Ministers’ Deputies / Délégués des Ministres

Agenda / Ordre du jour

CM/Del/OJ/DH(2010)1092 Section/Rubrique 4.2 PUBLIC                        29 September / septembre 2010

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1092 meeting / réunion (DH),

14-15 September / septembre 2010

Section/Rubrique 4.2

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Public information version /

Version destinée à l'information publique

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

RUBRIQUE 4 - AFFAIRES SOULEVANT DES QUESTIONS SPÉCIALES (MESURES DE CARACTÈRE INDIVIDUEL, MESURES NON ENCORE DÉFINIES OU PROBLÈMES SPÉCIAUX)

Action

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

Pour chaque affaire ou groupe d'affaires, les Délégués ont adopté la décision reproduite en encadré.

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

                       SOUS-RUBRIQUE 4.2 – MESURES DE CARACTÈRE INDIVIDUEL ET/OU PROBLÈMES GÉNÉRAUX

- 3 cases against Albania / 3 affaires contre l'Albanie

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

This case concerns 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.

According to the report of the People’s Advocate, the Kruja prison provides suitable medical facilities. The applicant is provided with the necessary medicines and his state of health is improving. He shares a cell with 3 other inmates, all of whom receive regular medical treatment. The applicant has stated in writing that his conditions of detention were acceptable.

• Assessment: No other individual measure seems necessary in those circumstances.

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).

• Preliminary information was provided by the authorities on 01/07/2010. Bilateral discussions are currently under way to secure the additional information necessary to present an action plan/action report to the Committee.

25336/04           Grori, judgment of 07/07/2009, final on 07/10/2009

This case concerns inadequate medical treatment provided to the applicant in prison (violation of Article 3). The applicant suffers from multiple sclerosis (MS) and is serving a life sentence.

The European Court noted that the applicant was not provided with the treatment prescribed following a medical examination on 28 /01/2008 until 17/06/2008 (§122 in fine of the judgment).

The case concerns also the unlawfulness of his detention between 15/05/2002 and 29/12/2003 pending the outcome of domestic proceedings in Albania to validate and enforce a life sentence imposed by the Italian courts in his absence for murder and illegal possession of firearms (violation of Article 5§1).

Finally, the case concerns the authorities’ failure for 17 days to comply with an interim measure indicated by the European Court, namely to transfer the applicant to a hospital even though there had been no objective obstacle to their doing do (violation of Article 34).

Individual measures: In December 2009, the authorities confirmed that the applicant was provided with the necessary treatment and provided a declaration signed by the applicant stating that while his prison conditions were very good, transfer to a civilian hospital would be the only way of avoiding aggravation of his disease. Subsequently, the Secretariat asked the authorities to provide information on the applicant's current state of health by means of an independent medical report.

In February 2010, the Albanian Ombudsman, following an inquiry in Peqin Prison, concluded that the treatment of the applicant was acceptable, enabling the continuous checking of his health and the normal conduct of his daily activities. There were no serious problems concerning denial or hindering of health care services.

However, referring to the serious health problems suffered by the detainee and to the opinion of an independent neurological expert, the Albanian Ombudsman suggested measures which would meet fully the required standards of treatment:

-           the detainee should be subject to annual, full re-examination, specifically by a magnetic resonance imaging (MRI) scan, to check any possible worsening of his condition and accordingly adjust the medical care provided. This should be carried out in a quality institution such as the Prison Hospital Centre in Tirana, or in another state or private centre, as appropriate;

-           due to the problem he has with the numbing of his limbs, Peqin Prison should offer the applicant a special physiotherapy programme, and also separate physical exercise;

-           due to the difficulty and pain of movement when covering long distances as a result of the disease, the detainee should have a wheelchair and a lift in the building to make it possible for him to go out to exercise and to meetings with his family members;

-           with respect to the administration of medication not connected with the applicant’s MS, the health service must be especially careful to bear in mind all the medication that the detainee is taking in order to determine any possible negative side effects on his health.

• Information provided by the Albanian authorities (letter of 6/04/2010): The Directorate General of Prisons has taken the measures necessary to implement the Ombudsman’s recommendations. On 26/02/2010, a full re-examination was carried out, including an MRI scan of the applicant’s head and spine, and the diagnosis of MS was confirmed. On the same date, the applicant was transferred from the Prison Hospital to Peqin prison. All related medical documentation was placed at the disposal of the Head of Neurology Service who recommended the continuation of β-Interferon treatment (one ampoule every two days) and a further examination after a year. No physiotherapy was prescribed, but if necessary, it can be offered by the medical service of the Prison Directorate. Currently, the detainee has been provided with the specific medical treatment by the Directorate General of Prisons, for the whole of the recommended period. The Directorate General of Prisons has provided him with a wheelchair, and if required, the institution will take measures to make lift available to him in case of need. If that is not possible, he will be placed in premises in which the use of a lift is not necessary.

It has been brought to the attention of the medical staff that the applicant is not to be treated with drugs that are contraindicated with respect to the disease which he suffers.

The Albanian Ombudsman was informed of the measures taken by and official letter No.1898/1, dated 22/2/2010.

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

• Assessment: Taking note of the information provided, the authorities are invited to inform the Committee of Ministers on a regular basis concerning the development of the applicant’s state of health.

General measures: The case presents similarities to that of Dybeku (41153/06) (Section 4.2).

• Preliminary information was provided by the authorities on 01/07/2010. Bilateral discussions are currently under way to secure the additional information necessary to present an action plan/action report to the Committee.

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 cases concerning enforcement of court decisions on child custody with special attention.

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).

• Preliminary information was provided by the authorities on 01/07/2010. Bilateral discussions are currently under way to secure the additional information necessary to present an action plan/action report to the Committee.

- 1 case against Andorra / 1 affaire contre l'Andorre

38196/05           Vidal Escoll and Guillán González, judgment of 29/07/2008, final on 26/01/2009

This case concerns the fact that it was impossible for the applicants to obtain enforcement of a judgment given in their favour by the High Court of Justice in May 2003.

In 1999 the applicants, relying on the unlawfulness of the building permits for two blocks of flats being built opposite and beside where they lived, brought an action to have the permits annulled before the administrative section of the court of batlles. In a judgment of 28/05/2003, the High Court of Justice ruled in favour of the applicants and ordered the demolition of the parts of the two buildings exceeding the regulation height.

However, in June 2004, at the request of the local authority of Escaldes-Engordany, Parliament decided to expropriate part of the property of each applicant on town-planning grounds. The Constitutional Court, seised of an empara appeal by the applicants, held in a judgment of April 2005 that these expropriations would result in transforming the applicants’ property rights into an entitlement to compensation and would thus render their application for enforcement of the 28/05/2003 judgment pointless.

Noting that the local authority had taken no measure with a view to enforcing the 2003 judgment, the European Court found that the expropriation decision, taken after the judgment at issue establishing the rightfulness of the applicants’ position, could not be considered a sufficiently exceptional circumstance to justify the failure to enforce a final judgment (violation of Article 6§1).

Individual measures: The European Court awarded each of the applicants just satisfaction in respect of all heads of grievance.

• Information is awaited on measures to redress the violation found, including the enforcement of the 20/05/2003 judgment of the High Court of Justice.

General measures:

• Information is awaited on measures taken or envisaged to prevent new, similar violations and on the dissemination of the European Court’s judgment to the judicial bodies concerned.

