstances, no further general measure seems necessary.

64088/00          Pilla, judgment of 02/03/2006, final on 02/06/2006[34]

- Cases concerning the effectiveness of the compensatory remedy (Pinto Act)[35]

- Cases before civil courts

64705/01           Mostacciuolo Giuseppe No. 1, judgment of 29/03/2006 - Grand Chamber

65102/01           Mostacciuolo Giuseppe No. 2, judgment of 29/03/2006 - Grand Chamber

62158/00           Bertossi and Martinelli, judgment of 05/07/2007, final on 05/10/2007

39933/03           Buonfardieci, judgment of 18/12/2007, final on 18/03/2008

56301/00           Campana Lorenzo, judgment of 05/07/2007, final on 05/10/2007

66418/01           Ceruti, judgment of 05/07/2007, final on 05/10/2007

15000/03           De Riggi and Telese, judgment of 13/11/2007, final on 13/02/2008

14626/03           Delle Cave and Corrado, judgment of 05/06/2007, final on 05/09/2007

56300/00           Fascini, judgment of 05/07/2007, final on 05/10/2007

56293/00           G.M., judgment of 05/07/2007, final on 12/11/2007

23901/03           Gragnano, judgment of 31/07/2007, final on 31/10/2007

62265/00           Gregori, judgment of 05/07/2007, final on 12/11/2007

62157/00           Locatelli, judgment of 05/07/2007, final on 05/10/2007

24886/03           Maio, judgment of 18/03/2008, final on 18/06/2008

66419/01           Martinelli and Dotti, judgment of 05/07/2007, final on 05/10/2007

64699/01           Musci, judgment of 29/03/2006 - Grand Chamber

62154/00           Prati, judgment of 05/07/2007, final on 05/10/2007

65075/01           Procaccini Giuseppina and Orestina, judgment of 29/03/2006 - Grand Chamber

62155/00           Provide S.R.L., judgment of 05/07/2007, final on 05/10/2007

62361/00           Riccardi Pizzati, judgment of 29/03/2006 - Grand Chamber

15011/03           Rinaldi Giovanna and Giuseppe, judgment of 13/11/2007, final on 13/02/2008

14983/03           Sangermano and De Falco, judgment of 13/11/2007, final on 13/02/2008

679/03              Serino, judgment of 19/02/2008, final on 19/05/2008

- Cases before labour courts

64890/01           Apicella, judgment of 29/03/2006 - Grand Chamber

20191/03           Aragosa, judgment of 18/12/2007, final on 18/03/2008

64888/01           Civitillo, judgment of 05/07/2007, final on 05/10/2007

64886/01           Cocchiarella, judgment of 29/03/2006 - Grand Chamber

64889/01           Parrella Concetta, judgment of 05/07/2007, final on 05/10/2007

64897/01           Zullo Ernestina, judgment of 29/03/2006 - Grand Chamber

- Cases before criminal courts

45836/99           Capone and Centrella, judgment of 16/10/2007, final on 31/03/2008

52578/99           Spadaro, judgment of 20/09/2007, final on 20/12/2007

32747/02           Tangredi, judgment of 11/12/2007, final on 11/03/2008

- Cases concerning the special prison regime provided by Article 41bis of the Prison Administration Act (Articles 6§1 and 13)[36]

41576/98          Ganci, judgment of 30/10/03, final on 30/01/04

56317/00          Argenti, judgment of 10/11/2005, final on 10/02/2006

35795/02          Asciutto, judgment of 27/11/2007, final on 07/07/2008

60915/00          Bifulco, judgment of 08/02/2005, final on 08/05/2005, Interim Resolution ResDH(2005)56

53723/00          Gallico, judgment of 28/06/2005, final on 28/09/2005

25498/94          Messina Antonio No. 2, judgment of 28/09/00, final on 28/12/00, Interim Resolution ResDH(2001)178

33695/96          Musumeci Carmelo, judgment of 11/01/2005, final on 06/06/2005

60395/00          Papalia, judgment of 04/12/2007, final on 04/03/2008

42285/98          Salvatore, judgment of 06/12/2005, final on 06/03/2006

8316/02            Viola, judgment of 29/06/2006, final on 29/09/2006

- Cases mainly concerning unfair proceedings due to retrospective application of legislation reducing compensation for expropriation and insufficient compensation in this respect

36813/97          Scordino No. 1, judgment of 29/03/2006 - Grand Chamber

52980/99          Stornaiulo and others, judgment of 08/08/2006, final on 08/11/2006

10557/03          Gigli Costruzioni S.R.L., judgment of 01/04/2008, final on 01/07/2008

70573/01          Pisacane and others, judgment of 27/05/2008, final on 27/08/2008

These cases concern a violation of the applicants' right to the peaceful enjoyment of their possessions due to the disproportionately low compensations awarded to them following the lawful expropriation of their property. The amounts, which were fixed under Article 5bis of Law No. 359 of 1992, were significantly less (less than half) than compensation of the market value of the property, and furthermore taxed at a rate of 20%, without any public-interest ground capable of justifying this (violations of Article 1 of Protocol No. 1).

The European Court found that the expropriations at issue represented for the applicants a disproportionate and excessive burden since it did not form part of any economic, social or political reform or of any other exceptional circumstance. Thus it could find no legitimate public-interest objective to justify reimbursement at less than market value of the property.

In addition, the Court found that Article 5 bis of Law No. 359 of 1992, by changing the law applicable to compensation of expropriations under way as well as pending judicial proceedings concerning them, retroactively applied a new compensation regime providing reduced payments (see above) thus violating the applicant's right to fair proceedings (violations of Article 6§1). The government had not demonstrated any “overriding general interest” to justify the retroactive effect.

Finally, these cases concern judicial proceedings in which the applicants appealed to domestic courts to obtain compensation under the Pinto Act. They received compensation but the amount was insufficient and the payment delayed, which did not cause the applicants to loose their “victim” status and constituted an aggravating circumstance regarding the breach of the requirement of “reasonable time” (violation of Article 6§1).

Individual measures: No individual measure is necessary since the European Court awarded just satisfaction in respect of the full amount of pecuniary and non-pecuniary damage sustained. As regards the amount of the pecuniary damage, the Court awarded “an amount corresponding to the difference between the value of the property at the time of expropriation and the amount obtained at domestic level, plus indexation and interests so as to offset, at least in part, the long period for which the applicants have been deprived of the land” (judgment in Gigli Costruzioni S.R.L., §82).

General measures:

            1) Inadequate compensation for expropriation: In the Scordino No.1 judgment, the European Court noted that the violation had its origins in a large-scale problem resulting from a dysfunction in Italian Law with consequences, both actual and potential, for a large number of people (§229). Under Article 46, the European Court considered that “the respondent State should, above all, remove every obstacle to the award of compensation bearing a reasonable relation to the value of the expropriated property, and thus ensure, by appropriate statutory, administrative and budgetary measures, that the right in question is guaranteed effectively and rapidly in respect of others claimants affected by expropriation of property, in accordance with the principles of the protection of pecuniary rights set forth in Article 1 of Protocol No.1, in particular the principles applicable to compensation arrangements” (§237).

The Court of Cassation responded with three Orders, (one of 29/05/2006 and two of 19/10/2007) all raising the problem of the compliance of Article 5bis of Law No. 359 of 1992 with the Constitution and the Convention.

• Declaration of unconstitutionality by the Constitutional Court: In its decision No. 348 of 24/10/2007, the Constitutional Court declared Article 5bis unconstitutional, and, consequently, also paragraphs 1 and 2 of Article 37 of the Consolidated Text containing measures reforming expropriation (Presidential decree No. 327 of 2001, modified in 2002 and in force since 2003), which endorsed this provision. The Constitutional Court’s reasoning underlined the incompatibility of the provision at issue with both Article 42 of the Constitution and Article 1 of Protocol No. 1 to the Convention, on account of the inadequate amount of compensation provided (between 30 and 50% of the estimated market value of the property) subsequently taxed at a rate of 20%. According to the Constitutional Court, such compensation was neither reasonably related to the property value, as advocated by the Strasbourg Court, nor coherent to the notion of “serio ristoro” (serious restoration) affirmed in its own case-law on the subject. However, the Constitutional Court recalled that the legislator will not be obliged to award full compensation: when seeking for a “fair balance” between the demands of the general and individual interests, the legislator will have to take into account the social function of property as protected by Article 42 of the Constitution. The declaration of unconstitutionality determined the retroactive non-application of the provision at issue in all pending domestic proceedings.

• Legislative changes: The Act on the 2008 Budget (Law No. 244 of 24/12/2007) amended the Consolidated text on expropriation, in particular Article 37, paragraphs 1 and 2. The amended article provides that compensation for expropriation of building land must be fixed at the level of the market value of the property. If the expropriation is carried out pursuing objectives of economic, social or political reform, compensation may be diminished by 25%. The provision at issue applies to all pending proceedings, with the exception of proceedings in which compensation for expropriation has been already accepted or has been finally fixed.

• Information provided by the Italian authorities (26/05/2008): Recent judgments of the Court of Cassation on the subject (Section 1, judgments No. 26275 of 14/12/2007, No. 599 of 14/01/2008, and No. 3175 of 11/02/2008) confirmed the application of this criterion for compensation, meanwhile recalling the European Court’s case law on the amount thereof. According to this case-law, full compensation must be awarded when the lawful expropriation is carried out for a distinct objective of public interest. Instead, the reimbursement may be lower than the full market value of the property if the expropriation is carried out in view of legitimate public interest objectives, such as those pursued by economic, social or political reforms. In the opinion of the Court of Cassation, the amount must be completed by compensation for the occupation of the property, which is a pre-condition for expropriation.

• Additional information is awaited on the elements taken into account by the Courts of Appeal in their calculation of the compensation to be awarded in pending proceedings following the declaration of unconstitutionality of Article 5 bis of Law No. 359 of 1992.

            2) Inadequate and late redress under the compensatory remedy (Pinto Act): See the Mostacciuolo No.1 group (64705/01) (1059th meeting, June 2008).

                        - 84 cases concerning constructive expropriation

                        Interim Resolution CM/ResDH(2007)3

                        (See Appendix for the list of cases in the Belvedere Alberghiera S.R.L. group)

All these cases concern the emergency occupation of land by local authorities, subsequently prolonged, without any regular procedure of expropriation followed by the judicial regularisation of the transfer of property through carrying out public works. As a result of this type of indirect expropriation (occupazione acquisitiva e usurpativa) which has come about since 1983 through the development of case-law in Italy, in parallel with “ordinary” expropriation, public authorities may acquire title to land without resorting to the latter. This being the case, the only legal element in the transfer of property is a court finding to the effect that it is illegal.

The European Court found that the rules governing proceedings brought to confirm the transfer of property and obtain compensation, did not present a sufficient degree of clarity of predictability.

It noted that they had been applied in a contradictory manner in Italian case-law and in the laws and noted that indirect expropriation empowered public authorities to set aside the ordinary rules at the potential risk of unpredictable or arbitrary outcomes for the citizen. It also found that the system allowed the public authority to acquire and transform property without simultaneous compensation. Persons whose property is thus expropriated must have recourse to litigation, which may take a considerable time: what is more, new legislation has deprived them of full, retroactive compensation, the amount being barely above that applicable to regular expropriation.

Finally, the Tribunal has the power to prescribe reparation as it is responsible for fixing the starting point of the five-year prescription period until the work takes place, thus rendering vain any hope of compensation.

The European Court found that, in all these cases, indirect expropriation aimed at legitimising de facto situations brought about by the unlawful conduct of the public authority which thus benefits from its own illegal behaviour (violations of Article 1 of Protocol No. 1).

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:

• Legislative developments since the first violations found by the European Court in 2000 (Belvedere Alberghiera and Carbonara and Ventura) Italy has adopted a Consolidated Text containing measures reforming expropriation (Presidential decree No. 327 of 2001, modified in 2002 and in force since 2003). Under Article 43 of the consolidated text, the public authority may, where land is transformed without a deed of expropriation or a declaration of public utility, subsequently adopt a decree of acquisition, which has limited effects in the future but requires the authority to recognise a right to full compensation in respect of its action. In implementing the new rule, the Council of State (plenary decision 2/2005) has judged that following the adoption of the Compendium, expropriation might no longer result from a de facto situation, but only from a formal motivated act of the public authority, even if such act were accomplished ex post facto. It also found 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. Affirming the need to apply and interpret the law in conformity with the Convention, the Council of State made it clear that the power granted to the public authority by Article 43 must be considered exceptional and not as an alternative to the proper expropriation procedure.

• Interim Resolution CM/ResDH(2007)3: On 14/02/2007 the Committee of Ministers adopted an interim resolution taking stock of the situation. It noted with interest the adoption of the Consolidated Text mentioned above and also that, in the government's view, the new procedure would constitute a break with the practice of indirect expropriation and would rule out any undue interference by the administration with property rights as recognised by the Convention, provided it is correctly and consistently implemented. The Committee also underlined that the Court had noted contradictory applications found in past case-law as well as contradictions between case-law and statute law, including the Consolidated Text (see judgment Prenna and others, of 9/02/2006, §§ 40-43, 65).

In this Resolution, the Committee of Ministers encouraged the Italian authorities to continue their efforts and rapidly take all further measures needed to bring an end definitively to the practice of “indirect expropriation” and to ensure that any occupation of land by the public authority complies with the requirement of legality as required by the European Convention. It also invited the authorities to ensure that redress mechanisms are rapid, efficient and able to the fullest possible extent of discharging the Court of its function under Article 41 of the Convention.

• Declaration of unconstitutionality by the Constitutional Court: In its judgment No. 349 of 24/10/2007, the Constitutional Court declared Article 5bis, comma 7bis, of Law No. 359/1992 (as amended by budgetary Law No. 662/1996) to be unconstitutional. This article ruled out full compensation in respect of any occupation of land which took place before 30/09/1996, providing instead compensation equivalent to the amount payable in case of conventional expropriation, based on the most favourable assumptions from the landowner's point of view, and augmented by 10%. The European Court criticised the retroactive implementation of this law which deprived applicants of full redress for damage sustained (see Scordino No.3 judgment, §100).

In the judgment mentioned above the Constitutional Court noted that the insufficient amount of compensation provided under the 1996 Act was in breach of Article 1 of Protocol No. 1 and also of Article 117 of the Constitution which regulates compliance with international obligations. As a result of this judgment, the provision at issue may no longer be applied in pending national proceedings.

• Legislative changes: The Act on the 2008 Budget (Law No. 244 of 24/12/2007) amended the Consolidated text on expropriation, in particular Article 55. It its modified form this article provides that if building land is used by the public authority for reasons of public utility, if there was no formal act of expropriation before 30/09/1996, compensation must be calculated on the basis of the full market value of the land.

• Information provided by the Italian authorities (3/12/2007): The authorities analysed the anticipated consequences of Constitutional Court judgment No. 349, particularly in relation to expropriation proceedings. It drew attention to recent administrative case-law (Council of State and Regional Administrative Tribunals) interpreting and applying Article 43 of the Consolidated Text in the manner recommended by Interim Resolution CM/ResDH(2007)3. Clearly, both the Constitutional Court's judgment and the recent administrative case-law are to be welcomed.

On 21/10/2008, the European Court delivered a judgment under Article 41 in the Guiso-Gallisay case, in which it changed its jurisprudence on the criteria for calculating the compensation in cases of indirect expropriation. The case has been referred to the Grand Chamber. Given the complexity of the issue raised by these cases and the increase in their number, it would be best to await the outcome of the Grand Chamber proceedings before further examining the issue of inadequacy of compensation.

• Information is meanwhile awaited: on the application by the various Italian courts concerned of the new 2007 rules taking into account the European Court's findings concerning contradictions in domestic case-law (see above). More generally, information would also be useful about any reduction or suppression of the practice of indirect appropriation, as well as on the dissuasive effect of Law No. 296/2006 (see Interim Resolution CM/ResDH(2007)3) making it possible to debit the cost of compensation for illegal occupation of land from the budget of the responsible administration.

399/02              Bocellari and Rizza, judgment of 13/11/2007, final on 02/06/2008

The case concerns the fact that the applicants were prevented from requesting a public hearing in proceedings for the application of preventive measures brought against them in 1999 (violation of Article 6§1). These proceedings were aimed at the seizure of the applicants’ property and movable assets on account of suspicions that the first applicant was a member of a criminal organisation.

The European Court considered it essential that the litigants in proceedings for the application of preventive measures were at least offered the opportunity to request a public hearing before the specialised divisions of the ordinary and appeal courts. It noted that the domestic law did not provide this.

Individual measures: The European Court held that the finding of the violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. In 2000, at the close of the proceedings, several assets belonging to the applicants were confiscated. The first applicant was placed under police supervision and issued with an order for compulsory residence in the Milan district for four years. However, it should be noted that the applicants did participate in the proceedings; in particular they took part in the hearing in 1999 along with the public prosecutor. In addition, two levels of jurisdiction decided on the merits of the case.

• Assessment: in these circumstances and taking into consideration the nature of the violation, no further individual measure seems necessary.

General measures:

            1) Legislative measures: Article 4 of Act No. 1423/1956, as amended by Act No.646/1982, on the application of preventive measures to persons dangerous for public security and morality provides that the court decides in chambers after having heard the public prosecutor and the interested party, who may submit a pleading and be represented by counsel. Act No. 575/1965 complemented the 1956 Act by introducing provisions dealing with persons suspected of belonging to mafia-like associations; its article 2ter provides that the court may also decide in chamber. The law does not provide the possibility for parties to request a public hearing.

In a similar case, currently pending, the Court of Appeal of Santa Maria Capua Vetere questioned the constitutional legitimacy of Articles 4 of Act No. 1423/1956 and 2ter of Act No. 575/1965 with respect to Articles 117, first paragraph, and 111, first paragraph of the Constitution. The question of constitutional legitimacy has been prompted by the recent case-law of the European Court, i.e. cases Bocellari and Rizza, and Perre and others (application No. 1905/05, 1051st meeting, Section 2) and also the Constitutional Court’s case law on expropriation (judgments Nos. 348/2007 and 349/2007), which clarified, inter alia, the position of the European Convention in the national hierarchy of norms through the interpretation of Article 117. This article provides that “legislative power is exercised by the state and the regions in the respect of the Constitution, as well as of the obligations following from the European Community legal order and from international instruments”. According to the Constitutional Court’s interpretation of Article 117, the Convention’s provisions are sub-constitutional norms interposed between ordinary law and the Constitution.

By virtue of Article 117, the provisions of the Convention as interpreted by the European Court complement those of the Constitution and determine the international obligations binding upon the legislative power vested in the state and the regions. Where there is a doubt as to the compatibility between ordinary law and the Convention, it is up to the Constitutional Court to verify the Convention’s compatibility with the Constitution, as well as the compatibility of the ordinary law with the Convention. The Constitutional Court may then, if need be, order the non-application of ordinary law due to its unconstitutionality.

• Information is awaited on the Constitutional Court’s decision.

            2) Publication and dissemination: A summary of the judgment has been published in Italian in the database of the Court of Cassation on the European Court (www.italgiure.giustizia.it). This web site is widely used by all those who practice law in Italy, civil servants, lawyers, prosecutors and judges alike.

- 3 cases against Latvia

62393/00          Kadiķis No. 2, judgment of 04/05/2006, final on 04/08/2006

The case concerns the conditions of the applicant’s administrative detention in the temporary confinement suite of the Liepaja State Police station from 28/04/2000 to 13/05/2000 (15 days).

The European Court noted that the cell in which the applicant was detained, usually with 3 or 4 other people, measured 6m², of which less than half was available for all the co-detainees to move about in. There was no natural light and the ventilation system did not work properly, stopping often. There was no exercise yard and the only time the applicant could leave the cell was to go to the lavatory or to the washroom. The applicant had no bed, but had to share a wooden platform 2.1m x 1.7m with his cellmates. There was no bed-linen and the prisoners slept fully clothed on bare boards. During the applicant’s detention, only one proper meal per day was served and it was prohibited for the detainees to receive foodstuffs from outside. Finally, there was neither drinking water nor even running water in the cell.

The European Court found that, although there was no evidence of any intention on the part of the Latvian authorities deliberately to humiliate or diminish the applicant, this treatment was nonetheless degrading (violation of Article 3).

The case also concerns the absence of an effective remedy whereby the applicant might complain about the conditions of detention (violation of Article 13).

Individual measures: The applicant was freed in May 2000. The European Court awarded him just satisfaction in respect of the non-pecuniary damage sustained.

• Assessment: no further measure seems necessary.

General measures:

            1) Violation of Article 3: The Latvian authorities have provided a list of measures taken in 2004‑2006 in order to ensure that the conditions in temporary confinement suites are in conformity with the Convention’s requirements. In most of the temporary detention institutions (TDI) much repair work has been done (for example repairing ventilation systems and the sanitary facilities). In December 2005 a new building complex was opened by the Liepaja Town and Regional Police Department, including a new TDI. 

• Further information is awaited on other measures taken concerning the specific problems identified by the Court, for example overcrowding, natural light, ventilation, physical exercises, meals, running water, bed linen etc.

            2) Violation of Article 13: The Cabinet has decided to establish a working group to examine whether legislative amendments are necessary to ensure that an effective remedy is available for complaints concerning the conditions of detention. The working group was established under the auspices of the Ministry of Justice and it began its work in November 2006. So far the working group has decided that it will become a permanent forum for discussing the necessary steps to be taken to execute the European Court’s judgments. The composition of the working group will be adjusted to include experts in the relevant fields. Furthermore, the working group has decided to examine the issue of effective examination of individual complaints concerning the conditions of detention in a broader context than the present judgment. For instance, it will cover not only the deadlines for these complaints but also such issues as the procedure for examining complaints made by illegal immigrants, appeal proceedings against decisions imposing administrative detention and the related conditions.

• Further information is awaited on the reflections of the working group and on the question of the need to adopt legislative measures and, if such measures are foreseen, on the timetable for their adoption.

            3) Publication and dissemination:

• In any event, publication and dissemination of the European Court’s judgment to the relevant authorities and courts are expected, possibly accompanied by a circular or note explaining the problems identified by the European Court.

73819/01          Estrikh, judgment of 18/01/2006, final on 18/04/2007

67275/01          Čistiakov, judgment of 08/02/2007, final on 08/05/2007

These cases concern the excessive length of the applicants’ detention on remand due to insufficient grounds to justify detention and the unlawfulness of its extension from 20/04/1999 to 23/08/2000 (Estrikh case) as well as the absence of “particular diligence” (Čistiakov case) (violations of Article 5§3). They also concern the excessive length of criminal proceedings against the applicants (violations of Article 6§1).

The Estrikh case further concerns the violation of his right to respect for his family life on account of the restrictions imposed on visits by his partner, with whom he had lived for five years, and their child, as well as his expulsion upon his release from prison. The European Court considered this expulsion had not been provided by law (violation of Article 8).

The Čistiakov case concerns, in addition, the unlawfulness of prolonged detention on remand without legal basis as he was detained eight more days after the expiry of his detention order (violation of Article 5§1(c)) as well as the censorship of his correspondence while in detention on the basis of inadequate rules (violation of Article 8).

Individual measures: The applicants are no longer detained on remand as their convictions have become final. On 29/08/2002, Mr Estrikh was expelled from Latvia to the Russian Federation. The European Court concluded that the applicant was expelled on the basis of his criminal judgment which at the time of the expulsion had not yet become final and the administrative proceedings concerning his expulsion were still pending.

• Information is awaited as to whether Mr Estrikh may re-enter Latvia.

General measures: These cases present similarities to those of Lavents (58442/00) (Section 6.2) and Kornakovs (61005/00) (Section 5.3)

            1) Problems already solved (see Lavents and Kornakovs cases):

- Violation of Article 5§3: The applicants’ detention was prolonged under Article 77 of the Code of Criminal Procedure, which did not provide any precise legal basis for such extension and has now been repealed by a law of 20/01/2005 which entered into force on 01/02/2005. Moreover, the new Law on Criminal Procedure entered into force on 01/10/2005. The new law introduces a post of investigative judge whose main function is to supervise the observance of human rights in criminal proceedings.

The judge decides on the application and extension of certain means of restraint (detention, house arrest, placement in an institution) as well as on complaints related to other means of restraint (e.g. restraint orders, bail, conditions of police supervision). The new law also imposes various time-limits for pre-trial detention. In May 2003, the Human Rights Institute of the University of Latvia organised a seminar on detention issues for judges, prosecutors, practicing lawyers and governmental and parliamentary representatives.

- Violation of Article 6§1: There does not seem to be a systemic problem of excessive length of criminal proceedings in Latvia.

- Violation of Article 8 (family visits): Concerning family visits, on 29/04/2003 the Latvian government adopted the Regulation on the internal rules of provisional detention centres, which provides inter alia that such establishments should allow detainees to have contact with their families or others.

- Violation of Article 8 (correspondence): Concerning prisoners’ correspondence, the new Law on Criminal Procedure and the new internal Rules of pre-trial detention centres provide stricter conditions for monitoring of correspondence during the pre-trial investigation (see Kornakovs case).

            2) Outstanding issues:

- Violation of Article 5§1(c) (unlawful detention): As regards Mr Čistiakov’s detention of eight days after the expiry of his detention order, the violation was due to a wrongful application of national law.

- Violation of Article 8 (unlawful expulsion): As regards the expulsion from Latvia, the violation was also due to a wrongful application of national law.

• Therefore are expected: publication and dissemination of the European Court’s judgments to the competent authorities. Information on other possible measures would also be useful.

- 4 cases against Malta

17209/02          Adami Zarb, judgment of 20/06/2006, final on 20/09/2006

The case concerns the fact that the applicant was subject to discrimination on account of the practice of enrolling far more men than women on the jurors’ list even though the law in force at the material time (Article. 603 [1] of the Maltese Criminal Code) made no distinction between sexes, both men and women being equally eligible for jury service. The European Court held that the government had not provided an adequate explanation to justify this difference of treatment (violation of Article 14 in conjunction with Article 4§3 d)).

According to the European Court’s judgment, since 1997 an administrative process has been set in motion in order to bring the number of women registered as jurors in line with that of men. As a result, in 2004, 6,344 women and 10,195 men were enrolled on the list of jurors.

Individual measures: The applicant was exempted from jury service in April 2005 under Article 604 [1] of the Maltese Criminal Code.

• Assessment: Thus no individual measures appear necessary.

General measures:

• Information is awaited in the light of the European Court’s findings on measures envisaged or taken to ensure further change of practice of domestic authorities and courts, in particular by giving recent data on the ratio of men and women currently enrolled on the list of jurors.

All judgments of the European Court against Malta are automatically sent out to competent authorities and are publicly available via the website of the Ministry of Justice and Home affairs (http://www.mjha.gov.mt/ministry/links.html) which provides a direct link to the Court's website.

77562/01          San Leonard Band Club, judgment of 29/07/2004, final on 29/10/2004

The case concerns the violation of the applicant’s right to a fair hearing before an impartial tribunal in that in 1996 in the ambit of retrial proceedings the same judges of the Court of Appeal were called upon to ascertain whether their previous judgment was based on a misinterpretation of the law (violation of Article 6§1). Thus, the same judges were called upon to decide whether or not they themselves had committed an error of legal interpretation or application in their previous decision (§§63-64 of the judgment).  .

The European Court found that these circumstances were sufficient to justify the applicant's fears as to the lack of impartiality of the Court of Appeal (§65 of the judgment).

Individual measures: The European Court indicated that in cases of violation of the right to a fair trial before an independent and impartial tribunal, the most appropriate measure in principle is reopening before an independent and impartial tribunal (§70 of the judgment).

• Information is awaited as to whether there is a possibility to have the case reopened before domestic courts and whether the applicant applied for such reopening.

General measures:

• Information is awaited on measures taken or envisaged to prevent similar violations in the future.

All judgments of the European Court against Malta are automatically sent out to competent authorities and are publicly available via the website of the Ministry of Justice and Home affairs (www.mjha.gov.mt/ministry/links.html) which provides a direct link to the European Court's website.

35349/05           Fleri Soler and Camilleri, judgment of 26/09/2006, final on 26/12/2006 and of 17/07/2008, final on 17/10/2008 (Article 41)

31122/05           Ghigo, judgment of 26/09/2006, final on 26/12/2006 and of 17/07/2008, final on 17/10/2008 (Article 41)

The cases concern a violation of the applicants' right to respect to the peaceful enjoyment of their possessions on account of the requisition of their buildings under the Maltese Housing Act, imposing a landlord-tenant relationship on the applicants. They had been requested to bear most of the social and financial costs of supplying housing accommodation to a third party and his family (Ghigo) and the financial costs of providing a working environment for government departments and/or for public offices which were performing their duties for the benefit of the community as a whole (Fleri Soler and Camilleri).

The European Court found that a disproportionate and excessive burden had been imposed on the applicants because of the extremely low amount of rent, the fact that the applicants' premises had been requisitioned for more than 22 years (Ghigo), and for almost 65 years (Fleri Soler and Camilleri), and the restrictions on the landlord's rights. It followed that the Maltese state had failed to strike the requisite fair balance between the general interests of the community and the protection of the applicants' right of property (violations of Article 1 of Protocol No. 1).

Individual measures: In separate judgments rendered concerning just satisfaction, the European Court compensated the pecuniary damage resulting from the applicants’ loss of rent.

In the Fleri Soler and Camilleri case, the Court also noted (§16) that the government had restored the requisitioned property in 2007.

However, in the Ghigo case the Court noted that the applicants were still subject to the requisition measure at issue. It recalled in this respect that its Article 41 judgments aimed only to redress damage sustained as a result of the violation and that it was not in a position to calculate the extent of any future damage resulting from the maintenance of the said measure. It therefore rejected the applicants’ requests in this respect, subject to the establishment by the government of a mechanism to ensure the payment of fair rent in the future (§§23-24).

• Information is awaited on the current situation of the applicants in the Fleri Soler and Camilleri case and on measures taken or envisaged to erase the consequences of the violation.

General measures: The European Court noted in the judgments rendered under Article 41 that its conclusions in the principal judgments resulted from shortcomings in the Maltese legal system, particularly Maltese housing legislation, as a consequence of which, an entire category of individuals has been and is still being deprived of its right to the peaceful enjoyment of property. In the Court’s view, the unfair balance detected in the applicants’ particular cases may subsequently give rise to other numerous, well-founded applications which are a threat for the future effectiveness of the system put in place by the Convention.

The European Court further expressly stated that general measures are undoubtedly called for in the execution of the present judgments. In particular, the European Court considered that the Maltese state must above all, through appropriate legal and/or other measures, secure in its domestic legal order a mechanism maintaining a fair balance between the interests of landlords, including their entitlement to derive profit from their property, and the general interest of the community – including the availability of sufficient accommodation for the less well-off – in accordance with the principles of protection of property rights under the Convention.

It also observed that the many options open to the respondent state include measures setting out the features of a mechanism balancing the rights of landlords and tenants and criteria for what might be considered nowadays a “tenant in need”, “fair rent” and “decent profit” (§§25-29 in Art. 41 judgment in Ghigo).

• Information is thus awaited on measures envisaged or taken to prevent new, similar violations as well as on the timetable implementing such measures..

• Publication and dissemination:  All judgments of the European Court against Malta are automatically sent out to competent authorities and are publicly available via the website of the Ministry of Justice and Home affairs (www. mjha.gov.mt/ministry/links.html) which provides a direct link to the Court's website.

- 92 cases against Moldova

14385/04          Oferta Plus SRL, judgments of 19/12/2006, final on 23/05/2007 and of 12/02/2008 (Article 41), final on 07/07/2008[37]

- Cases concerning ill-treatment under police custody, lack of effective investigation in this respect (Articles 3 and 13)

18944/02          Corsacov, judgment of 04/04/2006, final on 04/07/2006

6888/03            Pruneanu, judgment of 16/01/2007, final on 23/05/2007

41088/05          Boicenco, judgment of 11/07/2006, final on 11/10/2006 and of 10/06/2008, final on 10/09/2008

29089/06           Colibaba, judgment of 23/10/2007, final on 23/01/2008

These cases concern inhuman and degrading treatments inflicted on the applicants while in police custody (substantial violation of Article 3) and the authorities' failure to carry out effective investigations in this respect (procedural violation of Article 3). The European Court identified the following shortcomings in the domestic investigations, in particular

-           a number of serious and unexplained omissions and inconsistencies of the investigation, in particular between the conclusions of the medical reports and the explanations given by the police officers (Corsacov case);

-           factual findings made by the prosecutors entirely based on the statements of the police officers accused of ill-treatment (Pruneanu case);

-           lack of independence of the prosecutor who conducted the investigation since it was the same prosecutor who requested the applicant's remand and for the extension of his detention as well as his failure to undertake any investigative measures after receiving the complaint from the applicant's lawyer, not least to consult the applicant's medical file (Boicenco case);

The Colibaba case concerns a number of serious omissions of the investigation into the applicant’s allegations of ill-treatment on account of:

- the prosecutor’s refusal without any plausible reason to grant the applicant’s request to undergo an independent medical examination in the presence of his relatives;

- the disregard by the domestic court of the applicant’s appeal against the prosecutor’s refusal and of the results of an independent medical examination revealing signs of ill-treatment later undergone by the applicant; and

- the prosecutor’s refusal to re-examine the case in the light of the conclusions of this independent medical examination.

The Court noted that since the criminal investigations conducted by the domestic authorities concluded that the actions of the police officers were legal, any civil action against them would have been ineffective. The European Court accordingly found that the applicants did not have an effective remedy to claim compensation for their ill-treatment (Corsacov and Pruneanu cases) (violations of Article 13).

In addition, the Boicenco case concerns

-           the applicant's detention without a detention order (violation of Article 5§1);

-           the impossibility for him to be released under section 191 as he was charged with intentional offences punishable by more than 10 years' imprisonment (violation of Article 5§3) and

-           a violation of the applicant's right of individual petition due to the fact that his lawyers and a doctor were not allowed to see the applicant or his medical file for the purpose of defending his rights before the European Court (violation of Article 34).

Finally, the Colibaba case concerns a violation of the applicant’s right of individual petition on account of the Prosecutor’s General threat to initiate criminal proceedings against his lawyer on the ground of his “improper” complaint to international organisations (violation of Article 34).

Individual measures: In all cases, the European Court awarded just satisfaction to the applicants in respect of the non-pecuniary damage suffered as a result of the torture and of the failure of the authorities properly to investigate the case.

As regards the investigations into the applicants' allegations of ill-treatment:

            1) Corsacov case: the General Prosecutor's Office conducted an investigation against the alleged perpetrators of the ill-treatment inflicted on the applicant. The case is currently under examination by the Hânceşti Court of First Instance (a hearing was scheduled for 28/11/2006).

• Information is expected on the progress of these proceedings.

            2) Pruneanu case:

• Information is awaited in respect of conducting new investigations concerning the allegations of ill treatment in May 2001 and July 2002.

            3) Boicenco case: on 06/07/2006, the Buiucani Court of First Instance decided to release the applicant on bail and he was able to leave the psychiatric hospital. Subsequently, on 03/11/2006, the same court decided to suspend the criminal proceedings against him until his recovery. He was authorised to go to Bucharest and Kyiv for medical examination.

On 27/07/2006, the Buiucani Court of First Instance asked the clinical director of the psychiatric hospital to give the applicant's lawyer immediate and free access to his medical file.

On 17/07/2006, the Deputy General Public Prosecutor quashed the decision of 08/06/2006 of the Catana public prosecutor not to open a criminal investigation against the agents of the CFECC. Subsequently, the case-file was transmitted to the Anti-corruption Prosecution Office. Additional enquiry was ordered into the facts relied on by the applicant's wife and lawyer.

On 21/02/2007 the Prosecutor of the Anti-corruption Prosecution Office, taking into account the evidence gathered in the course of this enquiry, issued an order closing the proceedings.

• More details are awaited on the new investigation, in particular on how the shortcomings identified by the European Court have been remedied and on the investigatory steps taken in this respect. The need for further individual measures is being assessed by the Secretariat.

            4) Colibaba case:

• Information is awaited on the conduct of new investigations concerning the allegations of ill treatment in April 2006.

General measures:

            1) Measures taken with a view to preventing ill-treatment in police custody:

            a) Legislative changes: On 30/06/2005 the Moldovan Parliament adopted an amendment to the Criminal Code, defining and criminalising torture. Article 309¹ of the Criminal Code provides for a jail sentence of 2 to 5 years with suspension of the right to hold certain offices or to engage in certain activities for up to 5 years. More severe penalties are provided (3 to 8 years' imprisonment with the same suspension of rights) for organising or inciting torture and in respect of certain types or techniques of torture (5 to 10 years). Torture and other forms of cruel, inhuman or degrading treatment are prohibited by a series of special provisions contained in the Criminal Code (Articles 306-309 and 327, 328) and in the Code of Criminal Proceedings.

            b) Regulatory changes: On 19/04/2006 the Moldovan government approved the Code of Police Ethics (published in December 2006) drafted with the Council of Europe's assistance. Among the relevant provisions, Section 13 provides that all police officers are fully responsible for their actions or omissions as well as for orders given to their subordinates. According to Section 16 it is prohibited to apply, encourage or tolerate any act of torture under any circumstance, to use force, except in cases of absolute necessity and only to the extent necessary to achieve a legitimate aim. Section 30 of the Code provides that any failure to comply with its provisions entails the disciplinary, civil or criminal responsibility of the police under the conditions prescribed by law.

- On 30/11/2006, the General Prosecutor adopted an order (n° 325/19) on the prevention of and the fight against torture. This order requires heads of divisions of the General Prosecutors' Office to monitor the application of the legislation by the agents in charge of investigation and penitentiary institutions. It also stresses the importance of supervising investigations into allegations of torture.

- On 11/05/2005 a commission in the Ministry of Interior has been established. The commission is responsible for the implementation of the National Plan of Action for 2004-2008 in the field of human rights.

- The Moldovan authorities informed that the Government provided 5.6 million Moldavian Lei to finance the renovation and restoration work of detention places in police headquarters.

- The Ministry of Interior set up a phone number for anonymous calls to gather complaints related to violations committed by police officers.

            c) Training and awareness raising

- According to Section 11 of the Code of Police Ethics, staff training should be carried out according to the objectives of the police force, while respecting fundamental principles such as the rule of law, democratic pluralism and the protection of human rights.

- Several training programmes on human rights (torture, inhuman and degrading treatment) and the European Convention have been organised within the Ministry of Interior for the police and their co-workers. Other seminars have been organised with help of the Moldovan Institute of Penal Reform and the UNDP, for the employees of the Ministry of Interior.

- During its visit to Chisinau (29/11/06-01/12/06), the Secretariat delegation was informed that the authorities were considering setting up twelve workshops on the implementation of the Code of Police Ethics. The Secretariat has been also informed of changes already made and to come in the Police training curricula.

 • Assessment: According to the Committee of Ministers' practice regarding this kind of cases (see, in particular, Interim Resolutions DH(99)434, DH(2002)98 and ResDH(2005)43 concerning the action of the security forces in Turkey, Interim Resolution ResDH(2005)20 concerning the action of the security forces in Northern Ireland and Final Resolutions ResDH(94)34 in the case Tomasi against France and ResDH(2006)13 in the cases Egmez and Denizci against Cyprus), particular attention should be paid to the existence of a number of procedural safeguards surrounding taking persons into custody.

• The detailed information provided by the Moldovan authorities by letter of 30/09/2008, in response to the issues raised by the Secretariat, concerning in particular the prosecutor’s duties in respect of persons in custody, as well as the conditions under which an individual in custody is being authorised to have contacts with the outside world, are being currently assessed by the Secretariat.

            2) Measures taken with a view to ensuring the effectiveness of investigations: According to Article 298 of the Code of Criminal Procedure, as amended by the Moldovan Parliament on 28/07/2006, complaints concerning actions of organs conducting criminal investigations may be addressed to the prosecutor who supervises this investigation. If a complaint concerns the prosecutor supervising or directly involved in the investigation, he or she is required to transmit it, together with his or her explanations, to a superior prosecutor within 24 hours. All declarations, complaints or other circumstances indicating that a person has been tortured or subjected to inhuman or degrading treatment shall be examined by a public prosecutor under Article 274 of the Code of Criminal Procedure, in a separate procedure.

• The further details provided by the Moldovan authorities by letter of 30/09/2008, in response  to the issues raised by the Secretariat, concerning in particular the guarantees of the investigative authorities’ independence and impartiality, are being currently assessed by the Secretariat.

            3) Measures taken with a view to ensuring a possibility to claim compensation: At the material time, it was necessary to establish that the act at issue was illegal in order to claim compensation for the damage sustained.

The authorities have indicated that Articles 1403-1405 of the Civil Code establish responsibility and the possibility of compensation for damage caused by public authorities or by organs of criminal prosecution, public prosecutors and the judiciary. One example related to the application of these provisions has been provided.

• Information would be useful on whether these Articles provide for the objective liability of the state or whether their application is still subject establishing the guilt of the state agents concerned.

The authorities have also indicated that persons whose rights had been violated are entitled to compensation for non-pecuniary and pecuniary damage under the provisions of Law No. 1545 of 25/02/1998 “on Compensation for Damage caused by the Illegal Acts of the Criminal Investigation Bodies, Prosecution and Courts”. According to this Law, the damage caused shall be fully compensated, irrespective of the degree of liability of the agents of the criminal investigation organs, prosecution or courts.

• The additional clarification provided by the Moldovan authorities by letter of 30/09/2008, in response to the issues raised by the Secretariat, concerning in particular the applicability of Law No. 1545 to the compensation for infliction of torture, are being currently assessed by the Secretariat.

            4) Other violations found in the Boicenco case:

- Articles 5§1 and 5§3: see the Sarban group of cases (Section 4.2).

- Article 34: Information is still awaited on the measures taken or envisaged by the authorities to ensure that lawyers have access to their clients in detention and on other possible measures to prevent new, similar violations.

            5) Publication and dissemination of the Court's judgments: These judgments were translated and published on the website of the Ministry of Justice (http://www.justice.md). It has also been sent for publication in the Official Journal and sent out to the national courts, the Ministry of Interior and all sections of the police.

289/04+            Popovici, judgment of 27/11/2007, final on 02/06/2008

This case concerns a number of violations related to the applicant’s pre-trial detention, to the presumption of his innocence and to his right to a fair trial, as follows: 

- the failure by the Supreme Court of Justice, when ruling on appeal, to hear the applicant in person and to produce evidence in his presence with a view to a contradictory argument before convicting him and sentencing him to life imprisonment in breach of Articles 451 and 436 of the Moldovan Code of Criminal Procedure (violation of Article 6§1).

- a public statement made by a high-ranking official, the Secretary of the Superior Security Council, in which he declared in an interview with a newspaper that the applicant was guilty before he had been so proved according to law. These statements encouraged the public to believe the applicant guilty and prejudiced the assessment of the facts by the competent judicial authority, breaching his right to the presumption of innocence (violation of Article 6§2);

- the poor material conditions of the pre-trial detention, amounting to degrading treatment (violation of Article 3) and the lack of an effective remedy in this respect (violation of Article 13 taken together with Article 3);

- the failure of domestic courts to give relevant and sufficient reasons for the extension of the applicants' detention (violations of Article 5§3).

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

The applicant is currently serving a life sentence in Rezina Prison. The European Court recalled that “where an individual has been convicted following proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation.”

• Information is awaited on action taken by the Moldovan authorities with a view to ensuring the reopening of the case.

General Measures:

1) Violation of Article 6§1: It results from the judgment that this violation was due to the inconsistent application of the existing provisions of the Code of Criminal Procedure.

• Information is awaited on possible measures to prevent such violations (e.g. organisation of an awareness-raising seminar).

2) Violation of Article 6§2: It remains unclear whether and how Moldovan law, e.g. the Code of Criminal procedure or the Criminal Code, ensures the respect of the presumption of innocence.