- 9 cases against Armenia / 9 affaires contre l'Arménie

32283/04    Meltex Ltd and Mesrop Movsesyan, judgment of 17/06/2008, final on 17/09/2008 The case concerns a violation of the applicant company’s freedom of expression on account of the refusal, by the National Television and Radio Commission (NTRC), on seven occasions in 2002 and 2003, to deliver to the applicant a broadcasting license (violation of Article 10). The European Court concluded that there had been an interference with the applicant company’s freedom to impart information and ideas and that this interference had not met the requirement of lawfulness under the European Convention. The Court noted in particular that a procedure which did not require a licensing body to justify its decisions did not provide adequate protection against arbitrary interference by a public authority with the fundamental right to freedom of expression. Individual measures: The Court awarded the applicant company just satisfaction in respect of non-pecuniary damage. It rejected the applicant’s claim for pecuniary damage not least because it found no causal link between the violation found and the pecuniary damage alleged. The Committee of Ministers is currently examining the individual measures to be taken, by the domestic authorities pursuant to Armenia’s obligations under Article 46 of the Convention, in order to erase, as far as possible, the consequences of the violation. At the 1043rd meeting (December 2008), the Permanent Representative of Armenia stated that in this case individual measures were very much linked to general measures as a new call for tender would not satisfy the requirements of the European Court’s case-law if the Law on radio and television were not first modified. Furthermore, he invoked certain technical difficulties linked to the transition to digital broadcasting (cf. DD(2008)679). • Appeals lodged by the applicant before domestic courts: On 20/05/2009, the applicant company sent a letter (cf. DD(2009)307E distributed at the 1059th meeting) informing the Committee of Ministers that, on the basis of the European Court’s judgment and of Article 241 of the Code of Civil Procedure (which provides reopening), it lodged two appeals before the Court of Cassation to reopen the proceedings for judicial review in 2004 of the NTRC decisions at issue, but that these two appeals were dismissed on February 2009. The applicant company complains that no individual measure has been taken so far by the authorities following the judgment of the European Court. The applicant’s lawyer informed the Committee of Ministers (cf. DD(2010)72 of 15/02/2010, distributed for the 1078th meeting and declassified on 24/03/2010) that he had lodged an appeal before the Constitutional Court arguing that Article 204.28 of the Code of Civil Procedure, on the basis of which his  appeals before the Court of Cassation had been dismissed, was unconstitutional and that these proceedings before the constitutional court was still pending. • Information provided at the 1078th meeting, March 2010: The Armenian authorities stated that, pending the issue of a new tender, no measure in favour of the applicant company is possible because any measure other than an effective and transparent conduct of a tender process would lead to a situation in which the rights of third parties would be infringed. The Committee of Ministers took note of this position. The Armenian authorities, which were invited in September 2009 and March 2010 to provide full information on the remedies pursued by the applicant before the competent national judicial authorities, sent on 9/04/2010 a translation of the decision of the Constitutional Court of 23/02/2010, in which it noted that Article 204.28 of the Code of Civil Procedure had already been declared unconstitutional in its decision of 28/11/2007 and that the applicant’s right to apply for reopening under “newly revealed circumstances” had not expired. • New application before the European Court: The applicant party informed the Committee of Ministers that it had lodged a new application before the European Court of Human Rights in October 2009. • Information concerning a new call for tenders • Information provided by the Armenian authorities (1065th meeting, September 2009):  A new call for tenders, in which the applicant will be given the possibility to participate, was scheduled to take place in July 2010. In the decision adopted at the same meeting, the Committee invited the respondent state to keep it informed of all progress made in preparing the call for tenders, as well as of any interim measures that they may envisage in favour of the applicant company.  • Information provided at the 1078th meeting, March 2010:  The Armenian authorities confirmed the holding of a call for tenders in July 2010. The Committee of Ministers recalled, in this context, the recommendations and declarations it had adopted on freedom of expression, media pluralism and diversity.  The Armenian authorities have been invited to keep the Committee of Ministers informed of the progress of the call for tenders. The applicant company informed the Committee of Ministers (see DH-DD(2010)369E distributed on 2/08/2010) that no decision has so far been taken on the merits of its applications to reopen the 2004 proceedings. It also complained that under the “Law amending and supplementing the Law on Television and Radio” adopted on 10/06/2010 the NTRC is no longer under an obligation to provide explanations for its decisions to refuse broadcasting licences and that some other amendments may place it at significant disadvantage in tendering. No new information has been made available by the Armenian authorities for the present meeting. General measures: It appears from the European Court’s judgment that the Law on Television and Radio Broadcasting has been changed since the facts of the case. On 3/12/2003 the law was amended with effect on 31/01/2004 providing that: “...The National Commission shall give proper reasons for its decisions to select a licence-holder, refuse a licence or invalidate a licence”. • Information provided by the Armenia authorities (1043rd and 1065th meetings, December 2008 and September 2009): The Law on Radio and Television has been amended to adapt it to the switch to digital transmission and to bring it into conformity with the Convention. The new amendments were adopted on 28/04/2009. The new provision regarding the obligation of the NTRC to justify its decisions reads as follows: “The National Television and Radio Commission shall give full reasons for its decisions to award, reject or revoke a broadcasting licence and ensure the transparency and accessibility of its decisions”.  Furthermore, the judgment of the Court has been translated into Armenian and published in relevant official publications, both print and electronic, of the Republic of Armenia. The text is available, inter alia, on the official websites of the Ministry of Justice of Armenia, www.moj.am, and of the judiciary of the Republic of Armenia, www.court.am. The Armenian text of the judgment has also been sent to the National Television and Radio Commission and to the Court of Cassation of the Republic of Armenia. Non-governmental organisations informed the Committee of Ministers (see DH-DD(2010)375E distributed on 10/08/2010) that the “Law amending and supplementing the Law on Television and Radio” adopted on 10/06/2010 contains provisions not in conformity with Article 10 of the Convention and the conclusion of the European Court in the Meltex judgment. They underlined in particular that: -           the NTRC do not have to justify its decisions to refuse broadcasting licences; -           when two companies receive an equal number of votes in a tendering procedure, preference will be given to the company which is already entitled to broadcast. No new information has been made available by the Armenian authorities for the present meeting. The Deputies, 1.             noted with concern the recent amendments to the TV and Radio Broadcasting Act whose provisions do no longer explicitly require that reasons are given in respect of an unsuccessful competitor or applicant for a broadcasting licence; 2.             welcomed the official statement by the Government Agent according to which “Article 49(3) of the TV and Radio Broadcasting Act should be interpreted in accordance with Article 10 of the Convention, and in the light of the Meltex judgment, in a way that a single decision of the Commission provides a full and proper substantiation and reasoning of the results of the points-based vote, including both in respect of the winner of the competition, as well as of all of its other participants”; 3.             invited the Armenian authorities to provide the Committee of Ministers with a comprehensive overview of the legislative and regulatory framework that substantiates the unambiguous obligation of the NRTC under Armenian law to give reasons for its decisions to award or not, or to revoke broadcasting licences, in the framework of competitions or applications for broadcasting, as well as information as to the concrete implementation of this framework in respect of the ongoing tender procedures; 4.             recalled the obligation of the respondent State to provide in due time information on developments regarding the execution of judgments of the European Court of Human Rights; 5.             decided to resume consideration of this case at their 1100th meeting (November-December 2010) (DH), in the light of further information to be provided by the authorities, in particular, on competitions which will be held at the end of this year.

32283/04   Meltex Ltd et Mesrop Movsesyan, arrêt du 17/06/2008, définitif le 17/09/2008 L'affaire concerne une violation du droit de la société requérante à la liberté d'expression du fait du refus, à sept reprises en 2002 et 2003, de la Commission nationale de télévision et de radiodiffusion (CNTR) de lui accorder une licence de radiodiffusion (violation de l'article 10). La Cour européenne a conclu qu'il y avait eu ingérence dans la liberté de la société requérante de communiquer des informations et des idées et que cette ingérence n'avait pas satisfait à l'exigence de légalité conformément à la Convention. La Cour a relevé en particulier qu'une procédure qui n'exigeait pas d'un organisme attribuant des licences qu'il justifie ces décisions n'offrait pas une protection adéquate contre les ingérences arbitraires d'une autorité publique dans le droit fondamental à la liberté d'expression. Mesures de caractère individuel : La Cour européenne a alloué à la société requérante une somme pour préjudice moral. Elle a rejeté la demande de la requérante pour préjudice matériel notamment  parce qu'elle n'a discerné aucun lien de causalité entre la violation constatée et le dommage matériel allégué. Le Comité des Ministres est actuellement en train d'examiner les mesures individuelles à prendre, par les autorités nationales, conformément à l'obligation de l'Arménie en application de l'article 46 de la Convention, afin d'effacer, autant que possible, les conséquences de la violation. Lors de la 1043e réunion, le Représentant Permanent de l'Arménie a déclaré que, dans cette affaire, les mesures individuelles étaient très liées aux mesures générales puisque un nouvel appel d'offre ne remplirait pas les conditions prescrites par la jurisprudence de la Cour européenne si la loi sur la radio et la télévision n'est pas auparavant modifiée. Il a en outre invoqué des difficultés techniques liées au passage de la radiodiffusion au numérique (cf. DD(2008)679). • Recours introduits par le requérant devant les juridictions internes : Le 20/05/2009, la société requérante a adressé un courrier (cf. DD(2009)307E distribué lors de la 1059e réunion) par lequel elle informe le Comité des ministres que, sur la base de l'arrêt de la Cour européenne et de l'article 241 du Code de procédure civile qui prévoit la réouverture, elle a saisi la Cour de cassation de deux recours visant à rouvrir les procédures judiciaires de 2004 concernant les décisions de la CNTR en cause dans cette affaire, mais que ces deux recours ont été rejetés en février 2009. Elle se plaint qu'aucune mesure individuelle n'a été prise, jusqu'à présent, par les autorités arméniennes à la suite de l'arrêt de la Cour européenne. L’avocat du requérant a informé le Comité des Ministres (cf. DD(2010)72 du 15/02/2010 distribué pour la 1078e réunion et déclassifié le 24/03/2010) qu’il avait introduit un recours devant la Cour constitutionnelle arguant que l’article 204.28 du Code de Procédure civile, sur la base duquel ces recours devant la Cour de cassation avaient été rejetés, était inconstitutionnel et que cette procédure était toujours pendante. • Informations fournies lors de la 1078e réunion, mars 2010 : Les autorités arméniennes ont déclaré qu’en attendant l'issue d’un nouvel appel d’offres, aucune mesure en faveur de la société requérante n'était possible car tout autre mesure que la conduite transparente et efficace d'un appel d'offres mènerait à une situation dans laquelle il serait porté atteinte aux droits de tiers. Le Comité des Ministres a pris note de cette position. Les autorités arméniennes, qui ont été invitées en septembre 2009 et en mars 2010 à fournir des informations complètes sur les recours utilisés par le requérant devant les autorités nationales judiciaires compétentes, ont produit le 9/04/2010 une traduction de la décision de la Cour constitutionnelle du 23/02/2010. Dans cette décision la Cour constitutionnelle a noté que l’article 204.28 du Code de Procédure civile avait déjà été déclaré inconstitutionnel dans sa décision du 28/11/2007 et que le droit du requérant de demander la réouverture pour « nouvelles circonstances » n’avait pas expiré. • Nouvelle requête à la Cour européenne : Le requérant a informé le Comité des Ministres qu’il a déposé une nouvelle requête devant la Cour européenne en octobre 2009. • Informations concernant un nouvel appel d’offres • Informations fournies par les autorités arméniennes (1065e réunion, septembre 2009) : Un nouvel appel d'offres, auquel le requérant aura la possibilité de participer, avait été prévu en juillet 2010. Dans la décision qu'il a adoptée lors de cette réunion, le Comité a invité l'Etat défendeur à le tenir informé de tout progrès accompli dans la préparation de l'appel d'offres ainsi que de toute mesure intérimaire qui pourrait être envisagée en faveur de la société requérante. • Informations fournies à la 1078e réunion, mars 2010 : Les autorités arméniennes ont confirmé qu’un appel d’offres aurait lieu en juillet 2010. Le Comité des Ministres a rappelé dans ce contexte les recommandations et déclarations qu’il a adoptées sur la liberté d'expression, le pluralisme des médias et la diversité. Les ont été invitées à tenir le Comité des Ministres informé du déroulement de l'appel d'offres. La société requérante a informé le Comité des Ministres (cf. DH-DD(2010)369E distribué le 2/08/2010) qu’aucune décision sur le fond n’avait été prise à ce jour sur ses demandes de réouverture des procédures judiciaires de 2004. Elle se plaint en outre que la « loi introduisant des amendements et des compléments à la loi sur la Télévision et la Radio » adoptée le 10/06/2010 n’oblige plus la CNTR à motiver ses décisions de rejeter une demande de licence de radiodiffusion, et que d’autres amendements pourraient la désavantager de manière significative lors des compétitions.  • Aucune nouvelle information n’a été fournie par les autorités arméniennes pour la présente réunion. Mesures de caractère général : Il ressort de l'arrêt de la Cour européenne que la loi sur la télévision et la  radiodiffusion a changé depuis les faits de cette affaire. Le 3/12/2003 la loi a été amendée, avec effet au 31/01/ 2004 ; la loi prévoit maintenant que « ...La Commission nationale donne les raisons des décisions par lesquelles elle sélectionne le détenteur d'une licence, elle refuse une licence ou invalide une licence » • Informations fournies par les autorités arméniennes (1043e et 1065e réunions, décembre 2008 et septembre 2009) : La loi sur la télévision et la radiodiffusion a été amendée afin d'être adaptée au passage au numérique et d'être mise en conformité avec la Convention. Ces amendements ont été adoptés le 28/04/2009. Les nouvelles dispositions relatives à l'obligation de la CNTR de motiver ses décisions sont rédigées comme suit : «la Commission nationale de télévision et de radiodiffusion doit pleinement motiver ses décisions d'accorder, rejeter ou révoquer une licence de radiodiffusion et assurer la transparence et l'accessibilité de ses décisions ». En outre, l'arrêt de la Cour a été traduit en arménien et publié dans les publications officielles, écrites et électroniques, appropriées de la République d'Arménie. Le texte de l'arrêt est disponible sur le site internet officiel du Ministère de la Justice (www.moj.am) et celui du Ministère Public de la République d'Arménie (www.court.am). Le texte arménien de l'arrêt a également été diffusé auprès de la Commission nationale de télévision et de radiodiffusion et de la Cour de cassation de la République d'Arménie. Des organisations non-gouvernementales ont informé le Comité des Ministres (cf. DH-DD(2010)375E distribué le 10/08/2010) que la « loi introduisant des amendements et des compléments à la loi sur la Télévision et la Radio » adoptée le 10/06/2010 contient des dispositions non conformes à l’article 10 de la  Convention et aux conclusions de la Cour européenne dans l’arrêt Meltex. Ils soulignent en particulier que :  -           le CNTR ne doit plus motiver ses décisions de rejeter une demande de licence de radiodiffusion; -           lorsque deux sociétés obtiennent le même nombre de votes lors d’une compétition, la préférence sera donnée à la société qui possède déjà une licence de radiodiffusion. • Aucune nouvelle information n’a été fournie par les autorités arméniennes pour la présente réunion. Les Délégués, 1.             prennent note avec préoccupation des récents amendements à la loi sur la Télévision et la radiodiffusion dont les dispositions ne prévoient plus explicitement la nécessité de motiver les décisions déboutant les participants à des compétitions ou les demandeurs de licence de radiodiffusion ; 2.             notent avec satisfaction la déclaration officielle de l’Agent du gouvernement selon laquelle l’article 49(3) de la loi sur la Télévision et la radiodiffusion devrait être interprété en conformité avec l’article 10 de la Convention, et à la lumière de l’arrêt Meltex, de manière qu’une seule décision de la Commission fournisse une motivation complète et correcte des résultats de la procédure de vote basée sur des points, tant en ce qui concerne le gagnant de la compétition que les autres participants ; 3.             invitent les autorités arméniennes à fournir au Comité des Ministres un aperçu global du cadre législatif et réglementaire qui démontre l’obligation dépourvue d’ambigüité de la CNTR, selon le droit arménien, de motiver ses décisions d’octroyer ou de ne pas octroyer, ou de révoquer une licence de radiodiffusion, dans le cadre des compétitions ou des demandes de radiodiffusion, ainsi que des informations sur la mise en œuvre concrète de ce cadre législatif et réglementaire pour les appels d’offre en cours ; 4.             rappellent l’obligation de l’Etat défendeur de produire en temps voulu des informations sur les développements relatifs à l’exécution des arrêts de la Cour européenne des Droits de l’Homme ; 5.             décident de reprendre l’examen de ce point lors de leur 1100e réunion (novembre-décembre 2010) (DH), à la lumière d’informations à fournir par les autorités, en particulier, sur le déroulement des concours qui auront lieu à la fin de cette année.

                        - 6 cases mainly concerning the right of freedom of assembly

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

31553/03           Amiryan, judgment of 13/01/2009, final on 13/04/2009

33268/03           Ashughyan, judgment of 17/07/2008, final on 01/12/2008

35944/03           Gasparyan No. 1, judgment of 13/01/2009, final on 13/04/2009

22571/05           Gasparyan No. 2, judgment of 16/06/2009, final on 16/09/2009

35738/03           Sapeyan, judgment of 13/01/2009, final on 13/04/2009

These cases concern breaches of the applicants’ right of freedom of assembly (except Gasparyan No. 2) due to their arrest and sentencing to detention of three days (Galstyan), five days (Ashughyan), four days (Sapeyan), ten days (Gasparyan No. 1) and fifteen days (Amiryan) for actual or assumed participation in rallies in February or April 2003 following the presidential elections (violations of Article 11).

The cases of Amiryan, Gasparyan No. 1 and Sapeyan also concern a breach of the applicants’ right of freedom of assembly due to their arrest and sentencing to several days’ detention on account of their effective or assumed participation in rallies in February 2003 (violations of Article 11). The European Court underlined in the Galstyan case that the very essence of the right to freedom of peaceful assembly is impaired where a state, while not prohibiting a demonstration, imposes sanctions, especially such severe sanctions, on those participating who had done nothing reprehensible, as in the applicant’s case. The Court therefore concluded that the interference with the applicants’ right to freedom of peaceful assembly was not “necessary in a democratic society”.

The cases of Galstyan, Ashugyan and Gasparyan No. 2 also concern an infringement of the applicants’ right to adequate time and facilities for the preparation of their defence (violations of Article 6§3b combined with of Article 6§1). Lastly, these cases concern a breach of the right of appeal in criminal matters (violation of Article 2 of Protocol No. 7).

Individual measures: In all these cases, except in the Ashughyan case in which the applicant submitted no claim, the European Court awarded just satisfaction to the applicants in respect of non-pecuniary damage. The applicants are no longer detained.

• Information is awaited on any possible record of the applicants’ convictions and on measures taken or envisaged in their favour. No information has been received in this respect since the first examination of the Galstyan case at the 1028th meeting (June 2008).

General measures:

            1) Violation of Articles 6§3b combined with Article 6§1 and Article 2 of Protocol No 7: It appears from the judgment that the provisions of the Code of Administrative Offences applicable at the material time are no longer in force. On 1/04/2010 the authorities confirmed that the Code of Administrative Offences had been amended on 16/12/2005 and that administrative detention had consequently been abolished. The authorities underlined that since administrative detention no longer existed, similar violations of Article 2 of Protocol No. 7 could not happen in the future.

• Assessment:  No further general measure accordingly seems necessary in this respect.

            2) Violation of Article 11: Amendments to the Law on conducting meetings, assemblies, rallies and demonstrations were adopted on 11/06/2008.

During a debate before the Committee of Ministers concerning a possible special system for monitoring the enforcement of the law, the Armenian delegation stated that it was for the law enforcement bodies and the courts to enforce and monitor the Law, as with other laws of the Republic of Armenia. There was thus no need for any special monitoring mechanism or body. With regard to the penalties potentially applicable to participants in demonstrations, the authorities underlined that today a penalty is applicable only when a person commits an offence while participating in a demonstration. The Code of Administrative Offences and the Criminal Code prescribe the offences and penalties potentially applicable in case of:

-           violation of an order to hold a meeting, assembly, rally or demonstration;

-           obstructing the holding of, or participation in meetings, assemblies, rallies or demonstrations;

-           organising mass riots;

-           organising or holding public events in violation of the procedure prescribed by law. 

To ensure application of this Code and other possible relevant provisions in conformity with the Convention and the case-law of the European Court, the judgment has been translated into Armenian and published in the Official Gazette and sent out in particular to the Constitutional Court, the Court of Cassation, the Court of Appeals and to first-instance courts of general jurisdiction. The Armenian version of the judgment is also available on the website of the Ministry of Justice of Armenia (www.moj.am) as of 15.05.2008 and on the website of the Judiciary of the Republic of Armenia (www.court.am).