• Information is thus awaited in this respect, as well as on measures taken or envisaged to prevent new, similar violations (e.g. organisation of training seminars, in particular for agents of various investigative agencies, etc.).

3) Violation of Article 3: See the Becciev group (Section 4.2.).

4) Violation of Article 13 taken jointly with Article 3: See the Becciev group (Section 4.2).

5) Violation of Article 5§3: See the Sarban group (Section 4.2).

            6) Publication and dissemination: The Moldovan authorities provided information about the publication in the Official Journal of the Republic of Moldova of a translated excerpt from the judgment. The full text of the judgment has been sent for publication on the official web-site of the Ministry of Justice (http://justice.md/md/cedo/).

• Information is also awaited on the dissemination of the judgment to all courts, possibly with a circular letter from the Supreme Court of Justice drawing courts’ particular attention to their obligations under Articles 6§1 and 6§2.

- Cases concerning poor conditions of detention and lack of effective remedy in this respect

9190/03            Becciev, judgment of 04/10/2005, final on 04/01/2006

12066/02          Ciorap, judgment of 19/06/2007, final on 19/09/2007

30649/05          Holomiov, judgment of 07/11/2006, final on 07/02/2007

35207/03          Ostrovar, judgment of 13/09/2005, final on 15/02/2006

8721/05+          Istratii and others, judgment of 27/03/2007, final on 27/06/2007

These cases concern various violations related to the applicants' detention on remand, as follows:

1) Violations of Article 3

- Poor conditions of detention: All these cases concern the poor conditions of the applicants' pre-trial detention between 2001 and 2005, were due in particular to the absence of outdoor exercise, the inadequacy of food, presence of parasitic insects, lack of access to daylight or electricity, the exposure to cigarette smoke, etc.

- Force-feeding of a detainee on hunger-strike: In the Ciorap case, the European Court found that the repeated force-feeding of the applicant while on hunger-strike against his detention conditions was amounted to torture.

- Lack of special medical assistance during pre-trial detention: In the Holomiov case, the European Court noted that the core issue in this case was not the lack of medical care in general but rather the lack of medical care suited to the applicant's particular conditions. The Court stressed that merely having the applicant seen by doctors and hospitalised in the prison was not enough. The applicant was prescribed urgent surgery on one of his kidneys in 2002 and 2003 but the doctor's recommendations were never followed up.

In the Istratii and others case, the violation was also due to the authorities' failure in the CFECC remand centre to provide timely medical assistance to the one of the applicants, to his transfer to prison hospital less than four hours after surgery and to the fact that he was unnecessarily handcuffed while in hospital.

2) Violation of Article 13: The Ostrovar case concerns the lack of an effective remedy into the allegations of poor conditions of detention (violation of Article 13 taken together with Article 3).

3) Violations of Article 8:

- Interception of correspondence: The Ostrovar and Ciorap cases concern the interception of the applicants' correspondence. In this respect, the European Court considered that Article 18 of the Law on Pre-Trial Detention did not indicate with reasonable clarity the scope and manner of the exercise of discretion in respect of restrictions on prisoner's correspondence.

- Failure to ensure acceptable conditions for the applicants' meetings with their relatives: Failure to ensure acceptable conditions for meeting with the applicants' families was due to the installation of a glass partition in the visitors' suite (Ciorap case) and to the refusal to authorise visits with relatives (in Ostrovar case).

4) Other violations:

The Becciev case also concerns detention on remand and its extension without sufficient and relevant grounds (violation of Article 5§3), as well as the domestic courts' refusal to hear a witness for the defence (violation of Article 5§4).

The Istratii and others case also concerns detention on remand and its extension without sufficient and relevant grounds (violation of Article 5§3), as well as and the lack of confidentiality of lawyer-client communications at the CFECC remand centre (Centre against Economic Crime and Corruption) (violation of Article 5§4).

The Ciorap case concerns the refusal by the Supreme Court to examine the applicant's complaint regarding the force-feeding, on the ground that he had not paid court fees, in breach of his right to access to court (violation of Article 6§1).

Finally, the Holomiov case also concerns detention after the expiry of his detention warrant (violation of Article 5§1) and the excessive length of criminal proceedings (violation of Article 6§1).

Individual measures: In all cases, except the Ciorap case, the applicants are no longer detained. The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicants.

Mr Ciorap ended his hunger strike on 04/10/2001. On 17/06/2008 he was transferred from prison No 13 (former No. 3) of Chisinau to Cricova prison No 15. According to the latest information provided by the applicant’s representative, the applicant is currently serving his sentence in prison No 9. On 01/08/2008 and 06/11/2008, the applicant’s representative lodged extensive submissions with respect to alleged violations of the applicant’s rights related to his detention. On 28/10/2008 and 19/11/2008 these submissions were transmitted to the authorities.

• The detailed information submitted by the Moldovan authorities by letters of 17/11/2008 and 15/12/2008 in response to the applicant’s allegations in the Ciorap case, as well as the new information received from the applicant by letter of 06/03/2009 is currently the subject of in-depth assessment by the Secretariat.

General measures:

            1) Violations of Article 3

• Information provided by the Moldovan authorities:Most of the legal framework governing the prison system, including conditions of detention, has been changed by the new Enforcement Code, which entered into force on 01/07/2005, and other new laws.

- Overcrowding: The new Enforcement Code provides for a minimum of 4 m² for each prisoner. In an effort to reduce prison overcrowding, a Bill has been drawn up to amend the Criminal Code, reducing minimum sentences for less serious offences and increasing the number of offences in respect of which alternative penalties may be applied.

- Cell conditions: In 2005, 1500 blankets, 2000 towels, 2000 sheets, 2000 pillowcases, 1000 mattresses and 1000 pillows were acquired and distributed. Measures were taken to improve conditions in Chisinau No. 3 Penitentiary with the repair of 129 cells. New provisions have been introduced banning smoking in cells and other parts of prisons, detainees being allowed to smoke only in specially equipped rooms.

- Diet, medicines and care: New minimum daily diet standards have been established to improve the quantity and quality of rations. All prisons also now possess all major types of medicaments, particularly those needed to treat prisoners suffering from tuberculosis. Rules on the provision of medical care in prisons are in the process of being drafted and adopted.

- Prisoners' free time:  Educational, cultural and sports programmes have been drawn up and implemented in prisons as a framework for detainees' free time. Psychologists and social workers are carrying out social integration programmes.

• Detailed information is awaited on the possibility for outdoor exercise.

- Lack of medical assistance during pre-trial detention: The Moldovan authorities indicated that the Department of Penitentiary Institutions of the Republic of Moldova signed contracts for 2004-2007 with specialised medical health institutions (among others the Republican Centre for Diagnosis, the Republican Hospital of neurology and neurosurgery) to improve the quality of the special medical care given to detainees.

- Force-feeding of detainees on hunger strike: The force-feeding of the applicant was carried out on the basis of instructions regarding the detention in prisons of persons refusing to take food and the manner of their force-feeding, adopted by Ministry of Health and Ministry of Justice in 1996, which prohibited the force-feeding of detainees.

The European Court noted that on 9/10/2003 Article 33 of the Law on Remand (which had provided for the force-feeding of detainees on hunger-strike) was amended to expressly prohibit the force-feeding of detainees.

• Information was expected as to whether the 1996 instructions mentioned above have been withdrawn, on implementation measures taken with respect to the new instructions based on the Law of 2003), on possible training for prison staff, etc. A copy of the new Law would also be useful.

• Assessment: The information provided is currently being assessed by the Secretariat.

            2) Violation of Article 13

• Information provided by the Moldovan authorities:A Supreme Court of Justice decision of 19/06/2000 laid down that where domestic law does not provide a right to an effective remedy against any right safeguarded in the Convention, the competent court shall directly apply the provisions of the Convention, whether in civil or criminal proceedings.

Article 53 of the Moldovan Convention provides that the state is responsible for prejudice resulting from errors by prosecutors and courts in criminal proceedings. Article 1405 of the Civil Code contains a similar provision concerning the state's responsibility for judicial errors. A concrete mechanism for the reparation of judicial errors is provided in Act No. 1545-XIII of 25/02/1998. An example is given: in the case of Drugalev against the Ministries of the Interior and Finance, the applicant was awarded 15 000 Lei in respect of non-pecuniary damages.

With a view to ensuring respect for the right to an effective remedy, a Complaints Committee has been set up as an independent body with the mandate to deal with prisoners' complaints at any time during their sentence.

• More details would be useful on the composition, functioning and powers of the Complaints Committee. Relevant examples of case-law are awaited demonstrating the effectiveness of this remedy with regard to poor conditions of detention.

3) Violations of Article 8

- Interception of correspondence

• Information provided by the Moldovan authorities:Articles 18 and 19 of the Law on Pre-Trial Detention were slightly modified in 2003 and then repealed in 2005 by the new Enforcement Code. Article 229§2 of the Code prohibits the censorship of the correspondence of the detained persons with their lawyer, the Complaints Committee, the prosecution authorities, courts, the central public administration authorities and international, intergovernmental organisations protecting human rights and fundamental freedoms. The Statute on the Enforcement of Sentences (adopted 26/05/2006) provides that prisoners' correspondence with relatives or with other physical or legal persons may not be subject to censorship except under the conditions set out in the Code of Criminal Procedure or in Article 6, paragraph 2.2 of the Act on Operational Investigations.

• Information is awaited as to whether instructions exist concerning the implementation of these Articles and on how the control over the compliance with these obligations by the penitentiary authorities is ensured (e.g. internal monitoring mechanism, verifications by the prosecutors, etc).

- Failure to ensure acceptable conditions for the applicants' meeting with their relatives

• Information would be also useful on the current situation regarding the conditions of meeting of detainees with visitors in prison n° 3 Chisinau.

4) Other violations

As regards the following violations:

- Violation of Article 5§1 in the Holomiov case: see the Sarban group (Section 4.2).

- Violations of Article 5§3 (insufficient grounds for the detention) in Becciev and Istratii and others case and Article 5§4 (domestic courts' refusal to hear a witness for the defence) in Becciev case: see the Sarban group.

- Violation of Article 5§4 in the Istratii and others case on account of the lack of confidentiality of lawyer-client communications at the CFECC remand centre: see the Sarban group.

- Violation of Article 6 in the Ciorap case, the European Court noted that in accordance with Article 85 (1) of the Code of Civil Procedure, the applicant should have been exempted from paying court fees due to the nature of his claim (damage to his health caused by the actions of the authorities), regardless of his ability to pay. However the domestic court had not taken into consideration the nature of his complaint. The Moldovan authorities have indicated that the European Court's judgment has been published in the Official Journal and sent out to national courts.

As regards the violation of Article 6§1 in the Holomiov case due to the excessive length of proceedings:

• Information is awaited on the publication and dissemination of the judgment to all courts together with a circular letter of the Supreme Court of Justice drawing their attention to their obligations with regard to the reasonableness of the proceedings.

            5) Publication and dissemination: All judgments of the European Court have been translated and published in the Official Journal of the Moldovan Republic (Monitorul Oficial) as well as on the official internet site of the Ministry of Justice (http://www.justice.md) and sent out to all appropriate authorities.

36492/02           Bujnita, judgment of 16/01/2007, final on 16/04/2007

The case concerns the violation of the applicant's right to a fair trial in criminal proceedings, due to the unjustified quashing of a final judicial decision acquitting him on a rape charge (violation of Article 6§1).

In June 2001 the applicant was acquitted of rape by Râşcani District Court. This judgment was confirmed by the Court of Appeal's final judgment of 30/10/2001. In December 2001 the Deputy Prosecutor General lodged with the Supreme Court of Justice a request for annulment of the judgments of the Râşcani District Court and the Court of Appeal. He argued that those courts had assessed the evidence erroneously and unlawfully. The Supreme Court of Justice upheld his request and declared the applicant guilty of rape.

The European Court found that the grounds for the Deputy Prosecutor General's motion to annul were insufficient to justify challenging the finality of the judgment and using this extraordinary remedy to that end as they were based on no new fact or breach of procedural guarantees. The Court therefore considered that the state authorities failed to strike a fair balance between the interests of the applicant and the need to ensure the effectiveness of the criminal justice system.

Individual measures: The European Court considered that the most appropriate form of redress would be for the applicant's final acquittal of 30/10/2001 to be confirmed by the authorities and for his conviction to be erased with effect from that date.

• Information provided by the Moldovan authorities: By its judgement of 26/11/2007 the Moldovan Supreme Court of Justice confirmed the applicant’s final acquittal of 26/06/2001. As a result, the Ministry of Interior erased the conviction of the applicant from his criminal record.

• Assessment: No further individual measures seem to be necessary.

General measures: The new Code of Criminal procedure, entered into force in 2003, amended the provisions concerning notably the Prosecutor’s power to lodge an extraordinary request for annulment of a final judgment (Section 369 of the former Code of Criminal Procedure). It remains to be assessed to what extent the new provisions meet the Convention requirements and in particular the principle of legal certainty. This assessment is underway.

• Information is awaited on the publication of the full text of the European Court's judgment and its dissemination to all relevant authorities, in particular to all courts and prosecutors.

20289/02           Guţu, judgment of 07/06/2007, final on 07/09/2007[38]

- Cases mainly concerning violations related to detention on remand

3456/05            Sarban, judgment of 04/10/2005, final on 04/01/2006

23393/05          Castravet, judgment of 13/03/2007, final on 13/06/2007

21984/05          Gorea, judgment of 17/07/2007, final on 17/10/2007

14437/05          Modarca, judgment of 10/05/2007, final on 10/08/2007

42440/06          Muşuc, judgment of 06/11/2007, final on 06/022008

8207/06            Stepuleac, judgment of 06/11/2007, final on 06/02/2008

35324/04          Stici, judgment of 23/10/2007, final on 23/01/2008

10809/06          Turcan, judgment of 27/11/2007, final on 27/02/2008

39835/05          Turcan and Turcan, judgment of 23/10/2007, final on 23/01/2008

3817/05            Ursu, judgment of 27/11/2007, final on 27/02/2008

These cases mainly concern violations related to the applicants' detention on remand, the extension of such detention and the guarantees due to remand prisoners, in particular:

-           the applicants’ arrest and  detention on remand without reasonable suspicion of their having committed an offence (violations of Article 5§1-c in the Muşuc, and Stepuleac cases);

-           unlawful detention of the applicants on account of the practice of keeping accused persons in detention on the sole ground that their case-files have been submitted to the trial court (violations of Article 5§1 in the Modârcă, Gorea, Stici, Ursu, and Ţurcan cases);

-           failure of domestic courts to give relevant and sufficient reasons to justify the extension of the applicants' detention on account of the use of abstract or stereotyped formulas and of the absence of an explanation on how the formalistic grounds provided by law applied to the applicants' cases (violations of Article 5§3 in the Şarban, Modârcă, Castraveţ, Ţurcan and Ţurcan, Stici, and Ursu cases);

-           violation of the applicant's right to be released pending trial on account of his failure to pay the amount set for bail in the absence of relevant and sufficient grounds  for his continued detention  (violation of Article 5§3 in the Muşuc case);

-           failure to ensure a prompt examination of the lawfulness of the applicant's detention (21 days) (violation of Article 5§4 in the Şarban case);

The European Court also found a number of violations of the principle of the equality of arms on account of:

-           the lack of confidentiality of lawyer-client communications at the CFECC remand centre (Centre for Fighting against Economic Crimes and Corruption), related to the preparation of the applicants' requests for release  (in the Modârcă, Castraveţ, and Muşuc cases);

-           unjustified refusal by domestic courts to give access to the case-files, in particular to the evidence of a witness whose statements justified the application of the preventive measure, to the applicant and to his lawyer with a view to challenging the lawfulness of the detention (in the Muşuc, and Ţurcan and Ţurcan cases);

-           unjustified refusal of the domestic court to hear evidence from the witness whose alleged statements were used to justify the detention on remand of the applicant (in the Ţurcan and Ţurcan case) (violations of Article 5§4).

The Modârcă, Stepuleac and Ţurcan cases also concern poor conditions of pre-trial detention (violation of Article 3). The Şarban, Ţurcan and Stepuleac cases concern the lack of medical assistance during detention in the CFECC, in Prison No 13 (former Prison no 3) and in the General Directorate for Fighting Organised Crime (GDFOC) respectively (violation of Article 3). Finally, the Stepuleac case concerns the lack of an effective investigation into the applicant's allegations of intimidation in detention.

Individual Measures: The applicants are no longer detained on remand. The European Court awarded just satisfaction in respect of non-pecuniary damages suffered by the applicants.

• Information is awaited on measures taken by the authorities concerning the applicant's allegations of intimidation in the Stepuleac case.

General Measures: It appears that these judgments require important general measures to prevent new, similar violations. When adopting these measures, the Moldovan authorities may wish to take into account the experience of other countries in resolving similar problems (see, in particular, Final Resolutions CM/ResDH(2003)50 in the case of Muller against France, CM/ResDH(2005)90 in the case of Vaccaro against Italy, ResDH(2000)110 in the case of Nikolova against Bulgaria, and the Memorandum CM/Inf/DH(2007)4 concerning detention on remand in Russia: measures required to comply with the European Court's judgments). Pending the preparation of a memorandum which will examine in more depth different questions identified by these judgments and the measures taken or envisaged by the authorities, a non-exhaustive list of issues was already presented by the Secretariat in the Annotated Agenda of the 1035th meeting (September 2008).

1) Arrest without reasonable suspicion that the applicants have committed crimes

• Information provided by the Moldovan authorities before 1035th meeting: Article 166 of the Code of Criminal Procedure lays down the reasons justifying the arrest of a person. According to this Article, a person may be arrested if there is reasonable suspicion that he or she has committed a criminal offence together with other circumstances specified in this Article, such as e.g. the risk of obstructing the investigation, the lack of known address or if his/her identity remains to be established.

• Assessment: It should however be noted that these provisions were already in force at the material time. The Secretariat is currently assessing the extensive information provided by the Moldovan authorities on 9/02/2009 in response to the issues raised by the Secretariat, concerning in particualr the judicial review on the existence of reasonable suspicion.

2) Motivation of decisions concerning placement in detention and its extension:

• Information provided by the Moldovan authorities by 1035th meeting: As regards the legal framework, the Moldovan authorities indicated that Articles 176 and 177 of the Code of Criminal Procedure specify grounds justifying placement in or extension of detention on remand. They also provide that in deciding on the necessity of applying preventive measure, other circumstances should be taken into account, such as the character of the accused, his/her age and state of health, his/her family status and existence of any dependants, etc.

The Moldovan authorities further indicated that, in the framework of the seminars organised by the Centre for training of the agents of the Ministry of Justice in January - February 2006, judges' attention had been drawn to their obligation to give reasons for orders of detention on remand and its extension. In order to ensure appropriate initial and in-service training of judges and prosecutors on a regular basis, the National Institute of Justice (NIJ) was officially inaugurated on 09/11/2007.

• Assessment: The Secretariat is currently assessing the extensive information provided by the Moldovan authorities on 9/02/2009 in response to the issues raised by the Secretariat, concerning in particular the content and nature of the training provided by the National Institute of Justice or by other institutions.

3) Right to be released pending trial: It would appear that the violation was due to the fact that the right to be released pending trial was in principle excluded in advance by the legislature (see the Boicenco case N° 41088/05, of 11/07/2006 § 136 ).

• Information provided by the Moldovan authorities by 1035th DH meeting: The relevant articles of the Code of Criminal Procedure have been amended by laws of 28/07/2006 and 21/12/2006. Henceforth, Article 190 of the Code provides that persons detained have the right to request their release either on bail or under judicial supervision.

• Assessment: The Secretariat is currently assessing the information provided by the Moldovan authorities on 9/02/2009 in response to the issues raised by the Secretariat, concerning in particular the clarification as to whether all categories of detainees may exercise this right.

4) Lack of prompt examination of appeals against detention: Article 20 of the Code of Criminal Procedure provides that cases concerning detained persons must be examined as a matter of priority.

• Assessment: The Secretariat is currently assessing the information provided by the Moldovan authorities on 9/02/2009 in response to the issues raised by the Secretariat, concerning in particular the existence of strict time-limits for the examination of requests for release.

5) Lack of confidentiality of lawyer-client communications at the CFECC remand centre: The European Court noted in its judgments in the Modârcă (§ 91 of the judgment) and Castraveţ (§53 of the judgment) cases that the Moldova Bar Association was seriously concerned by the respect of confidentiality of lawyer-client communications at the CFECC and that it has unsuccessfully sought permission before the administration of the CFECC to check whether monitoring devices had been installed in the glass partition. 

• Information provided by the Moldovan authorities at the 1035th meeting: The Moldovan authorities indicated that the glass partition was removed, thus allowing direct communications between persons detained and their lawyers.

6) Other violations of the principle of the equality of arms during the examination of the requests for release.

• Assessment: The Secretariat is currently assessing the information provided by the Moldovan authorities at the 1035th meeting (September 2008), concerning in particular the existence of specific procedural  rules applicable to the examination of requests for release.

7) Other violations:

Violation of Article 3: these cases raise similar issues to those in the Becciev group cases (Section 4.2)

8) Publication and dissemination:The judgments of the European Court have been translated and published in the Official Journal of the Republic of Moldovan (Monitorul Oficial) as well as on the official internet site of the Ministry of Justice (<http://www.justice.md>).

It would be useful to know if all the judgments of the Group have been disseminated to all appropriate authorities.

The Deputies, 1.             recalled the systemic character of violations found by the Court, in particular regarding the lack of sufficient and relevant reasons for judicial decisions concerning detention on remand and its extension; 2.             took note of the declared willingness of the Moldovan authorities to remedy the violations revealed by the European Court’s judgments finding violations of Article 5 of the Convention ; 3.             took note of the information provided by the Moldovan authorities concerning the adoption and implementation of certain general measures to comply with the European Court’s judgments; 4.             considered that this information remains to be assessed; 5.             invited the Moldovan authorities to continue to keep the Committee of Ministers informed of the progress made in the adoption and implementation of the general measures required ; 6.             decided to resume consideration of these items at their 1059th meeting (2-4 and 5(morning) June 2009) (DH) in the light of the results of possible bilateral consultations and a memorandum to be prepared by the Secretariat.

35615/06          Cebotari, judgment of 13/11/207, final on 13/02/2008[39]

                        - Cases concerning the quashing of final domestic judgments[40]

19960/04           Popov No. 2, judgment of 06/12/2005, final on 06/03/2006

11712/04           Ceachir, judgment of 15/01/2008, final on 15/04/2008

3052/04            Dacia S.R.L., judgment of 18/03/2008, final on 18/06/2008 and of 24/02/2009, possibly final on 24/05/2009

53773/00           Istrate, judgment of 13/06/2006, final on 13/09/2006

6923/03            Melnic, judgment of 14/11/2006, final on 14/02/2007

40663/98          Asito, judgment of 08/11/2005, final on 08/02/2006, and judgment of 24/04/2007 (Article 41) - Friendly settlement[41]

17211/03           Dolneanu, judgment of 13/11/2007, final on 13/02/2008[42]

13229/04           Clionov, judgment of 09/10/2007, final on 09/01/2008[43]

- Cases concerning the failure or substantial delay by the administration in abiding by final domestic judgments

2916/02            Luntre and others, judgment of 15/06/2004, final on 15/09/2004

29808/02           Avramenko, judgment of 06/02/2007, final on 06/05/2007

31530/03           Baibarac, judgment of 15/11/2005, final on 15/02/2006

32760/04           Banca Vias, judgment of 06/11/2007, final on 06/02/2008

32347/04           Becciu, judgment of 13/11/2007, final on 13/02/2008

25238/02+         Biţa and others, judgment of 25/09/2007, final on 25/12/2007

18872/02+         Bocancea and others, judgment of 06/07/2004, final on 06/10/2004

19981/02           Botnari, judgment of 19/06/2007, final on 19/09/2007

27533/04           Buianovschi, judgment of 16/10/2007, final on 16/01/2008

27883/04           Bulava, judgment of 08/01/2008, final on 08/04/2008

31043/04           Cogut, judgment of 04/12/2007, final on 04/03/2008

39745/02           Cooperativa Agricola Slobozia-Hanesei, judgment of 03/04/2007, final on 03/07/2007

18882/02           Croitoru, judgment of 20/07/2004, final on 20/10/2004

34322/02           Curararu, judgment of 09/10/2007, final on 09/01/2008

46581/99           Daniliuc, judgment of 18/10/2005, final on 18/01/2006

14925/03           Deliuchin, judgment of 23/10/2007, final on 23/01/2008

33276/03           Deordiev and Deordiev, judgment of 16/10/2007, final on 16/01/2008

75975/01           Draguta, judgment of 31/10/2006, final on 31/01/2007

20940/03           Dumbraveanu, judgment of 24/05/2005, final on 24/08/2005

35994/03           Grivneac, judgment of 09/10/2007, final on 09/01/2008

40541/04           Lipatnikova and Rudic, judgment of 23/10/2007, final on 23/01/2008

20567/02           Lozan and others, judgment of 10/10/2006, final on 10/01/2007

3021/02            Lungu, judgment of 09/05/2006, final on 09/08/2006

3417/02            Lupacescu and others, judgment of 21/03/2006, final on 21/06/2006

17359/04           Marcu, judgment of 16/10/2007, final on 16/01/2008

1115/02            Mazepa, judgment of 10/05/2007, final on 10/08/2007

31790/03           Mizernaia, judgment of 25/09/2007, final on 25/12/2007

14914/03           Moisei, judgment of 19/12/2006, final on 19/03/2007

18726/04           Nadulisneac Ion, judgment of 16/10/2007, final on 16/01/2008

9898/02            Pasteli and others, judgment of 15/06/2004, final on 15/09/2004

74153/01           Popov, judgment of 18/01/2005, final on 18/04/2005 and of 17/01/2006, final on 17/04/2006

49806/99          Prodan, judgment of 18/05/2004, final on 10/11/2004 and of 25/04/2006, final on 25/07/2006 - Striking-out

3479/04            Rusu, judgment of 15/01/2008, final on 15/04/2008

20864/03           Scutari, judgment of 26/07/2005, final on 26/10/2005

73562/01+         Sîrbu and others, judgment of 15/06/2004, final on 10/11/2004

18893/04           Tiberneac, judgment of 16/10/2007, final on 31/03/2008

26103/04           Tiberneac Vasile, judgment of 16/10/2007, final on 16/01/2008

22970/02           ŢÎmbal, judgment of 14/09/2004, final on 14/12/2004

27568/02           Ungureanu, judgment of 06/09/2007, final on 06/12/2007

10543/02           Vacarencu, judgment of 27/03/2008, final on 27/06/2008

6901/03            Vitan, judgment of 16/10/2007, final on 16/01/2008

These cases concern violations of the applicants' right to effective judicial protection due to continual failure to enforce final judicial decisions given in their favour between 1995 and 2000 (violations of Article 6§1) the consequent violations of their right to respect for their property (violations of Article 1 of Protocol No. 1), and lack of effective remedies in case of non-execution (violations of Article 13). The issue of the lack of effective remedy has already been addressed at a high level round table held in Strasbourg (see below).The European Court indicated that in this respect insufficiency of means was not an adequate reason for a state authority not to comply with a judicial decision.

The Prodan and Popov cases concerned failure to enforce judicial decisions against a private party namely ordering the eviction of the occupants from the houses concerned and restoring ownership to the applicants respectively. In the Prodan case the failure to enforce judicial decision concerned the non-enforcement of a decision ordering the payment to the applicant of the market value of five apartments and the eviction of the occupants from the sixth.

Individual measures: The national judgments at issue, except those in the Prodan and Popov cases, were ultimately enforced after the applications before the European Court had been communicated to the respondent government.

            1) Prodan case: the decisions of 1997 and 2000 were partly enforced after the application before the European Court had been communicated to the respondent government. The European Court reserved the question of compensation for the prejudice resulting from the failure to restore the 6th flat to the applicant. By letter of 22/11/2005, the Moldovan delegation informed the Secretariat that on 06/05/2004 a friendly settlement was reached with the applicant under which she accepted 510 000 MDL in compensation for the 6th flat. The European Court has struck the case out of its list.

            2) Popov case: Upon a request for revision lodged by the occupants of the house at issue, the Court of Appeal quashed on 26/05/2004 the final decision of 05/11/1997 and reopened the proceedings, which were still pending at the time of the judgment of the European Court. The reopening of the proceedings has subsequently been found by the European Court in violation of Article 6 and Article 1 of the Protocol no.1 (see Popov No. 2 (Application no. 19960/04), Section 4.2).

At the 1013th meeting (December 2007) the Moldovan authorities informed the Committee of the fact that the Supreme Court upheld the initial final decision by the judgment of 17/01/2007, and invited the Moldovan authorities to provide the necessary information on the implementation of this judgment.

• Information is awaited on the measures taken for the implementation of this judgement.

General measures:

            1) Legislative measures:

• Information provided by the Moldovan authorities: The problem of non-enforcement of judicial decisions is being dealt within the framework of the ongoing overall reform of the judiciary. In particular, in 2002 and 2003 four new codes (the Civil Code, the Criminal Code, the Code of Civil Procedure and the Code of Criminal Procedure) were adopted and entered into force. However, these codes are in the process of being modified and a working group has been created to that end. On 24/12/2004, the new Code on Enforcement Proceedings was adopted and it entered into force on 01/07/2005. Articles 243 and 246 of the Code of Civil Procedure have also subsequently been amended.

In particular, applicants who have won their cases before a national court may take judicial action against the persons or authorities responsible for late execution or non-execution of a final judicial decision by directly invoking the provisions of the Convention or Article 20 of the Moldovan Constitution. Moreover, Article 7 of the new Code of Civil Procedure authorises national courts to open civil proceedings on the basis of an application from a person claiming the protection of his fundamental rights and freedoms. In the context of this type of actions, applicants have the right to ask before the court for compensation of pecuniary and/or non-pecuniary damage as well as the reimbursement of costs. Several judgments have already been given in this type of actions against the Ministry of Finance and one against a municipal authority. The sums awarded by the judgment may also be indexed and applicants may ask for compensation for loss of profits.

• Information awaited: Copies and translations of the legislative provisions and judgments mentioned above.

            2) High level Round Table in Strasbourg: Given the importance of the problem and the number of countries affected by it, it was decided to hold a high-level Round Table involving representatives of the authorities concerned by this issue, e.g. in respect of Moldova the representatives from the Ministries of Justice and of Finance, and experts of the Council of Europe to discuss from the comparative perspective the reforms adopted or under way in some countries with a view to allowing the competent authorities to establish priorities and to prepare action plans. The Round Table was thus organised by the Department for the Execution of Judgments in the context of the new programme for assistance to the Committee of Ministers in the supervision of the execution of the European Court's judgments. The thorough and constructive discussions have identified the main outstanding problems and led to a number of commonly agreed proposals for further reforms to ensure the state's effective compliance with judicial decisions. The conclusions of the Round Table appear on the web site of the Execution Department: <http://www.coe.int/t/e/human_rights/execution/ConclusionsRoundTableRussiaJune07.doc>.

At their 1013th meeting, the Deputies took note of the positive responses given during the meeting by the Moldovan authorities to the questions raised during the Round Table (Strasbourg, 21-22 June 2007) on the failure to enforce domestic judicial decisions by the public authorities. They have also invited them to continue the reflection on other useful measures to resolve rapidly the general problem of non-enforcement or delay in execution of domestic court decisions and to keep the Committee of Ministers informed of the outcome of this reflection.

• Information is awaited on the follow up given by the Moldovan authorities to the Conclusions of the aforementioned Round Table.

            3) Other fora of reflection within the Council of Europe: A Joint Programme has been launched by the European Commission and the Council of Europe for Moldova 2006-2009: Increased independence, transparency and efficiency of the justice system. The first expert assessment visit took place on 6-7/11/2007 to assess the situation concerning the enforcement of court decisions. A set of measures will be subsequently proposed with a view to improving the situation.

In their last decision (1013th meeting) the Committee took note of the Joint Programme launched by the European Commission and the Council of Europe for Moldova 2006-2009 of which a major part is devoted to the issue of non-enforcement of domestic judicial decision and invited the authorities to provide information on the implementation of this programme.

• More information in this respect would be useful.

4) Publication and dissemination: The judgments of the European Court have been translated and published in the Monitorul Oficial of 16/11/2004 and 31/01/2005. They are also published in the Bulletin of the Supreme Court of Justice of the Republic of Moldova.

32263/03           Tocono and Profesorii Prometeişti, judgment of 26/06/2007, final on 26/09/2007[44]

15084/03           Bimer S.A., judgment of 10/07/2007, final on 10/10/2007

The case concerns the violation of the applicant right to the peaceful enjoyment of its possessions by a Customs order, based on an amendment to the Customs Code, preventing the company from continuing to operate its duty-free business and withdrawing its existing licence to carry on business at a designated location. The Court of Appeal of Moldova considered that this decision violated section 43 of the Law on Foreign Investments since the applicant company was subject to this law, which established a special regime for duty-free trading. However this decision was subsequently quashed by the Supreme Court on the ground that the decision at issue, being limited to a precise location, did not deprive the applicant of the possibility of carrying out other activities at other places and thus did not interfere in its right to respect of its possessions.

The European Court found on the contrary that the decision was an interference in that right and there was nothing to authorise the reversal of the Appeal Court’s judgment (violation of Article 1 of Protocol 1).

Individual measures: The European Court awarded just satisfaction in respect of the pecuniary damage sustained by the applicant company as a consequence of the violation (520 000 euros).

General measures:

• Information is awaited on measures taken or envisaged bring the Customs Department’s regulations concerning duty-free trading into line with Section 43 of the Law on Foreign Investments and the requirements of the Convention. Information is also awaited on publication and dissemination of the judgment, in particular to the Customs authorities.

21151/04           Megadat.com SRL, judgment of 08/04/2008, final on 08/07/2008

This case concerns the violation of the applicant company’s right to peaceful enjoyment of its possessions on account of arbitrary and disproportionate invalidation of its telecommunications licences (violation of Article 1 of Protocol No. 1).

At the time of the events (2002-2003), the applicant company was the largest internet provider in Moldova and operated on the basis of two licences issued by National Regulatory Agency for Telecommunications and Informatics (ANRTI). In October 2003 ANRTI invalidated the telecommunications licences of the applicant company, on the ground that it had failed to notify it in due time of the change of address of its headquarters. The applicant company challenged the ANRTI’s decision consecutively before the Court of Appeal and the Supreme Court of Justice, arguing that the invalidation of licences was disproportionate, discriminatory, and adopted in breach of ANRTI’s procedure. The domestic courts dismissed the applicant company’s appeals, disregarding its submissions, including those regarding the discriminatory treatment.

The European Court noted that in its dealings with the applicant company ANRTI did not comply with the principles of consistency incumbent on public authorities. The Court also noted that the domestic courts failed to respect the procedural safeguards available to the applicant company to defend its interests and regretted that the Supreme Court of Justice had disregarded the applicant company’s complaints about discrimination. In the light of the above, the Court concluded that the authorities had not followed any genuine and consistent policy considerations and failed to preserve a fair balance between the sanction applied to the applicant company and the general interests at stake.

Individual measures: The European Court reserved the question of just satisfaction.

General measures: The violations in this case seem to arise from the inconsistent and the discriminatory conduct of ANRTI with regard to the applicant company, as well as from the arbitrariness of the proceedings before the Court of Appeal and the Supreme Court of Justice which failed to respect the procedural safeguards granted to the applicant by Articles 26, 56, 206, 208 and 211 of the Code of Civil Procedure.

• Information is awaited on measures taken or envisaged to ensure the uniform application of the ANRTI regulations to all companies, so that the principles of consistency and proportionality incumbent on public authorities are respected when decisions of a general interest are taken.

• Information is also awaited on measures taken or envisaged to ensure that all the domestic courts respect without discrimination the procedural safeguards granted to parties to litigation, in particular on the publication of the full version of the European Court’s judgment and its dissemination to all domestic courts, as well as on the possibility of organising an awareness-raising seminar for the judges of the Court of Appeal and of the Supreme Court of Justice.

45701/99          Metropolitan Church of Bessarabia and others, judgment of 13/12/01, final on 27/03/02 - Interim Resolution ResDH(2006)12

952/03              Biserica Adevărat Ortodoxă din Moldova and others, judgment of 27/02/2007, final on 27/05/2007

                        CM/Inf/DH(2008)47-rev

These cases concern the authorities’ refusal to recognise the applicant churches and the lack of an effective remedy in this respect.

In the case of the Metropolitan Church of Bessarabia and others, the European Court concluded that the failure of the government to recognise the applicant Church constituted an interference with the applicants' right to freedom of religion (merely because of the effects that the absence of recognition of the applicant church had on its members to practice their worship and any religious activities, and on the possibility for the applicant Church to have an effective access to a court to claim property entitlements). This interference, although pursuing a legitimate aim, was not “necessary in a democratic society” and thus not justified under the Convention (violation of Article 9). The Court also concluded that the applicants did not enjoy an effective remedy in respect of their various claims at domestic level (violation of Article 13).

The case of Biserica Adevarat Ortodoxă din Moldova and others concerns the authorities’ persistent refusal to register the applicant church (violation of Article 9). The European Court noted that despite a final judgment of August 2001 ordering the registration of the church and repeated requests from the enforcement authority, the government and the State Service for the Protection of Religious Denominations (“the Service”) refused to register the applicant church. On the contrary, the government made three unsuccessful attempts to reopen the proceedings which had led to the decision ordering the registration of the church and the Service continued to request additional documents from the applicants, although these documents had been already presented and in any event were not required by law. The Court found that the failure to enforce the judgment ordering the registration of the applicant church was due to a general problem of lack of an effective mechanism in this respect (violation of Article 13). The case also relates to a violation of the applicants' right to the peaceful enjoyment of their property due to the delayed enforcement of the part of the judgment of August 2001 awarding compensation to the applicant Church in respect of non-pecuniary damage suffered on account of the authorities' refusal to register it (violation of Article 1 of Protocol No. 1).

Individual measures:

            1) Case of Metropolitan Church of Bessarabia and others:

a) Registration of the applicant Church and its entities and the protection of religious activities: Following the European Court's judgment, the Moldovan authorities recognised and registered the applicant Church on 30/07/2002 in accordance with the Moldovan Law on Religious Denominations, as amended on 12/07/2002. The Church has thus acquired legal personality opening the possibility for it to claim property entitlements, among other things. This also allowed the beginning of the registration process of different components of the applicant church.

According to the information provided by the Moldovan authorities in March 2006, 86 parishes, 9 monasteries, 2 social missions with 73 sub-divisions, 2 seminaries (one theological and one monastic) and a school of ecclesiastical arts have been registered. The applicant church also disposed at the time of more than 120 rectories with almost 160 priests.

However, between 2004 and 2006, the applicant Church informed the Committee that it had encountered, on several occasions, some obstacles with the registration of some of its parishes

In reply to these allegations, the Moldovan authorities explained that some of the registration requests were rejected because there already existed parishes with the same name. According to Article 66 of the Civil Code, a legal person cannot be registered if it has the same name as another legal person already registered. The refusal to register these parishes was appealed but without success.

According to the information submitted to the Committee by the Moldovan delegation, a total of 293 entities of the applicant Church had been registered on 01/03/2007. However, between November 2006 and May 2007 the applicant Church submitted complaints before the domestic courts, concerning in particular the refusal by the State Service for the religious denominations to register some of its parishes. Those proceedings were still pending in 2008.

With the entry into force of the new law on religious denominations and their component parts on 17/08/2007, the registration rules have changed. This law annuls the requirement of prior approval by local authorities for the registration of a religious entity.

The applicant church has indicated however that there were still problems with the registration of its parishes and complained of a hostile campaign against it launched by the state authorities (letters of 16/02/2007, 14/10/2007 and 09/01/2008).

In a letter of 3/03/2008, the Moldovan authorities provided information indicating that the new registration system within the Ministry of Justice began to function at the beginning of 2008 (see general measures). The authorities have also given some explanations concerning the responses to the alleged official negative campaign against the applicant church and its members.

b) Connected issues: In September 2003 the Committee of Ministers was made aware of pending domestic court proceedings initiated by the applicant Church in February 2002 challenging a decision by the Moldovan government of 26/09/2001 approving an amendment to the statute of the Moldovan Metropolitan Church by which the latter declared itself as the legal successor to the former Metropolitan Church of Bessarabia (which ceased its activity in 1944). It was claimed that such approval allegedly infringed the property rights of the applicant Church. On 14/04/2004, the Enlarged Collegium of the Supreme Court, sitting as a cassation court, confirmed its decision of 02/02/2004 by which it cancelled the government’s decision of 26/09/2001. However, this decision did not recognise the succession rights of the appellant church on the ground that, in the light of the legislation currently in force, the former Metropolitan Church of Bessarabia had no legal successor at the moment of cessation of its activity in 1944.

Thus, in the light of this decision it is by no means clear that the applicant Church may have effective access to a court to claim property entitlements in any subsequent proceedings.

In this respect, it seems that the applicant church introduced a new complaint on these issues before the European Court in 2004. By letters of 16/02/2007 and 09/01/2008, the applicant church has also complained that the Moldovan government refused to restore the church archives illegally confiscated and nationalised.

In response, in their letter of 3/03/2008, the Moldovan authorities informed the Secretariat that all documents deposited at the National Archives are part of the State Archives Fund. The State Archives Fund is state property, constitutes national patrimony, and consequently enjoys full protection from the state. In this way, these documents may not be disposed of and may be consulted by anyone. The authorities stated that the archived documents are open to the public, to physical or moral persons, i.e. to the Metropolitan church of Bessarabia.

            c) Latest developments: During the examinations of this case in March and June 2008, the Deputies took note of the applicant’s allegations and the explanations provided in this respect. However, some questions deserved further clarification, and in this context, the Deputies welcomed the idea of organising bilateral meetings between the Secretariat and the relevant Moldovan authorities. During these meetings, which took place in September 2008, the Secretariat raised various outstanding issues, in particular those related to the hostile campaign against the applicant and to the existence of effective remedies. Information and encouraging assurances in response to these questions have been provided by the different authorities concerned. Moreover, a meeting was organised by the Ministry of Justice with representatives of various religious denominations to discuss issues related to the implementation of the new law on religious denominations, in particular that of registration. The applicant Church, which was invited, was not present at the meeting.

The Moldovan authorities transmitted lately, on 23/02/2009, some additional observations on outstanding matters. These questions are to a large extent related to general measures (see below).

            2) Case of Biserica Adevărat Ortodoxă din Moldova and others: the applicant church was registered on 16/08/2007.

• Assessment: No further individual measure seems necessary.

General measures:

            1) Publication: The original version of the judgment of the European Court in the case of Metropolitan Church of Bessarabia and others and its official translation were published in the Official Journal of Moldova in 2002. The judgment in the case of Biserica Adevărat Ortodoxă din Moldova and others was published in the Official Journal and posted on the website of the Ministry of Justice (www.justice.md).

            2) Legislative amendments:  A first amendment to the Moldovan legislation on religious denominations was brought about by Law No. 1220-XV which entered into force on 12/07/2002. Article 325 of the Code of Civil Procedure has also been amended so as to allow the reopening of domestic civil proceedings following violations of the Convention found by the European Court. These amendments were found to be insufficient to prevent new, similar violations, inasmuch as they did not reflect the requirement of proportionality inherent in the Convention and as the right of a religious community to take judicial proceedings to challenge a registration decision was not provided with sufficient clarity. 

Between March 2003 and February 2006 six draft laws have been submitted to the Committee. These texts have been appraised by the Secretariat and by independent experts mandated by the Council of Europe, and have been further discussed at the working meetings with the representatives of the Moldovan Ministry of Justice, of the experts and of the Secretariat, as well as of the representatives of different religious denominations. The problems identified in these draft laws have been examined in detail and concrete solutions have been proposed.