The government considers that participants, in duly authorised demonstrations, who commit no offence no longer run the risk of sanction.

45081/04           Stepanyan, judgment of 27/10/2009, final on 27/01/2010

The case concerns a violation of the applicant’s right to fair trial due to the lack of an oral hearing before the Criminal and Military Court of Appeal (violation of Article 6§1).

The applicant was the representative of a regional opposition party involved in monitoring the 2003 presidential elections. He participated in a major demonstration held on 10/04/2004. On 20 May 2004 the applicant was sentenced to eight days’ administrative detention under former Article 182 of the CAO (Code of Administrative Offences) for “… violating public order and disobeying the lawful orders of police officers”. The applicant appealed to the President of the Criminal and Military Court of Appeal. The latter did not hold an oral hearing and examined the appeal solely on the basis of documents and the evidence given by the two arresting police officers. On 8/06/2004 the President of the Criminal and Military Court of Appeal dismissed the appeal because the applicant “did commit the acts in question”.

The European Court noted that although it was not clear from the relevant provisions of the CAO whether the jurisdiction of the President of the Military and Criminal Court of Appeal was limited only to question of law or also fact, it appears from the decision of the President that he had examined not only questions of law but also fact. The European Court found that in the particular circumstances of the case, it was necessary to assess directly the evidence given in person by the applicant and two police officers in question in order to meet the requirements of a fair trial.  

The applicant is obviously no longer detained.

• To date, the authorities have provided no information.

31761/04           Khachatryan, judgment of 01/12/2009, final on 01/03/2010

The case concerns a violation of the applicants’ right of access to a court due to the authorities’ failure to ensure enforcement of a final domestic judgment (violation of Article 6§1). The case also concerns a violation of the applicants’ right to the peaceful enjoyment of their possessions as they did not receive monies due to them under the said final judgment (violation of Article 1 of Protocol No.1).

The applicants worked for a company, Hrazdanmash, the majority shareholder of which was the state.  No salary was paid to the staff for 1998-2000, as the company was experiencing financial problems. On 17/05/2001 the trade union instituted court proceedings against Hrazdanmash in the interests of the staff, seeking arrears for unpaid salary and other benefits. On 2/07/2001 the Kotayk Regional Court granted the claim and ordered Hrazdanmash to pay a certain sum to the applicants. No appeal was lodged against this judgment which became final. Subsequently, the applicants were paid partially, but the judgment was never fully executed.

In its analysis of the exhaustion of domestic remedies, the European Court noted in particular that most of the funds available were transferred to the state budget by a government decree which the applicants could not contest before national courts and that in such circumstances the non-enforcement of the judgment was due to reasons which the bailiffs could not influence.

The Court, taking into account the fact that the Hrazdanmash was not sufficiently independent, either institutionally or operationally, concluded that the state was responsible for the salary debts incurred.

The European Court noted that by failing for years to take necessary steps to comply with the final judgment the authorities had infringed the essence of the applicants’ right to a court and prevented the applicants from receiving in full the money to which they were entitled, which amounted to a disproportionate interference with the peaceful enjoyment of their possessions.

The Court awarded the applicants just satisfaction in respect of non-pecuniary and pecuniary damages, the sum allowed for pecuniary damages corresponding to the outstanding debts due to them.

- 4 cases against Austria / 4 affaires contre l'Autriche

27900/04           Palushi, judgment of 22/12/2009, final on 22/03/2010

The case concerns inhuman and degrading treatment inflicted upon the applicant, who at the material time was being held in custody in Vienna Police Prison with a view to expulsion for illegal stay and the ensuing lack of medical care in solitary confinement (two violations of Article 3).

As regards the applicant’s allegations that he had been stabbed behind his ears with ballpoint pens and the manner in which he was carried to the individual cell, such that his back dragged along the edges of the steps, the European Court found that his injuries had been established beyond reasonable doubt by the medical reports and witnesses. The Court considered that the treatment of the applicant, who had been on hunger strike for three weeks and was in a physically and mentally weakened state, must have caused him physical and mental pain and suffering and had been such as to arouse in him feelings of fear, anguish and inferiority capable of debasing him and possibly breaking his physical and moral resistance.

The European Court observed that the applicant was placed in solitary confinement despite the risks implied by his hunger-strike, such as loss of consciousness, on the assessment of a paramedic, who according to the 1994 CPT report had received only basic training, and had been refused access to a doctor for three days. Taken together, those factors must have caused him suffering and humiliation beyond that which is inevitable in a situation of detention.

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

General measures: The Austrian authorities provided an action report dated 26/05/2010) according to which a copy of the European Court’s judgment had been sent to the relevant ministry. A German translation would be published by the Österreichisches Institut für Menschenrechte in Newsletter 2010. The Austrian authorities also referred to the latest report by the CPT and the Austrian commitment to improve conditions for detainees.

The Austrian authorities consider that the judgment has been fully implemented.

• This information is being assessed.

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: The European Court’s judgment was published in the Newsletter of the Austrian Institute for Human Rights (NL 2006, p. 152 (NL 06/3/15), available online at http://www.menschenrechte.ac.at/docs/06_3/06_3_15).

On 23/01/2007 it was sent to the Constitutional Service of the Federal Chancellery, the Vienna Municipality and the Appeals Board of the Vienna Municipality. 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).

• 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.

20082/02           Zehentner, judgment of 16/07/2009, final on 16/10/2009

The case concerns disproportionate interference with the applicant’s right to respect for her home due to the judicial sale of her apartment in 1999 to pay off her creditors without her having been able to participate effectively in the proceedings (violation of Article 8).

The European Court found that the applicant, for whom a guardian had been appointed in 2000, had lacked legal capacity for years by the time the judicial sale of the apartment and her ensuing eviction in 2000 had taken place, so she had been unable either to object or to resort to available remedies. In addition, the absolute nature of the time-limit for appealing against a judicial sale provided in domestic law prevented her from obtaining a review of her case. Given that persons without legal capacity were particularly vulnerable, the Court found that specific justification was required. The Austrian Supreme Court, rejecting the applicant’s extraordinary appeal by decision of 30/01/2002, had not given any such justification and had not weighed the conflicting interests of the purchaser in good faith and the debtor lacking legal capacity.

The case also concerns a breach of the applicant’s right to peaceful enjoyment of her possessions in this respect (violation of Article 1 of Protocol No. 1).

The Court noted that even if the proceedings in this case had been between private parties, the state was under an obligation to afford both parties the necessary procedural guarantees. It found the procedural mechanism suggested by the government an unfeasible scenario for the applicant, a person lacking legal capacity, to be able to recover possessions of which she was deprived without adequate guarantees.

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

• Information is awaited on possible individual measures envisaged or taken to remedy the violation found.

General measures:

• Information provided by the Austrian authorities (24/02/2010): A German translation of the judgment was published in the Newsletter of the Österreichisches Institut für Menschenrechte 2009/4, pp. 212, in the Österreichische Juristenzeitung 2010/1 as well as in the Fachzeitschrift für Ehe- und Familienrechte (EF-Z) 2010/17.

• This information is being assessed.

49616/06           Koottummel, judgment of 10/12/2009, final on 10/03/2010

The case concerns a violation of the applicant’s right to a fair trial in that, in April 2006 the applicant was denied an oral hearing before the Administrative Court in proceedings concerning applications under the Aliens’ Employment Act for a grant of an employment permit (violation of Article 6§1).

The European Court could not find that in the present case the subject matter of the proceedings before the Administrative Court, namely a highly technical issue or of mere legal nature, was of such a nature as to dispense with its obligation to hold a hearing.

Individual measures: The European Court dismissed the applicant’s claim for just satisfaction in respect of pecuniary damage as it could discern no causal link between the violation and the damage alleged.

• Information is awaited on possible individual measures envisaged or taken to remedy the violation found.

General measures: The Austrian authorities provided an action report dated 7/6/2010 according to which a German translation of the European Court’s judgment had been published by the Österreichisches Institut für Menschenrechte in Newsletter 2009/6. The Austrian authorities consider that the judgment has thereby been fully implemented.

• This information is being assessed.

- 9 cases against Azerbaijan / 9 affaires contre l'Azerbaïdjan

4762/05            Mammadov Mikayil, judgment of 17/12/2009, final on 17/03/2010

The case concerns a breach of the right to life due to the authorities’ failure to carry out an effective investigation to establish the extent of the state’s responsibility for the death of the applicant’s wife (procedural violation of Article 2).

The applicant and his family are internally displaced persons. In 1993 they left their permanent place of residence to live in various places and at the end of 2003 the applicant and his family moved into an old, unoccupied administrative building. On 26/03/2004 a group of public agents and police officers arrived in the applicant's new dwelling to evict them. At an unspecified time after the officials arrival, the applicant's wife poured kerosene over herself and lit it. She suffered multiple second- and third-degree burns from which she died in hospital on 30/03/2004.

The applicant complained that the domestic authorities were responsible for the death of his wife and had failed to investigate the circumstances of her death effectively.

The Court considered that, owing to the lack of relevant factual details, doubts remain that the responsibility for the applicant’s wife death might have lain at least in part with the authorities. However, having assessed the available material, the Court found those doubts insufficient to establish conclusively that the authorities acted in a manner incompatible with their positive obligation to guarantee the right to life. As regards the investigation into the death of the applicant’s wife the Court found it inadequate as it had not covered all the issues relevant to the assessment of the state’s responsibility for the incident.

In particular, the investigation had been limited to the question as to whether the state agents had incited the applicant’s wife to commit suicide, while it had never examined whether they had done everything necessary to prevent her death or to minimise her injuries.

Moreover, the investigation had been characterised by many other shortcomings:

-           as the manner in which the operation was conducted at the scene of the incident was a prima facie problematic issue in this case, the investigative authorities should have sought from their relevant police superiors a more detailed explanation as to the planning of the operation, as to how the chain of command had been organised on the scene, and as to what specific orders, if any, had been given to individual police officers after the police had arrived at the applicant's dwelling, but none of these steps were taken; 

-           the authorities had not tried to obtain the victim’s testimony before she died and failed to provide explanation of this;

-           the authorities had not attempted to reconstruct the sequence and duration of the events or to address the discrepancies in the witness statements;

-           the domestic investigation had lasted more than four years, having been adjourned and resumed a number of times without any evident progress in its effectiveness and without any substantive improvement in the adequacy of the measures taken ;

-           lastly, by only granting the applicant victim status in the criminal proceedings in June 2006, the authorities had denied him the possibility of effectively intervening in the investigation up to that point.

22684/05           Muradova, judgment of 02/04/2009, final on 02/07/2009

The case concerns inhuman and degrading treatment inflicted on the applicant during the dispersal of a demonstration on 16/10/2003, which resulted in the loss of the applicant’s sight in one eye (substantive violation of Article 3). The case also concerns the absence of an effective investigation leading to the identification and charging of the policemen who hit her, following the applicant’s complaint (procedural violation of Article 3).

Individual measures: It is recalled that the Committee's consistent position in cases where a procedural violation of Article 3 is found is that there is a continuing obligation to conduct investigations.

• Information provided by the Azerbaijani authorities at the1086th meeting (June 2010): Following the European Court’s judgment, the Office of the Government Agent asked the Prosecutor General’s Office to carry out an investigation of the facts of the case.

• Information is awaited on the development of this investigation. In this respect, it was recalled that to comply with the requirements of the Convention, such an investigation should be effective, conducted with reasonable speed and adequate public scrutiny and capable of leading to the identification and punishment of those responsible.

General measures:

1) Substantive violation of Article 3: The European Court recalled that

-           when authorities resort to the use of force, there should exist some form of independent monitoring of the action taken to ensure accountability for the force used, including the issue of its proportionality

-           whatever mode or form of investigation is employed in respect of Article 3 complaints, once the matter has come to the attention of the authorities, they must act of their own motion and cannot leave it to the applicant to take responsibility for the conduct of the investigatory procedure

-           in cases of alleged ill-treatment, it is the responsibility of the investigation authorities, and not the applicant, to secure independent and reliable forensic evidence

As regards the substantive violation of Article 3, the Court noted that the applicant's allegations were corroborated by sufficiently strong and concordant evidence and that the applicant's injuries resulted from unnecessary and excessive use of force by the police.

• Information provided by the Azerbaijani authorities (1086th meeting): The Court’s judgment was sent to the Ministry of Internal Affairs for dissemination to police officers. The authorities plan to organise training courses for the Police Academy dedicated to the role of the police during demonstrations. Special attention will be given during this training to the use of force and special equipment by police officers.

At the 1086th meeting (June 2010) the following issues were raised and detailed and rapid information was requested on:

-           the regulatory framework for the use of force, as the facts of this case show that the law is not being correctly implemented;

-           the training of police, in particular a timeframe for the organisation of such training;

-           any existing monitoring of the use of force which would ensure accountability for force used and, where necessary, any measure envisaged to establish such independent monitoring.

2) Procedural violation of Article 3: The European Court noted, among other things, that:

-           while a criminal investigation was formally instituted to investigate the violent actions of the protesters, it is unclear from the material submitted by the parties whether any such formal inquiry was made into the actions of the law-enforcement authorities, whereas such an inquiry would have enhanced the effectiveness of the investigation into the applicant's individual complaint;

-           the first and second forensic reports were issued respectively more than nine months and more than a year after the injury had been suffered, and five months and eight months, respectively, after the applicant lodged her criminal complaint. No explanation was offered to justify these delays;

-           the authorities failed, in the framework of the criminal investigation, to take due account of witness statements adduced in the framework of a civil claim;

-           while the investigators relied on statements of others, the applicant was never given the opportunity to challenge the credibility or the veracity of these statements;

-           despite serious allegations of ill-treatment, the applicant was not recognised as a “victim of crime”, (i.e. the status provided in Article 87 of the Code of Criminal Procedure) which significantly restricted her ability to participate in the investigation and challenge the investigator's actions;

-           the applicant was not duly informed of the decision to discontinue the investigation and was therefore deprived of the possibility to request a court to review the lawfulness of this decision.

• Information provided by the Azerbaijani authorities (1086th meeting): The Court’s judgment was sent to the Prosecutor General’s Office for dissemination among prosecutors. The authorities plan to organise courses at the Training Centre of the General Prosecutor’s Office which will cover the procedural aspects of investigation of alleged ill-treatment, such as “rights of applicants to call for witnesses, initiating forensic examination, rights and duties of the investigation authorities to secure independent and reliable forensic evidences and necessity of duly informing applicants about decisions adopted during the investigation“ and procedure.

• During the meeting the following issues were raised and detailed and rapid information was requested on:

-               dissemination of the judgment to civil courts, as it appears from the European Court’s judgment that the civil court did not respect the procedure as it should have (§123) and did not provide legal reasoning for its decision (§122).

-               the planned training: when it will take place, the detailed content, in particular concerning the duty of investigative authorities to secure independent and reliable forensic evidence (as this issue is raised for the second time by the Court – see the case of Mammadov (Jalaloglu), 34445/04, 1100th meeting, December 2010)

-               the status of “victim of crime” which entails several procedural rights for the victim (§62) and the authorities’ own assessment as to whether it would be appropriate to facilitate the granting of this status.

On 14/06/2010, the Secretariat wrote to the Government Agent’s Office to recall these queries.

No further information has been provided for the 1092nd meeting.

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

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

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

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

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

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

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

General measures:

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

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

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

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

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

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

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

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

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

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

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

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

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

• Assessment: Due note has been taken of the legal framework regarding the public character of hearings in ordinary cases. Nevertheless, as these provisions already existed at the material time, further information is awaited on rules and means developed to ensure public hearings in specific cases such as the present one which may call for “compensatory measures”; information as to whether special security arrangements exist in ordinary court rooms or are being planned, to avoid holding hearing outside ordinary court rooms would be useful (cf. §150 of the Court’s judgment).

• No information has been provided in this case since October 2008.

35877/04           Mahmudov and Agazade, judgment of 18/12/2008, final on 18/03/2009

The case concerns a breach of the applicants' right to freedom of expression in that they were convicted and sentenced to five months' imprisonment for defamation and insult by the Yasamal District Court on 20/05/2003, the judgment being upheld on 16/07/2003 by the Court of Appeal and on 2/03/2004 by the Supreme Court (violations of Article 10).

The first applicant was the acting chief editor of a newspaper, Müxalifət. The second applicant was a journalist working for the same newspaper.

The European Court found that although the interference with the applicants' right to freedom of expression might have been justified, the criminal penalty imposed was disproportionate to the legitimate aim pursued. By sentencing the applicants to imprisonment, the domestic courts contravened the principle that, in a democratic society, the press must be able to act as a public watchdog.

Individual measures: The applicants were exempted from serving their sentences in application of an amnesty. The European Court awarded them just satisfaction in respect of non-pecuniary damage. It also held (§20of the judgment that a record of the sentence should not appear in their criminal records.

At the 1078th meeting (March 2010) the Representative of Azerbaijan confirmed that the applicants’ sentences were not included in their criminal records.

General measures: The Court reiterated that, although sentencing is in principle a matter for national courts, the imposition of a prison sentence for a press offence can only be compatible with journalists' freedom of expression as guaranteed by Article 10 of the Convention in exceptional circumstances, particularly where other fundamental rights have been seriously impaired, as, for example, in cases of hate speech or incitement to violence

Articles 147.1 (defamation) and 148 (insult) of the Criminal Code provide up to six months' imprisonment.

The Court indicated (§22) that Article 10 of the Law on Mass Media of 7/12/1999 prohibits the media inter alia from publishing defamatory material. According to Article 60, editors and journalists may be held liable criminally, administratively or otherwise inter alia in case of failure to ensure compliance of published material with the requirements of this law, or if the published material interferes with an individual’s private life.

At the 1078th meeting (March 2010) the Representative of Azerbaijan stated that amendments tothe Criminal Code and adoption of a law on defamation had been the subject of wide public discussion for two years. There had been a general assumption that before adopting such a law, effective measures should be taken to improve the financial state of the media and the professionalism of journalists. The Representative of Azerbaijan mentioned various initiatives to create a favourable environment for the adoption of the law on defamation (Presidential Decree on the state concept on the development of the mass media adopted on 31/08/2008; Presidential Decree of 3/04/2009, the State Support Fund for the development of media; co-operation with the OSCE Office in Baku; co-operation with the Council of Europe in the media field).

He concluded that Azerbaijan is not against the decriminalisation of the acts of journalists, but that to do so would require the efforts of journalists, the public, government agencies and international organisations.

The judgment has been translated into Azeri and sent out to judges and other legal professionals. It has been included in curricula for the training of judges and candidates to the post of judge. It has also been published in the Bulletin of the European Court of Human Rights (10/2008). A translation of the Law on Mass Media of 1999 has been provided to the Secretariat.