In March 2006, at the 960th meeting (DH), the Committee of Ministers adopted Interim Resolution ResDH(2006)12. It urged the Moldovan authorities to enact the necessary legislation rapidly and to adopt the necessary implementing measures so as to comply with the Convention's requirements as set out in the present judgment without further delay. It further encouraged the Moldovan authorities to take account of the conclusions and recommendations provided by the Council of Europe experts, with a view of concluding the ongoing reform in a satisfactory manner.

A new Law on Religious Denominations was adopted by the Moldovan Parliament on 11/05/2007.

In June 2007, the Committee regretted that the text of the finally adopted law had still not been communicated to it and declared that it expected that the findings of the European Court have been taken into account in this law, and that it also reflects the various expert reports carried out by the Secretariat and the experts of the Council of Europe. The Committee also noted the assurances given by the Moldovan authorities on this matter (see the decision adopted at the 997th meeting).

The new law entered into force on 17/08/2007. The Committee noted that although the new law presented many improvements compared to previous drafts, some of the recommendations of the Council of Europe experts and preoccupations of the Committee of Ministers had still not been taken into consideration (in particular, the maintaining of the requirement of a minimum of 100 members for the registration of a religious denomination, the unclear definition in the law of the applicable registration procedures). The Committee also underlined the importance of conceiving the proposals for implementation of this law so as to ensure full compliance of the new regulatory framework with the requirements of the Convention and that the judicial remedies provided are fully effective.

It would appear that such proposals have not been formulated. On the other hand, the Moldovan authorities presented several explanations concerning the implementation of the new registration system in their letter of 3/03/2008. Thus by government decision No.1130 the former State Service for religious denominations has been dissolved and all files on registration of religious denominations transferred to the Ministry of Justice, which started its work on 10/01/2008.

At their 1028th meeting, the authorities also provided information about the first example of registration according to the new system, as well as other additional information on pending issues concerning general measures. In this respect, the Deputies recalled the need to clarify a number of aspects, in particular those related to the rights of religious groups or denominations which do not fulfil the requirements set by the new law to obtain their registration. The Deputies encouraged the rapid organisation of meetings between the Secretariat and the Moldovan authorities to clarify the outstanding issues in time for the Deputies’ next Human Rights meeting.

The negotiations that took place in this respect between the Secretariat and the Moldovan delegation, led to the organisation of bilateral meetings on 8 and 9/09/2008 in Chisinau with the competent Moldovan authorities, including the Ministry of Justice, the Service in charge of the registration of religious denominations, the Ministry of the Interior, the Prosecutor’s office, the National Institute of Justice, etc.

The preliminary conclusions of these meetings were presented by the Secretariat at the 1035th meeting. A detailed examination of the outstanding issues have been done in the Memorandum CM/Inf/DH(2008)47-rev, presented at the 1043rd meeting (Décember 2008). According to this Memodandum, additional clarifications were awaited on certain aspects. In this respect, the Moldovan authorities have submitted, by letter of 23/02/2009, an important number of informations, which are being currently assessed by the Secretariat.

3) Delayed enforcement of final domestic court decisions: the case of Biserica Adevărat Ortodoxă din Moldova and others presents similarities to that of Luntre and others (Section 4.2).

The Deputies: 1.             recalled that the memorandum (CM/Inf/DH(2008)47-rev) underlined the fact that an important number of measures have already been taken by the Moldovan authorities with a view to remedying the violations found by the Court in the above cases and that additional information and clarifications were still awaited on certain issues; 2.             noted with satisfaction the additional clarifications recently provided by the Moldovan authorities and in particular the publication of the Guidelines on registration procedure, as well as the assurance given with respect to the existence of effective remedies; 3.             welcomed in particular the examination carried out by the Government on possible needs to harmonise the existing administrative practices and the relevant legislation with the new law on religious denominations and with the Convention; 4.             supported the initiatives of the Ministry of Justice and of the Ministry of the Interior to suspend the application of the sanction of expulsion of foreigners that have manifested in public their religious convictions, without having first informed the relevant local authorities; 5.             noted moreover the training seminars for judges and prosecutors organised by the National Institute of Justice; 6.             noted finally that the preliminary evaluation of this information appears to confirm that the pending questions have been resolved; 7.             decided, considering the information and clarifications provided, to resume consideration of these items at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), with a view to asking the Secretariat to prepare a possible draft final resolution.

                       - Cases concerning freedom of expression[45]

31001/03           Flux No. 2, judgment of 03/07/2007, final on 03/10/2007

28702/03           Flux, judgment of 20/11/2007, final on 20/02/2008

32558/03           Flux No. 3, judgment of 12/06/2007, final on 12/09/2007

17294/04           Flux No. 4, judgment of 12/02/2008, final on 12/05/2008

28700/03           Flux and Samson, judgment of 23/10/2007, final on 23/01/2008

36305/03           Tara and Poiata, judgment of 16/10/2007, final on 16/01/2008

42864/05           Timpul Info-Magazin and Anghel, judgment of 27/11/2007, final on 02/06/2008

14277/04           Guja, judgment of 12/02/2008 – Grand Chamber

This case concerns a breach of the applicant’s freedom of expression, in particular his right to impart information, as a result of his dismissal, in March 2003 from his employment as the Head of the Press Department of the Prosecutor General’s Office for having disclosed internal information to a newspaper. The information at issue concerned an interference by a high-ranking politician (Deputy Speaker of Parliament) with the Prosecutor General’s Office in pending criminal proceedings concerning four police officers prosecuted for ill-treatment.

Civil action brought by the applicant against the Prosecutor General’s Office seeking reinstatement was dismissed on the ground that the applicant had breached his obligations under internal regulations by not consulting other departmental heads and by disclosing secret documents. In November 2003, the Supreme Court of Justice dismissed his action on the same grounds and stated that obtaining information through the abuse of one’s position was not part of freedom of expression (§25 of the judgment).

The European Court noted that reporting of illegal conduct or wrongdoing in the workplace by a civil servant should in certain circumstances enjoy protection and concluded that the interference with the applicant’s right to freedom of expression was not necessary in a democratic society for the following reasons (violation of Article 10):

-           there was no provision either in the legislation or in the internal regulations enabling employees to report irregularities;

-           the information disclosed was very important for the public interest since it concerned the separation of powers, improper conduct by a high-ranking politician and the government’s attitude towards police brutality;

-           the information disclosed was genuine;

-           the protection of the public interest in information about undue pressure and wrongdoing within the Prosecutor’s Office was more important than that of the interest in maintaining public confidence in the Prosecutor General’s Office;

-           the applicant had acted in good faith because his motive for disclosing the information was to help fight corruption and trading in influence;

-           the sanction imposed on the applicant (i.e. dismissal from his employment) was very severe.

Individual measures: The European Court awarded just satisfaction in respect of pecuniary and non-pecuniary damage resulting from the applicant’s dismissal. However it considered that the sanction imposed to the applicant, his dismissal, was a very harsh measure having negative repercussions on the applicant’s career (§95 of the judgment).

• Applicant’s submission: By letter of 4/09/2008 the applicant’s representative reported that, following the European Court’s judgment, the applicant requested the Supreme Court of Justice to review its judgment of November 2003 and to reinstate him in his previous position at the General Prosecutor’s Office. On 28/05/2008, the Supreme Court of Justice upheld the revision request. On 29/05/2008 the applicant met the Prosecutor General who allegedly suggested that he resign. On 6/06/2008 the applicant received a copy of the Prosecutor’s General order, dated of 5/06/2008, indicating that the applicant was reinstated in his previous position as from 28/05/2008.

However, the applicant alleges that since 6/06/2008 he has been assigned no task, and has not been given the badge needed to access the premises of the General Prosecutor’s Office. As a result, every morning he has had to wait until the head of security staff lets him in. Moreover, the applicant has had to share the office of other employees and when they were leaving the office, the applicant was requested to stay in the corridor (sometimes for several hours), because he was “not allowed to have access to secret information”. On 16/06/2008, the applicant was handed another order of the Prosecutor General, dated of the same day, indicating that with the agreement of the trade union, of 6/06/2008, and on the ground of Article 14§8 of the Law on public service, the applicant has been dismissed on 10/06/2008. The article in question basically provides that the appointment of a new Director for certain public services results in the termination of activity, by resignation, for those staff members working under the previous Director.

Concerning the use of this provision in practice, the applicant’s legal representative pointed out that although the Prosecutor General has been changed twice since 2003, no staff member was dismissed until 16/06/2008 on the ground provided by Article 14§8 of the Law on public service.

On 28/10/2008 the applicant’s submission was transmitted to the Moldovan authorities.

• Comments of the Moldovan authorities in this respect are awaited.

General measures: The judgment of the European Court has been translated and published in the Official Journal of the Republic of Moldova (Monitorul Oficial) as well as on the official internet site of the Ministry of Justice (http://justice.md/md/cedo/). The judgment has also been communicated to the Prosecution Service and to the Superior Council of Magistrates.

• Information is awaited on other measures envisaged by the authorities to prevent new, similar violations.

41827/02           Kommersant Moldovy, judgment of 09/01/2007, final on 09/04/2007

The case concerns a violation of the applicant company's right to freedom of expression due to a decision of the Moldovan Economic Court ordering the closure of its newspaper (violation of Article 10).

This decision was based on the fact that between June and September 2001 the applicant company published a series of articles criticising the Moldovan authorities for their actions in respect of the break-away region of Moldova ( “Moldovan Republic of Transdniestria” or “MRT”) and reproducing harsh criticism of the Moldovan government by certain leaders of the “MRT” and the Russian Federation.

The European Court observed that in their decisions the domestic courts did not consider the question of whether it was necessary to interfere as they did in the applicant's rights. It noted, in particular, that they did not specify which passages of the articles at issue were objectionable and in what way they endangered national security or the territorial integrity of the country or defamed the President and the country. The only analysis made was limited to the issue of whether the articles could be considered as reproductions in good faith of public statements for which the applicant could not be held responsible in accordance with domestic law. The Court considered that the domestic courts did not give relevant and sufficient reasons to justify the interference in question and was not satisfied that they “applied standards which were in conformity with the principles embodied in Article 10” or that they “based themselves on an acceptable assessment of the relevant facts”.

Individual measures: The European Court awarded the applicants just satisfaction in respect of the pecuniary and non-pecuniary damages suffered by the applicant company. Moreover, the applicant company was subsequently re-registered under the name “Kommersant-Plus” and has resumed publication of the newspaper after only a brief pause.

• Applicant’s submission: The applicant’s representative states that on 29/05/2007, i.e. about 1½ months after the European Court’s judgment became final, the applicant requested a revision procedure on the basis of Article 450-g of the Moldovan Code of Civil Procedure, which provides the possibility of revision after a judgment of the European Court. However, this request was rejected by the Supreme Court of Justice on 4/10/2007 on the sole ground that it was lodged outside the 3-month time-limit provided by the Code. This decision appears to be in contradiction with the position of the Supreme Court of Justice adopted while deciding to grant the revision request in another case, namely “the Christian Democratic Peoples’ Party” (judgment of 14/02/2006). In that case, the Supreme Court of Justice indicated that the 3-month period should be calculated as from the date on which the European Court’s judgment became final.

On 13/11/2007 the submission of the applicant’s representative was submitted to the authorities for comments.

In their letter of 1/04/2008, the Moldovan authorities indicated that Article 450-g of the Code of Civil Procedure provided that revision requests must be submitted within three months as from the delivery of the judgment of the European Court and not within three months after this judgment becomes final.  Moreover, the authorities did not comment on the inconsistency of the case-law of the Moldovan Supreme Court of Justice on this issue.

• Assessment: It is recalled that Article 450-g was introduced into the Code of Civil Procedure to give applicants having won a case in Strasbourg the possibility of seeking revision of their case at national level, thus ensuring compliance by the Republic of Moldova with its obligations under Article 46 of the Convention. Thus, according to the aim of Article 450-g, it should be interpreted in the light of the Convention, and in particular of Article 46. However, Article 46 refers to final judgments of the European Court.

Consequently, the Moldovan authorities’ interpretation of Article 450-g in this case is contradictory to the Convention and thus cannot be considered as a way of discharging their obligations under the Convention, namely the obligation to undertake the individual measure which guarantees the applicant restitutio in integrum.

• Information is awaited on measures taken or envisaged with a view to providing the applicant the restitutio in integrum. In this respect, information would be useful as to whether the applicant may request the revision of his case at national level, in the light of the above comments on Article 450-g.

General measures: The violation found in this case seems to arise from the fact that the domestic courts did not give sufficient reasons for their decisions, when they decided that it would be necessary to interfere with freedom of expression. Consequently, a change in domestic courts' practice in this respect appears to be necessary.

• Information provided by the Moldovan authorities: The translation of the judgment of the European Court was published in theOfficial Journal and the internet site of the Ministry of Justice (www.justice.md).

• Further information is awaited on other measures taken or envisaged to prevent new, similar violations. Information is also awaited on measures taken or envisaged (amendments to the legislation or change of the case-law) to guarantee that the mechanism provided by Article 450-g of the Code of Civil Procedure complies with the Convention.

                        - Cases concerning freedom of assembly

28793/02          Christian Democratic People's Party (CDPP), judgment of 14/02/2006, final on 14/05/2006

25230/02+         Roşca, Secăreanu and others judgment of 27/03/2008, final on 27/06/2008

The first case concerns a temporary ban of the Christian Democratic People's Party (CDPP), as a political party represented in Parliament, for having held unauthorised demonstrations in January 2002.

In December 2001, the applicant party informed the Chişinău Municipal Council of its intention to organise, on 9/01/2002, a rally with its voters in the front of the seat of the government. The topic of the meeting was the government’s intention to introduce the compulsory study of Russian in the school. The applicant party relied on Article 22 of the Law on the status of members of parliament, which in the applicant’s view imposed no obligation on members of parliament to seek prior authorisation for such meetings. However, on 3/01/2002 the Municipal Council classified the gathering as a “demonstration” within the meaning of the Assemblies Law and authorised the applicant to hold it elsewhere without giving reasons. Nevertheless, the applicant party held several gatherings in the front of the seat of the government in January 2002. It informed the Municipal Council in advance of every gathering but without seeking authorisation in accordance with the Assemblies Law.

On 14/01/ 2002, the Ministry of Justice, having sent an official warning letter four days earlier, imposed a one-month ban on the party’s activities by virtue of Article 29 of the Law on parties and other socio-political organisations. On 24/01/2002 the party challenged this decision but their action was dismissed by a final judgement of the Supreme Court of Justice on 17/05/2002.

Following an inquiry by the Secretary General of the Council of Europe under Article 52 of the Convention, the ban was lifted on 8/02/2002, but the decision of 18/01/2002 was not set aside.

The Roşca, Secăreanu and others case concerns the fining of the applicants – members or supporters of the CDPP – for having participated in the unauthorised demonstrations organised by the CDPP, in breach of Article 174/1 of the Code of Administrative Offences in force at the material time.

In its judgment in the Christian Democratic People's Party case, the European Court noted that reasons given for the temporary ban on the party’s activities (lack of authorisation for the applicant’s party gatherings in accordance with the Assemblies Law, presence of children at the gatherings and calls for violence allegedly contained in some statements made at the gatherings) were neither relevant nor sufficient and the ban was thus not necessary in a democratic society (violation of Article 11).

The European Court also noted, without however finding it necessary to decide on this issue, that the failure to inform the party in the warning letter of 14/01/2002 of all the acts imputed to it might be in itself a sufficient basis for the conclusion that the impugned measures were not “prescribed by law”.

Having regard to the conclusions reached in the Christian Democratic People's Party case, and to the fact that the applicants in the Roşca, Secăreanu and others case were members or supporters of the CDPP, the European Court held that the interference with their freedom of peaceful assembly was not proportionate to the aim pursued and that it did not meet a “pressing social need” (violation of Article 11).

Individual measures: The temporary ban on the CDPP’s activities was lifted on 8/02/2002. The European Court awarded the applicants just satisfaction in respect of pecuniary and non-pecuniary damage in the Roşca, Secăreanu and others case.

• Assessment: no further individual measure seems to be needed.

General measures: The European Court noted problems of interpretation and application of the legislation concerning gatherings, in particular the relationship between the Law on the status of members of parliament and the Assemblies Law.

• Information provided by the Moldovan authorities: The judgment of the European Court has been translated and published in the Official Journal of the Moldovan Republic (Monitorul Oficial) as well as on the official internet site of the Ministry of Justice (www.justice.md).

• The authorities are invited to provide information on measures taken or envisaged to prevent new, similar violations resulting from erroneous interpretation of permissible grounds for banning political parties. The dissemination of the European Court’s judgment among the relevant authorities and domestic courts is expected, possibly together with circulars or explanatory notes stressing the problems identified by the European Court (see §76 of the judgment).

19247/03           Balan, judgment of 29/01/2008, final on 29/04/2008[46]

- Cases of length of civil proceedings

13012/02           Cravcenco, judgment of 15/01/2008, final on 15/04/2008

35967/03           Gusovschi, judgment of 13/11/2007, final on 31/03/2008

These cases concern the excessive length of civil proceedings and lack of an effective remedy in this respect (violations of Article 6§1 and of Article 13 in conjunction with Article 6).

The Cravcenco caseconcerns unemployment proceedings initiated in October 1996 before the Cahul District Court against the applicant’s dismissal. These proceedings lasted almost nine years. Considering that the case was not difficult from either factual or legal point of view and bearing in mind that the national legislator confirmed the particular importance of unemployment proceedings by expressly providing in the legislation for the urgent examination (Articles 192, 208 and 256 of the Code of Civil Procedure), the European Court found that the domestic courts did not display special diligence required under both the domestic law and the Article 6§1 in this type of case.

The European Court noted that notwithstanding several actions taken by the authorities with a view to ensuring the swift enforcement of the judgments in favour of the applicant, she did not have at her disposal any means for accelerating the proceedings or obtaining compensation.

In the Gusovschi case, the applicants initiated court proceedings against the disconnection of their house from the natural gas system owing to their failure to pay the full price of the gas. The proceedings initiated before the court of Tighina in May 2000 lasted about five years and ended in March 2005. The Court, found that the long periods of inactivity of the national courts, the repeated re-hearing of the case (there were three re-hearing orders of which one to reopen the case) as a result of errors committed by lower courts, “discloses serious deficiency in the judicial system”.

Individual measures: In both cases the proceedings are closed and the European Court awarded just-satisfaction with respect to non-pecuniary damage.

• Assessment: no other individual measure is required.

General Measures: These violations appear to be the result of long inactivity periods of the lower domestic courts, and of errors committed by them, involving the necessity to order multiple re‑hearing / re-opening of cases.

On 07/08/2008 the Secretariat sent an Initial phase letter inviting the Moldovan authorities to present an action plan for the execution of these judgments. The attention of the authorities was drawn to the experiences of other member states of the Council of Europe (Interim Resolutions CM/ResDH(2007)74 on excessively lengthy proceedings in Greek administrative courts and the lack of an effective domestic remedy, ResDH(2007)2 concerning the problem of excessive length of judicial proceedings in Italy, CM/ResDH(2007)28 concerning the excessive length of criminal and civil proceedings in Poland and the right to an effective remedy and CM/ResDH(2007)48 concerning the case of Richard against France and 6 other cases requiring “exceptional diligence” before the administrative courts).

It would appear that the issues raised by the above violations are partially treated under the activities held in the framework of the Joint Programme between the Council of Europe and the European Commission on increased independence, transparency and efficiency of the justice system of the Republic of Moldova.

• An action plan is awaited.

- 3 cases against the Netherlands

52391/99           Ramsahai and others, judgment of 15//05/2007 - Grand Chamber

The case concerns the failure by the respondent state in its obligation to conduct an effective investigation into the killing of Moravia Ramsahai, son and grandson respectively of the applicants (violation of Article 2). The victim was shot and killed by an officer of the Amsterdam/Amstelland Police Force on 19/07/1998, after he had drawn, and had begun to raise, a pistol towards two police officers present at the scene.

The European Court found that the fatal shot fired by the police officer in question was “no more than absolutely necessary” (§288 of the judgment), however, the subsequent investigation into the incident was inadequate and insufficiently independent.

The Court considered the investigation inadequate because the two police officers’ hands were not tested for gunshot residue, no reconstruction of the incident was staged, the weapons and ammunition of the officers were not examined, and no pictorial record of the trauma caused to the victim’s body by the bullet was made. In addition, the two officers were not kept separated after the incident and were not questioned until nearly three days later. According to the Court, the mere fact that appropriate steps were not taken to reduce the risk of collusion between the two or with other colleagues, amounted to a significant shortcoming in the adequacy of the investigation.

The Court considered the investigation lacked sufficient independence because the independent State Criminal Investigation Department only became involved in the investigation 15½ hours after the incident had taken place. In the meantime, essential parts of the investigation, namely the forensic examination of the scene, the door-to-door search for witnesses and the initial questioning of witnesses, including police officers, were carried out by the Amsterdam/Amstelland Police Force, to which the officers involved (and some of the witnesses questioned) belonged.

Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained. It established the facts surrounding the death of Moravia Ramsahai and in its assessment of those facts concluded that the force used by the police officer in question was “no more than absolutely necessary”. Thus, reopening the proceedings would not change the outcome.

• Assessment: Under these circumstances, no further individual measure seems necessary.

General measures: The judgment was published in two legal journals in the Netherlands (NJB 2007/27 pp 1678-1679 and AB 2007/77).

            1) Lack of independence of the investigation: according to the European Court’s judgment (§259), the duty system of the State Criminal Investigation Department was improved following a decision of the Amsterdam Court of Appeal of 23/06/2004, so that they can be at the place of the incident sooner. As a consequence, the State Criminal Investigation Department reaches the scene of events on average within an hour or an hour and a half after an incident is reported. In addition, on 26/07/2006, following the Chamber judgment in this case, the Board of Prosecutors General issued a new Instruction on how to act in the event of the use of force by a (police) officer. This Instruction applies to all officials exercising police powers. Whenever an incident has taken place to which the Instruction applies, the investigation will be carried out by the State Criminal Investigation Department. The regional police force is to inform that department of the incident immediately. The duty officer of the State Criminal Investigation Department will proceed to the scene of the incident as quickly as possible. The local police are to take any necessary urgent measures, such as cordoning off the area concerned, caring for any casualties and taking down the names of any witnesses. They are not themselves to carry out any investigations unless and to the extent that their involvement is unavoidable. Any investigations that cannot be carried out by the State Criminal Investigation Department itself are done by the Internal Investigations Bureau of the police region concerned or by members of a neighbouring police force (§§260-264 of the judgment).

• Assessment: no further general measures seem necessary with regard to the findings of the Court concerning the lack of independence of the investigation.

2) Inadequacy of the investigation:

• Information provided by the Netherlands authorities (letters of 10/04/ and 16/10/2008): The instruction of the Board of Prosecutors General mentioned above includes provisions (Articles 17 and 19) for the steps to be undertaken following casualties occasioned by the use of firearms by (police) officers. These comprise the immediate reporting by the officer to his/her superior who records the matter, and the duty of the chief of police to report within 48 hours to the public prosecutor. The superior shall inform the officer concerned of action taken concerning his/her report.

• Further information would be useful on measures taken or envisaged to ensure an adequate investigation, and in particular to avoid any collusion.

30810/03           Geerings, judgment of 01/03/2007, final on 01/06/2007 and of 14/02/2008, final on 14/05/2008

The case concerns the infringement of the applicant's right to be presumed innocent (violation of Article 6§2). On 30/03/2001 the domestic court of appeal, on the basis of article 36e of the Criminal Code, issued an order for the confiscation of illegally obtained advantage in respect of thefts of which the applicant had been partially acquitted by a final judgment of 29/01/1999.

The appellate court indicated that the offences of which the applicant was acquitted constituted “similar offences”, within the meaning of Article 36e of the Criminal Code, to those for which he had been convicted, and thus, pursuant to the same provision and contrary to the general rule on the burden of proof in criminal matters, the Prosecutor only had to establish that there was “sufficient indication” that the accused had committed the offences in order to obtain a confiscation order.

The court of appeal found that this was so in this particular case and consequently ordered the confiscation of alleged advantages obtained from those offences in addition to those of which he had been convicted. The Supreme Court later upheld the judgment of the court of appeal.

The European Court considered that confiscation following conviction is an inappropriate measure having regard to assets which are not known to have been in the possession of the person affected (as was the case here), the more so if the measure concerned relates to a criminal act of which the person affected has been acquitted. It further held that the court of appeal’s finding amounted to a determination of the applicant’s guilt without the applicant having been found guilty according to the law.

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

In domestic proceedings introduced by the Advocate General following the European Court’s judgment, by a judgment of 27/09/2007, the confiscation order of 30/03/2001 was reduced to an amount which corresponded to that of the offence for which the applicant had been convicted by the judgment of 29/01/1999. The applicant subsequently withdrew his claim in respect of pecuniary damage before the European Court.

• Assessment: No further individual measure appears necessary.

General measures: The judgment was published in several legal journals in the Netherlands (EHRC 2007/61, pp 574-577, Delikt & Delinkwent 2007/6,NJB 2007/22 and JOL 2007/389 (Hoge Raad Strafkamer)). On 9/08/2007 it was sent out to the authorities competent for confiscation matters, to raise their awareness on the requirements under Article 6§2 of the Convention.

Furthermore, on 26/09/2007, the Board of Prosecutors-General issued a new guideline for confiscation practice to ensure that future confiscation procedures are conducted in accordance with Article 6§2 of the Convention. According to the guideline inter alia no advantage obtained could be confiscated in respect of counts on which one had been acquitted, unless it was firmly established that the person concerned had derived an actual advantage from those counts.

• Bilateral contacts are under way to assess and clarify the information provided by the authorities.

24919/03          Mathew, judgment of 29/09/2005, final on 15/02/2006

The case concerns the poor conditions of detention on remand and the detention regime the applicant suffered in the Aruba Correctional Institution (KIA) on the island of Aruba, which in the European Court’s view amounted to inhuman treatment (violation of Article 3).

When establishing the facts, the European Court considered the applicant’s mental condition even if no psychiatric or psychological examination of the applicant had been undertaken. It noted that the applicant’s behaviour in detention was characterised by his continued inability to adapt to the exigencies of prison life and his lack of response to normal prison discipline. Thus, it was apparent for the European Court that he was, while detained, suffering from a disturbance the precise nature of which the European Court did not determine but which resulted in an increased propensity to recalcitrant and even violent behaviour. The European Court accepted that the authorities found him impossible to control except in conditions of strict confinement. However, it found that the Aruban authorities were aware that the applicant was a person unfit to be detained in the KIA in normal conditions and that the special regime designed for him was causing him unusual distress. While the Court accepted that accommodation suitable for prisoners of the applicant’s unfortunate disposition were non-existent at the relevant time, it found that the respondent authorities could and should have done more, for example, to execute the judicial order in another part of the Netherlands. It also found that “the applicant was kept in solitary confinement for an excessive and unnecessarily protracted period, that he was kept for at least seven months in a cell that failed to offer adequate protection against the weather and the climate, and that he was kept in a location from which he could only gain access to outdoor exercise and fresh air at the expense of unnecessary and avoidable physical suffering”.

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damages he sustained. He was released on 30/04/2004.

• Assessment: No further individual measure seems necessary.

General measures:

• Information provided by the authorities of the Netherlands: The European Court’s judgment was published in several legal journals in the Netherlands (NJCM-Bulletin 2006, no. 4, pp. 529-543; NJB 2005, no. 45/46, pp. 2377-2378; and ECHR 2005, no. 11, pp. 1084-1096). Furthermore, the KIA has recently been renovated, as a result of which the prison cells and the place designated for outdoor activity are now on the ground floor. In addition, disciplinary cells have been renovated (Beds and extra ventilation elements as well as a cell bell system are installed. The exercise cage is equipped with a bench). Following the publication on 29/01/2008 of the most recent CPT report (2008)2 concerning its visit to Aruba in June 2007, the State Secretary of Internal Affairs and Kingdom Relations requested the governors of Aruba (and the Netherlands Antilles) to report every six months. The Aruban Ministry of Justice has set up a Commission on the Supervision of Prison Cells and Treatment of Detainees to supervise the adjustment of the prisons and to deal with legal, individual and personnel aspects. In addition, special attention will be paid to education and to expanding of prison staff and police personnel.

• Latest developments (letter of 15/01/2009): The transfer of prisoners from Aruba to the Netherlands lies within the discretionary powers of the Ministry of Justice, and is based on Article 36 of the Charter of the Kingdom of the Netherlands which empowers the Government of the Netherlands to render assistance to Aruba (and the Netherlands Antilles). A transfer of prisoners may be ordered either upon an individual request in cases of pressing reasons of security or medical and/or psychiatric indications, or if there is a risk of imminent breach of an international treaty on human rights. Furthermore, within an understanding reached between the penitentiary institutions in Aruba (Dienst Gevangeniswezen) and the Netherlands (Dienst Justitiële Inrichtingen), the latter has provided expertise and personnel at the disposal of Aruba.

• Assessment of the measures adopted and further information required: The measures adopted seem to constitute a very positive step towards ensuring appropriate detention conditions for prisoners in situations similar to the applicant’s. Further information is, however, still required, in particular, on psychological and psychiatric treatment available at the KIA.

 

- 83 cases against Poland

8677/03            P.P., judgment of 08/01/2008, final on 08/04/2008

This case concerns the violation of the applicant’s right to respect for family life due to the non-enforcement of decisions with respect to the return of his daughters to Italy and his visiting rights (violation of Article 8). The applicant, an Italian national, was married to a Polish national, K.P. They had two daughters, A and B, born in 1992 and 1996 and lived in Italy. In the summer of 1999 K.P. took her daughters on holiday to Poland and filed an application for divorce. In September 1999 the applicant instituted proceedings on grounds of the Hague Convention. On 17/11/1999 the Poznan District Court granted him visiting rights and on 05/01/2001 allowed his application for the return of the children and ordered K.P. to return them to the applicant, considering that she had unlawfully abducted them. This decision became final and enforceable in June 2001. Subsequently the applicant requested its enforcement, but K.P. failed to comply with the decision and hid the children, despite the attempts of the bailiff, guardians assisted by police officers and the representative of the Italian embassy. A guardian’s request for instituting criminal proceedings against her was dismissed in August 2003. During this period, the applicant did not come to Poland, as in January 2002 an arrest warrant was issued against him, due to non-payment of child support ordered in the divorce proceedings. This warrant remained valid until March 2005.

On 03/04/2003 the guardians found the children, but due to the A’s strong resistance they called for a medical examination and decided not to enforce the court order. K.P. remained in hiding with the children until September 2003. The applicant eventually met his daughters on 27/03/2005. On 07/06/2005 the Poznan District Court quashed the decision of 05/01/2001 and decided not to return the children to the applicant, considering that their return would expose them to psychological harm or otherwise place them in an intolerable situation. It took note in particular of the girls’ assimilation in Poland and their strong emotional bonds with their mother.

The European Court noted that even though the authorities did finally find the children on 03/04/2003, the circumstances were such as that they could not remove them. Even though the difficulties in finding the children were created by the resistance of their mother, the lapse of time was to a large extent caused by the authorities’ own handling of the case (courts, bailiffs, guardians and also the prosecutor who discontinued the criminal proceedings instituted against K.P.). The European Court concluded that the Polish authorities failed to take promptly all the measures that could reasonably be expected to enforce the return order and consequently to secure the applicant’s visiting rights. It pointed out in particular that the lack of contact between the applicant and his children was mainly caused by the authorities’ failure to find the children hidden by K.P. and by the arrest order which had been issued against the applicant and was upheld for over three years and which had made it more difficult for him to come to Poland.

Individual measures: Since September 2003, the children have been living in K.P.’s father house in P., where they attend school (§43 of the judgment). The decision of the Poznan District Court of 07/06/2005 is final. However, the case was simultaneously dealt with by the Italian courts. On 24/02/2005 and 28/11/2005 the Venice Court granted the applicant sole custody of A. and B. and deprived K.P. of her parental authority. The decision is final (§ 55 of the judgment).

• Information provided by the Polish authorities: The applicant’s visiting rights had been fixed provisionally in the decision of the Poznan District Court of 15/04/2005 (see § 49 of the judgment), in the framework of the proceedings concerning the children’s return, based on the Hague Convention. The terms of the exercise of the visiting rights were confirmed by a judgment of the Poznan Regional Court of 22/01/2007. According to this judgment the applicant may see his daughters at their place of residence and take them outside it as long as they do not oppose and their mother has been informed one week before his arrival in Poland. So far the applicant has not requested the assistance of the  Ministry of Justice in executing this judgment.

On 26/02/2008 the Ministry of Justice received a note from the Italian Embassy, calling upon the Polish authorities to take measures to ensure that the applicant enjoys fully his visiting rights and spend holidays with his daughters in Italy. On 10/03/2008 the Ministry of Justice replied that the applicant met his daughters for the last time on 27/05/2005 and since then had contacted them only by telephone. It also informed the applicant that he may lodge a request for the extension of his visiting rights, clearly indicating in which form they should be carried out and that he should also apply to be allowed to receive his daughters in Italy during holidays.

Moreover, on 19/05/2008 the Ministry of Justice informed the Italian Embassy that if the mother were to hinder the applicant’s contacts with his daughters, he should lodge a motion under Article 1050 of the Code of Civil Proceedings, which concerns the enforcement of court decisions on parental rights of access. Under Article 1050, Section 1, according to which if a debtor fails to comply with the obligation to take measures which cannot be taken by any other person, the court may fix time-limits for complying with this obligation on pain of a fine. The Ministry also indicated which court would be competent to examine such a motion and, in addition, that the applicant may lodge a motion on the basis of Article 21 of the Hague Convention (application to make arrangements for organising or securing the effective exercise of rights of access).

Besides that on 3/09/2008 the Ministry of Justice answered a letter from the European Union Commissioner for Justice, Freedom and Security of 5/08/2008, informing him of the legal avenues available to the applicant to amend the judgment of the Poznan Regional Court of 22/01/2007 and that the applicant had lodged no further complaint or request.

• Information provided by the applicant’s counsel (letters of 24/09/2008 and 25/11/2008): Since the decision of the Poznan District Court of 15/04/2005 the applicant has tried to visit his daughters several times. On 14/10/2007 he saw the younger daughter for one hour in a commercial centre. Since then he wanted to meet his daughters for Christmas in 2007 and spend the winter holidays with them in Italy in January 2008, but the mother and her family opposed it. He has visited Poland several times to see his daughters, but to no avail. He also complained to the police about the behaviour of the mother and her family, but there has been no follow-up. He speaks sometimes with the younger daughter on the telephone, but their conversations are limited due to linguistic problems and the mother’s interference.

On 07/07/2008 the Italian Ministry of Justice wrote to the Polish Ministry of Justice, asking the latter to help the applicant in the exercise of his visiting rights. The letter specified that the applicant wanted to host his daughters in Italy during the summer and the Christmas break of 2008 as well as one week in the wintertime in 2009, without their mother’s presence. He was willing to pay their travel expenses from Warsaw to Venice, while the Italian Embassy could take care of the girls’ journey from Poznan to Warsaw.

By letter of 11/08/2008, the Polish Ministry of Justice answered its Italian counterpart’s letter of 07/07/2008, stating the following:

-           the Hague Convention no longer applicable to the elder daughter since she has already reached the age of 16;

-           the courts are competent to modify the applicant’s visiting rights,

-           the applicant may lodge a request for the extension of his visiting rights by the District Court in Poznan (himself or by a lawyer), clearly indicating how they should be exercised (day, hour, venue, etc.). He may ask the court to order the mother not to hinder the exercise of these rights. The Ministry also informed the applicant of the formal requirements that should be met in this respect (documents to be submitted and fees).

The applicant asks the Committee of Ministers to ensure the proper execution of this judgment of the European Court. His lawyer opposes the initiation of new proceedings, as he is of opinion that they would concern facts that have been already subject to the European Court’s assessment in its judgment.

• Bilateral contacts are underway to clarify the scope of individual measures in this case and the applicant’s situation.

General measures: This case presents similarities to that of H.N. (77710/01) (see the Podbielski group of cases, 1059th meeting, June 2009), in which measures have already been taken (publication and wide dissemination).

• However, due to the peculiar circumstances of this case, information is awaited on the publication of the European Court’s judgment and its dissemination to competent authorities (in particular criminal courts, prosecutors, guardians and bailiffs).

46702/99           Dzwonkowski, judgment of 12/04/2007, final on 12/07/2007

This case concerns the inhuman treatment suffered by the applicant when arrested by the police and transported to the Warsaw Sobering-up Centre in June 1997 (substantive violation of Article 3).

The European Court considered that the government had advanced no consideration to explain or justify the use of force. It concluded that, given the severity of the applicant's injuries, attested to by the doctor at the Sobering-up Centre, the use of force by the police had been excessive and unjustified. The Court referred to criminal proceedings brought against the applicant for causing bodily harm to the policemen and the findings of the effect that it was clear that the applicant had been beaten up by the police.

The case also concerns the absence of any effective investigation into the circumstances of the incident (procedural violation of Article 3). The European Court noted that the prosecution had dropped the criminal complaints brought by the applicant against the police, despite the medial report and the findings of the Wołomin Court. The European Court found that the investigation had been superficial and lacking in objectivity and had resulted in a decision which was contradicted by the facts.

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

• Information submitted by the authorities (29/07/2008): The applicant may request the reopening of the discontinued proceedings (concerning his ill-treatment) under Article 327 of the 1997 Code of Criminal Procedure.

• Assessment: No further individual measure seems necessary.

General measures:

1) Substantive violation of Article 3: According to the Police Act of 1990, police officers may apply only such coercive measures as correspond to the requirements of a given situation and are necessary to ensure that their orders are obeyed. Thus in this case the violation resulted from the abusive actions of the police officers.

2) Procedural violation of Article 3: This violation resulted from the public prosecutor's decisions which contained conclusions unsupported by a careful analysis of the facts.

• Information provided by the Polish authorities: The European Court’s judgment has been published on the website of the Ministry of Justice www.ms.gov.pl/re/re_wyroki.php.

and disseminated to police officers.

In 2007 the network of Human Rights Advisers to the Chief Commander and Province (Voivodship) Commanders of Police, established in 2005, were given full-time positions. Their tasks include, inter alia, training police officers, promoting police conduct in accordance with international human rights standards and monitoring police operations. Particular importance is given to monitoring police activity: On 29/05/2008 there was a meeting of the Inter-Ministerial Committee for Matters Concerning the European Court at which the Head of the Department for Control, Complaints and Petitions at the Ministry of Interior and Administration reported that about 20,000 complaints lodged about police activity were currently being examined. Preliminary statistical data will be available soon.

In addition, in November 2007 the National Police Headquarters drafted an action plan to implement recommendations by the Council of Europe Commissioner for Human Rights, the CPT and the European Court’s judgments, which includes the setting-up of a special body to scrutinise the observance of human rights by the Police when having recourse to the use of force. There is currently discussion about whether this special body should be established as an independent body with quasi-prosecutorial powers or as an advisory body for police commanders. On 28/05/2008 a workshop took place on this issue in Strasbourg.

• Information is awaited on the dissemination of the European Court's judgment also to public prosecutors and criminal courts as well as on the implementation of the action plan, in particular, the setting-up of the special human rights body for the police, and statistical data on the examination of complaints about police activity.

55339/00          Różański, judgment of 18/05/2006, final on 18/08/2006

The case concerns a violation of the applicant's right to respect for his family life due to the obstacles placed in the way of his attempts to establish his paternity of a child (violation of Article 8).

From 1990 to 1994, the applicant lived with B.F., who gave birth to a boy, D. Following the break-up of their relationship, B.F. went into hiding with the child, with whom the applicant consequently lost contact. Having no locus standi under the applicable law, the applicant brought two suits, the first before the court of first instance requesting the designation of a legal guardian for the child who could bring an action on the child's behalf in the context of a paternity suit. He also applied to the pubic prosecutor to have such an action brought in his own behalf. The prosecutor dismissed his request in view of the risk of two parallel actions both aiming at the same result. In November 1995, the applicant abandoned his action before the court of first instance.

Then in July 1996 B.F.'s new companion, J.M., recognised the child as his own by a simple declaration which was validated by the court of first instance in proceedings to establish parental authority.

The applicant lodged several requests before the courts and the prosecutor with a view to contesting this recognition but these were rejected, from August 1996 to November 1998 on the ground that D.'s affiliation had already been established.

The European Court found that the violation found was due in general terms to the fact that there was no procedure directly accessible to the applicant by which he might claim the establishment of his paternity, the introduction of such a procedure being within the discretion of the authorities (§§73, 76). It also noted the absence in domestic law of any guidelines concerning how the relevant authorities should exercise such discretion, in the light of whether or not it is advisable to review a paternal relationship already established in law. In this respect the European Court considered that the authorities had exercised this power superficially in dealing with the applicant's requests to contest J.M.'s paternity.

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

• Information provided by the Polish authorities (982nd meeting, December 2006, and letter of 07/01/2007): The applicant has no access to his presumed child and is living in a hostel for persons of no fixed abode.

            1) Proceedings to annul the recognition of paternity: The Polish authorities indicate that Article 86 of the Family and Guardianship Code provides a potential remedy for the applicant: recognition of paternity may be contested following proceedings initiated by a prosecutor. Such proceedings may be brought at any time; there is no prescription. The applicant has no locus standi in such proceedings but he may lodge a request with the prosecutor responsible for the district where the mother and recognised father of the child live, to initiate them. The prosecutor then takes a decision taking account of biological criteria as well as the interest of the child.

            2) Proceedings to establish paternity: Following the amendment of Article 84 of the Family and Guardianship Code in 2004 (see below) this procedure is now open to the presumed father of the child provided that the recognition of JM's paternity had first been annulled.

• Bilateral contacts are under way to assess the applicant’s current situation and whether further individual measures are necessary.

General measures:

            1) Procedure to establish paternity:

• Measures already taken (information provided by the Polish authorities at the 982nd meeting (December 2006) and in their letter of 07/01/2007): Following the declaration of the Constitutional Court on 28/04/2003 that article 84 of the Family and Guardianship Code was unconstitutional, the article was modified on 17/06/2004 (in force on 19/07/2004) and now also allows presumed fathers also to bring actions to establish paternity.

            2) Procedure to annul the recognition of paternity

• Information provided by the Polish authorities (letters of 07/01/2007 and 24/08/2007): The absence of a locus standi for presumed fathers in proceedings of this type does not call for any change in the procedure. The purpose of limiting locus standi to the public prosecutor, the child or its mother is to protect the rights of mother and child should a man suddenly claiming to be the father contest a paternity already established.

This approach has been confirmed by the Constitutional Court's judgment of 17/04/2007. The Constitutional Court found that the provision of Article 81 of the Family Code allowing a child to challenge a recognised paternity was not contrary with the Polish Constitution insofar as it does not grant such a right to the biological father.

• Assessment: the Secretariat notes that, although the problem of the absence of locus standi for presumptive fathers in proceedings to establish paternity has been resolved (see point 1 above) the European court also criticised the fact that there are no guidelines in Polish law on how the competent authorities are to exercise their discretionary power with regard to the desirability of calling into question paternities already established.

            3) Information on the current practice of public prosecutors concerning annulment of the recognition of paternity: In exercising their powers with regard to the desirability of calling into question paternities already established, prosecutors have to apply certain rules. First, they must establish whether the recognition of paternity was admissible under the provisions of law and the circumstances in which it took place. Then they check whether the man who recognised the child was aware of the fact that he was not its biological father, whether his declaration of paternity recognition was not legally flawed and the validity of the mother's consent. Lastly, the prosecutor examines whether the annulment of paternity recognition would be in the child's interest.

• Information is awaited as to how such guidelines have been adopted. A copy of the text would be also useful.

4) Publication: The European Court’s judgment has been published on the website of the Ministry of Justice www.ms.gov.pl.

37522/02           Zmarzlak, judgment of 15/01/2008, final on 15/04/2008

This case concerns the violation of the applicant’s right to respect for private and family life after he had been subjected to police supervision lasting about twelve years (violation of Article 8).

In 1993 the applicant was accused of having forged and using a falsified bill of exchange. Subsequently, on 28/10/1993, he was subjected to police supervision, which required him to present himself twice a week at the police station of his residence (Izabelin). In December 1993, this requirement was reduced to once a week and remained in place until it was lifted on 12/12/2005. The authorities did not respond to the applicant’s request to lift the measure in October 2000.

The European Court noted that the measure of police supervision was imposed on the applicant for an unlimited duration. It found that, insofar as the criminal proceedings were prolonged, the relevant authorities failed to show due diligence to review, ex officio, whether the continued imposition was still required, contrary to the relevant provisions of the criminal code on procedure. Thus, the European Court found that the authorities did not respect the balance between the general interests and the applicant’s interest.

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. The measure in question was lifted and the applicant was acquitted on 10/10/2006.

• Assessment: No further individual measure seems necessary.

General measures: The measure was in compliance with national law, namely Article 275 of the Code on Criminal Procedure (§45 of the judgment). The violation resulted from its application by prosecutors and district courts.

• Information is awaited on measures taken and/or envisaged to prevent new similar violations, and in particular on the publication of the European Court’s  judgment and its dissemination to criminal courts and public prosecutors.

77782/01           Luczak, judgment of 27/11/2007, final on 02/06/2008

The case concerns the discrimination suffered by the applicant due to his request for admission to the farmer’s social security scheme being turned down on the basis of his nationality (French) (violation of Article 14 in conjunction with Article 1 of Protocol 1).

The applicant had lived and worked in Poland since 1984 and as an employee he had been affiliated to the general social security scheme for some years. In 1997 the applicant and his wife (Polish national) bought a farm and decided to make their living from the farm. On 2/12/1997 the applicant requested the Częstochowa branch of the Farmers' Social Security Fund (Kasa Rolniczego Ubezpieczenia Społecznego) to admit him to the farmers' social security scheme, which, on 16/12/1997, was refused on the ground that he was not a Polish national, a condition stipulated in the Farmers' Social Security Act of 20/12/1990. As a result, the applicant did not have social security cover in the event of sickness, occupational injury and invalidity. In addition, he could not pay contributions towards his old-age pension.

The European Court found that the difference in treatment in admission to the Polish farmers’ social security scheme on account of the applicant’s nationality was not justified by any public-interest grounds.

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary and pecuniary damage. The European Court took note of the fact that the applicant was deprived of the possibility to make contributions towards his retirement pension in connection with the violation found.

• Information is awaited on whether the period of time during which the applicant had worked in the farm and had been deprived of making contributions towards his retirement pension is taken into account when calculating his retirement pension.

General measures: On 2/04/2004 the 1990 Act was amended following Poland's accession to the European Union (EU) in that nationals of European Union member states and foreign nationals in possession of a residence permit could join the farmers' scheme (entry into force on 2/05/004). Consequently, the difference in treatment in the farmers’ scheme has been remedied.

• Information is awaited on measures taken/envisaged as to how the period of time during which non-Polish nationals who were in the same situation as the applicant and, thus, deprived of making contributions towards their retirement pension under the farmers’ scheme is taken into account when calculating their retirement pension (i.e. before the entry into force of the amendment of the 1990 Act on 2/05/2004).

77765/01          Laskowska, judgment of 13/03/2007, final on 13/06/2007

This case concerns the lack of effective access to the Supreme Court on account of the Regional Court’s flawed interpretation of domestic law (violation of Article 6§1). In 2000, the applicant seised the Regional Court to request legal aid with a view to lodging an appeal on a point of law in proceedings concerning her entitlement to a maintenance allowance. The Regional Court dismissed her appeal on the ground that no such appeal was available in cases of this kind. The applicant nonetheless lodged an appeal herself, without legal assistance, but in September 2000 the Regional Court rejected it on the ground that legal representation was compulsory in such proceedings. The applicant appealed against this decision, and in January 2001 the Supreme Court indicated that the applicant was entitled to appeal on a point of law this case, but dismissed her appeal on formal grounds, namely the late lodging of the appeal and the absence of legal representation.

The European Court found that the applicant could not be held responsible for the error committed by the Regional Court.

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

It should be noted that Article 168§1 of the Code of Civil Procedure provides a possibility of leave to appeal out of time, if a party was not able to perform a measure within the prescribed time-limit through no fault of his/her own (see § 33 of the judgment).

• Information is awaited on the applicant’s situation in order to assess whether individual measures are necessary.

General measures:  The violation resulted from the Katowice Regional Court’s erroneous premise that an appeal on a point of law was not available in the applicant’s case in the light of the provisions of the Code of Civil Procedure as in force at the material time. However, since then the provisions of Code concerning appeals on points of law have been amended.

Concerning the refusal to provide the applicant with legal assistance in the appeal proceedings before the Regional Court, the European Court did not find it necessary to examine whether it amounted to a breach of Article 6§1 (§62 of the judgment). The problem of not granting legal aid for lodging an appeal on points of law is being examined in the case of the Tabor (judgment of 27/06/06, final on 27/09/06, Section 4.2 of this meeting).

• Information is awaited on publication of the European court’s judgment and its dissemination to appellate and regional courts, as well as on the provisions currently in force concerning the possibility of lodging an appeal on points of law in similar cases and on other measures taken or planned by the authorities to avoid new, similar violations.

22860/02           Woś, judgment of 08/06/2006, final on 08/09/2006

The case concerns a violation of the applicants right of access to a court (violation of Article 6§1) in the context of his appeal before the Polish-German Reconciliation Foundation under the “first compensation scheme”, set up to compensate victims of nazi persecution.

The “first compensation scheme” was set up under an agreement of 16/10/1991 between Poland and the Federal Republic of Germany.  Under the scheme, in November 1991, the Polish government set up the foundation mentioned above, the remit of which was to compensate victims of nazi persecution from funds paid by the government of the Federal Republic of Germany.  The “second compensation scheme” was established under joint statement of 17/07/2000 between a number of countries, including Poland, the Federal Republic of Germany, the United States and Israel.

Under the first compensation scheme, in February 1994, the Foundation's Verification Commission (Komisja Weryfikacyjna) awarded the applicant compensation for forced labour performed between 1941 and 1945.  As that decision did not take account of the fact that he had been deported, the applicant appealed to the Appeal Verification Commission (Odwalawcza Komisja Werfikacyjna), which dismissed his appeal.  In 1999 the Foundation's Management Board (Zarzad Fundacji) adopted Resolution 29/99 laying down that compensation was payable only to forced labourers who had been deported, with the exception of persons who had been subjected to forced labour before the age of 16 (in February 1944).  Subsequently, in March 2000, the applicant obtained additional compensation, but only in respect of forced labour performed before he had reached that age, the Foundation having taken the view that the deportation criteria were not met in his case.  The applicant challenged this decision to no avail before the Appeal Verification Commission and the Supreme Administrative Court.  The Supreme Administrative Court ruled that the administrative courts did not have jurisdiction to review such decisions.  In addition, under the Supreme Court's case-law, which was that the Foundation was not a public authority and that the right to awards by the Foundation was not a civil-law matter, the national courts were not competent to deal with entitlement claims.

The European Court held that, in the particular circumstances of the case, the Foundation's actions in respect of both compensation schemes engaged the responsibility of the Polish state (regard being had in particular to the manner in which the Foundation's management bodies had been set up) and that the right to apply to the Foundation for compensation for nazi persecution was a civil right for purposes of Article 6.1 of the Convention.  It held that the Foundation's decision-making bodies, the Verification Commission and Appeal Verification Commission, could not be regarded as tribunals for purposes of Article 6.1 in view, in particular, of the fact that their members were appointed and dismissed by the Foundation's Management Board and Supervisory Board respectively.  In addition, by ruling out all judicial review of these boards' decisions in individual cases, the domestic courts had left the applicant with no possibility of having them reviewed by a “tribunal”.

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-material damage. Moreover, in the light of the information provided by the Polish authorities on general measures (see the Supreme Court’s resolution of 27/06/2007 below), it seems that the applicant’s claims as invoked before the Appeal Verification Commission in the proceedings under the first compensation scheme might be examined by a “tribunal”.

• Bilateral contacts are under way in order to clarify whether this measure is sufficient.

General measures:

• Information provided by the Polish authorities:

            1) Publication and dissemination of the judgment of the European Court: The judgment has been published on the website of the Ministry of Justice www.ms.gov.pl and in the Bulletin of the Warsaw Information Office of the Council of Europe (No. 2006/III), with a commentary. It has been also sent out to the Presidents of courts of appeal.

            2) Cessation of payments: On 7/06/2006 the Foundation ceased paying compensation under the first compensation scheme under its Resolution 29/2002, the funds from the German government having been exhausted. The second compensation scheme ceased operation on 30/09/2006, the last payments under this scheme being exceptionally made until 30/12/2006. It is no longer possible to receive payments from either of the compensation schemes.

            3) Complaints brought under domestic legislation: The Polish Constitutional Court is currently examining a complaint lodged by a certain Stanisław K., supported by the Polish Ombudsman, according to which certain provisions of the laws governing the competence of administrative courts and their rules of procedure are contrary to Article 45§1 of the Polish Constitution, which guarantees the right of access to a court. These provisions exclude decisions of the Polish-German Reconciliation Foundation from the competence of administrative courts, even though they are in general empowered to control the acts of administrative authorities. The Constitutional Court will soon deliver a decision on the admissibility of this complaint.

Secondly, the Polish Ombudsman has referred a question on points of law (zapytanie prawne) to the Supreme Court as to whether final decisions of the authorities of the Polish-German Reconciliation Foundation concerning financial assistance may be subject to judicial review by ordinary courts. In this respect the Ombudsman invoked the judgment of European Court delivered in this case and the 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. On 27/06/2007 the Supreme Court adopted a resolution confirming that such decisions of the Polish-German Reconciliation Foundation may be subject to judicial review by ordinary courts (case No 152/06).

Thirdly, on 12/02/2007 the public prosecutor brought a civil action before the Warsaw Regional Court on behalf of Ms. Walentyna B., contesting a refusal to award financial compensation under the second compensation scheme. These proceedings were instituted on the basis of the provisions of Code of Civil Procedure allowing the public prosecutor to bring action where it is necessary for the protection of the rule of law, citizens' rights and social interest.

• Information is awaited on the follow-up to these actions brought under of domestic law.

                       - Cases mainly concerning the monitoring of prisoners’ correspondence

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

43120/05           Andrulewicz, judgment of 03/04/2007, final on 24/09/2007

31038/06           Andrysiak, judgment of 20/05/2008, final on 20/08/2008

20138/03           Bobel, judgment of 22/01/2008, final on 22/04/2008

20841/02           Drozdowski, judgment of 06/12/2005, final on 06/03/2006

35833/03           Dzitkowski, judgment of 27/11/2007, final on 27/02/2008

55470/00           Ferla, judgment of 20/05/2008, final on 20/08/2008

36161/05           Jakubiak, judgment of 08/01/2008, final on 07/07/2008

72976/01           Jasiński, judgment of 06/12/2007, final on 06/03/2008

8363/04            Kliza, judgment of 06/09/2007, final on 06/12/2007

44521/04           Kołodziński, judgment of 08/01/2008, final on 07/07/2008

10816/02           Kozimor, judgment of 12/04/2007, final on 12/07/2007

51895/99           Kwiek, judgment of 30/05/2006, final on 30/08/2006

21890/03           Lewak, judgment of 06/09/2007, final on 31/03/2008

73988/01           Łuczko, judgment of 03/10/2006, final on 03/01/2007

14450/02           Maksym, judgment of 19/12/2006, final on 19/03/2007

37641/97           Matwiejczuk, judgment of 02/12/03, final on 02/03/04

42083/98           Mianowski, judgment of 16/12/03, final on 16/03/04

62323/00           Najdecki, judgment of 06/02/2007, final on 06/05/2007

6390/03            Nowicki, judgment of 27/02/2007, final on 27/05/2007

64284/01           Oleksy, judgment of 28/11/2006, final on 28/02/2007

10381/04           Owsik, judgment of 16/10/2007, final on 16/01/2008

39840/05           Pawlak, judgment of 15/01/2008, final on 15/04/2008

92/03                Pisk-Piskowski, judgment of 14/06/2005, final on 14/09/2005

29366/03           Stępniak, judgment of 29/01/2008, final on 29/04/2008

64283/01           Tomczyk Prokopyszyn, judgment of 28/03/2006, final on 28/06/2006

38007/02           Warsiński, judgment of 04/12/2007, final on 04/03/2008

63905/00           Wasilewski, judgment of 06/12/2005, final on 06/03/2006

45133/06           Zborowski, judgment of 15/01/2008, final on 15/04/2008

39519/05           Zborowski No. 3, judgment of 22/04/2008, final on 22/07/2008, rectified on 06/05/2008

These cases concern, first of all, interferences in the applicants' right to respect for their correspondence while they were in detention on remand (violations of Article 8). In the cases of Klamecki No. 2, Drozdowski, Kwiek and Wasilewski, the European Court found that the monitoring of the applicants' correspondence before 01/09/98 (the date of entry into force of the 1997 Code of the Execution of Sanctions) was not “in accordance with the law", as the relevant Polish law in force at that time did not indicate with reasonable clarity the scope and manner of exercise of discretion conferred on public authorities in this field. In addition, in the Kwiek case, the European court concluded that the surveillance of the applicant's correspondence with the Constitutional Court and the European Court since that date was “not provided by law” as it was against the law applicable at the material time.

The Andrysiak, Jakubiak, Kliza, Kołodziński, Kozimor, Łuczko, Maksym, Matwiejczuk, Mianowski, Nowicki, Oleksy, Pisk-Piskowski, Tomczyk Prokopyszyn and Wasilewski cases concern the fact that the correspondence of the applicants with the organs of the Convention, and, in the case of Kozimor - also with the Chancellery of the Senate, was marked with the word "censored". The European Court found that these inscriptions probably meant that the envelopes had been opened by the domestic authorities, despite the fact that the relevant law (the 1997 Code of Execution of Criminal Sentences and the Rules of Detention on remand of 1998) allowed such supervision only in the presence of the detainee. Moreover, the censorship of the applicants' correspondence with the defence counsel in the Andrulewicz, Najdecki, Kozimor and Zborowski No 3 cases was also “contrary to domestic law”, as contrary to the provisions of the Code of Criminal Procedure of 1997.

In the Maksym and Wasilewski cases, taking account of this latter element and the fact that the applicants' letters were posted with significant delays, the Court also found a violation of Article 34.

In addition, the Klamecki and Ferla cases concerns the violation of the applicants’ right to respect for their family life due to excessive restrictions of their contacts with their wifes respectively between August 1996 and August 1997 and December 1998 and November 1999 (violations of Article 8).

Moreover, the European Court found that the applicants' pre-trial detention was excessively long (in the Klamecki, Matwiejczuk, Najdecki,  Ochlik, Oleksy and Owsik cases) and that, in the Klamecki case, the detention was ordered by a public prosecutor in breach of the applicant's right to be promptly brought before a “judge or other officer authorised by law to exercise judicial functions” (violations of Article 5§3).

The Klamecki case also concerns the non-adversarial character of the procedure for reviewing the lawfulness of the applicant's detention, since neither the applicant nor his counsel were given the possibility to participate (violation of Article 5§4).

Finally, the European Court found that the criminal proceedings brought against the applicant (in the Matwiejczuk case), as well as the civil proceedings dealing with the applicant's compensation claims (in the Mianowski case) had lasted unreasonably long (violations of Article 6§1).

Individual measures: the European Court granted just satisfaction in respect of non-pecuniary damage in most of these cases.

            1) Violations of Article 5§3 and 5§4: The impugned pre-trial detentions are terminated.

            2) Excessive length of the civil and criminal proceedings (violations of Article 6§1): The domestic proceedings are terminated.

3) Failure to respect detainees' right for correspondence (violations of Article 8 and Article 34): In most of the cases, the applicants were no longer in detention on remand when the European Court delivered its judgments and thus the impugned restrictions on their right to respect for correspondence could not be imposed anymore in this context.

Moreover, in accordance with a recent domestic case-law, applicants and persons who claim infringement of their right to respect for their correspondence may claim compensation from the State Treasury under Article 448 read in conjunction with Article 24§2 of the Civil Code (for example, see judgment of the Warsaw Regional Court of 27/11/2006).

            4) Violation of the right to respect for his family life in the Klamecki No. 2 and Ferla cases (Article 8): The applicants’ pre-trial detention was terminated and thus the restrictions on their family life may not be imposed any longer in this context.

• Assessment: it appears that the applicants do not suffer any longer from the violations found by the European Court. This being the case, no further individual measure is necessary.

General measures:

            1) Violations of the right to be brought promptly before a judge and to participate in proceedings to challenge the lawfulness of detention (Article 5§3 and 4): These cases present similarities to that of Niedbała (judgment of 04/07/2000), closed by Resolution ResDH(2002)124, following the reform of the Code of Criminal Procedure). 

            2) Excessive length of detention on remand (Article 5§3): They present similarities to that of Trzaska (Interim Resolution CM/ResDH(2007)75) (1059th meeting, June 2009).

            3) Excessive length of the civil and criminal proceedings (Article 6§1): The cases present similarities to a number of other cases concerning the length of judicial proceedings pending before the Committee of Ministers for supervision of general measures (see in particular Podbielski and Kudła, Interim Resolution CM/ResDH(2007)28, 1059th meeting, June 2009,).

            4) Failure to respect detainees' right for correspondence (Articles 8 and 34)

• Information provided by the Polish authorities:

a) Legislation in force: The Code of Execution of Criminal Sanctions of 1997 was amended in September 2003. Under the new law, the correspondence of convicted persons with, inter alia, their lawyers (Article 8§1) or the justice administration and Strasbourg organs (Articles 102§11 Section 11 and Article 103§1) cannot be censored or stopped; but can only form the object of supervision conducted by opening the letters in the presence of the convicted person, where there is a reasonable risk that the letters might contain prohibited objects (Articles 8§3 and 103§2). As far as detainees are concerned, Article 217a§1 of the Code provides that their correspondence may be supervised by the organ at whose disposal they remain (a public prosecutor or a court). Unless the law provides otherwise, detainees shall enjoy at least the same rights as those guaranteed to convicted persons serving a sentence of imprisonment under the ordinary regime in a closed prison (Article 214§1).

More detailed rules governing the control of the detainees' and convicted persons' correspondence are included in the Rules for Executing Prison Sentences of August 2003 and the Rules of Detention on Remand of 25/08/2003 (both entered into force on 01/09/2003).

b) Draft legislative amendment to the Code of Execution of Criminal Sanctions: the Ministry of Justice is preparing a bill amending the Code of Execution of Criminal Sanctions and some other laws concerning the treatment of detainees’ and convicted persons’ correspondence. According to this bill, the correspondence of detainees’ with the Ombudsman, the Children’s Ombudsman and international institutions dealing with the protection of human rights shall be sent directly to the addressee.

c) Publication, dissemination and awareness measures: Public prosecutors and judges have been instructed to pass on detainees' correspondence, including their correspondence with the organs of the Convention to the addressees.

In a letter dated 28/06/2005, the Polish authorities said that the Minister of Justice had sent a circular to Appeal Court presidents drawing their attention to the European court's conclusions concerning the violation of Article 8 in the Matwiejczuk case and asking them to send it out to the judges under their administrative responsibility and to those responsible for examining detainees' correspondence who should not stamp letters with the word “censored”.

In a further letter dated 22/11/2005, the authorities informed the Secretariat that successively in January and September 2005, the Minister of Justice had again drawn Appeal Court presidents' attention to the need to take measures to guarantee respect for detainees' correspondence, particularly by ensuring that their mail should be sent to them in individually addressed envelopes. Following this request, it transpired that there had been lapses in respect for detainees in some cases.

The judgments of the European Court in the Klamecki No. 2 and Matwiejczuk cases have been published on the Internet site of the Ministry of Justice (http://www.ms.gov.pl).

d) Instruction of the Director General of the Prison Service: On 16/11/2007 an instruction was issued by the Director General of the Prison Service covering inter alia the installation of special letter-boxes specifically for prisoners’ correspondance with the European Court and other international bodies in all detention centres in Poland. This instruction entered into force on 01/01/2008.  Moreover, in February 2008 the Secretariat had high-level meetings with the Polish authorities to discuss among other things the implementation of this instruction.

• Additional information is awaited on:

- on the implementation of the instruction of 16/11/2007,

- the follow-up of the draft amendment to the Code of Execution of Criminal Sanctions and other relevant laws.

            5) violation of the right to respect for his family life in the Klamecki No. 2 and Ferla cases (Article 8): On 25/10/2007 the Government Agent requested the Ministry of Justice to send out the judgment in the case of Klamecki No 2 to competent criminal courts.

• Confirmation of this dissemination is awaited.Moreover, information is awaited on the dissemination of the Ferla judgment to competent criminal courts and prosecutors.

- Cases concerning the lack of access to a court to challenge refusals to grant legal aid

12825/02          Tabor, judgment of 27/06/2006, final on 27/09/2006

15670/02           Biziuk, judgment of 15/01/2008, final on 15/04/2008

76396/01           Zagawa, judgment of 15/01/2008, final on 15/04/2008

14464/03           Zaniewski, judgment of 15/01/2008, final on 15/04/2008

These cases concern violations of the applicants’ right to a fair trial due to decisions on refusal to grant them legal aid, delivered without ground by second-instance courts between 1999 and 2003 (violations of Article 6§1). Consequently, the applicants could not appeal on point of law as this required the assistance of counsel.

The European Court noted that, these decisions had been delivered in camera and that, according to domestic law, the grant of legal aid depended mainly on the petitioner’s financial situation and their ability to afford court fees. Thus it was particularly difficult to establish why the applicants’ requests for legal aid had been rejected. Moreover, the applicants did not have an internal remedy to appeal against these decisions. Hence, taking into account that the assistance of counsel in cassation appeal proceedings was obligatory, the applicants had been deprived of any realistic chance to appeal before the Supreme Court. Moreover, in the cases of Tabor and Zaniewski the decisions rejecting the applicants’ requests for legal aid were notified to them after expiry of the deadline an appeal on points of law.

Individual measures:

            1) Tabor case: The European Court granted the applicant just satisfaction in respect of non‑pecuniary damage and found that his claim for pecuniary damage had not been duly substantiated.

Before national courts, the applicant, who had been dismissed from his employment in 1997, took legal action with a view to obtaining reinstatement. In a judgment of December 1998, the Katowice District Court awarded him compensation but did not order his reinstatement. This judgment was upheld by the Katowice Regional Court on 18/11/1999. Thus before national courts, he received the maximum compensation available for dismissal from employment.

• Information provided by the Polish authorities (letter of 3/07/2008): The Supreme Court, in its decision of 17/04/2007 on the applicant’s request to re-open the proceedings, found that re-opening the civil proceedings was an appropriate way to remedy the violation found by the European Court, and that the regional court in charge of the request had to interpret the relevant provisions of the Code on Civil Procedure in conformity with the European Court’s judgment and remedy the violation found. Consequently, by decision of 19/06/2008 the Katowice Regional Court re-opened the civil proceedings which had been closed by decision of 17/01/2000, rejecting the applicant’s request for legal aid, and decided to examine the applicant’s request for reinstatement of the time-limit for lodging the cassation appeal at a session to be held in camera. The date of this hearing has not been fixed.

• Assessment: it should be noted that unlike its earlier findings of 19/10/2005 (cf. case of Podbielski and PPU Polpure, judgment of 26/07/2005, final on 30/11/2005, Section 6.2), in which the Supreme Court had taken the view that Article 401 of the Code of Civil Procedure could not provide a legal basis for a request for re-opening proceedings after the European Court’s finding of a violation of access to a tribunal, the above Supreme Court ruling of 17/04/2007 made it clear that Article 401 item 2 of the Code of Civil Procedure allows re-opening of civil proceedings in which a party had been deprived of the possibility to act. It found that the applicant had been deprived of a possibility to act because the decision refusing legal aid lacked any reasons and was issued after the time-limit had passed for lodging a cassation appeal.

Thus this development of the case-law appears to create a possibility for reopening civil proceedings, after a judgment of the European Court, in situations like those in this case, in which the applicant had been deprived of the possibility to act.

• Taking into account this new situation, information is awaited on progress in the re-opened civil proceedings.

            2) Other cases:

In the Biziuk case, the applicant claimed before domestic courts 2 500 PLN in compensation for non-pecuniary damage that he had allegedly suffered from a third party, but his claim was finally rejected on 03/10/2001. Before the European Court he claimed 5 000 PLN for pecuniary and non-pecuniary damage.

The European Court rejected his claims for pecuniary damage because of lack of causal link between the violation found and the alleged material damage. However, the European Court granted him just satisfaction in respect of non-pecuniary damage of 2 000 EUR (nearly 9 600 PLN).

In the Zagawa and Zaniewski cases, the applicants asked before the domestic courts that the pension fund re‑determine the amount of their invalidity and retirement pensions. Their claims were finally rejected by the appeal courts’ decisions of 04/07/2000 and 09/10/2002. Before the European Court they received just satisfaction in respect of non-pecuniary damage.

In addition, in the Zagawa case the applicant claimed 14 500 EUR for pecuniary damage, corresponding to the sums which he did not receive because the domestic courts, upheld entirely the mistaken decision of the pension fund. The European Court concluded that this claim had not been duly substantiated and rejected this request.

In the Zaniewski case, the applicant requested that the government, as just satisfaction, should declare that it would recognise that the bonus, the amount of which he indicated himself in domestic proceedings, was part of his salary. Such a declaration would allow him to take steps before competent instances to have the amount of his pension re-adjusted. The European Court concluded that there had been no causal link between the violation found and the alleged pecuniary damage and rejected this claim.

• Information is awaited on the applicants’ current situation and in particular as to whether the applicants may have the proceedings concerning the grant of legal aid appeal on points of law before the Supreme Court reopened following the judgments of the European Court and the Supreme Court’s decision of 17/04/2007 in the Tabor case.

General measures: The European Court noted that under the applicable provisions of procedural law, the second instance courts were not been obliged to give any reasons to dismiss requests for legal aid (see Article 357 of the Code of Civil Procedure). However, in the circumstances of the case, the principle of fairness required the court to give reasons for rejecting the applicant's request (§§ 44-45 of the Tabor judgment). Moreover, according to the Supreme Court's case-law, no appeal lay to this jurisdiction against an interlocutory decision on legal aid given by a second-instance court (§21 of this judgment concerning the application of Article 394 of the Code of Civil Procedure).

• Information provided by the Polish authorities (letters of 30/03/07 and 4/12/07):

1) Action plan: The Polish authorities have drawn up a “Plan of action with regard to the execution of the ECHR judgments”.

a) Awareness-raising measures: The Minister of Justice has undertaken to send out the Tabor judgment to judges, along with a circular drawing their attention on the Court's findings. Since March 2007 the examination of requests for legal aid at the stage of lodging an appeal on points of law should be included in the scope of the administrative supervision by presidents of courts.

b) Envisaged legislative changes: An overview of the provisions of the Code of Civil Procedure was foreseen so as to assess whether amendments to the law are needed to protect parties who have been granted legal aid against the risk of non-observance of the time-limit for lodging appeals on points of law and to oblige courts to give reasons for decisions refusing legal aid for such purpose.

This overview was to be accomplished by the end of May 2007 at the latest.

2) Measures taken:

a) Awareness raising measures: The Tabor judgment was published on the website of the Ministry of Justice www.ms.gov.pl.

b) Envisaged legislative changes: The Commission for the Codification of Civil Law is considering the possibility of introducing an obligation upon courts to give reasons for refusing to appoint a lawyer for a cassation appeal as well other measures to ensure observance of time-limits for lodging such appeals where legal aid has been requested.

• Assessment: the Secretariat notes there has been a delay in implementing the action plan presented in March 2007. It is important for the Committee to receive a revised schedule in this respect.

• Information is awaited on the implementation of the action plan, including, if need be, a revised schedule. In this context, information would be useful in particular on the dissemination of the European Court’s judgment to domestic courts (including the Supreme Court) as well as on follow-up of the draft legislative reform.

The Deputies: 1.             noted with satisfaction the Polish Supreme Court’s decision of 17 April 2007 in the case of Tabor, which interpreted the provisions of the Code of Civil Procedure in such a way as to allow the reopening of civil proceedings after a judgment of the European Court finding a violation of Article 6§1 of the Convention; 2.             welcomed the fact that, as a result of this decision, the domestic proceedings were reopened and the applicant’s cassation appeal was examined by the Supreme Court; noted that in the three other cases the applicants had not requested the reopening of domestic proceedings and invited the authorities to provide clarification as to whether they could have done so, referring to the Supreme Court’s judgment in the case of Tabor, and under which conditions; 3.             concerning general measures, noted that the problem of lack of access to a court to challenge a second-instance court’s refusal to grant legal aid results from the provisions of the Code of Civil Procedure currently in force, and that the number of pending cases and new applications lodged before the European Court concerning this problem does not really seem to be decreasing; 4.             noted with interest the bill amending the Code of Civil Procedure and the awareness raising measures taken with a view to implementing the action plan announced to the Committee in March 2007; 5.             decided to resume consideration of these items at the latest within one year, in the light of further information to be provided on the bill and its adoption as well as on clarifications on individual measures.

                       - Cases concerning deficiencies in the legal aid system

8932/05            Siałkowska, judgment of 22/03/2007, final on 09/07/2007

59519/00          Staroszczyk, judgment of 22/03/2007, final on 09/07/2007

These cases concern violations of the applicants' right of access to a court due to the refusal of their lawyers appointed ex officio to assist them in filing and lodging appeals on points of law, thus effectively depriving them of access to the Supreme Court (violations of Article 6§1).

In the Siałkowska case, in December 2004 the applicant's lawyer met her three days before the expiry of the time-limit for appeal and then wrote explaining that in his opinion such an appeal did not offer reasonable prospects. In the Staroszczyk case the lawyer was unreachable for almost seven months after the appellate court's judgment had been delivered. Eventually, in January 2000, he informed the applicants that there were no grounds for filing a cassation appeal.

The European Court emphasised the importance of an effective, functioning legal profession to provide a fair administration of justice. However, when examining the circumstances of these cases, it had regard to the specific features of the Polish legal aid system and observed that the refusal of legal aid by a lawyer should meet certain conditions. In this respect the applicable regulations laid down no time-limit for lawyers to inform clients of their intention not to submit an appeal, nor did they oblige lawyers to prepare legal opinions on the prospects of appeals.

Consequently, in the first case the short time left for the applicant to prepare an appeal on point of law deprived her of a realistic opportunity of having the case brought before the Supreme Court. In the second case the absence of a refusal in written form left the applicants without the information they needed concerning their legal situation and the chances of having their appeal accepted by the Supreme Court.

Individual measures: In both cases the European Court awarded the applicants just satisfaction in respect of non-pecuniary damage. In the first case the domestic proceedings concerned the applicant's claim for a widow's pension from the social insurance authority. It was dismissed by a final judgment of the Wrocław Court of Appeal of 02/09/2004. In the second case, the applicants brought an action against the State Treasury concerning the allocation of a plot in the context of expropriation proceedings. Their claims were dismissed on 25/05/1999 by a final judgment of the Warsaw Regional Court.

• Information provided by the Polish authorities (07/07/2008): The applicants have thus far not availed themselves of the possible remedies of re-opening of civil proceedings or reinstatement within the time-limit for lodging a cassation appeal.

• Assessment: No further individual measure seems necessary.

General measures: Both violations resulted from deficiencies in the Polish legal aid system.

In this respect the European Court noted, among others things, that in its judgment of 31/03/2005 the Polish Constitutional Court had observed that the applicable law at the material time on the admissibility conditions for appeals on points of law had given rise to serious interpretational difficulties and discrepancies in the case-law of Polish courts (§§ 50 and 135 of the Staroszczyk judgment).

• Information provided by the Polish authorities (letters of 04/12/2007 and 07/07/2008):  

1) Action taken by the judiciary and the Ministry of Justice: The presidents of appeal courts have requested all judges within their jurisdiction to include in all letters concerning legal aid sent out to the Bar information to the effect that a lawyer has been appointed to provide legal aid to lodge an appeal on points of law and the relevant time-limits.

The Ministry of Justice also wrote to the President of the National Bar Council a letter asking the presidents of regional bar councils to inform advocates when they have been appointed to assist a party in proceedings concerning an appeal on points of law.

2) Regulations and practice of the Bar: The Bar Act of 1982 provides no time-limit for lawyers to inform their client and the appointing body of their legal opinion concerning the case. However, this should be done without delay under §57 of the resolution of the National Bar Council of 10/10/1998 - the Body of Ethical Rules.

On 15/09/2007 the National Bar Council adopted a resolution in which it recalled that an advocate may refuse to lodge an appeal on points of law if he or she sees no grounds for lodging it. Such grounds must be examined without delay. Refusal to lodge such an appeal shall be addressed in writing and without delay, to the client and the president of regional bar council. The advocate must also inform the competent court promptly.

These resolutions are internal rules of the Bar. However lawyer who fails to observe them may be liable to disciplinary proceedings under Article 80 of the Bar Act.

Where an advocate appointed ex officio has refused to lodge a cassation appeal, the regional bar council does not in principle appoint another, although there have been exceptions (one example was provided by the Bialystok regional bar association).

3) Reform envisaged by the Commission on codification of Civil Law: The Commission on codification of Civil Law agreed to review the functioning of the system of civil proceedings at the stage following the delivery of a final second-instance judgment and preceding the lodging of an appeal on points of law, in particular the system of legal aid. The Commission approved the idea of modifying Article 117 of the Code of Civil Procedure on appointing ex officio lawyers. This amendment should allow the parties receiving legal aid to choose their lawyer.

The Commission also supported the idea of introducing detailed regulations on lawyers’ refusal to lodge an appeal on points of law, especially by requiring a written form and fixing a time-limit. The Commission is also contemplating the introduction of an obligation upon judges to provide reasons for refusing to appoint a lawyer for the purpose of lodging an appeal on points of law, as well as measures to ensure observance of time-limits for lodging cassation appeals where legal aid has been applied for. Once the Commission has concluded its preliminary work on the draft, the draft amendments will be transmitted to the Legal and Legislative Department of the Ministry of Justice.

4) Legal amendments undertaken regarding cassation proceedings: On 22/12/2004 the Code of Civil Procedure was amended as regards the provisions governing cassation complaints (Article 398), fixing, inter alia, a two-months time-limit for lodging complaint after the service of a written decision (entry into force on 05/02/2005; Journal of Laws of 2005, No. 13, item 98).

5) Possibility to seek compensation for an attorney’s misconduct before a civil court: Based on a general rule of the attorney’s liability for incorrect or negligent conduct, a party may seek compensation before a civil court against an ex officio lawyer who refused to lodge an appeal on points of law (cf. Supreme Court’s judgment of 18/04/2002, II CKN 1216/00; and Gdansk Court of Appeal’s judgment of 25/11/2005, I Aca 1092/05). The following general conclusions may be drawn from this judgment:

(a) Under Polish law, a party may file a compensation claim against an ex officio attorney for misconduct when representing it.

(b) An ex officio attorney is obliged to submit in due time to the party and the court reasons in writing for refusing to lodge a cassation complaint.

(c) The right to have a case examined by the Supreme Court constitutes a personal right under Articles 23, 24 and 448 of the Civil Code.

(d) The burden of proof for compliance with this right is incumbent on the attorney.

(e) In compensation proceedings the court examines the prospects of success of a cassation appeal. Accordingly, if there had been sufficient prospects of success, the party is entitled to compensation for pecuniary damage. Otherwise, only damage for the violation of the personal right may be obtained.

            6) Complaint for declaring a final decision incompatible with the law before the Supreme Court: Since 05/02/2006 another alternative remedy is available for a party whose ex officio lawyer had refused to lodge an appeal on points of law, namely a complaint before the Supreme Court under Article 424 et seqq. of the Code of Civil Procedure for declaring an appellate judgment incompatible with the law. Such a finding by the Supreme Court entitles the successful party to seek compensation from the State Treasury, for example, under Article 417¹§2 of the Civil Code, for damage sustained on account of the adoption of a judgment contrary to the law.

• Information is awaited on the follow-up given to the legislative reform envisaged by the Commission on the codification of Civil Law (see point 3 above). Publication of the European Court's judgments and their dissemination to competent courts and the Bar would in any event be useful, at least as a provisional measure.

59444/00           Kania, judgment of 10/05/2007, final on 10/08/2007

23779/02           Kozłowski, judgment of 23/01/2007, final on 23/04/2007

These cases concern the violation of the applicants’ right of access to a court due to domestic courts' refusal to exempt them from court fees (violation of Article 6§1).

In the Kania case, the applicant as a child had an accident at his state primary school in which he lost the sight in his right eye. In 1994 he lodged a civil action against the State Treasury for compensation and the increase of invalidity pension previously determined in a court decision and was initially exempted from court fees. Consequently, his claims were partially allowed, but those for non-pecuniary damage were dismissed. The applicant lodged a cassation appeal against the Wroclaw Court of Appeal judgment of 11/04/2000 and applied for an exemption from court fees in these proceedings. However, this request was dismissed by the same court on 08/09/2000. As the applicant did not pay the court fees, on 20/09/2000 the Wrocław Court of Appeal rejected his cassation appeal. His interlocutory appeal against this decision was rejected on 17/11/2000, because of non-payment of court fees pertaining to this appeal, even though the applicant had applied for their exemption.

In the Kozłowski case the applicant lodged a civil action seeking to have a notarial deed declared null and void and requested an exemption from court fees. His motion was dismissed by a final decision of 24/10/01 of the Poznań Court of Appeal.

In both cases the European Court found that the judicial authorities failed to secure a proper balance between the interest of the state in collecting court fees and the interests of the applicants in pursuing their civil claims.

Individual measures: The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage. In the Kania case, at the stage of cassation appeal proceedings, the applicant’s claims for compensation amounted to 500 000 PLN (approximately EUR 125 000). In the Kozłowski case, the applicant’s civil action was related to a property whose value amounted to 1 000 000 PLN (approximately EUR 250 000). As the applicant failed to pay the required court fees, his statement of claim was returned to him on 20/12/2001.

• Information is awaited on the applicants’ current situation in order to assess whether individual measures are necessary.

General measures:

1) Legislative measures: This case presents 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 law also lays down 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 declarations must be accompanied by a detailed statement of their financial situation. The possibility of exemption is available equally to physical and legal persons as well as organisational entities without legal personality.

2) Other measures: Even though the 2005 Act on Court Costs provides a new scheme for fixing such fees, the rules for exemption remain general. Exemption from such fees depends of the courts’ assessment of the individual circumstances of any case. In these two cases, the violations were due to the judicial authorities’ assessment of their overall circumstances, which led to refusals of exemption contrary to the requirements of the Convention. In this context, some specific features of these cases should be noted.

In the Kania case, the European Court observed that the Wrocław’s Court of Appeal’s decision of 08/09/2000 contained no reasons, as no appeal lay against that decision. A similar issue is being examined in the context of the Tabor case (judgment of 27/06/2006, final on 27/09/2006, Section 4.2), in which the applicant's legal aid request was rejected by the second-instance court without invoking any reasons for it. Moreover, in the Kania case the European Court also underlined that there was much at stake for the applicant in the domestic proceedings.

In the Kozłowski case, the European Court noted that the judicial authorities assessed his financial situation solely on the ground that he must have lived with his wife and shared a household with her, although he had been married under the system of separate ownership and did not indicate where he lived.

• Considering the specific circumstances in the Kania and Kozłowski cases, information is awaited onpublication and dissemination of these two judgments to the competent civil courts.

- Cases concerning the lack of equality of arms in proceedings concerning the review of the lawfulness of the applicants’ detention on remand

22755/04           Chruściński, judgment of 06/11/2007, final on 06/02/2008

28481/03           Łaszkiewicz, judgment of 15/01/2008, final on 15/04/2008

These cases concern a violation of the principle of equality of arms and of the adversarial principle in proceedings concerning the lawfulness of the applicants’ detention on remand at the stage of investigation proceedings (violations of Article 5§4).

In the Chruściński case, between April 2003 and December 2004, for over 20 months during which the applicant was detained on remand, neither he nor his lawyer was allowed by the prosecutor to consult the case-file. The European Court considered that during this period the applicant could not effectively exercise his defence rights in the proceedings concerning the review of the lawfulness of his pre-trial detention, while the prosecutor was familiar with the whole file.

In the Łaszkiewicz case, between January and September 2003 the applicant’s detention on remand was prolonged four times without her or her counsel having been served in advance with copies of the prosecution’s motions to that end. Moreover, between May 2003 and October 2003 they did not have access to the case-file and their request for a copy of the prosecution’s motion was refused by the Regional Prosecutor in June 2003.

The European Court found that in these circumstances the applicant could not adequately challenge the Regional Prosecutor’s motions to extend her detention.

Individual measures:

In the Chruściński case, in December 2004 the applicant and his lawyer were able to acquaint themselves with the case-file. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained.

In the case of Łaszkiewicz, it appears that during a hearing in October 2003 the Appellate Prosecutor agreed to provide the applicant’s counsel with a copy of his motion to prolong the detention (§ 34 of the judgment). On 27/01/2004 the applicant was released on bail and on 07/06/2004 her counsel was allowed to consult her file under Section 321 of the Code of Criminal Procedure, as the investigation was coming to an end. The European Court found that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.

• Assessment: no further individual measure appears necessary.

General measures: The issue of access to the case-file at the stage of preliminary investigation is governed by Section 156§5 of the Code of Criminal Procedure, according which parties and counsel shall be allowed to consult the files and make certified copies and photocopies but only with the permission of the person conducting the investigation. Refusal to grant access to the case-file may be subject to appeal to the higher body (Section 159).

According to Section 321§1 of the Code of Criminal Procedure, at the motion of the suspect or his or her counsel, the person in charge of the preliminary investigation, when finalising it, informs the suspect and the counsel of the final date for consulting the case-file.

• Information provided by the Polish authorities: On 03/06/2008 the Constitutional Court delivered a judgment (case No. 42/07), in which it declared that Section 156§5 of the Code of Criminal Proceedings is contrary to the Constitution insofar as it authorises denial of access to materials which justify the prosecutor’s motion concerning detention on remand. This provision remains in force, but it should be interpreted in such a way that the accused concerned by a prosecutor’s motion for the placement in or extension of detention on remand should be allowed to consult the materials constituting the grounds of this motion. However, the Constitutional Court invited the legislator to amend the existing provisions so that any arbitrariness can be avoided in applying them.

Following the Constitutional Court’s judgment of 03/06/2008, legislative work to amend Section 156§5 of the Code of Criminal Procedure is going forward. The aim of this amendment would be to provide, for accused and their lawyers, greater access to files at the preliminary investigation stage. The authorities also envisage including in the Code of Criminal Procedure an obligation to serve the accused and his or her counsel with prosecutor’s motions to prolong detention on remand and, in case the detention on remand lasts over 2 years, lower courts’ motions addressed to appeal courts to the same end (amendments of Sections 263 § 2 and 4 of the Code of Criminal Procedure).

• Assessment: it seems that the violation in these cases resulted from the prosecutors’ practice which, although in conformity with national law (Section 156§5 of the Code of Criminal Proceedings), was contrary to the Convention.

• Information is awaited on the follow-up of the legislative process as well as on the publication of the European Court’s judgment and its dissemination to prosecutors.