It was recalled during the meeting that in the judgment of Mahmudov and Agazade, the European Court had reiterated its well-established case-law: the Azerbaijani authorities were invited to bring the relevant legislative provisions into conformity with this case-law.

• Information is awaited on measures under way to bring the Criminal Code in conformity with the Convention. Moreover, dissemination of the Court’s judgment to courts dealing with cases regarding freedom of expression, together with a circular drawing their attention in particular to §§ 41, 49 and 50 of the judgment, is still awaited.

37700/05           Seyidzade, judgment of 03/12/2009, final on 03/03/2010

The case concerns a breach of the applicant’s right to free elections due the successive rejection by the Constituency Electoral Commission, the Central Electoral Commission, the Court of Appeal, the Court of Cassation and the Constitutional Court of his application to be registered as a candidate to parliamentary elections of November 2005, in application of a law which provided restrictions so wide and imprecise that the very essence of the rights guaranteed by Article 3 of Protocol No.1 was breached (violation of Article 3 of Protocol No.1).

On an unspecified date, the applicant applied to the Electoral Commission to be registered as a candidate for the November 2005 parliamentary elections.

Mr. Seyidzade held the following positions: head of the education department of the Caucasus Muslims Board (Qafqaz Müsəlmanlar İdarəsi, the official governing body of Muslim religious organisations in Azerbaijan), member of the Qazi (Islamic Judges’) Council (Qazılar Şurası) of the Caucasus Muslims Board, and director of the Sumgayit branch of Baku Islamic University. He was also a founder and editor-in-chief ofKelam, a journal with Islamic religious content.

He submitted with his application an undertaking to terminate any professional activity incompatible with the office of member of parliament and by August 2005 he had resigned from all his positions involving professional religious activity. Nevertheless his candidacy was refused.

Article 85 (II) of the Constitution provides that a certain number of persons among which “clergymen” cannot be elected as members of the Parliament. Article 14 of the Electoral Code, as it stood at the material time, provided that “clergymen while engaged in professional religious activity” shall not have the right to serve as members of parliament. Finally, Article 53 of the Electoral Code, as it stood at the material time, provided that “a written undertaking by the candidate to terminate any activities incompatible with a post in an elected state or municipal body shall be submitted together with” the candidacy.

The European Court stated that the relevant legal provisions were not sufficiently precise to enable the applicant to regulate his conduct and foresee which specific types of activities would entail a restriction of his passive electoral rights. The lack of any definition of the terms “clergyman” and “professional religious activity” allowed an excessively wide discretion to the electoral authorities and left much room for arbitrariness in applying the restriction based on Article 85 (II) of the Constitution and Article 14.2.4 of the Electoral Code and that this was precisely what happened in the present case as, despite the applicant's resignation from all the positions that could be construed as “professional religious activity”, the domestic authorities arbitrarily refused his request for registration without even specifying any factual grounds for their finding that he was still a “clergyman” engaged in “professional religious activity”.

13652/06           Humbatov, judgment of 03/12/2009, final on 03/03/2010

The case concerns the failure to enforce a final judgment of 31/05/2001 ordering the restoration of the applicant’s right of use of a plot on which buildings had been constructed by a third party, as well as the demolition of these buildings (violations of Article 6 §1 and of Article 1 of Protocol No 1.) 

The European Court held that, within three months from the date on which the judgment became final according to Article 44 § 2 of the Convention (i.e. by 3/06/2010), the respondent state should secure, by appropriate means, the enforcement of the domestic court's judgment of 31/05/ 2001. In 1996 the applicant obtained the right of use of a state-owned plot of land. In 1998, the plot was occupied by a private company which started constructing buildings. By decision of 31/05/2001 the Economic Court, acting as an appeal court, ordered the restoration of the applicant’s right of use of the plot and the demolition of the buildings. No cassation appeal was lodged against this judgment, the decision is final. 

It transpires from the European Court’s judgment that the plot at issue, which was state property at the time the applicant was given the right to use it, has been owned by a private person since 1999. The Court stated that in finding a violation of Article 6§1 in the present case, it has established the government's obligation to take appropriate measures to remedy the applicant's individual situation, i.e. to ensure compliance with the applicant's enforceable claim under the judgment of 31/05/2001. Whether such measures would involve restoring the applicant's right of use of the plot in question or providing him with an equivalent plot or, if this proves impossible, granting him reasonable compensation for non-enforcement, or a combination of these and other measures, is a decision that falls to the respondent state. The Court, however, emphasised that any measures adopted must be compatible with the conclusions set out in its judgment.

• On 25/05/2010, the Secretariat wrote to the Azerbaijani authorities recalling the deadline set by the Court for the individual measure in this case and the need for an action plan.

50187/06           Mirzayev, judgment of 03/12/2009, final on 03/03/2010, rectified on 13/01/2010

The case concerns the failure to enforce a final judgment of 23/12/2003 ordering the eviction of unlawful occupants from a flat of which the applicant was the lawful tenant (violation of Article 6§1 and of Article 1 of Protocol No 1).

The European Court held that within three months from the date on which the judgment becomes final according to Article 44§2 of the Convention (i.e. by 3/06/2010),the respondent state should secure by appropriate means the enforcement of the domestic court's judgment of 23/12/2003.

By an order of the Azizbeyov District Executive Authority of 18/01/1994, the applicant was issued an occupancy voucher (tenancy right) for a flat in a recently constructed residential building in Baku. On the same day, the applicant became aware that the flat was occupied by S. and his family, who were internally displaced persons (“IDPs”). On an unspecified date in 2003, the applicant lodged an action with the Surakhany District Court asking the court to order the eviction of S. and his family from the flat. On 23/12/2003 the Surakhany District Court ordered that the eviction of the unlawful occupants from the flat and their provision of other accommodation in accordance with domestic law. The judgment became final, as no appeal was filed against it, but was never executed.

The European Court reiterated that the state’s responsibility for enforcement of a judgment against a private party extends no further than the involvement of state bodies in the enforcement procedures. When the authorities are obliged to act to enforce a judgment and fail to do so, their inactivity may engage the state's responsibility under Article 6§1 of the Convention. The Court further observed that unlike ordinary cases concerning non-enforcement of a judgment between private parties, where the state has to merely assist a creditor with the execution of a judgment, in this case the execution of the judgment was conditioned by the state's obligation to provide S. and his family with other accommodation. However, it has not been shown that the authorities had continuously and diligently attempted to find other accommodation for S. and his family so as to enforce the judgment in question.

• On 25/05/2010, the Secretariat wrote to the Azerbaijani authorities recalling them the deadline set by the Court for the individual measure in this case and the need for an action plan.

- 2 cases concerning the failure or substantial delay by the administration in abiding by final domestic judgments

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

These cases concern a breach of the applicant’s right to a fair hearing on account of the failure to enforce (Tarverdiyev case) or delay in enforcing (Efendiyeva case) of final judgments (violations of Article 6§1).

In the case of Tarverdiyev, the applicant was the Forestry Director of the Ismayilli Region until May 2001 when he fell ill and, while in hospital, was dismissed. He brought proceedings against the Ministry of Environment. By a judgment delivered on 20/08/2001, the Narimanov District Court ordered his reinstatement but this judgment was never executed.

In the case of Efendiyeva, a final judgment of 09/09/1994 ordering the applicant’s reinstatement in her post as Medical Director of the Republican Maternity Hospital and payment of compensation for wrongful dismissal was not enforced until July 2007,and had therefore remained unenforced during more than five years following the Convention’s entry into force in Azerbaijan (15/04/2002), (violation of Article 6§1)

Moreover, the Court held that, by failing to comply with the judgment of the Nasimi District Court of 9/09/1994, the authorities prevented the applicant from receiving the sums due to her, an unjustified interference in her right to peaceful enjoyment of her possessions (violation of Article 1 of Protocol No. 1)

Individual measures:

1) Tarverdiyev case:

The applicant submitted no claim for just satisfaction within the time‑limit set by the Court but asked that the judgment of 20/08/2001 be enforced. The Court recalled that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position he would have been in had the requirements of Article 6 not been disregarded. The Court considered that the government should secure, by appropriate means, the enforcement of the domestic judgment at issue. It is for the respondent state to consider whether such means would involve reinstating the applicant in an equivalent job at an equivalent institution or, if this is not possible, granting him reasonable compensation for non-enforcement, or a combination of these and other measures.

• Information provided by the Azerbaijani authorities (14/04/2008): By decision of 29 June 2007 the Court of Appeal of the Republic of Azerbaijan “upheld the applicant’s refusal from his claim against the Ministry of Environment and Natural Resources for reinstatement in his job, compensation for pecuniary and non-pecuniary damage,quashed the Judgment of the Narimanov district court of 20 August 2001 (which ordered the applicant’s reinstatement to his former post) and cancelled the proceeding on the case”.

On 30 December 2007, the applicant wrote to the European Court to stress that he had not waived his claims and to demand, once again, the assistance of the Court for being reinstated in his post of Director.

• Information provided by the Azerbaijani authorities (29/09/2008): The Azerbaijani authorities provided a copy of the applicant’s request to a judge of the Court of Appeal dated 29/06/2007. In this letter, the applicant states that he has been appointed to the position of forestry protection engineer at the Ismayilli Forestry Protection and Restoration Establishment and asks the judge to take a decision of “discontinuation of civil proceedings”.

• Assessment: the information and documents provided by the Azerbaijani authorities concern facts which predate the judgment of the European Court; therefore, the adoption of individual measures is still awaited. No information has been received since the issue was raised at the 1035th meeting (September 2008).