                       - Cases concerning the unfairness of lustration proceedings

38184/03           Matyjek, judgment of 24/04/2007, final on 24/09/2007

68761/01           Bobek, judgment of 17/07/2007, final on 10/12/2007

37469/05           Luboch, judgment of 15/01/2008, final on 15/04/2008

These cases concern the unfairness of “lustration proceedings” (proceedings aimed at exposing persons having worked for or collaborated with the state's security services during the communist period) (violations of Article 6§1 in conjunction with 6§3). In these proceedings, conducted between 1999 and 2001 before the Warsaw Appeal Court, the applicants (respectively a member of the Parliament and advocates) were found guilty of having been deliberate and secret collaborators of the communist secret services and, consequently, having lied in their lustration statements,

The European Court criticised a few particularities of these lustration proceedings. First, it noted that under a series of successive laws the communist-era security services’ materials continued to be regarded as a state secret and their confidential status had been upheld by the State Security Bureau. In this context, in the Matyjek case, in which certain documents were thus declassified in 2000 whilst other documents subsequently added to the file were still confidential, the European Court also questioned the legitimacy of the power of the State Security Bureau to lift the confidentiality of certain “top secret” documents. Secondly, the applicants did not have an unrestricted access to his file and to any notes they had made, and could not obtain copies of relevant documents. Thirdly, the Commissioner of Public Interest, whose powers were identical to those of a public prosecutor, had a right of access to all the applicants’ documentation, could hear witnesses and order expert opinions, and had at his disposal staff who had had official access clearance for classified documents. Finally, the European Court observed that only the operative parts of the judgments were notified to the applicants, as the written reasons, although prepared, could only be consulted in the secret registry of court due to the confidentiality of the information contained therein.

Finally, the European Court found the applicants did not have an effective remedy at their disposal under domestic law by which he could challenge the legal framework setting out the features of lustration proceedings.

Individual measures:

In the Matyjek case, the applicant was stripped of his parliamentary seat and declared ineligible for ten years, by a judgment of the Warsaw Appeal Court of 17/12/2000.

In the Bobek case, the applicant’s good name was at stake in the proceedings. The Warsaw Appeal Court’s judgment of 15/09/1999 finding her declaration untrue was regarded as a loss of moral qualification necessary for the exercise of the profession of barrister (§ 63 of the judgment).

In the case of Luboch, following the Warsaw Appeal Court’s judgment of 25/10/2001, the applicant was deprived of the right to practise as an advocate by a decision of the President of the Rzeszow Regional Bar Council 09/05/2005 (§26 of the judgment).

In all cases the European Court found that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage. The applicants’ claims for pecuniary damage were rejected because of lack of causal link with the violation found. The European Court found it could not speculate on what might have been the outcome of the proceedings if they had complied with Article 6.

• Information is awaited as to the possibility of re-opening the lustration proceedings as well as on other possible measure to erase the consequences of violation for the applicants.

General measures: Concerning the confidentiality of documents and the State Security Agency’s powers to lift it, these resulted from a series of successive laws, including the 1999 Act on the Protection of Classified Information, on the basis of which the communist-era security services' materials continued to be regarded as a state secret.

As regards the privileged position of the Commissioner for Public Interest, it resulted from the provisions of the 1997 Lustration Act.

Concerning the restricted access to the court file and the impossibility for the applicant to obtain the written reasons of the judgment, such restrictions resulted from the combined application of the provisions of the Code of Criminal Procedure and the 1999 Act on the Protection of Classified Information.

In the case of Bobek, the European Court held that the violation could not be said to have originated from any single legal provision or even from a well-defined set of provisions. It rather resulted from the way in which the relevant laws were applied to the applicant’s case and, in particular, from the “special arrangements” referred to in Article 156§4 of the Code of Criminal Procedure, allowing the President of the Lustration Court to limit the applicant’s access to case files and her possibilities of taking notes and copying documents (§§ 73 and 33).

• Measures taken: The 1997 Lustration Act was repealed and replaced by a new law of 18/04/2006. According to the latter, lustration proceedings may be instituted by a special prosecutor; therefore the function of the Commissioner of Public Interest does not exist any longer.

The judgments in the cases of Matyjek and Bobek have been published on the website of the Ministry of Justice www.ms.gov.pl.

• Information is awaited on the dissemination of the European Court's judgment to the competent authorities (Warsaw Appeal Court and Supreme Court, State Security Agency, relevant prosecutors) as well as on measures envisaged or taken to prevent new, similar violations. In this context clarification is needed:

- on the currently applicable provisions on lustration proceedings, and in particular on the position of the prosecuting authorities,

- on whether restrictions on access to the case file and serving the written reasoning of judgments would still apply to persons in the applicant's situation in the light of currently applicable provisions of the Code of Criminal Procedure and the legislation on protection of classified information,

- on whether the Head of the State Security Bureau is still empowered to lift the confidentiality of documents in lustration proceedings.

1543/06            Bączkowski and others, judgment of 03/05/2007, final on 24/09/2007

This case concerns the violation of the right to peaceful assembly of the applicants, the Foundation for Equality and five of its members (violation of Article 11). In the context of their “Equality Days” campaign, the applicants wished to organise a march and rallies in Warsaw to draw public attention to discrimination against minorities, women and the disabled. On 12/05/2005 and 03/06/2005 they applied for permission to organise respectively the march and the rallies. On 20/05/2005, in an interview in a national newspaper, the Mayor of Warsaw expressed strong personal opinions about freedom of assembly and “propaganda about homosexuality” and stated that he would refuse permission to hold the demonstrations. Permission was denied on 03/06/2005 and 09/06/2005. Despite the refusal, the march did take place on 11/06/2005. On 17/06/2005 and 22/08/2005 the appellate authorities quashed the decisions of 03/06/2005 and 09/06/2005 on the ground that they had been poorly justified and in breach of the applicable laws.

The European Court found that the refusal to authorise the march and the rallies constituted an interference with the applicants' rights as guaranteed under Article 11, which was not “prescribed by law”, in particular given the decisions of 03/06/2005 and 09/06/2005 quashing the first-instance authorities' decisions.

It also found that the remedies available, all post hoc, did not provide adequate redress to the applicants (violation of Article 13 in conjunction with Article 11).

Moreover, the European Court noted that the refusal of the march had been based on the applicants' failure to submit a “traffic organisation plan”, whereas other organisers had not been subject to a similar requirement. As regards the rallies, they had been refused due in particular to the risk of violent clashes between demonstrators. It was not however disputed that the authorities had given permission to other groups to hold counter-demonstrations on that same day. The Court observed that the decisions had been given by the municipal authorities acting on the Mayor's behalf and after he had already made known to the public his opinion on the matter in the interview of 20/05/2005. Thus the Mayor's opinions affected the decision-making process and, as a result, infringed the applicant's right to freedom of assembly in a discriminatory manner (violation of Article 14 in conjunction with Article 11).

Individual measures: The march and the rallies for which permission had been given duly took place on 11/06/2005. Before the European Court the applicants claimed no compensation for damage.

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

General measures:

1) Violation of Article 11: According to Section 8 of the 1990 Assemblies Act, a municipality may refuse permission for the holding of a demonstration if its purpose is in breach of the Act itself or of provisions of the Criminal Code, or if the demonstration might entail a danger to life or limb, or a major danger to property.

On 18/01/2006 the Constitutional Court gave a judgment in which it found that the provisions of the Road Traffic Act as applied in the applicants' case had been incompatible with constitutional guarantees of freedom of assembly.

• Clarification is awaited as to the currently applicable provisions of the Assemblies Act and the Road Traffic concerning the conditions in which the organisation of marches and rallies may be refused.

2) Violation of Article 13 in conjunction with Article 11: The European Court noted that the organisers had given sufficient forewarning of their plans to the authorities (12/05/2005 for the march and 03/06/2005 for the rallies): under Section 7 of the Assemblies Act a request to hold a demonstration must be submitted to the municipality no earlier than 30 days and no later than three days before the date of the event. A similar law did not exist, however, whereby the authorities had been obliged by a legally binding time-frame to give their final decision before the demonstrations were to take place.

• Information is awaited on measures taken or envisaged to guarantee an effective remedy in case of refusal to organise a march or a rally on the ground of the Assemblies Act.

3) Violation of Article 14 in conjunction with Article 11: This violation was of an isolated nature and was due to the personal opinions of the Mayor of Warsaw.

• Measures taken: the judgment of the European Court has been published on the website of the Ministry of Justice (www.ms.gov.pl).

• Information is awaited on the dissemination of the European Court's judgment’s to competent authorities as well as on other measures taken or envisaged to prevent new, similar violations.

- Cases concerning the violation of the right to the peaceful enjoyment of possessions following modifications to the local land development plan

52589/99          Skibińscy, judgment of 14/11/2006, final on 26/03/2007

10446/03           Buczkiewicz, judgment of 26/02/2008, final on 26/05/2008

38185/02           Pietrzak, judgment of 08/01/2008, final on 07/07/2008

17373/02           Rosiński, judgment of 17/07/2007, final on 17/10/2007

38672/02           Skrzyński, judgment of 06/09/2007, final on 06/12/2007

These cases concern interferences with the applicants' right to the peaceful enjoyment of their possessions (violations of Article 1 of Protocol No 1) which occurred between 1993 and 2003. Following modifications to the local land development plans adopted between 1992 and 1998 the applicants were deprived de facto of the use of their land and constantly threatened with expropriation.

Moreover, they had no effective entitlement to compensation under the specific provisions of Local Planning Act of July 1994, which excluded the application of its compensatory provisions in respect of plans adopted before 1995. A new Local Planning Act, which entered into force in July 2003, did not alter the applicants' situation, as it was operational only in respect of local land development plans adopted after that date.

The European Court concluded that a fair balance was not struck between the competing general and individual interests and that the applicants had been required to bear an excessive individual burden.

Individual measures:

            1) Skibińscy case: The Local Development Plan expired at the end of 2003 and in April 2004, the municipal authorities granted the first applicant initial planning permission (§27 of the judgment).

On 21/10/2008 the European Court delivered its Article 41 judgment but the applicants have requested a referral to the Grand Chamber.

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

            2) Rosiński and Skrzyński cases: The Local Development Plan expired at the end of 2002. On 25/08/2003 the applicant Rosinski was granted an initial planning permit in respect of his land (§25 of the judgment). The applicant Skrzynski was also granted a final building permit on 25/11/2003.

Both applicants have been awarded just satisfaction for non-pecuniary damage by the European Court.

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

            3) Buczkiewicz case: The Local Development Plan expired on 31/12/2003. Apparently to date no new land development plan has been adopted by the municipality (§19 of the judgment). The applicants have been awarded just satisfaction in respect of non-pecuniary damage by the European Court. Their claims for pecuniary damage were rejected by the European Court, which found that the applicants had not quantified them.

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

            4) In the case of Pietrzak: The Local Development Plan expired on 31/12/2003. Apparently no new land development plan has been adopted by the municipality and the applicant has not applied for planning permission (§§ 29-30 of the judgment). The applicant has been awarded just satisfaction in respect of non-pecuniary damage by the European Court. His claims for pecuniary damage were rejected by the European Court, as it did not find any causal link between the violation found and the pecuniary damage alleged.

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

General measures: The European Court noted that the measures which affected the applicants' situation were taken on the basis of the Local Planning Act of 1994 and that the planning laws subsequently adopted had made no provision for retroactive compensation (§95 of the judgment in the case of Skibinscy).

• Information provided by the Polish authorities: No local land development plan adopted before 01/01/1995 is now in force and thus cannot constitute a basis for limitations of landowners’ rights. Where a new local land development plan is adopted and imposes limitations on owners’ rights, owners affected by its provisions are entitled to seek redress under Section 36 §§ 1-3 of the 2003 Local Development Plan Act. The legal regulations currently in force exclude the possibility of similar violations.

• Information is awaited on measures envisaged or taken to guarantee to persons in a position similar to that of the applicants a retrospective right to compensation for prejudice suffered before the entry into force of the 2003 Local Development Plan Act, as a result of restrictions originating in land development plans adopted in the past.

 

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

33870/96           Fuchs, judgment of 11/02/03, final on 11/05/03

51837/99           Beller, judgment of 01/02/2005, final on 06/06/2005

59857/00           Bennich-Zalewski, judgment of 22/04/2008, final on 22/07/2008

22305/06           Błaszczyk, judgment of 08/01/2008, final on 08/04/2008

49961/99           Bogucki, judgment of 15/11/2005, final on 15/02/2006

4054/03            Boszko, judgment of 05/12/2006, final on 05/03/2007

43702/02           Grabiński, judgment of 17/10/2006, final on 17/01/2007

40732/98           J.S. and A.S., judgment of 24/05/2005, final on 12/10/2005

38049/02           Kaniewski, judgment of 08/11/2005, final on 08/02/2006

52495/99           Koss, judgment of 28/03/2006, final on 28/06/2006

77420/01           Kryszkiewicz, judgment of 06/03/2007, final on 06/06/2007

12550/02           Olesiński, judgment of 18/12/2007, final on 18/03/2008

77795/01           Orzechowski, judgment of 24/10/2006, final on 24/01/2007

13024/05           Olszewska, judgment of 18/12/2007, final on 18/03/2008

77741/01           Piekara, judgment of 15/06/2004, final on 15/09/2004

11101/04           Rygalski, judgment of 22/01/2008, final on 22/04/2008

61967/00          Sernawit, judgment of 06/11/2007, final on 06/02/2008

19607/03           Sito, judgment of 09/01/2007, final on 09/04/2007

36431/03           Skowroński, judgment of 24/01/06, final on 24/04/06

13568/02           Stevens, judgment of 24/10/2006, final on 24/01/2007

12534/03           Stukus and others, judgment of 01/04/2008, final on 01/07/2008

67979/01           Szenk, judgment of 22/03/2005, final on 22/06/2005

12134/02          Urbańska, judgment of 13/11/2007, final on 13/02/2008

33777/96           Urbańczyk, judgment of 01/06/2004, final on 01/09/2004

17949/03           Wesołowska, judgment of 04/03/2008, final on 04/06/2008

28983/02           Wilczkowska and others, judgment of 08/01/2008, final on 08/04/2008

33017/03          Wójcicka-Surówka, judgment of 27/11/2007, final on 27/02/2008

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

In these cases, the European Court indicated that the length of proceedings was due to the inactivity of administrative authorities (including local administrative authorities in certain cases) which were examining the applicants' requests and of the Supreme Administrative Court or regional administrative courts, when examining the appeals against the administrative decisions or complaints about administrative organs’ inactivity.

Moreover, in the case of Wesołowska, the European Court found the complaint about the inactivity of administrative authorities before the Supreme Court and the Regional Administrative Court was not effective, as the proceedings at issue had remained pending for nearly 15 years, even though this complaint had been lodged several times by the applicant and declared well-founded by the competent courts (violation of Article 13).

Individual measures:

            1) Fuchs case: Both sets of proceedings at issue are now closed.

            2) Beller case: On 14/10/2005, following an appeal brought by the applicant, the Warsaw District Administrative Court overturned the wojewoda decision of 23/07/2001 and referred the matter to the Mayor of Warsaw to be reconsidered. This nonetheless requires the wojewoda to consider an application introduced by the Social Security Agency.

            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. The municipal authorities are collecting together the documentation needed to launch such proceedings.

            4) J. S. and A. S. case: 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 has been appealed by the opposing party. This appeal is being examined by the Supreme Court.

In the framework of the enforcement of this decision - but only once it becomes final - the applicants may be granted a part of the disputed property and they may obtain compensation for the remaining part.

            5) Skowroński case: On 27/02/2007 the starosta issued a partial decision defusing to award compensation to the applicant, who has consequently appealed. On 25/05/2007 the voivod upheld this decision. The applicant appealed to the Voivodship Administrative Court.

            6) Koss case: By a decision of 12/07/2006, the Mayor of Warsaw assumed ex officio competence for the proceedings concerning the applicant's application for perpetual usufruct, and dismissed the application on 22/12/2006. Upon appeal by the applicant, this decision was overturned and a fresh examination ordered.

• Additional information is awaited on the state of domestic proceedings in the Beller, Szenk, J.S. and A.S., Kaniewski, Koss and Skowroński cases. Moreover, information is awaited on the progress of domestic proceedings and on their acceleration, if needed, in the cases of Błaszczyk,Grabinski, Kryszkiewicz, Olszewska, Stukus and others, Urbańska, Wesołowska and Wójcicka-Surówka.

General measures:

            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). The judgments delivered in the Beller, Fuchs, Piekara, Szenk and Urbańczyk cases have been sent out to the Supreme Administrative Court and to Voivodship Administrative Courts. The J.S and A.S. judgment has been sent out to officials of the Ministry of Agriculture and Rural Development and published on the internet site of the Ministry of Justice.

2) Excessive length of proceedings before the Supreme Administrative Court:

- Organisation and functioning of the administrative court system:

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 2004, these courts examined around 83 000 cases, leaving a backlog of approximately 68 000 cases. At the end of 2004, this figure had been reduced to about 68 000 and to 43 780 cases on 31/12/2005. In 2006, the voivodship administrative courts had been seized of 62 436 new cases with a backlog of 27 556 cases, reduced by 37% as compared to the previous year.

The present mean duration of an appeal has been estimated at 5 months before voivodship administrative courts and 10 months before the Supreme Administrative Court (the authorities’ letter of 18/05/2007).

According to the President of the Supreme Administrative Court, 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.

            - Administrative courts' control over administrative authorities:

The Act of 30/08/2002 on Proceedings before Administrative Courts contains provisions to ensure control of the functioning of administrative authorities. It allows parties to administrative proceedings to lodge complaints before the court concerning the inactivity of administrative authorities. Article 154 provides that where a court judgment finding such inactivity has not been enforced, or in cases of administrative inactivity following a judgment quashing an administrative decision, parties may lodge a fresh complaint before an administrative court, requesting that the authority in question be fined. Moreover, Article 155 provides that if the administrative court, when examining the case, finds substantial errors in law or circumstances which might give rise to such errors, it may deliver a decision informing the competent authority or its superior authority about such errors. The authority concerned then has to take a position and inform the court within 30 days.

Moreover, the law of 17/06/2004 on complaints against excessive length of judicial proceedings (examined in context of the Kudła case, judgment of 26/10/2000, Interim Resolution ResDH(2007)28, 1020th meeting, March 2008) also concerns proceedings before administrative jurisdictions.

In a letter of 11/09/2006, the President of the Supreme Administrative Court took the view that the measures set out above guarantee an effective domestic remedy against excessive length of proceedings.

            3) Excessive length of proceedings before administrative bodies:

- Construction law:

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.

- Requests for the right of usufruct in respect of nationalised land in Warsaw:

The Ministerof the Interior and Administration asked the Mayor of Warsaw to send out the judgments in the Beller and Szenk cases to civil servants of the Warsaw-Centre Municipal Office, which deals with such requests.

- Length of proceedings before administrative authorities in general:

In his letter of 11/09/2006 mentioned above, the President of the Supreme Administrative Court stated that he was not in a position to assess whether the excessive length of such proceedings stems from a systemic problem. In his opinion, it is up to the Minister of the Interior and Administration to make an assessment of this issue.

By letter of 25/04/2007, the Minister of the Interior and Administration presented legislative changes which might be envisaged to improve the promptness and efficiency of administrative proceedings, including:

- introduction of “participative proceedings”, namely the obligation to appoint a representative when the number of parties to a case reaches a certain level (20 for example);

- introduction of a legal prohibition of abuses of administrative law, in particular a ban on the repeated extension of the legal time-limit for dealing with a case (Article 36 of the Code of Administrative Procedure);

- shortening legal time-limits for examining cases, or imposing financial penalties on administrative organs which do not respect the legal time-limits (as in construction law, see below);

- introduction of “tacit agreement” by administrative organs: when an administrative body does not deliver its decision within a certain time (for example 30 days), it is assumed, under certain conditions, that a tacit decision in favour of the applicant has been rendered;

According to the Minister of the Interior and Administration, some of these proposals do not fall within his competence and should therefore be accepted by other ministers concerned.

In addition, Parliament is examining legislative texts to enhance the decentralisation and distribution of tasks within the public administration.

Moreover, in February 2008 the Secretariat held high-level meetings with the Polish authorities to discuss the execution measures in these cases.

• Information is still awaitedconcerning:

-  whether the judgments delivered in the Szenk and Beller cases have been published and sent out to the civil servants of the Warsaw-Centre Municipal Office,

-  the follow-up to the proposals made by the Minister of the Interior and Administration on the reform of administrative procedure.

            4) Violation of Article 13 in the case of Wesolowska: The European Court noted that the complaint about inactivity of administrative bodies, although in theory capable of accelerating the process of obtaining an administrative decision (see the Bukowski case, decision of 11/06/2002, application No 38665/97), in practice did not satisfy the requisite criteria of effectiveness within the meaning of Article 13.  

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

- 26 cases against Portugal

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

The case concerns the failure to take adequate and sufficient action to enforce the applicant’s right of access to his child (born in 1995) (violation of Article 8). After their separation, the applicant and the mother concluded an agreement regarding their child, according to which the applicant should have visitation rights. A year later, the applicant brought proceedings seeking the judicial enforcement of the agreement, which was not being observed by the mother. Over several years, the mother could not be found by the domestic court, even though it undertook several steps to locate her (by requesting assistance from the police and the social security services, etc.). The proceedings were closed with the decision by the court to impose a moderate fine on the mother and to award equally moderate damages to the applicant. The European Court found that the measures taken by the Portuguese authorities with a view to enforcing the agreement, which is still valid, had been automatic and stereotyped and that they had failed to take practical and concrete steps to resolve the issue. The Court noted in particular that neither the prosecution nor the competent court had tried to bring the parties together or actively involve the social services in finding a solution to the problem.

Individual measures: In February 2007, the Portuguese delegation informed the Committee that, with the assistance of the judicial police, the whereabouts of the mother and the child have been identified. At a meeting held before a judge on 20/06/2007, it was agreed between the parties that, before a new regime on visiting rights could be determined, the child, as well as both the parents, had to undergo psychological examinations, which took place beginning 2008. According to the Portuguese authorities, following these examinations, two meetings took place before the judge (6 and 13/05/2008) between the parents accompanied by their counsel. During the second meeting the child was heard and she refused to meet her father. It was agreed that a meeting between father and daughter would be organised at the social security offices in presence of social advisers, to enable the father to establish contact with his daughter. The meeting did not take place as the father was not summoned in time.

• Further information provided by the Portuguese authorities (20/11/2008): Following an evaluation report drawn up by the Social Security Institute, the judge decided on 15/07/2008 that preparatory psychological support was a pre-condition for establishing contacts between the child and her father. In a new report of 24/07/2008, Social Security proposed to avoid any contact between them before the psychological support had started. Subsequently, the father expressed his continuing interest in establishing contacts with his daughter and he asked that a framework including a time-table should be set, in agreement with the Social Security Institute, for initiating the psychotherapist’s support in order to re-establish contacts. On 12/09/2008, the judge ordered the Social Security Institute to provide precise information on how the psychotherapist’s support was to be put in place. Since no answer was received, at the beginning of November the request was reiterated.

• Information is awaited urgently on the measures taken by Portuguese authorities to ensure the implementation of the psychotherapist support ordered by the judge in July 2008.

General measures:

            1) Publication and dissemination: A copy of the judgment has been sent to all national authorities concerned, including to the Instituto de Reinserção Social (the Institute of Social Reintegration, which carries out social investigations ordered in the framework of court proceedings on matters related to parental rights). The judgment has also been translated and published on the internet (www.gddc.pt). In addition, the judgment was sent out by the Portuguese Attorney General to all magistrates working with courts that deal with family cases. Finally, both the Supreme Council of Magistrates and the aforementioned Institute of Social Reintegration were requested to adopt appropriate measures in order to prevent new, similar violations in the future.

            2) Training: The Portuguese authorities also indicated that the Institute for Social Security has been vested with competences concerning parental authority. The Institute was studying training projects on positive parenting so as to establish psycho-social policies to help families with matters such as failure to comply with visiting rights or to enforce judicial decisions on parental authority.

            3) Legislative measures: Law No. 61/2008 on divorce modified the Civil and the Criminal Codes. Article 1906 of the Civil Code on the exercise of parental authority provides inter alia that the tribunal will decide on visiting rights on the basis of the best interest of the child. According to the new Article 1776-A, an agreement on the exercise of parental authority is submitted to the prosecutor at the first-instance tribunal, who shall decide within 30 days.

Articles 249 (Abduction of minors) and 250 (Maintenance obligation) of the Criminal Code have also been amended. Article 249 provides that child abduction or reiterated and unjustified refusal to abide by agreements regulating the exercise of parental authority is punishable by up to two years’ imprisonment or by a up to 240 day-fine. As regards failure to comply with the agreement, the penalty is softened when the parent’s behaviour is motivated by the wish to respect the child’s will, when the child is over 12 years of age.

• Assessment: The legislation recently passed is to be welcomed since it reinforces the existing means in Portuguese law to ensure compliance with the obligations resulting from Article 8 of the Convention.

• Information is still awaited on the implementation of the training measures envisaged by the Institute for Social Security to the extent that they will help to ensure the enforcement of judicial decisions on the modalities of exercisingparental authority.

The Deputies: 1.             noted the information provided by the authorities on the recent steps undertaken to implement the psychological support ordered by the judge in July 2008; 2.             encouraged the authorities to continue their efforts to ensure the re-establishment of contacts between the applicant and his daughter within a reasonable time, and, if appropriate, the applicants’ visiting rights, as required by the judgment of the European Court, and to keep the Committee informed in this respect; 3.             concerning the general measures, welcomed the changes introduced in the legislation by Law No. 61/2008 on divorce, and invited the authorities to provide information on the implementation of the training measures envisaged by the Institute for Social Security to the extent that they will help to ensure enforcement of judicial decisions on the modalities of exercising parental authority; 4.             decided to resume consideration of this item at the latest at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided by the Portuguese authorities on the general and individual measures, in particular on the implementation of the psychological support.

                       - Cases of length of judicial proceedings

                       Interim Resolution CM/Res/DH(2007)108

a. Cases before civil courts

34422/97           Oliveira Modesto and others, judgment of 08/06/00, final on 08/09/00

54926/00           Costa Ribeiro, judgment of 30/04/03, final on 30/07/03

53997/00           Dias Da Silva and Gomes Ribeiro Martins, judgment of 27/03/03, final on 27/06/03

53534/99           Esteves, judgment of 03/04/03, final on 03/07/03

56345/00           Ferreira Alves No. 2, judgment of 04/12/03, final on 04/03/04

53937/00           Ferreira Alves, Limited, judgment of 27/02/03, final on 27/05/03

49671/99           Ferreira da Nave, judgment of 07/11/02, final on 07/02/03

56110/00           Frotal-Aluguer de Equipamentos S.A., judgment of 04/12/03, final on 04/03/04

58617/00           Garcia da Silva, judgment of 29/04/2004, final on 29/07/2004

49279/99           Koncept-Conselho em Comunicação e Sensibilização de Públicos, Lda, judgment of 31/10/02, final on 31/01/03

52412/99           Marques Nunes, judgment of 20/02/03, final on 20/05/03

54566/00           Moreira and Ferreirinha, Lda and others, judgment of 26/06/03, final on 26/09/03

55081/00           Neves Ferreira Sande e Castro and others, judgment of 16/10/03, final on 16/01/04

57323/00           Pena, judgment of 18/12/03, final on 18/03/04

48187/99           Rosa Marques and others, judgment of 25/07/02, final on 25/10/02

59017/00           Soares Fernandes, judgment of 08/04/2004, final on 08/07/2004

44298/98          Tourtier, judgment of 14/02/02, final on 14/05/02

b. Cases before administrative courts

52662/99          Jorge Nina Jorge and others, judgment of 19/02/04, final on 19/05/04

55340/00           Sociedade Agrícola do Peral and autre, judgment of 31/07/03, final on 31/10/03

c. Cases before criminal courts

48956/99           Gil Leal Pereira, judgment of 31/10/02, final on 31/01/03

14886/03          Monteiro da Cruz, judgment of 17/01/2006, final on 17/04/2006

50775/99           Sousa Marinho and Marinho Meireles Pinto, judgment of 03/04/03, final on 03/07/03

52657/99          Textile Traders, Limited, judgment of 27/02/03, final on 27/05/03

d. Case before family courts

51806/99           Figueiredo Simoes, judgment of 30/01/03, final on 30/04/03

e. Case before labour courts

53795/00           Farinha Martins, judgment of 10/07/03, final on 10/10/03

These cases concern the excessive length of proceedings before civil, criminal, administrative, family and labour courts (violation of Article 6§1).

At the 1013th meeting (October 2007), the Deputies adopted an interim resolution, which assessed the measures taken by Portuguese authorities and the outstanding issues (Interim Resolution CM/ResDH(2007)108).

Individual measures: In the interim resolution, the Committee of Ministers noted that three sets of proceedings were still pending before domestic courts and invited the authorities to take action to bring them to an end as soon as possible. It may be recalled in this respect that, according to the information provided by the authorities, as contained in the appendix to the interim resolution, proceedings in the Oliveira Modesto case were expected to be concluded by September 2008; in the Garcia da Silva case the proceedings were still pending for various reasons, including the lack of co-operation from the parties involved; finally, in the Sociedade Agrícola do Peral case the appeal judgment had been delivered, but was not yet final.

• Developments following to the adoption of the interim resolution: No further information has been provided on the pending proceedings.

• Information is therefore awaited in this respect.

General measures:

            1) Measures taken to reduce the length of civil, criminal, administrative and fiscal proceedings: In the interim resolution, the Committee of Ministers took note of the several legislative and administrative measures taken by the Portuguese authorities and encouraged them to continue their efforts with a view to solving the general problem of the length of judicial proceedings. The Committee also invited them to provide further information on the practical impact of all the reforms on the matter, and in particular additional comparative, statistical data in this respect.

• Developments following to the adoption of the interim resolution: Following to bilateral meetings with a view to clarifying the Committee’s expectations on these issues, information on the progress achieved, as well as on statistical data, was announced.

• Information is therefore awaited in this respect.

            2) Legislative measures to introduce an effective domestic remedy in cases of excessive length of judicial proceedings: In its interim resolution, the Committee took note of the existence of a remedy to complain about the excessive length of judicial proceedings. Articles 108 and 109 of the Portuguese Code of Criminal Procedure enable a person to complain of the excessive length of criminal proceedings in Portugal and to request their acceleration. These articles thus provide a true legal remedy.

In addition, the case-law of the Portuguese Supreme Administrative Court has developed so as to ensure that the decree of 1967 on the extra-contractual civil responsibility of the state provides an effective remedy against the excessive length of civil proceedings.

The 1967 decree has been replaced by Act No. 67/2007, which introduced a new regime of extra-contractual civil responsibility of the state and other public entities which also applies explicitly to unreasonable length of judicial procedures (Article 12).

• Developments following to the adoption of the interim resolution: In its judgment of 10/06/08 delivered in the case Martines Castro and Alves Correia de Castro (application No. 33729/06, Section 2.1), the European Court found that the remedy based on extra-contractual civil responsibility of the state was not effective. In particular, it considered that the case-law of the Portuguese Supreme Administrative Court on the subject was not yet well established and that there was conflicting case-law. Therefore, the remedy will not become effective until such case-law has been consolidated through the remedy for harmonising conflicting case law, which can be entered by the public prosecutor under Article 152 of the Administrative Tribunals Procedural Code

• Information is therefore awaited on the action envisaged by the Portuguese authorities in this respect.

            3) Publication: All the judgments of the European Court at issue here have been published on the website of the Office of Documentation and Comparative Law of the General Prosecutor’s Office (www.gddc.pt).

The Deputies, recalling Interim Resolution CM/ResDH(2007)108 adopted by the Committee in this group of cases in October 2007, 1.             noted with interest the recent information provided by the Portuguese authorities on the situation concerning excessive length of civil, criminal and administrative proceedings; 2.             invited the Portuguese authorities as far as possible to accelerate the last pending domestic proceedings so as to bring them to an end as soon as possible; 3.             decided to resume consideration of these items at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of an in-depth analysis of the information submitted, as well as any complementary information or clarifications to be provided by the Portuguese authorities.

- 134 cases against Romania

12338/02           Hussain, judgment of 14/02/2008, final on 14/05/2008

This case concerns the failure of the authorities to conduct an effective investigation into the applicant’s three complaints of ill-treatment by individuals, lodged between July 1999 and October 2000 (violation of Article 3).

The European Court observed that, although the applicant had informed the competent authorities of the alleged violations by means of his complaints, the authorities’ response had been simply to inform him that the police had been instructed to carry out further investigations. Moreover, the government had not supplied any information or document demonstrating that investigations had been conducted with due diligence and that the judicial authorities had given a ruling (§74 of the judgment).

The case also concerns the applicant’s unlawful detention in the transit centre of Otopeni Airport from 1 to 17 August 2001 (violation of Article 5§1 f)). The European Court observed that that the relevant legislation at the time, i.e. Law No. 123/2001 on the status of aliens in Romania and the Government’s Decision No. 476/2001 on the modalities of the application of Law No. 123, provided that, until the order for their removal had been executed, aliens who did not have travel documents or financial resources were to be accommodated in centres created for the purpose. The aliens accommodated in such centres had to be informed, in writing, of the reasons for their detention and of their rights and obligations. As there was no evidence in the case file that written notice had been given to the applicant, the European Court concluded that no decision specifying the reasons for placing the applicant in a transit centre, the length of his stay and his rights and obligations had been sent to the applicant at the time (§91 of the judgment). In addition, due to the lack of a decision, the applicant had had no opportunity to appeal against the measures in question (§93 of the judgment).

Individual measures: The applicant was released from the transit centre in August 2001. The European Court awarded him just satisfaction for non-pecuniary damage. The Romanian authorities observed that a new investigation into the applicant’s allegations could not be opened due to the prescription of criminal liability (five years in similar situations).

• Assessment: no further individual measure appears necessary.

General measures:

1) Violation of Article 3: The case presents similarities to the Filip case (1059th meeting, June 2009).

2) Violation of Article 5§1f: Law 123/2001 and the Government’s Decision No. 123/2001 were abrogated by the Government’s Ordinance No. 194/2002. Articles 93-97 of the Ordinance No. 194/2002 regulate the procedure concerning the placement of aliens in special centres, the length of such a measure, the possibility to contest it before the Court of Appeal of Bucharest, as well as the right to be informed in writing about the motives of the measure in question. However, the European Court observed that the Romanian authorities did not apply properly the existing law related to placing aliens in transit centres.

It should be noted that all judgments of the European Court against Romania are regularly published in the Official Journal. The present judgment was also sent to the Superior Council of Magistracy (http://www.csm1909.ro/csm/index.php?cmd=9503), with a view of its dissemination to all domestic courts and prosecutors’ offices, with the recommendation that it is discussed amongst the activities related to continued education of judges and prosecutors.

• Assessment of the measures taken under way.

28341/95          Rotaru, judgment of 04/05/00 - Grand Chamber, Interim Resolution ResDH(2005)57

The case concerns a breach of the applicant's right to respect for his private life in that the relevant national legislation does not contain sufficient safeguards against abuse as regards the way in which the Romanian Intelligence Service (RIS) gathers, keeps and uses information. The European Court has thus concluded that the holding and use by the RIS of information on the applicant's private life were not “in accordance with the law” within the meaning of the Convention (violation of Article 8).

In this context the European Court observed that section 8 of Law no. 14/1992 on the Organisation and the Operation of the Romanian Intelligence Service provided that information affecting national security might be gathered, recorded and archived in secret files. No provision of domestic law, however, laid down any limits on the exercise of those powers. Thus, for instance, the Law did not define the kind of information that may be recorded, the categories of people against whom surveillance measures such as gathering and keeping information may be taken, the circumstances in which such measures may be taken or the procedure to be followed. Similarly, the Law laid down no limits on the age of information held or the length of time for which it might be kept. Further section 45 of Law No. 14/1992 empowered the RIS to take over for storage and use archives that belonged to the former intelligence services operating on Romanian territory and allowed inspection of RIS documents with the Director's consent. The European Court noted that this section contained no explicit, detailed provision concerning the persons authorised to consult the files, the nature of the files, the procedure to be followed or the use that may be made of the information thus obtained (see §57 of the judgment).

The case also concerns an infringement of the applicant’s right to an effective remedy before a national authority that could rule on his application to have the file amended or destroyed (violation of Article 13).

Lastly, the case concerns a breach of the applicant's right to a fair trial on account of the Court of Appeal's failure to consider the claim for damages and costs (violation of Article 6§1).

Individual measures: The Romanian delegation has indicated that there was no individual file on the applicant. Following the judgment of the European Court, the document that was in the possession of the RIS, based on which the applicant was erroneously designated as a member of an extreme-right organisation, was modified in order to avoid any confusion (another person bearing the same name as the applicant was listed there).

The Romanian authorities have indicated that the judgment of the European Court has been included in the file of the Romanian intelligence service, in order to avoid that any such confusion could occur again.

General measures:

            1) Progress in the adoption of general

• Adoption of Interim Resolution: On 05/07/2005, the Committee of Ministers adopted Interim Resolution ResDH(2005)57, in which it noted with interest the provisions of Law No. 535/2004 on the prevention and repression of terrorism which provide a procedure of judicial supervision of all secret surveillance measures, including cases involving threats to the national security. The Committee noted in addition the procedure provided by Law No. 187/1999 which, in spite of the shortcomings identified by the European Court (see §71 of the judgment), nevertheless allows interested persons to inspect the files created concerning them between 1945 and 1989 by the organs of the former Securitate, to obtain certificates concerning their possible collaboration with the former Securitate and to contest before a court the content of such certificates. Nevertheless, the Committee noted with regret that, more than five years after the date of the judgment, several shortcomings identified by the European Court still did not seem to have been remedied, in particular concerning the procedure to be followed in order to have access to the archives taken over by the RIS from former secret services (other than the Securitate), the absence of a specific regulation concerning the age of the information which could be stored by the authorities, or the lack of any possibility to contest the holding of this information and, save for the cases provided for by Law No. 187/1999, their truthfulness.

The Committee therefore called upon the Romanian authorities rapidly to adopt the legislative reforms needed to respond to the criticism made by the Court in its judgment concerning the Romanian system of gathering and storing of information by the secret services.

• Interim measures

Due to the very broad scope of the reform in the field of national security (a package of 5 draft laws) and the ongoing national consultation process, the time-frame for adoption of the package of laws has not yet been established. In the course of bilateral consultations between the Secretariat and the competent authorities (March, May, and July 2008) it was agreed that until the adoption of specific regulations related to the functioning of the intelligence service, general rules related to the protection of personal information adopted after the violation found by the European Court in the above case should be reviewed in order to assess their possible capability to prevent new violations to occur. In this context it has been also noted that the analysis of the domestic courts’ decisions, delivered in the period from 2000 to 2008 by the Supreme Council of Magistrates demonstrates that no similar case has been dealt with since the delivery of the European Court’s judgment in the present case.

It should be further noted that after the delivery of the European Court’s judgment a series of measures were taken to secure respect for individuals’ rights and fundamental freedoms, with regard to automatic processing of personal data:

- ratification, in November 2001, of the Council of Europe’s Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data;

- adoption, in November 2001, of Law 677/2001 for the protection of persons related both to the processing of personal data and to the free circulation of such data;

- adoption of Law No. 102/2005 regarding the setting up, organisation and functioning of the National Supervisory Authority for Personal Data Processing;

- adoption of Law No. 182/2002 on Protection of Classified Information.

• Bilateral contacts are under way to assess this information, in particular, the applicability of the laws adopted since the judgment of the European Court to situations similar as this in the present case.

2) Violation of Article 8: The Romanian authorities indicated that the shortcomings identified by the European Court in respect of the violation of this Article should be taken into account in the context of the legislative reform which is currently under way. Thus, under the draft Law on information activities, counter-information and protection of information the Romanian intelligence services have an obligation to assure information and to take measures necessary to guarantee the constitutional order, human rights and fundamental freedoms (Article 2). It should be also noted that the objectives of intelligence activities include: defence of democracy and constitutional order, rights and fundamental freedoms of the citizens, as guaranteed by the Romanian Constitution, and protection of an unlimited exercise of rights and fundamental freedoms. The draft Law contains provisions related to the collection of information, in particular, the procedure for a judicial authorisation. It also provides that the competent authorities are obliged to delete personal data from their files if it does not relate to any threat to Romanian national security (Article 70§1). Information concerning personal data, private life, honour and reputation of individuals obtained accidentally in the course of collecting information necessary for the protection of national security cannot be presented publicly, stored or archived. Thus, it should be destroyed as soon as it is established that that it has no relation to any threat to national security (Article 70§2).

The Romanian authorities further indicated that certain guarantees are offered by instructions and laws amended or adopted after the European Court’s judgment in the present case. In particular, Law No. 535/2004 on Prevention and Suppression of Terrorism provides that the authorisation of secret surveillance measures in all cases of presumed threats to national security provided by Law No. 51/1991, comes within the competence of judges of the High Court of Justice and Cassation.

• Bilateral contacts are under way to assess this information and progress in the adoption of the draft law.

3) Violation of Article 13: The Romanian authorities indicated that the legislative reform in the field of national security should also respond to the European Court’s criticism concerning the violation of Article 13. In this context it should be noted that certain provisions of the draft Law on information activities, counter-information and protection of information might make it possible to challenge the holding by the intelligence services of information on private life or to refute the truth of such information. Thus, everyone should have a right to ask the competent authorities to provide access to information which concerns him/her exclusively (Article 68). The draft Law also provides a possibility to request the administrative authorities to verify, correct or delete personal data if they are incorrect, incomplete or obtained illegally (Article 69). The competent authorities are obliged to respond to such requests within specific time-limits (Articles 68-69). Finally, Article 70 provides a possibility of judicial recourse in circumstances foreseen in those Articles, including compensation for damage sustained.

The Romanian authorities also noted that the publication of the Rotaru judgment and its dissemination has allowed the Romanian courts to take account of the European Court’s findings, in particular of those concerning the right to challenge the holding of personal data by the intelligence service, to challenge their truthfulness and to request modification of inexact data. Moreover, they indicated that following the decision of the Constitutional Court of 31/01/2008, finding Law No. 187/1999 on access to personal files and disclosure of the Securitate as political police to be unconstitutional, the government adopted a new law, Emergency Ordinance No. 24/2008, regulating access to personal files. In this context, numerous examples of requests lodged with the courts to obtain the access to personal files have been provided.

• Information is expected on the text of the government’s Emergency Ordinance No. 24/2008 and the authorities’ assessment of its applicability to the situations similar as this in the present case. Further information is also expected on the progress of the legislative reform.

4) Violation of Article 6§1: The Romanian authorities observe that domestic courts will give direct effect to the Rotaru judgment, so as to avoid new violations, similar to that found in the present case, in which the Bucharest Court of Appeal failed to consider the applicant's claim for compensation and for the reimbursement of the costs incurred in order to obtain the rectification of the data at issue.

5) Publication and dissemination:The judgment of the European Court has been translated and published in the Official Journal.

The Deputies 1.             recalled Interim Resolution ResDH(2005)57 adopted by the Committee of Ministers in this case in July 2005; 2.             also recalled that, while noting the measures already adopted and the wide-ranging legislative reform already under way for several years, relating, among other things, to the activities of the Romanian Intelligence Service, the Committee of Ministers had already on several occasions insisted on the necessity of adopting rapidly the remaining measures in order to avoid new, similar violations; 3.          noted in this context the information presented by the Romanian authorities, concerning in particular the Government Emergency Ordinance No. 24 adopted on 5 March 2008 concerning in particular access to personal files; considered however that this relevant information still needs in‑depth assessment ; 4.             decided consequently to resume consideration of this item at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), in the light of the assessment of the information provided by the Romanian authorities and, if necessary, further information to be provided on general measures.

- Cases mainly concerning ill-treatment by the police and lack of an effective investigation[47]

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

48254/99          Cobzaru, judgment of 26/07/2007, final on 26/10/2007

49234/99          Dumitru Popescu No.1, judgment of 26/04/2007, final on 26/07/2007

25230/03           Georgescu, judgment of 13/05/2008, final on 13/08/2008

43247/02          Melinte, judgment of 09/11/2006, final on 09/02/2007

42722/02           Stoica, judgment of 04/03/2008, final on 04/06/2008

33343/96          Pantea, judgment of 03/06/03, final on 03/09/03[48]

42860/98          Notar, judgment of 20/04/04 - Friendly settlement

The case relates to allegations that the applicant (who, at the material time, was a minor), suffered mistreatment when he was arrested and during his detention in the Tg. Mures Youth Shelter in July 1996, and that there had been no effective investigation of these matters (complaints under Article 3). The applicant also complained that his detention was unlawful (complaint under Article 5§1), that he was not given an explanation of the charges against him (complaint under Article 5§2), that he had no opportunity to obtain prompt judicial review of the legality of his detention (complaint under Article 5§§3 and 4) and that he could not obtain compensation for his unlawful detention (complaint under Article 5§5). The applicant further complained of an infringement of his right of access to a court to obtain compensation for the unlawfulness of his detention or for the alleged mistreatment (complaint under Article 6§1) as well as a breach of the presumption of his innocence, in view of the fact that his identity was disclosed during a television programme which depicted him as the perpetrator of a criminal offence (complaint under Article 6§2). Finally, the applicant complained of hindrance to the exercise of his right of individual application (complaint under Article 34).

- Undertakings by the government: According to the friendly settlement reached, the Romanian government undertook to pay a sum of money covering pecuniary and non-pecuniary damage, as well as costs and also:

(1) to reform the existing legislation with a view to exempting from stamp duty civil court actions claiming damages for ill-treatment contrary to Article 3,

(2) to inform the police of the appropriate conduct to be observed to ensure respect for the presumption of innocence, and

(3) to pursue its efforts in the area of protecting children in difficulty.

Individual measures: The amount agreed in the friendly settlement has been paid to the applicant.

• Assessment: No further individual measure is required.

General measures:

• Information provided by the Romanian authorities:

         1) Stamp duty: Following the amendment of the Law on judicial stamp duties of 1997, requests for the determination and award of civil damage for alleged treatment in breach of Articles 2 and 3 of the Convention are exempted from stamp duty. These amendments have been adopted by a government ordinance published in the Official Gazette on 28/01/2005 and were approved by Parliament in March 2005.

         2) Presumption of innocence: A draft order was prepared in 2004 by the Ministry of Public Administration and Internal Affairs, setting out in particular the rules to be followed concerning the disclosure to the media of data and information obtained by the personnel of the Ministry in the exercise of their professional duties. The draft provides in particular that the identity of persons who are being investigated, prosecuted or placed in detention on remand may not be made public.

• Further information is expected on action taken with regard to the draft order mentioned and on the timetable envisaged for its adoption. Information is also expected on measures aimed at the appropriate training of the police.

         3) Protection of children in difficulty: The legislation in force at the material time regulating the placement of minors in youth shelters has been repealed.

• Adoption of legislative acts related to child protection

a) Law No. 272/2004 of 23/06/2004 on the protection and promotion of the rights of the child;

Chapter V of the Law (Articles 80-84) relates to the protection of the child who has committed a criminal act but is not criminally liable. Thus, Article 83 prohibits the publication of any information concerning a criminal act committed by such children, including their personal data. According to Article 56 e) of the Law, those children are beneficiaries of “special child protection measures”, including placement, emergency placement and specialised supervision.

b) Governmental decree No. 1432/2004 of 23/09/2004 on the National Authority for the Protection of Children’s Rights (subsequently modified by several government decisions);

c) Governmental decree No. 1434/2004 of 23/09/2004 on the general department of social assistance and protection of children;

d) Governmental decree No. 1439/2004 of 24/09/2004 on special services for children who have committed a criminal offence but are not liable under criminal law;

e) Decision of the National Audiovisual Council No. 187 of 03/04/2006 concerning the regulation of the content of audiovisual programme services. The decision inter alia prohibits the broadcasting of any information on children under 14 which could lead to their identification when they are accused of committing offences (Article 4). Information on children over 14 is permissible under the conditions listed in Article 6. In addition, Article 7 contains the obligation to give information about the person's rights before filming or recording.

• Information measures: The National Authority for the Protection of Children’s Rights started an education campaign on children’s rights. The first part of this campaign (“Children’s rights are law”) lasted from October 2004 to March 2006. The second part aimed at the organisation of conferences to present the provisions of Law 272/2004. In 2007, the National Strategy in the field of protection of children’s rights for the period 2008-2013 was drawn up, providing a series of measures related to juvenile delinquency. In 2008, the National Authority for the Protection of Children’s Rights intended to draw up a guide for the interrogation of children in difficulties.

• Further information is expected on the legislation governing the placement of minors in youth shelters as well as summary of the relevant legislative provisions currently in force and the necessity of any improvements in this respect.

41138/98+        Moldovan and others, judgment No.1 of 05/07/2005 - Friendly settlement[49]

41138/98+        Moldovan and others, judgment No. 2, judgment of 12/07/2005, final on 30/11/2005

57884/00          Kalanyos and others, judgment of 26/04/2007, final on 26/07/2007 - Striking-out

57885/00          Gergely, judgment of 26/04/2007, final on 26/07/2007 - Striking-out

10443/03           Iosif and others, judgment of 20/12/2007, final on 20/03/2008

This case concerns the violation of the applicants' right of access to a court due to the dismissal of their action by the domestic courts on the grounds of their failure to pay a security deposit of almost 134 000 euros required to bring the action (violation of Article 6§1).

The applicants’ action related to the termination of the mortgage on their house, took out to guarantee a loan granted to a third party, and to the execution of the enforcement proceedings brought by the bank for non-payment of the guarantees. By a decision of 9/04/2002, confirmed subsequently by the Supreme Court, the Court of Appeal of Bucharest dismissed the applicants’ action due to the non-payment of the fixed security deposit representing 20% of the total amount of the secured loan.

The European Court noted that the obligation of paying an extremely high deposit in order to bring an action, required by Article 25§1 of the Government Emergency Ordinance no. 51/1998 on the recovery of banking assets, deprived the applicants of the possibility of examining their case on merit (§60 of the judgment).

Individual measures: The European Court considered that when it finds that an applicant has not had access to a court established by law the most appropriate form of redress would, as a rule, be to reopen the proceedings in due course and re-examine the case in keeping with all the requirements of a fair trial (§99 of the judgment). The Court noted that Romanian law provides, in Article 322§9 of the Code of Civil Procedure, the possibility of reopening civil proceedings if a violation of the Convention was found. In addition, the European Court awarded the applicants just satisfaction in respect of non-pecuniary damage.

• Assessment: No other individual measure appears to be necessary.

General measures: Following the legislative reforms, Article 25§1 of the Government emergency ordinance no. 51/1998 became Article 83§1. The European Court noted that the Constitutional Court, by decision No. 39 of 29/01/2004, found this provision to be unconstitutional.

• Information is expected on the current legal framework concerning the payment of securities in order to bring similar actions.

74785/01           Năstase-Silivestru, judgment of 04/10/2007, final on 04/01/2008

This case concerns the fact that the applicant, whose detention was ordered by a prosecutor on 24/11/2000, was not brought promptly before a judge but only after 18 days (violation of Article 5§3).

The case also concerns a violation of the applicant’s right to respect for her correspondence in that the authorities withheld her correspondence with her family at least for a certain time during her detention (violation of Article 8). The European Court noted that Instruction No. 901 of 10/05/1999 of the Ministry of Interior, the basis for withholding the applicant’s correspondence, was not available to the persons concerned therefore the interference at issue could not be considered as “foreseen by law” (§53).

Individual measures: The applicant was released on 7/05/2001. The European Court awarded her just satisfaction in respect of non-pecuniary damage sustained.

• Assessment: No further measure appears necessary.

General measures:

1) Violation of Article 5§3: The case presents similarities to that of Pantea (1059th meeting, June 2009).

2) Violation of Article 8: It should be noted that the issue of detainees’ correspondence with public institutions, judicial organs or international organisations has already been considered in the context of the Cotleţ case (38565/97) (Section 6.2). It may be recalled that it is forbidden to open or withhold correspondence with lawyers, non-governmental organisations active in the field of human rights and international courts or organisations whose competence is recognised by the Romanian authorities.

Subsequently to the facts presented in the present judgment, Law No. 275 of 4/06/2006 on serving sentences and compliance with measures ordered by judicial bodies during criminal trial was adopted (Law 275/2006). Under Article 82§5 of the law 275/2006, the provisions related to rights and obligations of detainees should be also applied to detainees on remand.

Article 45 of Law 275/2006 guarantees the right to correspondence, providing the confidential character of detainees’ correspondence and that it can be opened or withheld only under conditions provided by law. Thus correspondence may be opened in the presence of the person concerned, without being read by the authorities, in order to prevent smuggling of drugs, toxic substances, explosives and other objects whose possession is prohibited. Law 275/2006 also provides a possibility, on the basis of a written and motivated order of a judge delegated for the execution of sentences, of opening or withholding correspondence in case of motivated indications of the possible commission of an offence. The detainee shall be immediately informed in writing about this fact and the correspondence is deposited in a special file held by the prison administration.

Under Article 46 of Law 275/2006 correspondence addressed to detainees should be transmitted immediately to the addressee.

Law 275/2006 also provides procedural guarantees for the implementation of the right to correspondence, namely a possibility of a judicial complaint.

It should be also noted that all judgments of the European Court against Romania are regularly published in the Official Journal. The content of the present judgment was sent to the Superior Council of Magistracy, to the National Administration of Penitentiaries and to the Ministry of Interior and Administrative Reform with a view to bringing it to the attention of all domestic courts and prosecutors’ offices and to other subordinated units, with the recommendation that it is included for consideration in the activities related to continued education of persons concerned.

• Bilateral contacts are under way in order to assess the information.

- Cases concerning the lack of judicial guarantees in the context of detention on remand[50]

33065/03           Samoilă and Cionca, judgment of 04/03/2008, final on 04/06/2008

29723/03           Lapusan, judgment of 3/06/2008, final on 3/09/2008

28183/03           Anghel, judgment of 04/10/2007, final on 31/03/2008

This case concerns the inequity of proceedings relating to a complaint lodged by the applicant against an administrative decision of 2002 fining him 59 euros for having uttered insults to a civil servant (violation of Article 6§1).

Although domestic law did not consider these proceedings as “criminal”, the offences in question having been decriminalised, the European Court considered that it could be assimilated to a criminal procedure as referred to by Article 6§1 of the Convention and, as a result it had to comply with the fundamental guarantees applicable in criminal proceedings. Yet, in this particular case, the courts hearing the case expected the applicant to prove his innocence and considered that the prosecution witnesses were credible without explaining their reasoning and without allowing the applicant to confront these witnesses.

The European Court noted the sui generis plan adopted by the Romanian legislator relating to fines and in particular the applicability mutatis mutandis of the principles of civil proceedings. However, it noted that the relevant rules did not expressly provide guarantees similar those found in criminal proceedings, such as the presumption of innocence. The Court noted that, although states were allowed to decriminalise certain offences, their perpetrators should not find themselves in a less favourable situation simply because they are subjected to legal proceedings other than criminal proceedings (§67 of the judgment).

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. The domestic courts suspended the execution proceedings related to the payment of the fine pending the judgment of the European Court in this case.

• Information is expected on the current situation of the applicant, in particular whether he still suffers any negative consequences of the sanction imposed and whether he may possibly request reopening of the proceedings at issue.

General measures: It must be noted that to apply the criminal part of Article 6§1 of the Convention, the European Court took into consideration the fact that at the time, if the applicant refused to pay the fine, he could be sentenced to 15 days’ to three months’ imprisonment. Following the 2003 reform, imprisonment for fines was removed from the list of sanctions that could be imposed on offenders (emergency ordinance No. 108/2003 of 26/10/2003). The offences relating to the present case will, from now on, be liable to a fine of up to 300 Euros (law on the repression of acts breaching social life and public order, modified in 2004). It remains that, in view of the criteria that may be found in the European Court’s case-law, in particular the deterrent and punitive character of the possible sanction, proceedings may always be assimilated to “criminal“ proceedings within the meaning of Article 6§1 of the Convention (see §53 of the case of Öztürk against Germany, judgment of 21/02/1984). 

• The Romanian authorities are invited to present an action plan for the adoption of measures necessary to ensure that proceedings relating to contestation of fines respect the guarantees applicable to criminal proceedings, especially the presumption of innocence.

71525/01           Popescu Dumitru No. 2, judgment of 26/04/2007, final on 26/07/2007

The case concerns the absence of judicial guarantees related to interception of the applicant's telephone conversations under Law No. 51/1991 on national security (violation of Article 8).

The European Court, noting that under Article 13 of this law telephone conversations unlimited as to time could be intercepted by simple authorisation of the prosecutor, considered that prosecutors could exercise considerable discretion with regard to serious interference with private life considering that their did not fulfil the requirement of independence from the executive. Furthermore, at the material time, permission to carry out telephone interception was not subject to review, either before or after the fact, by an independent, impartial judicial authority. The European Court also observed that Romanian law provided no safeguards concerning the need to keep recordings of telephone calls intact and in their entirety, or their destruction. Lastly, the European Court noted that the Romanian intelligence service was the only authority empowered to certify that the recordings were genuine and reliable but that doubts existed with regard to its independence and impartiality.

Individual measures: The European Court noted that the finding of a violation of Article 8 constituted sufficient just satisfaction in respect of the non-pecuniary damage sustained.

• Information is expected as to whether the recordings in question have been destroyed.

General measures: The European Court that the Code of Criminal Procedure now contains many safeguards concerning the interception and transcribing of telephone calls, the storage of relevant information and the destruction of information which is not relevant. Thus, Laws Nos. 281/2003 and 356/2006 modifying the Code of Criminal Procedure require a reasoned judicial authorisation for operations of interception and recording of telephone or other electronic communications. It also seems that responsibility for determining the reliability of recordings has now to the National Institute of Forensic Expertise, which acts under the authority of the Ministry of Justice and whose experts, as “public officials” are completely independent from the authorities responsible for intercepting or transcribing communications (§§82-83).

Nevertheless, the European Court noted that the public prosecutor apparently still had powers to order surveillance measures under Article 13 of Law No. 51/1991 in the event of a presumed threat to national security. This assumption was attested to by a recent decision of the Romanian Constitutional Court (published in the Official Journal of 16/01/2007) according to which the application of Law 51/1991 was justified by its “special character”, even after the entry into force of the reforms of the Code of Criminal Procedure (§84).

The European Court’s judgment has been translated and published in the Official Journal and is also available on the Internet site of the Supreme Court of Cassation and Justice (http://www.scj.ro/decizii_strasbourg.asp).

• Information is expected on the current legal framework regulating the issue of telephone interception and measures taken or envisaged to avoid any future violations.

23468/02           Sissanis, judgment of 25/01/2007, final on 25/04/2007

The case concerns the violation of the freedom of movement of the applicant, a Greek national, due to a stamp placed in his passport in the course of criminal proceedings against him which forbade him to leave Romania between 1998 and 2004 (violation of Article 2 of Protocol No 4).

The European Court found that this restriction was not provided by law, in that Article 27 of Law 25/1969, upon which it was based, was vague in that it neither identified the authority empowered to impose such a measure nor defined with sufficient precisions the conditions for imposing measures prohibiting someone from leaving the country. The European Court also considered that the procedure for applying bans on leaving the country did not provide sufficient safeguards against abuse on the part of the authorities, since Law No. 25/1969 provided no review procedure, either at the time of imposition or afterwards (§71).

Finally, Article 27 of Law No. 25/1969 had been declared unconstitutional on 11/04/2001, thus the order forbidding the applicant to leave the country had been in breach of Romanian law at least from that date onwards.

Individual measures: On 10/06/2004 the stamp in question was removed from the applicant's passport. In addition, the European Court awarded him just satisfaction in respect of non-pecuniary damage.

• Evaluation: It seems that no other measures are necessary.

General measures: According to the European Court, Law No. 25/1969 was abrogated by Law No. 123 of 2/04/2001. Subsequently, Emergency Ordinance No. 194 on the status of foreigners of 12/12/2002 (published in Official Journal of 27/12/2002 and approved by Law No. 357/2003 of 11/07/2003) was adopted.

• Information provided by the Romanian authorities: Emergency Ordinance No. 194/2002 on the status of foreigners was amended on several occasions and republished in the Official Journal No. 421 on 5/06/2008. Other provisions related to the imposition of preventive measures forbidding an individual to leave the country are also contained in the Code of Criminal Procedure, as amended by Law No. 281 of 24/06/2003 and Law No. 356 of 21/07/2006.

Article 15 of Emergency Ordinance No. 194/2002, taken together with Articles 145 and 145¹ of the Code of Criminal Procedure, provides that the measure of interdiction of leaving Romanian territory by foreigners shall be imposed by the competent body within the Ministry of Interior and Administrative Reform on the basis of a written request made by a prosecutor or a court. Article 15 of Emergency Ordinance No. 194/2002 further provides that this measure may be applied under two circumstances: either where a foreigner is charged or accused in criminal proceedings and the magistrate orders the measure of interdiction of leaving the town or the country or he was sentenced by a final court decision and has to serve a prison sentence. In all cases the reasons that have led to the decision shall be specified and, if appropriate, accompanied by supporting documents.

According to Article 145, taken together with Article 145¹ of the Code of Criminal Procedure, the interdiction on leaving the country shall not exceed 30 days. It may be prolonged during criminal proceedings on a basis of a motivated decision for a period not longer than 30 days.

• Bilateral contacts are under way in order to clarify and assess the information provided.

The judgment of the European Court has been sent to the Superior Council of Magistracy with a view to bringing it to the attention of all the domestic courts and prosecutor offices as well as to the Ministry of Internal Affaires and Administrative Reform to inform its subordinated authorities. It should also be published in the Official Journal.

59892/00          Maszni, judgment of 21/09/2006, final on 21/12/2006

The case concerns the lack of independence and impartiality of the military court which convicted the applicant, a civilian, in 1998, of driving with a forged licence and suborning a policemen to forgery (violation of Article 6§1). The policeman accused of forging the driving licence being under military jurisdiction, the applicant was tried by a military court as well, under Article 35 of the Code of Criminal procedure, because of the nature of the charges.

The European Court considered that certain aspects of the status of military judges might cast doubt on their independence and impartiality: for example, under Articles 29 and 30 of Law No. 54/193, they are regular officers in the armed forces, paid by the Ministry of Defence and subject to military discipline, and their promotion is governed by internal army regulations.

On the question of the jurisdiction of military tribunals over civilians, the Court also indicated that it could not share the reasoning according to which a global analysis of the facts was needed in order to avoid inconsistent outcomes where, as in the present case, it was possible to separate the issues.

Individual measures: The European Court awarded the applicant just satisfaction in respect of non‑pecuniary damage. Romanian law provides, in Article 408-1 of the Code of Criminal Procedure, the possibility of reopening civil proceedings in cases in which the European Court finds a violation.

• Assessment: No further individual measure appears to be necessary.

General measures: At the time of the events, civilians might be tried by military courts if they were accused of committing offences together with military personnel (connection of offences). However, according to the new wording of Article 35 (2) of the Code of Criminal Procedure, as amended by Law No. 356/2006, in case of indivisibility or connexion if one of the instances is ordinary and the other one military, the competence belong to the ordinary instance. It should be also noted, that policemen are no longer defined as military personnel as under Law No. 281/2003 on the status of policemen they have become civil servants. Consequently, policemen accused of offences are now also tried by ordinary courts.

Finally, it should be also noted that the judgment of the European Court was published in the Official Journal and on the Internet site of the Supreme Court of Cassation and Justice (http://www.scj.ro/decizii_strasbourg.asp). It was also sent to the Supreme Council of Magistracy, with a view to its dissemination to all domestic courts, with the recommendation that it be included for consideration in the activities related to continued education of judges.

• Assessment: No further general measure appears to be necessary.

29556/02           Driha, judgment of 21/02/2008, final on 21/05/2008

This case relates to the infringement of the applicant’s right to the protection of his property (a fireman who had a military status) due to the fact that the assignment allowance he received when he was appointed on reserve in 1999 was subjected to income tax by the Ministry of Interior, which was clearly in contradiction with domestic law (violation of Article 1 of Protocol No. 1).

This decision was upheld in 2002 by the Court of Appeal which stated that even though under law No. 138/1999 such allowance was not taxable, subsequent legislation, such as the government ordinance No. 73/1999 relating to income tax and the emergency ordinance No. 136/2000 modifying law No. 138/1999 by stating that the said allowances were calculated on net earnings, clearly showed the intention of the legislator to subject this allowance to taxation.

The European Court noted that the law n° 138/1999 relating to salaries and other rights of servicemen stated clearly enough that the said allowance, calculated on the basis of his gross salary, was not taxable. It considered that nothing allowed the Court of Appeal to come to the conclusion that the said allowance should be taxable, given that the ordinances in question did not dispute its tax-free nature but affected the way the allowance was calculated. The European Court considered that the fact the Court of Cassation (former Supreme Court) found in two cases (of 2002 and 2003) that the said allowance was taxable should not have an effect on the clarity and foreseeable nature of the law, as these decisions are contrary to the clear provisions of domestic law, contrary to its own case-law as well as contrary to the consistent case-law of other courts (§32 of the judgment). 

The case also relates to the discriminatory treatment to which the applicant was submitted to, compared to other reserves who received this allocation tax-free (violation of Article 14 combined with Article 1 of Protocol No. 1).

Individual measures: The European Court awarded the applicant just satisfaction of 8 000 euros for all damages sustained. It can be accepted that the taxation of the applicant’s allocation was included in the amount awarded by the Court. 

• Assessment: No other measure seems necessary.

General measures: The European Court pointed out that the Court of Appeal’s interpretation, which was responsible for the violations in this case, was contrary to the relevant domestic law which was sufficiently foreseeable and clear. It also noted that its clarity and its foreseeable nature were reinforced by the consistent case law of the courts up to 2002 and that they had not been overruled by the two Court of Cassation decisions of 2002 and 2003 which stated that the said allowances were taxable. In addition, the Court considered that the ordinances No. 73/1999 and No. 136/2000 had not affected the tax-free nature of these allowances.

 • Assessment: As the violations in this case resulted from an incorrect interpretation of the domestic law  by the authorities, publication and dissemination of the European Court’s judgment to the competent authorities in particular the Ministry of the Interior and the competent courts, seem to be appropriate measures for execution. Furthermore, it would be useful to receive information on the present rules and practices relating to the taxation of these allowances to evaluate whether further measures are needed.

77217/01           Cleja and Mihalcea, judgment of 08/02/2007, final on 08/05/2007

This case concerns a violation of the applicants' right to the peaceful enjoyment of their possessions in that, for a protracted period, they were prevented from using their property due to domestic courts' refusal to order the eviction of the tenants from their flat (violation of Article 1 of Protocol No. 1).

In March 1994, the Romanian courts ordered the return to the applicants of the flat nationalised during the communist period. In 1999, the applicants brought an action for eviction of the former state tenants conditional on an exchange of flats on the basis of Articles 23-25 of the Emergency Government Order No. 40/1999 on the protection of tenants and the fixing of rents for residential accommodation (“E.G.O. No. 40/1999”), submitting a certified declaration of a third party that she would rent another flat to the tenants. In December 2002, the Supreme Court of Justice rejected the action for eviction finding that the applicants' request did not fulfil the conditions laid down in Article 23§3 of E.G.O. No. 40/1999 since it was not possible to oblige a third party to conclude a lease with the tenants, a simple declaration not being considered as a sufficient guarantee. Furthermore, the flat proposed by the applicants to the tenants was found not to respect the minimum requirements laid down in Annex No. 1 to Law No. 114/1996, to which Article 23§2 of the E.G.O. No. 40/1999 referred since its modification by Law No. 241/2001 (§18).

The European Court, noting the lack of a formal procedure under Article 23§3 of E.G.O. No. 40/1999 and the fact that the applicants submitted a certified declaration, found that the interpretation and the application of Article 23§3 by the courts could not be considered as being foreseeable and ensuring a fair balance between the interests at issue. It also noted that the modified Article 23§2 led to a disproportionate protection of the interests of the tenants to the detriment of the owners,

Individual measures: The applicants recovered their flat in 2004. In addition, the European Court awarded them jointly just satisfaction in respect of both pecuniary and non-pecuniary damage.

• Assessment: it seems that no further measure is necessary.

General measures: The judgment of the European Court was sent to the Ministry of Justice and to the Superior Council of Magistracy with a view to bringing it to the attention of all the domestic courts. It should also be published in the Official Journal.

• Information is expected on current legislation and practice regulating the issue of the eviction of former state tenants conditional on an exchange of flats and measures taken or envisaged in order to avoid any future violations.

21740/02           Bock and Palade, judgments of 15/02/2007, final on 15/05/2007 and of 21/02/2008, final on 21/05/2008

The case concerns a violation of the applicants' right to the peaceful enjoyment of their property due to a final decision of the Supreme Court in 2001 conferring part of a building and the use of the adjoining land, both belonging to the applicants, upon the local authority. This decision was taken pursuant to the jurisprudential principle of a “right acquired in rem” which, in certain circumstances, makes it possible to assume ownership of buildings built on someone else's land (violation of Article 1 of Protocol No. 1).

In fact, the building, which had belonged to the applicants' parents and which was composed of 18 flats and the adjoining land were nationalised in 1950. Partially destroyed during the second world war, it was rebuilt by a state agency and transferred to the town council which, however, did not have its title recorded in the Land Register. In 1994 the applicants, as joint heirs, had their title to the property entered in the Land Register and began to pay property tax on it.

The European Court considered that the applicants had a possession, inherited from their parents, and that the interference in their right to it was without legal basis in domestic law: the Supreme Court's judgment had found that the town council had acquired a right in rem to the buildings on the applicant's land on account of a “factual situation neither desired by nor known to them” which had given rise to an “apparently legal state of affairs”. However, according to Romanian case-law, the simple fact of putting a building on someone else's land is not enough to constitute an acquisition in rem in favour of the builder (§63).

Individual measures: The European Court concluded that the Romanian authorities were to return to the applicants the share of 83.33% of the building and end the use of the adjacent land within three months from the date on which the judgment would become final. Failing such restitution, the Romanian authorities were to pay the applicants jointly, within the same three-month period, 750,000 EUR in respect of pecuniary damage.

• Information is expected on the current situation of the applicants, in particular whether their property has been returned or if they have received just satisfaction for pecuniary damage.

General measures:

• Information is awaited on current practice of the Supreme Court in such cases and measures taken or envisaged in order to avoid similar violations. Publication and dissemination of the European Court's judgment among relevant courts and authorities is expected, to raise awareness of the Convention's requirements as they result from this case.

54062/00          Androne, judgment of 22/12/2004, final on 06/06/2005

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 No. 1).

Individual Measures: The European Court has 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.

In addition, on 7/06/2006 the Bucharest Court of Appeal ordered the eviction of the tenants from the applicants' flat.

• Bilateral contacts are under way to assess the measures already taken.

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 this issue is relevant to the execution of this judgment, it seems that the violation found by the European Court in this case might also require additional measures to prevent new, similar violations.

Thus, according to the Committee of Ministers’ position 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).

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. It seems that the draft law limits the prosecutors’ possibility to challenge the judgments only to cases in which they were parties. There are also other limits to the prosecutors’ powers provided by this draft law.

• Additional clarifications are expected on the progress of this working group and on the provisions of the draft amendment to 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 sent out 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.

- Case concerning the violation of the right of access to a court due to excessive court fees required[51]

4227/02            Iorga, judgment of 25/01/2007, final on 25/04/2007

- Cases concerning the continued impossibility to dispose of properties and to receive rent for their use resulting from the application of the urgency provisions concerning housing payments[52]

68479/01+        Radovici and Stănescu, judgment of 02/11/2006, final on 02/02/2007

77210/01           Arsenovici, judgment of 07/02/2008, final on 07/05/2008

75240/01           Burzo, judgment of 04/03/2008, final on 04/06/2008

27086/02           Popescu and Toader, judgment of 08/03/2007, final on 08/06/2007

3864/03            Spanoche, judgment of 26/07/2007, final on 10/12/2007

75849/01           Tarik, judgment of 07/02/2008, final on 07/05/2008

- 80 cases concerning the failure to restore or compensate for nationalised property sold by the state to third parties[53]

                        (See Appendix for the list of cases in the Străin group)

- Cases concerning a violation of the right of access to a court through application of the doctrine of res judicata

62710/00          Lungoci, judgment of 26/01/2006, final on 26/04/2006

78037/01          Caracas, judgment of 29/06/2006, final on 11/12/2006

These cases concern violation of the applicants' right of access to a court resulting from the dismissal of their claims on the ground that they were identical with claims already determined in previous proceedings (violations of Article 6§1). In both cases the Romanian courts wrongly applied Article 1201 of the Civil Code as they failed to take into account new facts which had occurred after the original decisions.

In the Lungoci case, in 1999 the court failed to consider a final judgment of 28/03/97 acknowledging the applicant's property title to some flats which had been nationalised in 1950.

In the Caracas case, in the 1998 decision, the court failed to take account of administrative proceedings brought by the applicants under Law No. 112/1995.

The European Court noted that the fact that the applicants had been given access to a court solely for the purposes of seeing their action declared inadmissible under the law in force meant that they had been deprived of a clear and effective right of access to a court.

Individual measures: The Romanian law provides in Article 322§2 of the code of civil procedure a possibility of reopening of civil proceedings in cases in which the European Court found a violation of the European Convention. In addition, both applicants were awarded just satisfaction for non-pecuniary damage.

• Assessment: No other measure appears to be necessary.

General measures: Both judgments have been published in the Official Journal and on the Internet site of the Supreme Court of Cassation and Justice (http://www.scj.ro/decizii_strasbourg.asp). They were also sent to the Superior Council of Magistracy, with a view to bringing them to the attention of all domestic courts and public prosecutors’ offices.

• Information is expected on the authorities’ assessment as to whether the violations found in these cases are of an isolated character or whether other measures should be envisaged with a view to preventing new, similar violations.

                       - Cases mainly concerning length of criminal proceedings

77517/01+        Stoianova and Nedelcu, judgment of 04/08/2005, final on 04/11/2005

73502/01          Aliuta, judgment of 11/07/2006, final on 11/10/2006

71649/01          Petre, judgment of 27/06/2006, final on 23/10/2006

1505/02            Reiner and others, judgment of 27/09/2007, final on 27/12/2007

78048/01          Tudorache, judgment of 29/09/2005, final on 29/12/2005

The cases concern the excessive length of criminal proceedings brought against the applicants (violations of Article 6§1). The proceedings in the Aliuta and the Petre cases were pending when the European Court gave its judgments.

The Reiner and others case also concerns the dismissal by the domestic courts of the applicants’ repeated requests to question certain witnesses (violation of Article 6§3(d)).

Individual measures: In the Reiner and others case the European Court observed that the applicants might request the reopening of the proceedings under Article 408-1 of the Code of Criminal Procedure.

• The authorities are invited to provide information on the current state of the pending proceedings and, if appropriate, to take appropriate measures to accelerate them.

General measures:

1) Violation of Article 6§1:According to the statistics collected by the Superior Council of Magistracy with regard to the average length of criminal proceedings, in 2007 85,6% of criminal proceedings were concluded in less than 6 months (the recommended limit) and only 3% in more than one year. Starting with 2005, the inspectors of the Superior Council of Magistracy have regularly monitored courts’ activities from the point of view of compliance with the recommended time limits for criminal trials and, where needed, disciplinary sanctions have been applied.

It should be also noted that the Ministry of Justice is drawing up a new Code of Criminal Procedure containing a series of measures which should contribute to the speediness of proceedings (e.g., introduction of a simplified procedure for less serious offences, recognition of guilt, etc.).

The judgment in the Stoianova and Nedelcu case was published in the Official Journal and sent to the Superior Council of Magistracy, with a view to bringing it to the attention of all domestic courts with a recommendation to discuss this judgment during activities related to continued professional education of judges.

In accordance with the practice of the Committee of the Ministers since the adoption of Recommendation Rec(2004)6 to member states on the improvement of domestic remedies, information was also requested on measures taken or envisaged to set up an effective remedy against the excessive length of criminal proceedings.

In this context, it should be noted that on 03/04/2006, the Romanian authorities, in co-operation with the Commission for Democracy through Law (Venice Commission), organised a conference on possible remedies in respect of excessive length of proceedings. The discussions concerned the identification of the reasons for excessive length of proceedings and remedies. The results of the conference have been partially reflected in the conclusions of a study published by the Venice Commission at the end of 2006. The Romanian authorities intend to examine the adoption of possible practical solutions to the problem of the excessive length of proceedings, taking into account the conclusions of the Venice Commission.

• Bilateral contacts are under way to assess the scope of the measures adopted and still envisaged to prevent new violations due to excessive length of proceedings and on possibilities of establishing effective domestic remedies in this respect.

2) Violation of Article 6§3(d): It seems that the violation found in the Reiner and others case resulted from the incorrect practice of courts. In view of the direct effect of the European Convention in Romania, it may be assumed that the requirements of Article 6§1 (d) and the European Court's case-law will be taken into account in the future, thus preventing new, similar violations, after the publication and dissemination of the judgment of the European Court. In this context it should be noted that all judgments of the European Court against Romania are regularly published in the Official Journal and on the Internet site of the Supreme Court of Cassation and Justice (http://www.scj.ro/decizii_strasbourg.asp).

• In addition the present judgment should be sent out to all domestic courts in order to avoid similar violations.

                       - Cases of length of civil proceedings

1295/02            Nicolau, judgment of 12/01/2006, final on 03/07/2006

15204/02           Atanasiu, judgment of 17/01/2008, final on 17/04/2008

42588/02          Cârjan, judgment of 25/01/2007, final on 25/04/2007

56326/00          Cârstea and Grecu, judgment of 15/06/2006, final on 23/10/2006

22011/03           Deckany, judgment of 01/04/2008, final on 01/07/2008

38692/05+        Forum Maritime S.A., judgment of 04/10/2007, final on 04/01/2008

19215/04          Gheorghe, judgment of 15/03/2007, final on 15/06/2007

35229/02          Guţă, judgment of 16/11/2006, final on 26/03/2007

67710/01          Ispan, judgment of 31/05/2007, final on 31/08/2007

19567/02          Matica, judgment of 02/11/2006, final on 02/02/2007

42907/02           SC Concept Ltd SRL and Manole, judgment of 22/11/2007, final on 07/07/2008

26533/05           Stanciu Varvara, judgment of 21/02/2008, final on 21/05/2008

These cases concern the excessive length of civil proceedings (violations of Article 6§1). The proceedings in all those cases, with exception of the Nicolau and SC Concept Ltd SRL and Manole cases, were closed when the European Court gave its judgments. In the Gheorghe case the European Court found that, as the applicant's state of health had declined considerably during the proceedings, considerable diligence was required on the part of the authorities.

The Gheorghe case also concerns a violation of the applicant’s right to a fair hearing on the account of absence of a specific and explicit response from the Supreme Court of Justice in a decision of 4/11/2003, to his ground of appeal in a case concerning his disability allowance (violation of Article 6§1). The European Court found that in the absence of such a response it was impossible to ascertain whether the domestic courts had simply neglected to examine the content of the applicant's claim or whether its dismissal had been the result of a manifest error of judgment as to the subject-matter of the action.

The Forum Maritime S.A. case also concerns the impossibility to have an independent and impartial tribunal examine the order of dismissal issued by the prosecutor in 2000 with respect to the applicant company’s criminal complaint with civil-party application (violation of Article 6§1). The European Court noted that a prosecutor did not fulfil the requirement of independence from the executive branch and that at the material time, the Code of Criminal Procedure provided no possibility of judicial appeal against an order of dismissal issued by a prosecutor.

Finally, the Forum Maritime S.A. case also concerns the unfairness of the proceedings, neither the applicant nor his counsel having had access to the criminal file (violation of Article 6§1).

Individual measures: In the Gheorghe case, Romanian law provides, in Article 322§9 of the Code of Civil Procedure, the possibility of reopening civil proceedings in cases in which the European Court has found a violation. In addition, the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

• Clarification is expected as to whether the reopening of the proceedings at issue is also possible in the Forum Maritime S.A. case.

• Information is expected on the state of proceedings in the Nicolau and SC Concept Ltd SRL and Manole cases and, if appropriate, on measures taken to accelerate them.

General measures:

1) Excessive length of proceedings: In a letter of 3/12/2008, the Romanian authorities provided information on measures, in particular legislative changes, envisaged to prevent new, similar violations.

• Assessment of the measures envisaged by the Romanian authorities is under way.

It should be noted that all the judgments of the European Court are regularly published in the Official Journal. The European Court’s judgment in the Cârstea and Grecu case was also sent to the Superior Council of Magistracy, with a view to bringing it to the attention of all domestic courts.

2) Failure to give specific response to applicant's claims: It seems that the violation in the Gheorghe case was of an isolated nature. In view of the direct effect of the European Convention in Romania, it may be assumed that the requirements of Article 6§1 and the European Court's case-law will be taken into account in the future, thus preventing new, similar violations, after the publication and dissemination of the judgment of the European Court. In this context it should be noted that all judgments of the European Court against Romania are regularly published in the Official Journal and on the Internet site of the Supreme Court of Cassation and Justice (http://www.scj.ro/decizii_strasbourg.asp). The present judgment was also sent to the Superior Council of Magistracy, with a view of its dissemination to all domestic courts, with the recommendation that it be discussed amongst the activities related to continued education of judges.

• Assessment: No further measure appears necessary.

3) Independent and impartial tribunal: The Forum Maritime S.A. case presents similarities to that of Grecu (1059th meeting, June).

4) Access to a prosecution file: In the Forum Maritime S.A. case the European Court noted that under the Code of Criminal Procedure and according to general legal opinion, criminal proceedings during the prosecution phase were, at the material time, neither public nor contradictory. However, following the amendment of Article 173 of the Code of Criminal Procedure by Law No. 281 of 24/06/2003, lawyers of the civil party may be present during the course of all prosecution acts.

• Assessment: No additional measure seems necessary.

62276/00          Nichifor No. 1, judgment of 13/07/2006, final on 13/10/2006

The case concerns the excessive length of certain proceedings concerning civil rights and obligations before the administrative commission responsible for the application of Law No. 112/1995 and before civil courts (violation of Article 6§1). Proceedings began in July 1996 and ended in December 2000 (four years and five months, of which three years and eight months were before the administrative commission).

Individual measures: None: the proceedings are closed. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

General measures: It should be noted that all the judgments of the European Court against Romania are regularly published in the Official Journal. The present judgment was also published on the Internet site of the Supreme Council of Magistracy (http://www.csm1909.ro/csm/index.php?lb=ro /) and a summary on the Internet site of the Ministry of Foreign Affairs (http://www.mae.ro). The content of this judgment was sent to the Supreme Council of Magistracy, with a view to its dissemination to all domestic courts, with the recommendation that it is included for consideration in the activities related to continued education of judges, and to all prefectures, with a view to its dissemination to the administrative commissions responsible for the application of laws related to the restitution of property.

The European Court noted that that national law requires the administrative commission at issue to take decisions within 30 days.

• The authorities are therefore invited to provide information as to whether or not the delay encountered in this case was exceptional and, if appropriate, whether measures have been taken or are planned to ensure that the limits established by law are respected.

- 57 cases against the Russian Federation

77617/01          Mikheyev, judgment of 26/01/2006, final on 26/04/2006[54]

839/02              Maslova and Nalbandov, judgment of 24/01/2008, final on 07/07/2008

65859/01          Sheydayev, judgment of 07/12/2006, final on 23/05/2007

78145/01          Kovalev, judgment of 10/05/2007, final on 12/11/2007

                       - Cases concerning unlawful detention, excessive length and insufficient grounds

                       CM/Inf/DH(2007)4[55]

46082/99          Klyakhin, judgment of 30/11/05, final on 06/06/05

21153/02          Bednov, judgment of 01/06/2006, final on 01/09/2006

72967/01          Belevitskiy, judgment of 01/03/2007, final on 01/06/2007

11886/05          Dolgova, judgment of 02/03/2006, final on 03/07/2006

31008/02          Fedorov and Fedorova, judgment of 13/10/2005, final on 13/01/2006

26386/02           Fursenko, judgment of 24/04/2008, final on 24/07/2008

42940/06           Govorushko, judgment of 25/10/2007, final on 25/01/2008

67542/01           Gusev, judgment of 15/05/2008, final on 15/08/2008

70276/01          Gusinskiy, judgment of 19/05/2004, final on 10/11/2004

27193/02          Ignatov, judgment of 24/05/2007, final on 24/08/2007

59696/00          Khudobin, judgment of 26/10/2006, final on 26/01/2007

6847/02            Khudoyorov, judgment of 08/11/2005, final on 12/04/2006

19126/02          Komarova, judgment of 02/11/2006, final on 02/02/2007

75039/01          Korchuganova, judgment of 08/06/2006, final on 08/09/2006

38971/06           Korshunov, judgment of 25/10/2007, final on 25/01/2008

4493/04            Lebedev, judgment of 25/10/2007, final on 02/06/2008

7064/05            Mamedova, judgment of 01/06/2006, final on 23/10/2006

18123/04           Matskus, judgment of 21/02/2008, final on 21/05/2008

24552/02           Melnikova, judgment of 21/06/2007, final on 30/01/2008

36911/02          Mishketkul and others, judgment of 24/05/2007, final on 12/11/2007

55669/00          Nakhmanovitch, arrêt du 02/03/2006, final on 02/06/2006

45100/98          Panchenko, judgment of 08/02/2005, final on 08/05/2005

28957/02          Pshevecherskiy, judgment of 24/05/2007, final on 24/08/2007

54071/00          Rokhlina, judgment of 07/04/2005, final on 12/10/2005

64140/00          Rozhkov, judgment of 19/07/2007, final on 12/11/2007

7649/02            Shcheglyuk, judgment of 14/12/2006, final on 14/03/2007

65734/01          Shukhardin, judgment of 28/06/2007, final on 28/09/2007

4459/03 Sidorenko, judgment of 08/03/2007, final on 08/06/2007

3947/03            Silin, judgment of 24/04/2008, final on 24/07/2008

46133/99+        Smirnova, judgment of 24/07/2003, final on 24/10/2003

2708/02            Solovyev Vladimir, judgment of 24/05/2007, final on 12/11/2007

942/02              Zementova, judgment of 27/09/2007, final on 27/12/2007

7178/03            Dedovskiy and others, judgment of 15/05/2008, final on 15/08/2008[56]

44009/05           Shtukaturov, judgment of 27/03/2008, final on 27/06/2008[57]

3896/04            Ryabov, judgment of 31/01/2008, final on 07/07/2008[58]

1509/02            Tatishvili, judgment of 22/02/2007, final on 09/07/2007[59]

32718/02           Tuleshov and others, judgment of 24/05/2007, final on 12/11/2007[60]

71362/01           Smirnov, judgment of 07/06/2007, final on 12/11/2007[61]

14810/02           Ryakib Biryukov, judgment of 17/01/2008, final on 07/07/2008[62]

7672/03            Ponomarev, judgment of 15/05/2008, final on 15/08/2008

The case concerns a violation of the applicant’s right to access to a court due to the domestic courts’ failure to examine his allegation that he had been infected with tuberculosis while detained on remand (violation of Article 6§1).

The applicant brought an action against the Ministry of Finance of the Russian Federation, seeking to recover lost wages and to obtain compensation for his allegedly unlawful detention. He also claimed damages for his alleged contamination while in detention. The first-instance court held that the applicant’s pre-trial detention had been lawful but did not pronounce upon the alleged contamination.

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

According to the information provided by the Russian authorities, the applicant may still re-submit a claim concerning his alleged contamination to domestic courts. They indicated that claims concerning damage to health are not subject to any time-limit.