2) Efendiyeva case:

The applicant was reinstated in her post on 11/07/2007. On 18/01/2008, the Supreme Court awarded her AZN 5,677.26 in compensation for pecuniary damage sustained as a result of the delayed enforcement of the domestic judgment. The applicant has been paid this amount. In its judgment on the application of Article 41 (just satisfaction), the Court awarded the applicant just satisfaction in respect of both pecuniary and non-pecuniary damage.

• Complaints by the applicant and response of the Azerbaijani authorities: On 5/01/2010, the applicant complained of the conditions under which she had been reinstated in her post and of having eventually been dismissed. The Azerbaijani authorities indicated (letter of 8/01/2010) that the applicant’s allegations that she could not exercise her duties as Chief Physician after her reinstatement were “unsubstantiated” and that all the employees of the hospital had been dismissed in November 2009 “on the ground of the liquidation of the Hospital”.

In letters of 9/04 and 29/07/2010 the applicant further complained of the failure to execute the European Court’s judgments.

Assessment: In the framework of the execution of this specific judgment, it may be considered that the necessary individual measures have been taken. The subsequent complaints raised by the applicant in her letters of 5/01, 9/04 and 29/07/2010 seem to fall outside the scope of implementation of the judgment.

General measures:

• Information provided by the Azerbaijani authorities (letter of 4/11/08): The European Court’s judgment in the case of Tarverdiyev has been translated and published in the Bulletin of the European Court of Human Rights, No.4/2008. It has been sent out to judges, legal professionals, relevant executive agencies and forwarded to the Ombudsman.

Detailed information is awaited on enforcement proceedings currently in force and on effective remedies available to complain and obtain compensation in case of delay in the enforcement of domestic decision of justice. Publication and dissemination of the European Courts judgment in the case of Efendiyeva are also awaited.

No information has been received since November 2008.

- 7 cases against Belgium / 7 affaires contre la Belgique

44256/06           Cakir Turan, arrêt du 10/03/2009, définitif le 10/06/2009

Cette affaire concerne des mauvais traitements infligés au requérant par les forces de l’ordre au cours de son arrestation et sa garde à vue (violation de l’article 3 sous son volet matériel) et le défaut d’effectivité de l’enquête menée à cet égard (violation de l’article 3 sous son volet procédural).

La Cour européenne a également constaté que les autorités belges n’avaient pas pris toutes les mesures nécessaires pour rechercher si les policiers avaient fait preuve d’un comportement discriminatoire (violation de l’article 3 dans son volet procédural, combiné avec l’article 14).

22945/07           Houtman et Meeus, arrêt du 17/03/2009, définitif le 17/06/2009

L'affaire concerne la violation du droit à réparation des requérants au titre de l'illégalité de l'internement psychiatrique de la première requérante, effectué à l'initiative des médecins (violation de l'article 5§5).

La Cour européenne a estimé qu'en refusant d'indemniser les requérants malgré la reconnaissance du caractère illégal de l'internement de la requérante, les juridictions belges n'avaient pas interprété et appliqué le droit interne dans l'esprit de l'article 5§1.

42914/98          Capeau, judgment of 13/01/2005, final on 06/06/2005[1]

45413/07           Anakomba Yula, arrêt du 10/03/2009, définitif le 10/06/2009

L'affaire concerne une décision de refus d'assistance judiciaire par les juridictions belges, dans le cadre d'une action engagée par la requérante, au motif que cette dernière ne résidait pas de manière régulière sur le territoire belge.

Prenant en compte notamment la gravité des questions en jeu (paternité d'un enfant) et les démarches entreprises par la requérante pour régulariser son séjour, la Cour européenne a estimé que l'Etat belge avait manqué à son obligation de réglementer le droit d'accès à un tribunal d'une manière conforme aux exigences de l'article 6§1 de la Convention, combiné avec l'article 14.

32576/96          Wynen, judgment of 05/11/02, final on 05/02/03[2]

49230/07           L’Erablière A.S.B.L., arrêt du 24/02/2009, définitif le 24/05/2009

Cette affaire concerne une limitation disproportionnée au droit d’accès à un tribunal imposée à l’association requérante dans le cadre de sa demande en annulation d’un permis d’urbanisme, déclarée irrecevable en 2007 par le Conseil d’Etat, faute de contenir un exposé des faits (violation de l’article 6§1).

1062/07            Stagno, arrêt du 7/07/2009, définitif le 7/10/2009

Cette affaire concerne la violation du droit d’accès à un tribunal en raison du rejet pour motif de prescription de l'action intentée par les requérantes contre leur mère pour avoir dilapidé, alors qu'elles étaient mineures, une partie de l'assurance vie de leur père décédé (violation de l'article 6§1).

La Cour européenne a estimé que l’application rigide par les juridictions belges du délai de prescription, sans tenir compte des circonstances particulières de l’affaire, avait empêché les requérantes de faire usage d’un recours qui leur était en principe disponible. Cette limitation à leur droit d’accès à un tribunal était disproportionnée par rapport au but visant à garantir la sécurité juridique et la bonne administration de la justice.

• Aucune information n’a été fournie par les autorités à ce jour.

- 1 case against Bosnia and Herzegovina / 1 affaire contre la Bosnie-Herzégovine

22893/05           Rodić and 3 others, judgment of 27/05/2008, final on 01/12/2008

The case concerns the authorities’ failure in their obligation to protect the applicants, prisoners of Serb or Croatian origin convicted of war crimes against Bosniacs, from persecution by their fellow prisoners in Zenica Prison, hosting approximately 90 per cent Bosniac prisoners. The actual incidents varied from spitting in their food and spilling water on their beds to death threats and beatings, from their arrival in Zenica prison in 2004 and 2005 respectively until they were provided with separate accommodation in the prison hospital unit (violation of Article 3).

The European Court noted that despite the serious risk to the applicants’ physical well-being, no specific security measures were introduced in the prison. The applicants were provided with separate accommodation in the prison hospital unit only after two severe attacks on two applicants, their declaration of a hunger strike and the consequent media attention, which occurred almost ten months after the arrival of the first of the applicants in Zenica Prison (§72).

The case also concerns the lack of an effective remedy at the applicants’ disposal in relation to their complaints under Article 3 (violation of Article 13).

In this respect, the European Court noted that while a petition to prison inspectors at the Ministry of Justice, in combination with a constitutional appeal, is capable of providing redress for the alleged breaches, it appeared that the system of prison inspections has not been functioning in the Federation of Bosnia and Herzegovina since 2004 (§58). In fact, there were two prison inspector posts in the Federation of Bosnia and Herzegovina, which have been vacant since 2004 (§45).

Individual measures: The European Court noted that all applicants have been transferred to Mostar Prison (§§24, 26, 29). Just satisfaction has been awarded to all of them.

• Information provided by the Bosnian authorities (02/07/2009 and 06/01/2010): The applicant Milorad Rodić was conditionally released on 30/12/2008. His prison sentence expired on 14/03/2009. The other applicants are still serving their sentence in Mostar Prison. The authorities provided a report prepared by Mostar Prison in respect of the three applicants still detained. The report indicates that they are satisfied with the conditions in Mostar Prison and that they have raised no complaints with the Mostar Prison authorities so far.

• Assessment: In view of the circumstances, no other individual measure appears necessary.

General measures: The Secretariat sent an initial-phase letter to the authorities of Bosnia and Herzegovina regarding the general measures taken or envisaged.

1) Violation of Article 3: The issues concerning the prevalent violence in Zenica Prison were also criticised in the CPT reports (see the most recent CPT/Inf (2007) 34, CPT/Inf (2009)25, §§39, 44-46 and CPT/Inf(2010)10, §§13-15 ). In particular, the CPT delegation discovered “a culture which [was] conducive to interprisoner intimidation and violence” and stated that “violence and abuse amongst inmates appeared to be a feature of everyday life in Zenica Prison“.

• Information provided by the Bosnian authorities (02/07/2009, and 06/01/2010 and 29/06/2010): The 2009 Budget of the Federation of Bosnia and Herzegovina (the “Federation”) earmarked an amount of 8 million Bosnian Markas for improving conditions in prisons. The funds have been used, inter alia, to build a separate pavilion in Zenica Prison for 64 prisoners belonging to risk groups, such as war-crime convicts. The authorities of the Federation plan to resolve the problem of inter-ethnic violence in prisons by separating prisoners belonging to risk groups as soon as the facilities are built. The new pavilion was completed on 31/05/2010. In addition, the authorities confirmed that in the period 01/07/2008 to 30/06/2009 no ethnically motivated violence had taken place in Zenica Prison.

• Assessment: It appears that the separation of prisoners belonging to risk groups, and their placement in the new prison pavilion, might prevent similar violations.

• Information is thus awaited as to whether all-war crime convicts have been transferred to the new pavilion in Zenica Prison. In view of the CPT’s recent findings concerning the persisting culture of violence and abuse amongst inmates in Zenica Prison, information is awaited on other measures planned or taken to bring this violence to an end.

2) Violation of Article 13:

• Information provided by the Bosnian authorities (02/07/2009): The Federation authorities filled both vacant positions of prison inspectors at the Ministry of Justice on 30/05/2008 and 19/01/2009. They have received around 50 complaints from prisoners so far and ordered the prison authorities to take specific measures in eight cases. The Bosnian authorities also provided an example of the report issued by a prison inspector in respect of a complaint raising safety concerns.