The applicant has not yet lodged such a claim.

• Information would be useful as to whether the applicant has submitted such a claim.

General measures: The Russian authorities have indicated that the judgment was sent by the Russian Government Agent to the President of the Supreme Court of the Russian Federation, to the President of the Supreme Court of the Komi Republic, to the President of the Constitutional Court of the Russian Federation, to the President of the Supreme Commercial (Arbitration) Court of the Russian Federation and to the Representative of the President of the Russian Federation in North-Western district.

The judgment was also sent out with a circular letter from the Deputy President of the Supreme Court of the Russian Federation to all courts. According to the information provided by the Supreme Court of the Komi Republic, the judgment was discussed at a meeting with judges of the Republic. Their attention was drawn to their obligation resulting from the Convention as interpreted by the European Court while considering claims submitted to them.

• Information is awaited on the publication of the judgment of the European Court in Russian.

- Cases mainly concerning quashing of final judgments on the basis of newly discovered circumstances[63]

69529/01           Pravednaya, judgment of 18/11/2004, final on 30/03/2005

69524/01           Bulgakova, judgment of 18/01/2007, final on 18/04/2007 and of 10/06/2008 – Friendly settlement

69533/01           Kondrashina, judgment of 19/07/2007, final on 30/01/2008

73294/01           Kumkin and others, judgment of 05/07/2007, final on 30/01/2008

67579/01           Kuznetsova, judgment of 07/06/2007, final on 12/11/2007

944/02              Levochkina, judgment of 05/07/2007, final on 31/03/2008

852/02              Smirnitskaya and others, judgment of 05/07/2007, final on 31/03/2008

11589/04           Tetsen, judgment of 03/04/2008, final on 03/07/2008

25580/02          Vedernikova, judgment of 12/07/2007, final on 31/03/2008

842/02              Volkova and Basova, judgment of 05/07/2007, final on 31/03/2008

560/02              Zhukov Nikolay, judgment of 05/07/2007, final on 31/03/2008

73043/01           Arshinchikova, judgment of 29/03/2007, final on 29/06/2007[64]

65582/01           Radchikov, judgment of 24/05/2007, final on 12/11/2007[65]

- 50 cases against the Slovak Republic

10699/05          Paulík, judgment of 10/10/2006, final on 10/01/2007

The case concerns a violation of the applicant’s right to respect for his private life because in 2004 it was impossible for him to rely on DNA tests to challenge his paternity, which had been judicially determined in 1970.

The European Court held that domestic law did not allow the applicant to challenge the 1970 judicial declaration of his paternity because the declaration was res judicata, and that a fair balance had not been struck between the interests of the applicant and those of society (violation of Article 8).

The Court also noted that domestic legislation allowed fathers whose paternity had not been established by the courts, but by a mere declaration or by application of the principle of presumption of paternity, to initiate judicial proceedings at any time in order to challenge their paternity, but that it did not take account of the particular circumstances corresponding to the applicant’s situation. Consequently, there had not been a reasonable relationship of proportionality between the aim pursued by the legislation and the means employed (violation of Article 14, taken in conjunction with Article 8).

Individual measures: In its judgment the European Court noted that the applicant could request the reopening of the proceedings under Articles 228.1(d) and 230.2 of the Code of Civil Procedure. Under these provisions, a party in the proceedings can request reopening of the proceedings if the European Court has found a violation and if the consequences of the violation have not been adequately redressed by the award of just satisfaction. The possibility of reopening the domestic proceedings is subject to a time-limit of three months as of the final judgment of the European Court.

On 26/01/2007 the applicant’s lawyer lodged a petition for reopening of the paternity proceedings with the Bratislava IV District Court under Article 228.1 (d) of the Code of Civil Procedure. 02/04/2008 the Nitra Register Office amended the birth certificate, removing the reference to the applicant as the father.

The European Court awarded just satisfaction for non-pecuniary damage.

• Assessment: under these circumstances, no other individual measure seems necessary.

General measures: Under Article 62 of the Family Code, paternity can be challenged by the Prosecutor General if the interests of society so require. However, in the circumstances of the instant case, this provision was not used because it did not apply in the case of paternity determined by judicial declaration.

• Information provided by the Slovakian authorities (letter of 20/03/2007): The judgment of the European Court was translated and published in the legal periodical Justična Revue No 2/2007.

The Office of the Agent of the Slovak Republic before the European Court informed the Minister of Justice and the Legislation Section of its ministry of the judgment. It also drew their attention to the fact that it may require a change to the existing legislation on challenging paternity.

On 29/07/2008 the Slovak authorities confirmed that a legislative change would be made via the major modification to the Family Code scheduled to come into force during 2009. It is intended that the amendment will provide the possibility for the Prosecutor General to open review proceedings where new evidence relating to presumed or judicially determined paternity comes to light.

• Information is awaited on the proposed amendment to the Family Code.

7205/02            Stanková, judgment of 09/10/2007, final on 31/03/2008

This case concerns the interference with the applicant’s right to respect for her home (violation of Article 8).

In 1999 the applicant was evicted from her flat where she had lived with her father since 1992, under the relevant provisions of Slovakian law (the Civil Code and Executions Order 1995).

Following the death of her father the local authority determined that the applicant had not inherited the flat under the provisions of the Civil Code and no alternative flat was offered to her. The applicant refused to move out so the local authority brought eviction proceedings against her which were enforced on 18/06/99. The applicant challenged the proceedings in the Constitutional Court which found that the local authority’s decision to evict the applicant was in breach of the Constitution (right to protection of private and family life). The Constitutional Court found that the criteria of the Civil Code regarding the inheritance of the flat had not been met but that as no alternative accommodation was offered to the applicant, the eviction proceedings were disproportionate and did not pursue a legitimate objective. However, at that time, the Constitutional Court could not provide redress for any violations it found.

The European Court agreed with the Constitutional Court’s assessment and concluded that the interference complained of was “not necessary in a democratic society”

Individual measures: The European Court awarded the applicant just satisfaction for non-pecuniary damage. It did not award any pecuniary damages as the claim for pecuniary damages was not shown to be linked to the violation.

The applicant was evicted from the flat on 18/06/99. She currently lives in her ex-husband’s flat with her son, who inherited the flat from his father. In its ruling the Constitutional Court stated that it was the authority’s duty to provide redress to the applicant (as the Constitutional Court could not at the material time).

On 02/09/2008 the Slovak authorities stated that the applicant is registered on a list of 861 persons seeking tenancy of a communal flat in the Poprad Municipality. There is no communal flat currently available.

Under Section 228(1) (d) of the Civil Procedure Code a party to proceedings may apply for re-opening of those proceedings following a judgment from the European Court.

• Assessment: it does not appear that the applicant has been provided with alternative accommodation. However, it was open to her to apply for reopening of the procedure before the Constitutional Court. The Constitutional Court now has the power to order the authorities concerned to take the necessary action (see comments in the general measures below).

Information is awaited as to whether the applicant has applied to reopen the proceedings.

General measures:

1) Application of Article 3(1) of the Civil Code: Article 3(1) of the Civil Code permits the granting of relief from hardship in justified cases by ensuring that alternative accommodation should be provided to persons who have been ordered to move out of a flat. The European Court (in agreeing with the Constitutional Court’s assessment) considered that the lower courts had not correctly applied Article 3(1) of the Civil Code when considering the circumstances of the applicant. However, although the Constitutional Court remedied this in its judgment, the judgment had no effect (see below).

2) Consequences of rulings of the Constitutional Court: Following an amendment to the Constitution of the Slovak Republic, as in force from 01/01/2002, natural and legal persons can complain (sťažnosť) about a violation of their fundamental rights and freedoms. Under this provision, the Constitutional Court has the power, in the event that a complaint is justified, to order the authority concerned to take the necessary action. It may also grant adequate financial satisfaction to the person whose fundamental rights and freedoms have been violated. 

On 02/09/2008 the Slovak authorities confirmed that the judgment had been translated and published in Justičná Revue 12/2007. On 31/07/2008 the judgment was distributed to all regional courts under cover of a letter from the Agent of the Slovak Republic before the European Court. The presidents of regional courts have been asked to bring the judgment to the attention of all judges and district courts within their jurisdiction.

• Assessment: no further measure appears necessary

8607/02            Cabala, judgment of 06/09/2007, final on 06/12/2007

14893/02           Haris, judgment of 06/09/2007, final on 06/12/2007

48666/99           Kučera, judgment of 17/07/2007, final on 17/10/2007

These cases concern the failure promptly to examine the applicants’ requests for release from detention on remand lodged in 2001 in the Cabala and Haris cases and in 1998 in the Kučera case (violations of Article 5§4).

The Cabala case also concerns a violation of the right to adversarial proceedings in respect of the applicant’s request for release (violation of Article 5§4) and the excessive length of criminal proceedings instituted against him in 1999 (violation of Article 6§1).

The Kučera case also concerns the excessive length of the applicant’s detention on remand, between 1997 and 1999, as the reasons on which the domestic courts relied were not relevant and sufficient (violation of Article 5§3).

Moreover, the Kučera case concerns a violation of the applicant’s right to respect for his home life due to the forcible entry of four armed and masked policemen into the applicant’s apartment on 17/12/1997 in order to serve the applicant and his wife with a notice of indictment for extortion and to escort them to the police station. The European Court found that whether or not this measure was lawful, there was no indication that it was necessary for the fulfillment of the task and was accordingly disproportionate in the circumstances (violation of Article 8).

The Kučera case also concerns a violation of the applicant’s right for his private and family life due to the refusal to allow the applicant to meet with his wife over a period of thirteen months during his detention on remand. The European Court found that this interference was not “necessary in a democratic society” (violation of Article 8).

Individual measures:

1) Cabala case: The applicant was released on 31/07/2002 and the European Court awarded him just satisfaction in respect of the non-pecuniary damage sustained. However, the criminal proceedings at issue were still pending when the European Court delivered its judgment (§ 20).

• Information provided by the Slovakian authorities (22/07/2008): The criminal proceedings against the applicant are still pending. The main hearing scheduled for 22/06/2008 had to be adjourned due to the applicant’s challenge against the Nitra District Court for bias.

• Information is awaited on the current state of the domestic proceedings and if need be, their acceleration.

2) Haris case: The applicant was released and submitted no claim for just satisfaction before the European Court.

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

3) Kučera case: The applicant was released on 19/12/1999. During his detention he was allowed to meet his wife for the first time on 29/01/1999. On 28/01/2000 they were both acquitted. The European Court noted that the applicant obtained appropriate reparation at domestic level as regards the loss of salary resulting from his detention (§ 138) and awarded him just satisfaction for non-pecuniary damage.

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

General measures:

1) Violations of Article 5§4 due to the lack of prompt examination: The European Court noted that the delays in examining the applicants’ requests for release were due amongst others things to courts’ failure to secure service of their decisions, procedural flaws which resulted in decisions’ being quashed by higher courts, unjustified delays in deciding to dismiss requests. It emphasised that, according to the binding provisions of national law, the applicants were barred from submitting new applications for release, even if they relied on new facts, as long as their earlier applications were still pending.

• Information is awaited on other possible measures to prevent new similar violations in all cases.

2) Violation of Article 5§4 due to the lack of adversarial proceedings, in the case of Cabala: See the Nešták case (65559/01) Section 6.2.

3) Violation of Article 6§1 in the case of Cabala: see the Pavlík case (74827/01) (Section 6.2).

4) Violation of Article 5§3 in the case of Kučera: The violation was due to the lack of sufficient reasons presented by the courts which extended the applicant’s detention on remand.

• Information is awaited on other possible measures to prevent new, similar violations.

5) Violations of Article 8 in the case of Kučera: As regards the right of respect for home, the European Court noted that the Police Corps Act of 1993 contains certain guarantees to avoid the abuse of authority in similar circumstances. However, these failed to prevent the violation from occurring (§122 of the judgment).

As regards the right to respect for private and family life, the interference was based on the Detention on Remand Act of 1993. However, the European Court found that it was not indispensable for achieving the aim of prevention of crimes and the protection of the rights of others.

• Information is awaited on any measures taken or envisaged to prevent new, similar violations in particular training or guidance for the Police.

            6) Publication and dissemination:

• Information provided by the Slovak authorities on 18/03/2008: The judgments in Cabala and Haris were translated and published in Justičná Revue No 12/2007. The judgment in Kučera was translated and published in Justičná Revue No 10/2007. On 21/12/07, the judgments were sent out to all regional courts and to the Supreme Court by a circular letter from the Minister of Justice. The presidents of the regional courts and the President of the Criminal Division of the Supreme Court have been asked to notify the judgments to all judges in the regional, district courts and the Supreme Court dealing with criminal cases. On 24/07/08, the Kučera judgment was distributed to all regional courts and the Police Presidium by a letter from the Agent of the Slovak Republic before the European Court. The presidents of all the regional courts and the Police have been requested to notify the judgments to all courts within their jurisdiction and all district police officers.

74258/01          Urbárska Obec Trenčianske Biskupice, judgment of 27/11/2007, final on 02/06/2008 and of 27/01/2009, possibly final on 27/04/2009

The case concerns violations of the right to the peaceful enjoyment of possessions of the applicant, a registered association of landowners (violation of Article 1 of Protocol 1).

Under the communist regime the land owned by the predecessors of the members of the applicant association was put at the disposal of an agricultural co-operative, which later rented it to the members of the Union of Gardeners. The owners’ formal right to the land remained unaffected, but they had no possibility of using it.

In July 1998, the gardeners initiated consolidation of ownership proceedings with the view to having the ownership of the land transferred to them. The proceedings were based on the provisions of Act 64/1997, according to which such land could be acquired by the tenants using the land without the consent of the land owner, who was entitled to receive either a different plot of land or pecuniary compensation. As a consequence, in October 2002 the applicant association was offered land to compensate for their loss of ownership at a disproportionately low rate (less than 3% of the current market value of the lost land) and in February 2003 the ownership of the relevant plots passed formally to the tenants. Pending the outcome of the consolidation proceedings, the provisions of Act 64/1997 was applicable and required the tenants to pay rent to the applicant association until the proceedings were resolved. Under the Act, the rent payable by the tenants to the applicant association was set at ten per cent of its value and was lower than the real property tax payable in respect of the land.

The European Court found that the transfer of ownership of the applicants’ land to the tenants amounted to a disproportionate deprivation of possessions. In the European Court’s opinion, the public interest in pursuing proceedings under Act 64/1997 was not sufficiently broad and compelling to justify the substantial difference between the real value of the applicant’s land and that of the land which it obtained in compensation. Thus the effects produced by application of Act 64/1997 failed to obtain a fair balance between the interests at stake, i.e. those of the individual gardeners using the land in allotments and those of the owners. Moreover, concerning the compulsory letting of the land, the European Court noted that the general interest did not justify such a low level of rent which bore no relation to the actual value of land. Thus the compulsory letting of the land on the basis of the rental terms set out in the applicable statutory provisions amounted to a disproportionate control of use of the applicant’s property.

Individual measures: On 27/01/2009, the European Court delivered its judgment on just satisfaction. This judgment is not yet final.

General measures: Under Article 46 the European Court concluded that the violation arose from the state of the Slovakian legislation, which has affected a number of landowners whose land comes under the regime of Act 64/1997. Both violations arose from the application of a law to a specific category of citizens. The European Court noted that this case is the first of a number that are pending before the Court and identified a systematic violation. It therefore suggested that Slovakia should take action at the national level to address the violation. The general measures should ensure that:

1) the rental terms for the letting of land in allotments should be able to take into account the actual value of the land and the current market conditions and

2) compensation for the transfer of ownership of land should have a reasonable relation to the market value of the property at the time of the transfer.

• On 13/11/2008 the Slovakian authorities provided information on the general measures. Bilateral contacts are under way in relation to the information provided.

                       - Cases of length of civil proceedings and lack of an effective remedy[66]

2015/02            Jakub, judgment of 28/02/2006, final on 28/05/2006

42774/04           Báňas, judgment of 12/02/2008, final on 12/05/2008

16988/02           Bohucký, judgment of 23/10/2007, final on 23/01/2008

65422/01           Dobál, judgment of 12/12/2006, final on 23/05/2007

21326/07           Eliáš, judgment of 18/03/2008, final on 18/06/2008

66083/01           Gažíková, judgment of 13/06/2006, final on 13/09/2006

2010/02            Hrobová, judgment of 08/06/2006, final on 08/09/2006

16126/05           Jakubička and Magyaricsová, judgment of 18/12/2007, final on 18/03/2008

70798/01           Jenčová, judgment of 04/05/2006, final on 04/08/2006

70985/01           Judt, judgment of 09/10/2007, final on 09/01/2008

56161/00           Komanický No.2, judgment of 02/10/2007, final on 02/01/2008

63959/00           Kuril, judgment of 03/10/2006, final on 03/01/2007

67039/01           Kvasnová, judgment of 13/06/2006, final on 13/09/2006

52443/99           L.R., judgment of 29/11/2005, final on 13/09/2006

77688/01           Lubina, judgment of 19/09/2006, final on 19/12/2006

44068/02           Magura, judgment of 13/06/2006, final on 13/09/2006

62187/00           Malejčík, judgment of 31/01/2006, final on 03/07/2006

33827/03           Matia, judgment of 27/11/2007, final on 27/02/2008

21302/02           Múčková, judgment of 13/06/2006, final on 13/09/2006

69484/01           Obluk, judgment of 20/06/2006, final on 20/09/2006

67035/01           Orel, judgment of 09/01/2007, final on 09/04/2007

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

45148/06           Pobijaková, judgment of 18/03/2008, final on 18/06/2008

54330/00           Preložník, judgment of 12/12/2006, final on 23/05/2007

25763/02           Rapoš, judgment of 20/05/2008, final on 20/08/2008

58174/00           Rišková, judgment of 22/08/2006, final on 22/11/2006

72019/01           Ščuryová, judgment of 31/10/2006, final on 31/01/2007

72237/01           Šedý, judgment of 19/12/2006, final on 19/03/2007

50224/99           Šidlová, judgment of 26/09/2006, final on 26/12/2006

26840/02           Sika No. 3, judgment of 23/10/2007, final on 23/01/2008

44508/04           Sika No. 4, judgment of 27/11/2007, final on 27/02/2008

2132/02            Sika, judgment of 13/06/2006, final on 13/09/2006

58708/00           Skurčák, judgment of 05/12/2006, final on 05/03/2007

23865/02           Šnegoň, judgment of 12/12/2006, final on 12/03/2007

77690/01           Solárová and others, judgment of 05/12/2006, final on 05/03/2007

39139/05           Španír, judgment of 18/12/2007, final on 07/07/2008

23846/02           Štefániková, judgment of 23/10/2007, final on 23/01/2008

77720/01           Teréni, judgment of 20/06/2006, final on 20/09/2006

17709/04           Tomláková, judgment of 05/12/2006, final on 05/03/2007

57986/00           Turek, judgment of 14/02/2006, final on 13/09/2006

3305/04            Vičanová, judgment of 18/12/2007, final on 07/07/2008

54826/00           Vozár, judgment of 14/11/2006, final on 14/02/2007

67036/01           Vujčík, judgment of 13/12/2005, final on 13/09/2006

28652/03           Weiss, judgment of 18/12/2007, final on 18/03/2008

- 1 case against Slovenia

43393/98           Matko, judgment of 02/11/2006, final on 02/02/2007

This case concerns the ill-treatment to which the applicant was subjected by the Slovenj Gradec police at the time of his arrest in April 1995 and the failure to conduct an effective investigation into the matter.

The applicant alleged that he had been severely beaten when he was apprehended. Although the medical reports subsequently obtained by units involved in the operation found that his injuries were due to the use of force by the police, his complaint to the Slovenj Gradec police was dismissed by the Public Prosecutor in January 1997. At the same time, a judicial investigation was opened against the applicant for “obstructing an official in the course of his duties”. The district court convicted the applicant on 12/02/2001.

The European Court held that the Slovenian authorities had not furnished credible or convincing arguments explaining or justifying the degree of force used against the applicant (substantive violation of Article 3), particularly because the statements of the officers who had used force against the applicant were not examined at any stage in the investigation. Furthermore, during the judicial proceedings against the applicant, the police officers concerned were not questioned because the district court considered it necessary to protect their identity.

The European Court also found that the investigation conducted into the applicant’s allegations was not effective (procedural violation of Article 3). The investigation was conducted by the Slovenj Gradec police and the Ministry of Internal Affairs, i.e. the authorities to which the officers accused of injuring the applicant belonged. Moreover, the Public Prosecutor, in her last-instance decision, lacked the necessary transparency and appearance of independence, and took 18 months to dismiss the applicant’s complaint, although no major steps had been taken to investigate the circumstances at issue. In addition, the Court found it particularly striking that the police officers were not questioned during the judicial proceedings.

Individual measures: The investigation into the ill-treatment of the applicant was closed by decision of 17/01/1997. The judicial proceedings against the applicant ended with a judgment given by the Maribor Higher Court on 09/05/2001. The applicant did not appeal against this judgment. He was given a suspended sentence of three months’ imprisonment and ordered to pay the costs of the proceedings.

The European Court awarded him just satisfaction in respect of non-pecuniary damage and for costs and expenses. It dismissed his claims concerning pecuniary damage and the costs of the domestic proceedings.

• Information provided by the Slovenian authorities (letter of 02/08/2007): The State Prosecutor may not initiate a criminal investigation against the police officers responsible for the ill-treatment of the applicant as the matter is time-barred.

• Information would be useful on the exact time-limits of prescription in this case as well as on the possibility of instituting disciplinary proceedings against the police officers concerned.

General measures:

            1) Substantive violation of Article 3:The issue of the ill-treatment inflicted by the Slovenj Gradec police was already raised during the examination of the Rehbock case (judgment of 28/11/2000; Section 6.2), which concerned facts posterior to the ones in this case. The Rehbock case gave rise to publication of the judgment of the European Court.

• Assessment: no other general measure appears to be necessary.

            2) Procedural violation of Article 3: The European Court welcomed the Constitutional Court decision of 06/07/2006 (§§ 66 and 95). In this decision the Constitutional Court emphasised that the right to judicial protection secured by the Slovenian Constitution also included the right to an independent investigation in cases of alleged ill-treatment by the police.

• Information provided by the Slovenian authorities (letters of 29/03/2007, 02/08/2007 and 01/10/2007):

- Dissemination of the judgment: the European Court’s judgment has been translated and sent out to police stations in the territory in which the violation occurred, to the Ministry of Justice and the State Prosecutor’s Office. In January 2007 the State Prosecutor sent out a memorandum to heads of District Prosecutors’ Offices and the State Prosecutor’s Special Group for the Prosecution of Organised Crime, requesting them to inform all state prosecutors of the judgment.

- Amendments to the State Prosecutor Act: two amendments to the State Prosecutor Act were adopted on 16/02/2007 and 07/05/2007. They set up a specialised task group responsible solely for the prosecution of criminal offences committed by employees in the field of internal affairs (Article 10 of the Act). The special task office began work on 01/11/2007. These amendments also transfer jurisdiction to state prosecutors who will co-ordinate and direct the work of the police during criminal investigations concerning unlawful police acts. A copy of the text of the amendment of 16/02/2007 was sent to the Secretariat.

- Amendment to the Police Act of 10/11/2005: it contains detailed provisions on how medical care shall be provided to detainees.

- Training of police officers: the Ministry of Internal Affairs conducted an internal analysis of the Matko case. Its findings will become part of the compulsory training programme for police officers and staff. The Police provide continuous training and education of its staff as regards the exercise of its powers and practical implementation of procedures. It also regularly publishes brochures on the issue of the exercise of these powers in the context of human rights. The Human Rights Ombudsman is also involved in this training process.

- Inspections: the Ministry of Internal Affairs regularly inspects the work of Police, to monitor the legality of the procedures applied and protect individuals’ rights. The rules specifying the powers of the Minister of Internal Affairs over the Police were published in the Official Gazette No 97/2004 of 03/09/2004.

• Written confirmation of the publication of the judgment is awaited.

- 3 cases against Spain

1483/02            Panella Puig, judgment of 25/04/2006, final on 25/07/2006

This case concerns the violation of the presumption of the applicant's innocence. In 1992 the Constitutional Court overturned military proceedings which had resulted in the applicant's serving a prison term. The applicant lodged a request for compensation. This request was rejected by the Ministry of Justice and the administrative courts on the basis of doubts as to the applicant's guilt, his conviction having been set aside on account of a violation of the principle of the presumption of innocence in respect of the inadequacy of the evidence adduced against him (violation of Article 6§2).

The European Court found that that national authorities had applied Article 394(1) of the Structural Law on the Judiciary which provides that entitlement to compensation in respect of provisional detention is limited to those who are acquitted or those against whom proceedings have been definitively dropped because the accusations against them proved groundless. The Court recalled that it was not its role to replace domestic courts and that it could not be asked to determine which section could have been applied by the authorities. However it considered that the authorities had treated the applicant with excessive severity, as his request was not related to provisional detention but to the sentence he had served and since, in addition, he had not been acquitted nor the charges against him dropped. Reliance on Article 394(1) had led them to examine whether the applicant's responsibility for the alleged acts had been sufficiently established, and thus pronounce upon his guilt.

They might have applied Article 292, which covers more general situations of judicial error or dysfunction. The Court also underlined the fact that the applicant's conviction had already appeared on his criminal record even though it had been definitively set aside by the Constitutional Court.

Individual measures: The applicant's criminal record has now been erased.

• Information is awaited on the applicant's present situation, particularly concerning whether it is possible to reopen the compensation proceedings.

General measures: The judgment of the European Court was published on the Ministry of Justice’s Official Bulletin and sent by the Ministry to the State Council, the Supreme Court, the Constitutional Court, the legal department of the state and to other competent departments. Since the violation relates to an incorrect application of domestic measures by the authorities, and as Spanish law gives direct effect to the Convention and to the European Court’s judgments, the publication and dissemination of the judgment to the competent authorities seem sufficient measures for the purpose of execution.

423/03              Díaz Ochoa, judgment of 22/06/2006, final on 22/09/2006

41745/02          Lacárcel Menéndez, judgment of 15/06/2006, final on 11/12/2006

These cases concern violations of the applicants' right of access to a court (violations of Article 6§1).

In the Díaz Ochoa case, the applicant was not informed in 1992 of proceedings brought against him as co-defendant before a labour tribunal, which resulted in his being ordered to pay certain sums. The applicant did not become aware of the proceedings until October 1998, when his wages were first attached in payment of the sums owed. He applied for an order setting aside the judgment against him on the ground that he had not been notified of the proceedings but his application was dismissed as being out of time. The applicant also applied for a review and lodged an amparo appeal, both without success.

The European Court drew attention to the highly unusual combination of events in this case insofar as the applicant had had no reason to suspect that proceedings had been brought against him, as his address was on the case file that had been before the judge on the merits. In addition, the courts seised to set aside the original order or at appeal had failed to remedy the situation caused by the applicant's absence from the main proceedings because of their unduly narrow construction of the law.

In the Lacarcel Menendez case, the applicant was owner of the flat in which she lived in Murcia, situated in an apartment block in multiple ownership. As she had not paid the joint maintenance costs, her co-owners took proceedings against her to obtain payment of a sum equivalent to 877 euros. In December 1995 the applicant was ordered to pay the amount due. In enforcement of this judgment, and at the co-owners' request, the applicant's apartment was seized and sold at auction.

In the intervening period, namely since 27/11/1995, two judges in Murcia, holding that the applicant was “presumed lacking in legal capacity”, authorised her detention in a psychiatric hospital and subsequently renewed that authorisation. In January 2000 the applicant was declared lacking in legal capacity and one of her sisters was appointed as her guardian. The sister applied for annulment of the proceedings which had resulted in the sale of the applicant's apartment. Her action was dismissed at first instance on the ground that, at the material time, the applicant had not been declared lacking in legal capacity by a final judgment. In addition, the Constitutional Court dismissed the amparo appeal submitted by the applicant's sister.

The European Court noted that, on account of her psychiatric state as “presumed lacking in legal capacity”, the applicant had been unable to suspect that proceedings were being brought against her. The manner in which the courts had examined her case had resulted in denying her effective access to a court. In addition, the courts which examined the action to have those proceedings declared void had failed to remedy this lack of participation in the main proceedings. The reasoning based on the non-retrospective nature of a declaration of incapacity seemed too formalistic and was incompatible with the applicant's placement, against her will, in a psychiatric hospital, on the orders of two other judges in the same city.

Individual measures: In both cases, the European Court awarded the applicants just satisfaction in respect of the non-pecuniary damages suffered.

1) Díaz Ochoa case:

The Spanish authorities indicated that the General Social Security Treasury, in whose favour partial seizure of the applicant’s salary had been ordered, decided on the 11/04/2008 to waive its right to do so (letter from the authorities dated 15/09/2008). Its decision was notified to the applicant on the 22/05/2008.

Later the Social Affairs Court quashed the initial decision of 1992 which ordered the applicant to pay the sums in respect of which the attachment order had been issued. Furthermore, the competent department of the General Social Security Treasury issued an ordinance on 20/06/2008 indicating that once the Social Affairs Court’s decision became final, the necessary measures concerning reimbursement of the sums attached would automatically be taken.

• Information provided by the Spanish authorities (letter of 9/12/2008): A decision was taken to this end on 07/10/2008 by the Provincial Directorate of the General Social Security Treasury, to reimburse 5 661,20 EUR, deposited on the applicant’s current account, to which the sum of 1.375,19 EUR was added, representing the interest calculated from the date of each distraint. The applicant’s counsel indicated that his client’s request for review of the labour tribunal’s decision in the main proceedings has been rejected. He also indicated that the applicant appealed against the decision of the Provincial Directorate of the Treasury, as he claims this decision did not specify the interest on overdue payment owed and did not take into account the damages subsequent to the European Court’s judgment (letter of 08/01/2009). 

• Further information was provided by the applicant’s counsel on 04/02/2009 and by the authorities on 24/02/2009. This information is being assessed.

2) Lacárcel Menéndez case:

• Information is awaited on the applicant’s present situation and on measures which could be taken regarding her, if appropriate.

General measures: The problem of the excessively formalistic approach as regards the enforcement of procedural rules by Spanish courts has been raised in several previous cases which have been closed or are still under consideration by the Committee, in particular on the assumption that the Spanish courts will give direct effect to the European Court case-law (see Pérez de Rada Cavanilles against Spain, judgment of 28/10/1998, Resolution ResDH(2001)84, and Stone Court Shipping Company S.A. against Spain, 1059th meeting, June 2009).

However, the measures that have been adopted in those cases do not appear to redress the particular problems raised in the two present cases.

The Diaz Ochoa and Lacarel Menéndez cases have been published in the Ministry of Justice’s information bulletin (Boletin de Informacion, ministero de justicia) and sent by the Ministry to the courts and authorities concerned.

• Assessment by the Spanish authorities of the need to take further measures would be appreciated.

- 3 cases against Switzerland

39051/03           Emonet and others, judgment of 13/12/2007, final on 13/03/2008

This case concerns an infringement of the applicants’ right to respect for their family life (violation of Article 8). When she was 19, the first applicant suffered from a serious illness, which left her in need of permanent care. It was decided, in agreement with her mother (the second applicant) and the mother’s partner (the third applicant), that the third applicant would adopt the first applicant, in order that they could be considered a family in the eyes of the law. The biological father of the first applicant had died some years earlier. In 2001, the adoption became effective. However, this had the unintended consequence of terminating the legal parent-child relationship between the mother and daughter. Under Article 267 of the Swiss Civil Code, existing parent-child relationships are severed on adoption, save in respect of the spouse of the adoptive parent; the second and third applicants were cohabiting (they were not spouses).

The European Court found that this interference was based on a clear legislative provision but that the applicants should not be criticised for failing to take into account the extent of the consequences of the adoption. The “respect” for the applicants' family life required that biological and social reality be taken into account to avoid the blind, mechanical application of the provisions of the law to this very particular situation for which they were clearly not intended. Failure to take such considerations into account show complete disregard for the wishes of the persons concerned, without actually benefiting anybody. Lastly, the measure did not respond to any “pressing social need” nor was it “necessary in a democratic society.”

Individual measures: The European Court noted (paragraph 98) that  the applicants will have the possibility, based on section 122 of the new Federal Tribunal Act of 17 June 2005, which entered into force on 1 January 2007, of applying for a revision of the impugned judgment delivered by the Federal Court on 28 May 2003 in order to have the mother-daughter relationship between the first two applicants restored without that severing the parental tie between the first and third applicants, which falls under the protection of Article 8 of the Convention since the adoption pronounced by the Court of Justice. The European Court also added that in spite of this possibility, the applicants have suffered frustrations from the time when they were informed of the disputed measure. The Court therefore awarded them just satisfaction for non pecuniary damage.

The applicants requested the revision of the judgment and the Federal Tribunal ruled in their favour in a judgment delivered on 18/07/ 2008. Applying the European Court’s judgment directly, the Federal Tribunal held that the authorities could not end the legal child relationship between the mother and daughter without breaching Article 8 of the Convention. It annulled the decision at issue.

General measures: Joint adoption is not permitted in Switzerland for unmarried couples (paragraph 264 of the Civil Code). One of the effects of adoption is that the previous, legal, parental relationships are severed save in respect of the spouse of the adoptive parent (paragraph 267 of the Civil Code). On this point, the European Court noted that the government had based a large part of its reasoning on the preparatory work for the Civil Code in order to justify the difference in treatment between married and cohabiting couples. The European Court stressed the importance of an evolving approach to the interpretation of the Convention, in the light of today's living conditions, to avoid excessive reliance on historical interpretations. The Court recognised a growing recognition in the Council of Europe's member States for adoptions such as that at the origin of this case. The Court saw an indication in this sense in the draft revised European Convention on the Adoption of Children, which stipulates that the law may provide for the spouse or registered partner of the adopter to retain his or her rights and obligations in respect of the adopted child if the latter is his or her child.

A summary of the judgment was published in the Annual Report of the Federal Council on the activities of Switzerland within the Council of Europe in 2007.

• Information has been provided on measures taken or envisaged to avoid similar, future violations – in particular the publication/dissemination of the judgment, and the progress of the Federal Tribunal case-law. A detailed examination of these measures is under way.

55525/00           Hadri-Vionnet, judgment of 14/02/2008, final on 14/05/2008

This case concerns the infringement of the applicant’s right to family and/or private life (violation of Article 8). In April 1997, the applicant gave birth to a stillborn baby. When asked by the mid-wife whether she wanted to see the body of the child, the applicant – still in shock – and the father of the child replied that they did not. The same day, a social worker and the registrar for the local area were informed of the birth of the child. They arranged for a funeral without any ceremony and made no provision for the applicant to attend. After being placed in a wooden coffin by the funeral service, the body of the child was transported in a delivery van to the municipal cemetery and buried in the communal grave for sill-born babies. The applicant brought criminal proceedings against the municipal officials concerned but these were unsuccessful. The applicant also sought, without success, compensation for the suffering caused by the actions of the municipal agents.

Without questioning the sincerity of the municipal agents, the European Court considered that there had been an interference with the applicant’s rights regarding both the organisation of her child’s funeral and the transport of his body and that this interference did not have any legal basis.

Individual measures: In May 1998, the child’s body was exhumed, under the authorisation of the local authority responsible and at their cost. The body was transferred to a place chosen by the applicant, where it was buried after a religious ceremony. In the event that this did not amount to adequate and sufficient compensation, the European Court awarded the applicant compensation for non-pecuniary damage.

Ÿ Evaluation: In the circumstances, no other measures appear necessary.

General measures:

Concerning the right of parents to attend a burial and ceremony, the Court indicated that ‘there was a contradiction between the clear legal provisions and the actual practice followed’. The fact that the burial was not organised by relatives was equally, “in contradiction to the clear wording of the relevant legislation”. Finally, the transport of the child’s body was also an infringement in disregard of the relevant legislation.

Ÿ Evaluation: Information is awaited on the measures taken or envisaged to avoid other, similar violations. It appears, in any case, necessary to disseminate the judgment to the competent authorities.  

35865/04           Foglia, judgment of 13/12/2007, final on 13/03/2008

This case concerns a violation of the applicant’s right to freedom of expression (violation of Article 10). Practicing as a lawyer, he was convicted by a disciplinary fine in 2003 on grounds of declarations made in the press and on the television, in relation to a criminal case in which he represented civil parties. Inter alia, he had described the investigation as “superficial and hasty”. The conviction in question had been decided by the Disciplinary Commission of the lawyers Bar Association and confirmed by the courts to which he had appealed.

This conviction was prescribed by Swiss law and had a legitimate aim maintaining the authority and impartiality of the judiciary. However, it was not necessary in a democratic society. Indeed, the European Court does not share the national authorities’ opinion that, in view of the declarations he made and given that he allegedly transmitted certain documents from the trial to journalists (which was not proven), he was responsible for a press campaign and lead “media proceedings” parallel to the judicial proceedings, with a view to influencing the courts involved in the case. The European Court also held, among others, that the comments made by the applicant had been neither excessive nor offensive. Finally, it underlined that although the fine imposed on the applicant had in itself been modest (around 1024 euros), it was nonetheless symbolic in value.

Individual measures: the European Court granted the applicant, as a just satisfaction for the pecuniary damage sustained, a sum equal to the fine paid following the impugned conviction. He did not allege to have suffered from any non-pecuniary damage. It appears from the judgment that the applicant is still a practicing lawyer.

• Further information has been requested as to whether the applicant does not suffer from negative consequences caused by the violation such as, e.g., a possible recording of his disciplinary conviction.

• Information provided on individual measures is being examined.

General measures: The violation found stems from the application of national law in this specific case. Concerning the principles to follow in this field, the European Court, among others, recalled that although lawyers had the right to comment publicly on the administration of justice, their criticism could not overstep certain bounds. In that connection, account must be taken of the need to strike the right balance between the various interests involved, which include the public's right to receive information about questions arising from judicial decisions, the requirements of the proper administration of justice and the dignity of the legal profession. The European Court also recalled that the margin of appreciation in assessing the necessity of an interference in this area is not “wide”. Furthermore, the Court said the impugned interference must be looked at in the light of the case as a whole, including in this case the content of the remarks held against the applicant and the context in which she made them.

A summing-up of the judgment has been published in the “Quarterly report on the European Court of Human Rights case-law” of the first semester 2008, available on the Internet site of the Ministry of Justice (http://www.bj.admin.ch/bj/en/home/themen/staat_und_buerger/menschenrechte2.html).

• Further information has been requested on the dissemination of this judgment to the competent authorities (in particular the Disciplinary Commission of the Bar Association and the courts which can be involved in cases in this field), to place them in a position to avoid similar violations in future.

• Information provided on general measures is being examined.

- 23 cases against “the former Yugoslav Republic of Macedonia”

- Cases concerning lack of effective investigation of allegations of ill-treatment by the police

69908/01           Jasar, judgment of 15/02/2007, final on 15/05/2007

13252/02           Dželadinov, judgment of 10/04/2008, final on 10/07/2008

69875/01           Sulejmanov, judgment of 24/04/2008, final on 24/07/2008

13191/02           Trajkoski, judgment of 07/02/2008, final on 07/07/2008

These cases concern the authorities’ failure in their duty to investigate effectively the applicants’ allegations of ill-treatment by the police (procedural violations of Article 3). The competent Public Prosecutors' Offices whose duty it is to discover whether an offence had been committed against the applicants, nationals of “the former Yugoslav Republic of Macedonia” of Roma ethnic origin (except in the Trajkoski case), have undertaken no investigation in this respect nor informed the applicants of any results.

The European Court noted that the applicants are still barred from taking over the investigation as a subsidiary complainant, as the Public Prosecutor has not yet taken a decision to dismiss the complaint filed by the applicants (§59 in Jašar and § 73 in Dželadinov). In the Trajkoski case, the European Court noted that the applicant’s complaints remained without judicial consideration on the merits in the subsidiary criminal proceedings due to the excessive formalism of the domestic court and its failure to take any further action in this case (§48). 

Individual measures: The applicants are time-barred as from 2006 in the Trajkovski case and 2003 in the other cases from bringing an action against the police officers who allegedly ill-treated them. In the Jašar case, on 22/02/2006 the Basic Public Prosecutor of Štip decided to prosecute no-one in the present case which was closed as time-barred.

The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage in all cases.

• Assessment: In view of the circumstances, no other individual measure appears necessary.

General measures:

• Information provided by the authorities (14/03/2008 and 15/10/2008):The new 2007 Public Prosecution Act has been adopted (Official Gazette, No. 50 of 12/12/2007). Pursuant to Article 39 Section 3, the public prosecutor is obliged to take the steps authorised under the law as soon as possible, but not later than 30 days after the complaint has been filed.

In May 2007, the Strategy of Criminal Law Reform was also adopted. It detected a number of deficiencies in the current legal system. In accordance with the Action Plan for Strategy Implementation, four working parties have been established within the Ministry of Justice (two for Criminal Law and two for Criminal Procedure Law). A member of the Government Agent’s Office is a secretary of the working party on the Criminal Procedure Law. Taking into account the present judgments, it was expected that by the end of 2008 the Criminal Procedure Law would be amended to provide among other things a deadline within which public prosecutors must decide on complaints and notify the applicants and the establishment of a special authority to deal with cases in which police officers have allegedly committed a felony. At the same time, draft amendments to the Public Prosecution Act envisage establishing a special prosecution division in charge of such cases.

• Information received from other sources: The problem concerning the absence of effective investigation into allegations of ill-treatment by the police has been highlighted in CPT reports. The CPT recommended that the national authorities strenuously reiterate the message of zero-tolerance of ill-treatment of persons deprived of their liberty (§15 CPT/Info(2008)22). The CPT noted in the report concerning its field visit in 2008, that no action had been taken by the relevant authorities to ensure implementation of its recommendation that, whenever persons brought before a prosecutor or judge allege ill-treatment by law enforcement officials, the prosecutor or judge should record the allegations in writing, order an immediate forensic medical examination and take the necessary steps to ensure that the allegations are properly investigated (§33 CPT/Info(2008)31). Further, the CPT recommended that even in the absence of an express allegation of ill-treatment, the prosecutor or judge should adopt a proactive approach. If necessary, the CPT recommended that guidelines should be issued by the appropriate authorities (§16 CPT/Info(2008)22).

On 10/07/2007, the Secretariat received a letter from the Civil Society Research Center, “the former Yugoslav Republic of Macedonia” and the European Roma Rights Centre, Hungary, concerning the draft Public Prosecution Act. Apparently neither the draft law nor the equivalent law in force at the time lays down any time-limit for carrying out such investigations and informing those concerned of any outcome.

• Assessment: The Secretariat takes notes of the measures taken so far by the authorities. However, in the light of the CPT’s reports, it appears that the problem of effective investigation into allegations of ill-treatment in hands of police still persists after the adoption of the 2007 Public Prosecution Act. Therefore, it seems that additional measures will be necessary to ensure the effective investigation in similar cases in the future.

• Information is thus awaited on further progress in amending the relevant legislation and introducing a deadline within which public prosecutors would be obliged to decide on complaints and notify the applicants.

The judgment in the Jašar case has been translated and published on the website of the Ministry of Justice.

On 04/04/2007 the Government Agent forwarded the judgment with a special note on the violation found to the Court of First Instance of Štip, Court of Appeals in Štip, Bitola and Skopje, the Supreme Court, the Basic Public Prosecutor of Štip, Higher Public Prosecutors of Štip, Bitola and Skopje and to the Prosecutor General. On 16/06/2006 a special letter was also sent to the Ministry of the Interior regarding the case.

                       - Case of length of criminal proceedings

26541/02           Nankov, judgment of 29/11/2007, final on 02/06/2008

This case concerns the excessive length of criminal proceedings against the applicant between 1992 and 2002 (violation of Article 6§1). Significant delays were attributed to three remittals of the case for re‑examination and a frequent change of trial judges.

The European Court stated that “since the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts, the repetition of such orders within one set of proceedings discloses a serious deficiency in the judicial system” (§48 of the judgment).

Individual measures: The criminal proceedings against the applicant ended in 2002 (§ 44 of the judgment).

• Assessment: No further measure is required.

General measures: The European Court found shortcomings in the judicial system concerning the remittal of cases for re-examination and also concluded that the frequent change of the trial judges also contributed to the length of proceedings (§48 of the judgment).

• Information is awaited on possible measures taken or envisaged by the authorities to prevent similar violations. In particular, information is awaited on the legislation governing remittal of cases for re‑examination and change of judges as well as on any measures taken or envisaged to improve it.

In this respect, the authorities' attention is drawn to measures adopted in this field by other countries (see e.g. Kudła against Poland, Interim Resolution ResDH(2007)28; Šubinski against Slovenia (1059th meeting, June 2009); Tarighi Wageh Dashti against Greece and 7 other cases (Final Resolution ResDH(2005)66).

• Publication and dissemination: The European Court’s judgment was translated and published on the website of the Ministry of Justice. It was forwarded to all domestic courts with an explanatory note. 

- Cases of length of proceedings concerning civil rights and obligations before labour or civil courts and lack of an effective domestic remedy

13886/02          Atanasovic and others, judgment of 22/12/05, final on 12/04/2006

44208/02          Arsov, judgment of 19/10/2006, final on 19/01/2007

13270/02          Dika, judgment of 31/05/2007, final on 12/11/2007

6924/03            Graberska, judgment of 14/06/2007, final on 14/09/2007

10541/03           Ivanovska, judgment of 15/11/2007, final on 31/03/2008

44353/02          Kostovska, judgment of 15/06/06, final on 15/09/2006

22931/03          Lazarevska, judgment of 05/07/2007, final on 10/12/2007

38202/02          Lickov, judgment of 28/09/2006, final on 28/12/2006

22928/03          Markoski, judgment of 02/11/2006, final on 12/02/2007

44221/02          Mihajloski, judgment of 31/05/2007, final on 31/08/2007

15056/02          Milošević, judgment of 20/04/06, final on 20/07/2006

26124/02          MZT Learnica A.D., judgment of 30/11/06, final on 28/02/20007

14258/03           Parizov, judgment of 07/02/2008, final on 07/05/2008

41228/02          Rizova, judgment of 06/07/06, final on 06/10/2006

14349/03          Sali, judgment of 05/07/2007, final on 05/10/2007

34215/02          Stojanov, judgment of 31/05/2007, final on 31/08/2007

14818/02           Stojkovic, judgment of 08/11/2007, final on 02/06/2008

27866/02           Ziberi, judgment of 05/07/2007, final on 05/10/2007

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 has been awaited on urgent measures required to accelerate the pending proceedings in Atanasovic and others, MZT Learnica, Mihajloski andMilošević and Parizov cases. 

General measures:

• Information provided by the authorities of the respondent state (21/12/2006, 15/10/2008, 20/10/2008, 22/10/2008 and 28/01/2009): The following general measures have been implemented with reference to the violations found:

1) Violations of Article 6§1:

New Law on Civil Procedures: This law was adopted in September 2005 (Official Gazette No. 79/2005) with the primary purpose of increasing the efficiency and reducing the duration of civil proceedings. The major changes introduced are the following:

- Redefinition of the principle of “the search for material truth”: courts now limit themselves to matters raised and evidence adduced by the parties;

- New provisions concerning delivery of receipts, so as to accelerate procedures and reduce the scope for manipulation by parties;

- Changes to enhance the efficiency of civil proceedings regarding legal representation, time-limits for admission of evidence at various stages in proceedings and appeal procedures;

- Appeal courts may no longer repeatedly refer cases back to the first instance: instead, they must themselves determine any case which comes before them a second time. However, the European Court noted in the the Gjozev judgment (Section 2.2), that this provision did not prove efficient in the applicant’s case yet (§51). It appears, however, that this was not a general but rather a specific observation relating only to the particular case of Gjozev.

Since the introduction of the new Law on Civil Procedure, the statistics concerning the length of civil proceedings have improved considerably. For instance, in the first half of 2008, a total of 52,1% of all civil cases were resolved within 6 months, while a further 24,6% were closed within a year.

2) Violation of Article 13:

• New Law on Courts: This was adopted in 2006 and provides a domestic legal remedy and a procedure whereby applicants may request protection of their right to a hearing within a reasonable time before domestic courts before lodging applications with the European Court. The major changes introduced by the Law on Courts are that:

- Parties considering that their human rights have been violated in this respect may file a request for protection of that right with the immediate higher-instance court. The court thus seised must process the request no later than six months following the lodging of the request and decide whether the lower court has violated the right to a hearing within reasonable time. If a violation is found, it awards just satisfaction, charged to the Court Budget.

- The Supreme Court is also competent to decide, at the request of the parties or other participants in the proceedings, whether there has been a violation of the right to a hearing within reasonable time.

• Opinion of the Supreme Court: On 26/07/2007 the Supreme Court rendered an opinion to the effect that it is not possible to apply Articles 35 and 36 of the 2006 Law on Courts properly from the viewpoint of the right to a trial within a reasonable time without further amendments. The Supreme Court considered that the following provisions are not sufficiently clear for the following reasons:

- First, there is no special law to regulate decision-making on complaints concerning the right to a trial within a reasonable time, nor any provision referring to application of existing procedural laws mutatis mutandis.

- Secondly, it is not specified which courts make such decisions at first instance or in which composition: moreover the law is mute concerning the right to appeal and the courts which intervene at second instance.

- Thirdly, there is no indication of the period after which decisions become final.

- Fourthly, there is no indication as to the identity of the defendant in such proceedings.

- Finally, it is stated that the damages awarded in the proceedings concerning violation of the trial within a reasonable time should be at the expense of the State Budget rather than the Court Budget as currently provided. This is particularly important since the Court Budget, having no legal personality, cannot be a party to proceedings. Moreover, the fact that the Court Budget is obliged to pay damages runs counter to the principle of rule of law.

• Parizov judgment: The European Court examined the solutions introduced by the 2006 Law on Courts for the first time in the Parizov judgment. Like the Supreme Court, the European Court advanced the following criticism of this Law (§§44-45 of the Parizov judgment as well as in §§44-46 in Stojković and §§37-38 in Gjozev (Section 2.2)):

- First, the expression “the court considers the application (постапува по барањето) within six months ”is susceptible to various interpretations. It remains open to speculation whether the proceedings upon such application should terminate within that time-limit.

- Secondly, the Law does not specify which court would be competent to decide on a complaint concerning a violation of the right to a trial within reasonable time if a case is pending before the Supreme Court, as was the case in the Parizov judgment.

- Thirdly, no complaint concerning the violation of the right to a trial within reasonable time has been decided by a court, although more than twelve months have elapsed since the introduction of the remedy.

- Finally, the Law contains no provision explicitly bringing all applications pending before the European Court within the jurisdiction of the national courts irrespective of whether they are still pending at domestic level (transitional provisions).

• 2008 Amendments to the Law on Courts: In this respect, certain amendments to the Law on Courts were introduced in March 2008, providing among other things that the Supreme Court is the only competent court to make decisions concerning the excessive length of proceedings and should make such decisions within 6 months. The Supreme Court has established a special division to deal exclusively with this type of cases. It is also provided that the Supreme Court shall make decisions concerning the excessive length of proceedings taking into consideration the case-law of the European Court. If the Supreme Court finds a violation of the right to a trial within reasonable time, it shall make a decision on the applicant’s right or obligation and shall also award just satisfaction.

• Assessment: The respondent state introduced both acceleratory and compensatory remedies intended to prevent new, similar violations. The initial statistics for the period after the adoption of the new Law on Civil Procedure appear to be encouraging. It should be noted that the respondent state reacted promptly to the subsequent criticism of the European Court in this matter. The Secretariat welcomes the reforms undertaken so far. However, their effects in practice remain to be demonstrated.

• Information is awaited on further statistics related to the national court decisions on complaints concerning length of proceedings as well as the initial assessment of the efficiency of the remedy introduced in 2008.

3) Translation, publication and dissemination of the European Court’s judgments: the judgments in Atanasovic, and Milošević have been translated and published on the internet site of the Ministry of Justice and sent out to the relevant courts. Courts’ attention has been drawn to the need to accelerate the proceedings in the Milošević case.

- 34 cases against Turkey

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 along the cease-fire line 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 neither proportionate nor absolutely necessary for the purpose of “defending any person from unlawful violence” or “effecting a lawful arrest”: in fact Mr Kakoulli did not pose an imminent risk of death or serious harm to anyone since the fatal shot was fired several minutes after Mr Kakoulli had already been injured and neutralised; he therefore did not represent any longer a threat and it was thus possible to carry out an arrest. In this context, it could not be concluded that the use of fire-arms was in conformity with the rules of military engagement concerning the duty post in question (post Haşim 8) (see §120 of the judgment).

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, allegedly in possession of arms, could have posed a serious threat to the soldiers from a long distance 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 provided by the Turkish authorities: Following the European Court’s judgment, the question of a potential reopening of the investigation was examined promptly. A preliminary analysis of a possible reopening was carried out as early as July 2006 by the security forces, who examined in detail all the deficiencies identified by the European Court.

On the basis of this examination, the Prosecutor General, in a decision of 28/03/2007 completed with a letter of 21/05/2008, found that a new investigation was impossible at present, because some of the witnesses were Greek Cypriots, the persons working at the time for the United Nations in Cyprus have left the territory since, the body of Mr Petros Kakoulli was buried in the southern part of Cyprus and 12 years have passed since the facts of the case.

Moreover, it can be seen in the relevant legislation of “TRNC” that no period of limitations exists concerning the incriminated facts; certainly, a person convicted or previously acquitted cannot be judged twice for the same facts, but proceedings ended with a decision not to bring charges, as in the present case, might be reopened if the new facts were brought to the attention of the authorities.

• Assessment: The provided information concerning the decision adopted by the Prosecutor General not to reopen the investigation represents a detailed and thorough examination of all the main elements pointed out by the European Court as deficient in the initial investigation. It should be noted, however, that this analysis was based on the same investigation acts criticised by the European Court, giving rise to a violation of the procedural aspect of Article 2. In this connection, it suffices to emphasise that carrying out a new effective investigation would make it possible to establish, in the light of the conclusions of the European Court, whether or not the soldier in question had acted in compliance with relevant orders and instructions. This in turn would make it possible to establish responsibility for the killing of Mr. Kakoulli, an element of the concept of effective investigation.

However, from the information provided by the Turkish authorities on 21/05/2008 it seems that the authorities are not in a position to carry out an exhumation of, and perform an autopsy on, the body of Mr Petros Kakoulli, as it is buried in the southern part of Cyprus. Now, the fact of performing another autopsy is crucial for determining the position of Mr Kakoulli’s body in relation to the soldiers on guard duty when the shots were fired, and ultimately for determining whether the soldier who shot could have avoided using excessive lethal force, and also if the rules of engagement laid down in the military instructions concerning the Haşim 8 Guard Post had been respected. Consequently, in the absence of a new autopsy, it would seem impossible at present to take action for effectively remedying the deficiencies of the initial investigation as concluded by the European Court.

General measures: An article on the judgment had been published in the "Turkish Cypriot Bar Association Review" and the judgment had been disseminated to all relevant authorities, including to the security forces and the “President of the TRNC”.

The Turkish authorities have further provided extensive information on the regulatory framework in the “TRNC” regarding the use of firearms by security forces. The information concerns both laws (statutory documents) applicable to all security forces and instructions (delegated legal acts or acts of application adopted by the executive) for security forces serving along the green line. Several laws contain provisions setting out the legal regime concerning punishment for unwarranted use of firearms, the cases in which the use of firearms is allowed, the obligation to give a warning before using a firearm, the responsibility of higher ranking officers, the standard training for security forces, investigations into incidents and the duty to follow orders and the exceptions to that duty. The general and specific instructions for the guards at the guard post at issue in the judgment contain the regulatory framework as to actions to be taken by guards in certain specific situations and as to the way firearms should be carried and used.

• Legislative provisions:

The relevant legislative provisions are:

- “Code No. 35/1986 on the Internal Functioning of the Security Forces of the Turkish Republic of Northern Cyprus” of 13/11/1986, as amended by “Code 57/2000”;

- “Code No. 29/1983 on Military Crimes and Punishments 15/05/1983”, as amended by “Codes 34/1995” and “50/2006”;

- “Code No: 34/1983 on the Establishment and Procedures of Security Forces Court and Security Forces Supreme Court” of 15/05/1983 as amended by “Codes 21/1984”, “27/1984”, “61/1987”, “24/1990”, “9/1991”, “13/2002” and “33/2004”;

- “Code No. 13/1979 on the Establishment of Disciplinary Courts, Disciplinary Misdemeanours and Punishments and Procedures” of 28/11/1979, as amended by “Codes 8/1991”, “18/1992”, and “19/2006”.

The provisions of the legal framework provided by the Turkish authorities may be summarised as follows:

- Responsibility for use of arms: no responsibility attaches to either a soldier who used arms, or to their commanders-in-chief, in cases when the arms have been used in conformity with the relevant legal provisions, in particular in Law 35/1986 on internal service of the security forces. The responsibility of both the soldier and his commander arises in cases of use of arms not in compliance with the law. In cases in which military personnel causes injury or death to another person because of a negligent or an illegal action, this person is liable in accordance with the Criminal Code. When a military officer intentionally does not take action against an offence committed by his subordinate, this is considered an offence punishable by imprisonment of up to 6 months. Military personnel must obey the orders of their superior officers, with whom lies the responsibility for orders issued as regards the application of laws and instructions.

- Use of arms: in cases where a serviceman is on duty, including when he exercises the function of maintaining public order, arms may be used: in order to repel an act of aggression, which may be manifested by physical resistance or dangerous threats; in order to achieve the submission of persons who disobey orders to abandon their arms or instruments of resistance; in order to arrest legally detained people attempting to escape and who do not stop when called to do so and when there is no other means for stopping such people; in order to stop any aggression towards a person or an object being guarded by the serviceman; in cases of legitimate defence.

Arms may only be used in the absence of any other means. Faced with unarmed persons manifesting aggression, resistance, violence or expressing a threat, military personnel are allowed to use arms only after giving a warning first and only to the extent necessary to have the person comply with the call.

- Training of military personnel: five weeks of initial training and two weeks of training specific to the service to which serviceman is assigned is provided. Personnel are trained both on general and specific instructions as regards the bearing and use of arms.

- Investigation: military or civilian persons may complain to superiors or the military prosecutor general of any offence they consider committed by a serviceman. Such complaints are processed immediately with a view to opening an investigation into the situation. The competent court in such cases is the Security Forces Tribunal.

- Victims’ rights: these are covered by pertinent provisions in the criminal and civil legislation.

• Instructions for use of arms:

- Use of arms: military personnel have the right to use fire-arms while respecting the rules of engagement. Such personnel may shoot immediately without warning when armed or unarmed enemy military personnel cross or intend to cross a cease-fire line.

- Training of security forces: since 1998, commanding and subordinate officers have undergone human rights training delivered by high-level trainers, not least as part of initial training. In addition, the High Command of the Security Forces provides two programmes of human rights training. First, in the framework of citizenship, members of the forces of order and in particular military personnel, have since 2004 received in-depth training in universal values, the respect of truth, the concepts of justice and equity, equality and humane behaviour irrespective of circumstances. Secondly, as regards the framework of rules to follow in armed conflict, both theoretical and practical training in human rights is delivered. This two-fold training is provided to the whole staff of the Security Forces High command, and more concretely, to the staff stationed or operating in the points of contact. The entire personnel of the Commandment of Security Forces has been informed that any action which results in a human rights violation constitutes either a criminal or disciplinary offence which will be prosecuted in accordance with the law. The trainers are 12 qualified military officers and the training sessions are organised 10 to 12 times a year. Training includes the European Convention and United Nations standards with a view to preventing in the future violations stemming from disproportionate use of force. In addition, specific courses are delivered on the use of fire arms placing emphasis on the need for such use to be in conformity with the principles of respect for human rights.

• Assessment: It should be noted that, in the presented texts on the legislative provisions and instructions, it is not explicitly apparent that arms should be used strictly proportionately to the situation, only in cases of imminent risk of death or serious harm to human beings and as a last resort. The authorities' views in this respect would be useful.

• As regards training of security forces, further concrete information would be useful to assess the training given to security forces to prevent excessive recourse to firearms.

The Deputies, 1.             as regards the individual measures, noted with interest the information provided by the Cypriot authorities concerning a possible further forensic investigation of Mr Kakoulli’s body; 2.             also noted with interest the ongoing consideration on possible further general measures, 3.             decided to resume consideration of this case at their 1059th meeting (2-4 and 5(morning) June 2009) (DH), for the examination of the individual and general measures.

45902/99           Kasa, judgment of 20/05/2008, final on 20/08/2008[67]

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

                        Interim Resolution CM/Res/DH(2007)109

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

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

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

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

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

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

            1) Events after the judgment of the European Court became final: On 12/07/2007 the applicant's representatives informed the Secretariat that the applicant had been summoned on 09/07/2007 to present himself in order to serve his outstanding sentence resulting from a previous conviction (This information was communicated to delegations on 03/08/2007, DD(2007)440). Several NGOs, both in and outside Turkey, have shown their interest and conveyed their concerns for the applicant's situation.

In the meantime, the applicant's request for a stay of execution of his sentence was rejected by the Eskişehir Military Court on 27/07/2007. In its decision the court referred to the decision taken by the Committee at its 997th meeting (June 2007) and to the undertaking of the Turkish authorities at that meeting concerning the draft law that was under preparation in order to find a solution to the applicant's situation. However, according to the court, the undertaking of the Turkish authorities could not lead to a stay of execution of the applicant's sentence because the content of the law under preparation - including whether or not it contained provisions that would apply for or against the applicant's case - was unknown. The court, therefore, sentenced the applicant to 17 months and 15 days' imprisonment on the basis of his previous convictions. The applicant lodged a petition of objection with the Military Court of Cassation on 03/08/2007. The case is still pending before that court.

            2) Interim resolution adopted at the 1007th meeting (October 2007): In the absence of any information on individual measures taken, despite the declaration of the Turkish authorities that a draft law was being prepared which was intended to cover the individual measures necessary in this case (see below), the Committee decided to adopt Interim Resolution (CM/ResDH(2007)109) urging Turkey without further delay to take all necessary measures to put an end to the violation of the applicant's rights under the Convention and to adopt rapidly the legislative reform necessary to prevent similar violations of the Convention. The Committee further decided to examine the implementation of this judgment at each human rights meeting until the necessary urgent measures are adopted.

            3) Decision adopted at the 1043rd meeting (December 2008): The Committee noted with grave concern that, despite the above-mentioned Interim Resolution and the Committee’s repeated calls on Turkey to take the necessary measures, the applicant’s situation remained unchanged and that he was still facing the risk of imprisonment on the basis of a previous conviction. The Committee decided therefore to resume consideration of this case at the 1051st meeting (March 2009) in the light of a second interim resolution unless the Turkish authorities provide information to the Committee on the measures required.

General measures:

• Information provided by the Turkish authorities (997th meeting): A draft law was being prepared by the competent Turkish authorities aiming to prevent new violations of Article 3 similar to that found in the present case and that this draft law would be transmitted to the Prime Minister's Office for submission to Parliament. This law, once adopted, will prevent repetitive prosecutions and convictions of those who refuse to perform military service for conscientious or religious reasons on grounds of “persistent disobedience” of military orders. According to the Turkish authorities, this draft law is intended to remedy all negative consequences of the violation for the applicant.

The Turkish authorities also gave information on the publication and dissemination of the judgment to the relevant authorities. The judgment of the European Court also received wide media coverage.

At the same meeting the Committee invited the Turkish authorities to submit a copy of this draft law and encouraged them to take the necessary steps to ensure its rapid adoption by the Parliament. No information on the adoption of this law, including its draft, has been received so far.

The Deputies: 1.             deeply deplored the fact that the Turkish authorities had provided no information to the Committee on the measures required in this case; 2.             strongly encouraged the Turkish authorities to carry out bilateral contacts with the Secretariat aiming to bring to an end the continuing effects of the violation for the applicant; 3.             adopted Interim Resolution CM/ResDH(2009)45 as it appears in the Volume of Resolutions; 4.             decided to continue examining the implementation of the present judgment at each human rights meeting until the necessary urgent measures were adopted and to consider further action should Turkey fail to provide tangible information to the Committee before their 1059th meeting (2-4 and 5(morning) June 2009) (DH) in response to the above interim resolution.

- Cases concerning the ineffectiveness of domestic proceedings brought following ill treatment inflicted by members of the security forces[68]

33097/96+        Batı and others, judgment of 03/06/2004, final on 03/09/2004

34592/97          Ağdaş, judgment of 27/07/2004, final on 27/10/2004

34491/97          Demir Ceyhan and others, judgment of 11/01/2005, final on 11/04/2005

42942/02           Duran Ali and Ayşe, judgment of 08/04/2008, final on 08/07/2008

40262/98          H.Y. and Hü.Y., judgment of 06/10/2005, final on 06/01/2006

40803/02          Karabulut Mustafa, judgment of 20/11/2007, final on 20/02/2008

52067/99          Okkalı, judgment of 17/10/2006, final on 12/02/2007

74306/01          Öktem, judgment of 19/10/2006, final on 26/03/2007

45906/99          Özcan Zeynep, judgment of 20/02/2007, final on 20/05/2007

13903/02           Özgür and Çamlı, judgment of 04/12/2007, final on 04/03/2008

53147/99          Şahin Zülcihan and others, judgment of 03/02/2005, final on 03/05/2005

35072/97+        Şimşek and others, judgment of 26/07/2005, final on 26/10/2005

68881/01           Şimşek Hüseyin, judgment of 20/05/2008, final on 20/08/2008

43918/98          Sunal, judgment of 25/01/2005, final on 25/04/2005

19028/02          Tamer Fazıl Ahmet and others, judgment of 24/07/2007, final on 24/10/2007

8534/02            Tekin and others, judgment of 20/05/2008, final on 20/08/2008, rectified on 30/09/2008

43124/98          Türkmen, judgment of 19/12/2006, final on 19/03/2007

32446/96          Yaman Abdülsamet, judgment of 02/11/2004, final on 02/02/2005

34738/04          Yeşil and Sevim, judgment of 05/06/2007, final on 12/11/2007, rectified on 14/11/2007

17721/02          Yılmaz Hürriyet, judgment of 05/06/2007, final on 12/11/2007

63748/00           Taştan, judgment of 04/03/2008, final on 04/06/2008[69]

                       - Case concerning freedom of expression – civil defamation proceedings[70]

19353/03           Saygılı and others, judgment of 08/01/2008, final on 08/04/2008

2036/04            Hamşioğlu, judgment of 19/02/2008, final on 19/05/2008[71]

18242/02           Değerli and others, judgment of 05/02/2008, final on 05/05/2008[72]

                        - Cases concerning non-enforcement of court decisions in cases of environmental protection[73]

1) 46117/99      Taşkın and others, judgment of 10/11/2004, final on 30/03/2005, rectified on 01/02/2005

2) 46771/99      Öçkan and others, judgment of 28/03/2006, final on 13/09/2006

3) 17381/02      Lemke, judgment of 05/06/2007, final on 05/09/2007

4) 36220/97      Okyay Ahmet and others, judgment of 12/07/2005, final on 12/10/2005 - Interim Resolution CM/ResDH(2007)4

6615/03            Karaçay, judgment of 27/03/2007, final on 27/06/2007[74]

- Cases concerning the inability of foreigners to inherit property in Turkey due to alleged lack of reciprocity requirement[75]

45628/99          Apostolidi and others, judgment of 27/03/2007, final on 24/09/2007 and of 24/06/2008, final on 24/09/2008

19558/02+        Nacaryan and Deryan, judgment of 08/01/2008, final on 02/06/2008 and of 24/02/2009, possibly final on 24/05/2009

- 388 cases against Ukraine

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

                       Interim Resolution CM/ResDH(2008)35

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:

• State of the proceedings in the case when the European Court delivered its judgement: During the criminal investigation, the Office of the Prosecutor General identified four former officers of the Ministry of Internal affairs allegedly involved in the crime and in February 2005 instituted criminal proceedings against them. The criminal proceedings against three of them were subsequently divided into separate proceedings and were about to be brought to court. The criminal investigation against the fourth officer, Mr P. (who absconded from investigation and has been put on the wanted list), and against the unidentified persons who had allegedly ordered the kidnap and murder of Mr Gongadze was carried out by the Office of the Prosecutor General.

• Further developments in the proceedings.

            1) Court proceedings: Since January 2006, the criminal case against the three former officers of the Ministry of Internal Affairs charged with premeditated murder has been pending before the Kyiv City Court of Appeal. During this period before the court, a number of actions have been taken (witnesses, accused and victims questioned, forensic examinations ordered, documents examined, etc.).

On 15/03/2008 the court delivered a verdict finding the accused guilty as charged and sentenced them to 12 (two of the accused) and 13 year’s imprisonment.

            2) The investigation: The pre-trial investigation of the criminal case against Mr P and other unidentified persons who had ordered the kidnapping and murder of Mr Gongadze is still pending, including another criminal case initiated against a certain Ms S., who has been charged with covering up serious and especially serious crimes: she allegedly helped Mr P to abscond from investigation and trial. Measures are still being taken to find Ms S. and Mr P.

Operational search activities aimed at identification of persons who had ordered the kidnapping and murder of Mr Gongadze are still pending as well. At that, according to the General Prosecutor’s Office, the report of the ad hoc investigating committee of the Parliament has been taken into account.

• Information provided by the Ukrainian authorities on 30/11/2007: In July 2007 a series of investigative actions with the assistance of Melnychenko, including a reconstruction of the events in the premises of the Secretariat of President of Ukraine, took place. As a result the relevant examinations were appointed and conducted.

The Prosecutor General's Office decided not to institute criminal proceedings against the key Ukrainian officials since the original tape-recordings made by Melnychenko and which concern inter alia Mr Gongadze have never been seized. Consequently it had been impossible legally to establish the identity of the recorded voices, or to prove the authenticity of the recordings. The next step in the investigation is to obtain the original the tape-recordingss and recording devices from Melnychenko.

• Information provided by the Ukrainian authorities on 30/11/2007 and 22/01/2008: According to Parliamentary Assembly Resolutions Nos. 1239 (2001), 1262 (2001), 1346 (2003), 1466 (2005) as well as Resolutions Nos. 2154-III of 21/12/2000 and. 2970-III of 10/01/2002 of the Verkhovna Rada of Ukraine, international experts should be involved in providing the objective phonoscope examination of the records made by Melnychenko during 2000 in the cabinet of former President Kuchma.

To this end, the Prosecutors’ Office accepted a proposal by the Assembly’s Committee on Legal Affairs and Human Rights to involve an international group of experts in the investigation. The Committee on Legal Affairs and Human Rights concluded an agreement with the United States government to involve competent FBI experts. Since May 2007, the Office of the Prosecutor General has been in contact with the Parliamentary Assembly, the Justice Department of the United States and the Ambassador of the United States in Ukraine, requesting the designation of experts to speed up the investigation.

• Interim Resolution adopted by the Deputies at their 1028th meeting (June 2008):

The Committee of Ministers

-       urged the authorities of the respondent state to take with reasonable expedition all necessary investigative steps to achieve concrete and visible progress in identifying instigators and organisers of the murder of the applicant’s husband and bringing them to justice;

-       invited the respondent state to keep the Committee regularly informed of the measures taken and the result achieved, in particular as regards verification of the relevant tape recordings.

• Information provided by the Ukrainian authorities at the 1035th meeting: The Ukrainian authorities indicated that their negotiations with the United States government with a view to organising a phonoscopic examination of the records failed. They also indicated that the General Prosecutor’s Office had contacted a leading European expert institution to this end and obtained its preliminary agreement.

The Ukrainian authorities also expressed concerns as to the high public, either domestic or international, attention paid to this case. In these circumstances, the authorities considered that it was premature to make public practical arrangements for the expert examination, to ensure that the experts work independently.

• Assessment: Although the concerns expressed by the authorities appear to be legitimate in the context of an ongoing investigation, they should not lead to the lack of transparency of and to further delays in the adoption of individual measures required by the judgment.

• Information provided by the Ukrainian authorities at the 1043rd meeting (December 2008): The Ukrainian authorities indicated that two European states accepted to support the international phonoscope examination. The competent authorities are taking the measures necessary to organise and finance this expert examination. They also indicated that at this stage of the investigation, they cannot provide the Committee with more detailed information.

• Assessment: During the meeting, it was recalled that the investigation had been pending since 2002 and that the issues discussed were almost identical to those which had already been discussed in the past. The Ukrainian authorities were accordingly invited to provide the necessary information on the progress of the pending investigation so as to allow the Committee effectively to exercise its function under Article 46 of the Convention.

• Information provided by the Ukrainian authorities in view of the 1051st meeting: The Ukrainian authorities indicated that on 15-20/12/2008 Mr. M surrendered the records and recording devices to the investigators of the General Prosecutor’s Office of Ukraine. No information was provided on other investigative steps taken or being taken by the investigators.

• Information is awaited on the progress of the organisation of the expert examination, in particular on whether the appropriate funding has been provided.

• Information is also awaited on all other steps taken in the framework of the ongoing investigation to identify the instigators and organisers of the murder of the applicant’s husband.

General measures: It appears that the violations were due to the particular political context in Ukraine at the material time. On 16/01/2007 the Ukrainian authorities provided information on the rules governing investigation procedures, in particular with regard to the independence of investigators, the promptness of investigation and the right of the aggrieved party to adequate access to the file during the investigation.

1) Independence of investigation: Following the opinion of the Venice Commission and Recommendations of the Parliamentary Assembly, on 6/10/2006 the Verkhovna Rada withdrew from consideration the draft law On amendments to the Law On the Office of Public Prosecutor - which had passed a first reading on 4/03/2003 - as its provisions did not fully correspond with the role of the prosecution system in a democratic society. The competent parliamentary committee was ordered to set up a working group to draft new wording for the law (Resolution of the Verkhovna Rada of Ukraine of 6/10/2006 No. 207‑V).

The Ukrainian authorities informed the Secretariat that according to the Presidential Decree of 20/01/2006 No. 39 On the action plan for the honouring by Ukraine of its obligation and commitments to the Council of Europe, the new wording of the Law On the Office of Public Prosecutor will be drafted by the Ministry of Justice, after approval by the President of Ukraine of the Concept of complex reform of criminal justice, drafted by the National Commission for Strengthening Democracy and the Rule of Law. The Concept is in the final stage of elaboration.

• Information is awaited on the time-table for preparing and adopting these draft laws.

            2) Remedies against the excessive length of investigations: In the context of the examination of the Merit case and the Zhovner group of cases the Ukrainian authorities informed the Committee of a draft law On amendments to certain legal acts of Ukraine (on the protection of the right to pre-trial and trial proceedings and enforcement of court decisions within reasonable time). The draft provides a new remedy making it possible to apply to the administrative court with a claim about violation of the right to proceedings, including pre-trial investigation, within reasonable time. It includes compensation for delays and sanctions against those responsible.

• Assessment: It remains unclear whether the draft law provides for acceleration of proceedings.

Pending the adoption of the draft law and amendments mentioned above, the judicial authorities are invited to award compensation for delays in enforcing decisions directly on the basis of the provisions of the Convention and the Court’s case-law as provided by the Law on enforcement of judgments and the application of the case‑law of the European Court. Guidance to this effect from the Supreme Court to lower courts would be useful.

• Information is awaited on the time-table for the adoption of the draft law and amendments, as well as the last official version of the draft.

3) Publication and dissemination: The judgment of the European Court has been translated and published.

• Information is awaited on the dissemination of the judgment.

The Deputies, 1.             took note of the information provided by the Ukrainian authorities whereby the recordings and the recording devices had been handed over by Mr. Melnychenko to the Ukrainian investigators and foreign specialists in forensic audio analysis; 2.             noted with interest the detailed information concerning the investigative steps envisaged in the framework of the phonoscopic expert examination of the tape recordings and the time frame set for it; 3.             recalled the Ukrainian authorities’ position that the results of a phonoscopic expert examination could be decisive and may give the investigation a new direction; 4.             noted the information provided by the Ukrainian authorities according to which, pending the results of the expert examination, other investigative steps are being taken in order to establish all circumstances surrounding the abduction and murder of the applicant’s husband; 5.             invited the Ukrainian authorities to inform the Committee of Ministers regularly of the progress of the investigation; 6.             decided to resume consideration of this item at the latest at the 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided by the Ukrainian authorities on the progress of the investigation, in particular given the results of the phonoscopic examination, and possibly on the basis of a draft interim resolution.

32478/02          Shevchenko, judgment of 04/04/2006, final on 04/07/2006[76]

72286/01           Melnik, judgment of 28/03/2006, final on 28/06/2006[77]

38722/02           Afanasyev, judgment of 05/04/2005, final on 05/07/2005[78]

16437/04           Kobets, judgment of 14/02/2008, final on 14/05/2008

75520/01           Kozinets, judgment of 06/12/2007, final on 06/03/2008, rectified on 27/02/2008

- Cases mainly concerning inhuman and/or degrading treatment in detention resulting from overcrowding, unsatisfactory hygiene and sanitation conditions or inadequate medical care, as well as lack of an effective remedy[79]

54825/00           Nevmerzhitsky, judgment of 05/04/2005, final on 12/10/2005

72277/01           Dvoynykh, judgment of 12/10/2006, final on 12/02/2007

65550/01           Koval, judgment of 19/10/2006, final on 12/02/2007

2570/04            Kucheruk, judgment of 06/09/2007, final on 06/12/2007

39458/02           Tkachev, judgment of 13/12/2007, final on 13/03/2008

                       - Cases concerning the poor conditions of the applicants' detention[80]

39042/97          Kuznetsov, judgment of 29/04/03

41220/98          Aliev, judgment of 29/04/03, final on 29/07/03

40679/98          Dankevich, judgment of 29/04/03, final on 29/07/03

41707/98          Khokhlich, judgment of 29/04/03, final on 29/07/03

39483/98          Nazarenko, judgment of 29/04/03, final on 29/07/03

38812/97          Poltoratskiy, judgment of 29/04/03

15825/06          Yakovenko, judgment of 25/10/2007, final on 25/01/2008

61406/00          Gurepka, judgment of 06/09/2005, final on 06/12/2005[81]

23543/02          Volokhy, judgment of 02/11/2006, final on 02/02/2007[82]

7577/02            Bochan, judgment of 03/05/2007, final on 03/08/2007[83]

22750/02           Benderskiy, judgment of 15/11/2007, final on 15/02/2008[84]

29458/04+         Sokurenko and Strygun, judgment of 20/07/2006, final on 11/12/2006[85]

13156/02          Ponomarenko, judgment of 14/06/2007, final on 14/09/2007[86]

37878/02           Tserkva Sela Sosulivka, judgment of 28/02/2008, final on 28/05/2008[87]

34786/03           Balatskyy, judgment of 25/10/2007, final on 25/01/2008[88]

6725/03            Lizanets, judgment of 31/05/2007, final on 31/08/2007[89]

17988/02           Zhoglo, judgment of 24/04/2008, final on 24/07/2008[90]

7460/03            Nadtochiy, judgment of 15/05/2008, final on 15/08/2008[91]

                       - 284 cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments[92]

                       (See Appendix for the list of cases in the Zhovner group)

                       CM/Inf/DH(2007)30 (revised in English only) and CM/Inf/DH(2007)33

47148/99           Novoseletskiy, judgment of 22/02/2005, final on 22/05/2005[93]

77703/01           Svyato-Mykhaylivska Parafiya, judgment of 14/06/2007, final on 14/09/2007[94]

11901/02           Panteleyenko, judgment of 29/06/2006, final on 12/02/2007[95]

15007/02           Ivanov, judgment of 07/12/2006, final on 07/03/2007[96]

803/02              Intersplav, judgment of 09/01/2007, final on 23/05/2007

The case concerns the violation of the applicant company's right to the peaceful enjoyment of its possessions due to systematic delays, from 1998 onwards, in payment of VAT refunds. The Sverdlovsk Town Tax Administration failed to confirm the amounts involved and to issue certificates for VAT refunds in due time. In addition, compensation for delayed refund of VAT was denied to the applicant company in more than 140 sets of proceedings brought before the Lugansk Commercial Court (violation of Article 1 of Protocol No. 1).

The European Court found that the tax administration’s practice of groundlessly refusing to confirm the applicant’s entitlement to VAT refunds constituted a violation of the applicant company's right to the peaceful enjoyment of its possessions. This practice forced the applicant continually to seek judicial review of its claims to validate the company’s eligibility for a refund, as well as compensation for the delayed refund of VAT.

The European Court further noted that in the circumstances of the present case the most appropriate form of redress would in principle be the elimination of this administrative practice found contrary to Article 1 of Protocol No. 1

Individual and general measures:

• Information provided by the Ukrainian authorities (27/09/2007): The new rules for VAT refund became effective on 01/06/2005. According to the authorities, the new rules abolished automatic refunding on the basis of the tax return and introduced an obligation on the tax authorities to check the correctness of amounts claimed. As the new refund procedure has not been subjected to the European Court's review, the authorities do not consider it necessary to take further measures in the case.

• Applicant's submissions: The applicant company provided the Secretariat with numerous submissions claiming a number of individual and general measures to be adopted by the authorities. It appears that the state’s current debt to the applicant amounts to 15 810.408,00 UAH (about 1 355.394,00 euros). As a consequence of the lack of funds, the applicant company dismissed 90 people in June 2008 and suspended its activity in November 2008.

The Secretariat will prepare a Memorandum summarising the submissions received from both parties and analysing the issues raised by the case.

17707/02          Melnychenko, arrêt du 19/10/2004, définitif le 30/03/2005[97]

39424/02           Kovach, judgment of 07/02/2008, final on 07/05/2008[98]

33089/02           Romanova, judgment of 13/12/2007, final on 13/03/2008[99]

15123/03           Volovik, judgment of 06/12/2007, final on 31/03/2008, rectified on 03/03/2008[100]

                       - Cases of length of criminal proceedings and of absence of an effective remedy[101]

66561/01          Merit, judgment of 30/03/2004, final on 30/06/2004

14183/02          Antonenkov and others, judgment of 22/11/2005, final on 22/02/2006

31585/02           Benyaminson, judgment of 26/07/2007, final on 26/10/2007

25444/03           Kalinichenko, judgment of 26/07/2007, final on 26/10/2007

7324/02            Kobtsev, judgment of 04/04/2006, final on 04/07/2006

14809/03          Mazurenko, judgment of 11/01/2007, final on 11/04/2007

26277/02           Nosalskiy, judgment of 12/07/2007, final on 12/10/2007

31580/03           Safyannikova, judgment of 26/07/2007, final on 26/10/2007

11336/02          Yurtayev, judgment of 31/01/2006, final on 01/05/2006

                       - Cases of length of civil proceedings and of absence of an effective remedy[102]

41984/98          Naumenko Svetlana, judgment of 09/11/2004, final on 30/03/2005

33983/02           Artemenko, judgment of 07/06/2007, final on 07/09/2007

22431/02           Baglay, judgment of 08/11/05, final on 08/02/06

10569/03           Barskiy, judgment of 05/07/2007, final on 05/10/2007

20339/03           Blidchenko, judgment of 29/11/2007, final on 29/02/2008

9962/05            Borshchevskaya, judgment of 25/10/2007, final on 25/01/2008

4078/03            Chukhas, judgment of 12/07/2007, final on 12/10/2007

24131/03           Chuyan, judgment of 15/11/2007, final on 15/02/2008

9755/03            Dolgikh, judgment of 28/06/2007, final on 28/09/2007

61679/00           Dulskiy, judgment of 01/06/2006, final on 01/09/2006

55870/00           Efimenko, judgment of 18/07/2006, final on 11/12/2006

22775/03           Fandralyuk, judgment of 31/01/2008, final on 30/04/2008

20746/05           Fedorchuk, judgment of 15/11/2007, final on 15/02/2008

31406/03           Gavrilyak, judgment of 03/04/2008, final on 03/07/2008

17026/05           Gitskaylo, judgment of 14/02/2008, final on 14/05/2008

39161/02           Golovko, judgment of 01/02/2007, final on 01/05/2007

39946/03           Inkovtsova, judgment of 26/07/2007, final on 26/10/2007

69435/01           Karimov, judgment of 31/01/2008, final on 30/04/2008

23853/02           Karnaushenko, judgment of 30/11/2006, final on 28/02/2007

36283/02           Kirichenko and Belinskiy, judgment of 15/05/2008, final on 15/08/2008

21047/02           Kiselyova, judgment of 22/11/2007, final on 22/02/2008

13242/02           Konovalov, judgment of 18/10/2007, final on 18/01/2008, rectified on 27/02/2007

11084/03           Kozlov, judgment of 12/07/2007, final on 12/10/2007

23786/02           Krasnoshapka, judgment of 30/11/2006, final on 28/02/2007

22600/02           Kucherenko, judgment of 26/07/2007, final on 26/10/2007

10437/02           Kukharchuk, judgment of 10/08/2006, final on 10/11/2006

12347/02           Lastovka, judgment of 06/09/2007, final on 06/12/2007

18345/03           Lebedeva, judgment of 20/12/2007, final on 20/03/2008

56918/00           Leshchenko and Tolyupa, judgment of 08/11/05, final on 08/02/06

9724/03            Litvinyuk, judgment of 01/02/2007, final on 09/07/2007

43482/02           Makarenko, judgment of 01/02/2007, final on 01/05/2007

18389/03           Mikhaylenko, judgment of 15/05/2008, final on 15/08/2008

43382/02           Morgunenko, judgment of 06/09/2007, final on 31/03/2008

36545/02           Moroz and others, judgment of 21/12/2006, final on 21/03/2007

39404/02           Mukhin, judgment of 19/10/2006, final on 19/01/2007, rectified on 9/01/2007

17945/02           N.B., judgment of 03/04/2008, final on 03/07/2008

14089/03           Nikonenko, judgment of 29/05/2008, final on 29/08/2008

12803/02           Ogurtsova, judgment of 01/02/2007, final on 23/05/2007

25681/03           Panchenko, judgment of 05/07/2007, final on 05/10/2007

31780/02           Panteleeva, judgment of 05/07/2007, final on 10/12/2007

70767/01           Pavlyulynets, judgment of 06/09/2005, final on 06/12/2005

18957/03           Rudysh, judgment of 15/11/2007, final on 31/03/2008

15002/02           Serdyuk, judgment of 20/09/2007, final on 20/12/2007

39970/02           Shanko, judgment of 26/07/2007, final on 26/10/2007

68762/01           Shevchenko, judgment of 15/05/2008, final on 15/08/2008

31105/02           Shinkarenko, judgment of 07/06/2007, final on 24/09/2007

23926/02           Silin, judgment of 13/07/2006, final on 13/10/2006

36655/02           Smirnova, judgment of 08/11/2005, final on 08/02/2006

311/03              Solomatina, judgment of 29/05/2008, final on 29/08/2008

49430/99           Strannikov, judgment of 03/05/2005, final on 03/08/2005

9616/03            Svistun, judgment of 21/06/2007, final on 21/09/2007

72551/01           Teliga and others, judgment of 21/12/2006, final on 21/03/2007

39763/02           Terentyev, judgment of 29/05/2008, final on 29/08/2008

3572/03            Tsykhanovskyy, judgment of 06/09/2007, final on 31/03/2008

28746/03           Vyrovyy, judgment of 12/07/2007, final on 12/10/2007

19142/03           Yakymento, judgment of 29/05/2008, final on 29/08/2008

42207/04           Yavorska, judgment of 15/11/2007, final on 15/02/2008