• Assessment: The European Court considered that a petition to prison inspectors at the Ministry of Justice, combined with a constitutional appeal, could provide redress for the alleged breaches. However, it found that the petition to prison inspectors did not constitute an effective remedy because prison inspector posts have been vacant and because the system of prison inspections has not functioned in the Federation since 2004. On the basis of the available information, it appears that the authorities have now filled all prison inspectors posts. The system of prison inspections has resumed in the Federation and prisoners have begun to use this remedy.  However, it has not yet been demonstrated that the system of prison inspection is functioning properly nor that a petition to prison inspectors, combined with a constitutional appeal, may provide redress for alleged inter-ethnic violence in prisons.

• Information is thus awaited on the functioning in practice of the petition to prison inspectors.

            3) Publication and dissemination: The European Court’s judgment was published in the Official Gazette of Bosnia and Herzegovina (No. 18/09) and forwarded to all relevant authorities involved in the present case.

- 141 cases against Bulgaria / 141 affaires contre la Bulgarie

                       - 5 cases concerning violations arising in the context of deportation

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

1) Lack of sufficient safeguards against arbitrariness in deportation proceedings: 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.

2) Lack of opportunity to have a case reviewed before deportation:  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.

3) Detention while awaiting deportation: 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).

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.

• Information provided by the Bulgarian authorities (letter of 26/03/2010): Between 01/01/2008 and the date of the letter, Mr Al-Nashif's application for a visa to enter Bulgaria, lodged with the Bulgarian Embassy in Damascus, was refused by the Directorate of Consular Relations of the Ministry of Foreign Affairs. At present, there are no restrictive administrative measures against Mr Al-Nashif.

• The comments of the authorities would be useful as to whether Mr Al-Nashif's permanent residence status is still valid and whether he may enter and permanently reside in Bulgaria. 

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:

            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 case-law of the Supreme Administrative Court: 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: In 2005 and 2006 several draft amendments to the Aliens Act were prepared by the Ministries of Justice and of the Interior without achieving the necessary legislative reform. On 23/03/2007 a draft law amending the Aliens Act was adopted, introducing judicial review by the Supreme Administrative Court of expulsions, revocations 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 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 its adoption. At the same time, this law also excludes the suspensive effect of an appeal against such measure, when 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 (62540/00, 1100th meeting, December 2010).

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: Clarification has been requested concerning whether Bulgarian law at present provides 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 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.

• The NGO Bulgarian Lawyers for Human Rights Foundation submitted observations on the execution of these cases on 2/06/ 2010. The Bulgarian authorities provided their observations in this respect on 18/06/2010. This information is being examined.

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

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

The Nachova and others case concerns the killing, on 19/07/1996, of the applicants' relatives, Mr Angelov and Mr Petkov, by a military policeman who was trying to arrest them. The two men were conscripts in the Bulgarian army, both aged 21 and of Roma origin, who were wanted by the military police following their escape from the place where they were serving short terms of imprisonment for repeated absence without leave. Neither man was armed. The European Court considered that Mr Angelov and Mr Petkov were killed in circumstances in which the use of firearms was not justified and that the relevant law and practice on the use of force during arrest, falls well short of the level of protection of the right to life required by the Convention (violation of Article 2). The case also concerns the lack of effective investigation by the Bulgarian authorities into the deaths of the two men (violation of Article 2) and finally to the authorities' failure to fulfil their procedural obligation to investigate whether or not possible racist motives may have played a role in the events (violation of Article 14 taken in conjunction with Article 2). 

The Tzekov case concerns ill-treatment inflicted on the applicant by police officers in 1996, when they shot him in the course of a police operation aiming at stopping his vehicle to check his identity. It also concerns the lack of an effective investigation by the Bulgarian authorities of this ill-treatment caused by the police officers' actions (procedural and substantive violations of Article 3).

The European Court noted in particular that the National Police Act permitted the use of firearms by police officers in order to arrest an individual, even in circumstances where such a measure is not strictly necessary and proportionate.

Individual measures:

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

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

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

• Information is urgently awaited about this question.

• Assessment: underway

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

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

General measures:

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

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

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

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

In June 2006, the Ministry of Justice asked Prosecutor General's offices in courts of appeal for information on complaints concerning allegations of ill-treatment inflicted during arrest lodged between 2002 and 2004, and on their outcome. A report drawn up by military prosecutors was provided concerning the results of the investigations of cases of allegations of police violence for 1999-2005 (see the cases of the Velikova group, 41488/98, Section 4.2).

            3) Use of force and firearms by the military police during arrest (violation of the substantive aspect of Articles 2 and 3): In 2009, the Ministry of Defence adopted a regulation defining the circumstances in which military police may use force and firearms. On 26/03/2010 the authorities provided the text of this regulation and it is currently being assessed by the Secretariat.

• This information is being assessed.

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

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

• Information is requested in particular about what measures the Bulgarian authorities envisage taking to bring the National Police Act in line with the requirements of the European Court in the area of use of fire-arms. During the bilateral consultations held in Sofia on 15-16/06/2010, the Bulgarian authorities presented extensive information on this issue. This information is expected in writing.

            5) Violations of Articles 2 and 3 (procedural aspect): As regards the improvement of investigations carried out when individuals have been killed or injured as a result of the use of force, a great part of the general measures adopted or under way within the framework of the Velikova case are also relevant to the present case.

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

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

On 26/03/10 the authorities provided information on amendments made in 2009 to the Criminal Code to introduce more severe sanctions for racially and ethnically motivated crimes. It should be noted that these crimes concern mainly acts of incitement to racial, national or ethnic hatred or participation in mobs aroused to attack citizens because of their ethnic, national or racial affiliation.

• Information awaited: A copy of the instructions given to the military police is awaited. In addition, information is awaited on the response of the Military Prosecutor of Appeal to the Government Agent's enquiry as to whether similar instructions have been given to the other investigating bodies.

• It would also be useful to have the authorities' assessment of the relevance of these amendments to the execution of this judgment, as the situations concerned by the amendments to the Criminal Code do not seem to be similar to that concerned in the Nachova case.

- 15 cases mainly concerning deaths or ill-treatment which took place under the responsibility of the forces of order

Interim Resolution CM/Res/DH(2007)107

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

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

69138/01           Boyko Ivanov, judgment of 22/07/2008, final on 22/10/2008, rectified on 08/09/2008

31365/02           Dimitrov Georgi, judgment of 15/01/2009, final on 15/04/2009

61275/00           Georgiev Vladimir, judgment of 16/10/2008, final on 16/01/2009

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

57883/00           Petrov Vasil, judgment of 31/07/2008, final on 31/10/2008

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

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

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

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

The Nikolova and Velichkova case concerns a breach of the right to life of the applicants' relative, who died in police custody after excessive force was used to arrest him (violation of Article 2).

The rest of the cases, except the Kazakova and the Stefan Iliev cases, concern the ill-treatment inflicted on the applicants by police officers between 1995 and 2001, in the course of different police operations and during police custody (violations of Article 3).

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

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

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

The Krastanov case also relates to the excessive length of civil proceedings for damages brought by the applicant in 1995. The Petrov Vasil case also concerns the excessive length of criminal proceedings brought against the applicant (violations of Article 6§1).

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

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

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

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

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

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

• Information is awaited on the outcome of this enquiry.

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

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

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

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

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

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

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

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

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

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

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

            7) Nikolova and Velichkova case  An investigation was carried out in this case; however, various factors led the European Court to conclude that the criminal proceedings against the two police officers responsible for the death of the applicants' relative fell short of the requirements of Article 2: the police officers were convicted more than seven years after the wrongful act; they received suspended minimum sentences; no disciplinary measures were taken against them; and they continued to serve in the police force after the criminal proceedings were brought against them, and one was even promoted.

One of the police officers involved resigned from the police force in 1999 (§63; §§19-20).

• Information is awaited as to whether the police officers found guilty of causing the death of the applicants' relative are currently employed as law enforcement agents.

8) Petrov Vasil case: The criminal proceedings against the applicant have been ended and the applicant has been released.

• Information is awaited on the possibility of reopening the investigation into the applicant's allegations of ill-treatment.

• Information is also awaitedon the situation concerning in particular the newer cases (Iliev Stefan, Rashid, Vasilev Ivan, Krastanov, Boyko Ivanov, Georgiev Vladimir and Dimitrov Georgi).

General measures:

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

a) Violations of the right to life and of the prohibition of ill-treatment, including as a result of lack of medical care

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

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

b) Violations related to the lack of effective investigation:

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

c) Violations related to unlawful detention:

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

d) Violation of the right of property:

In the light of the particular circumstances of this violation, the publication and the dissemination of the Osman case appear appropriate measures for execution. 

e) Other violations:

The measures required by the violation related to the excessive length of the civil proceedings for damages against the state are examined in the context of the Djangozov case (45950/99, Section 4.2). The measures required by the violation related to the excessive length of the criminal proceedings are examined in the context of the Kitov case (37104/97, Section 4.2).  

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

The issue concerning continuing detention pending trial following the domestic court's decision ordering release is examined in the framework of the Bojilov group (45114/98, 1100th meeting, December 2010).

f) Publication and dissemination:

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

2) Outstanding issues: Noting the information provided by the government on general measures, the Committee did however note in its Interim Resolution that certain general measures remain to be taken, in particular measures:

-           to improve initial and ongoing training of all members of police forces, in particular as regards the widespread inclusion of human rights;

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

-           to guarantee the independence of investigations of alleged ill-treatment by the police, and in particular to ensure the impartiality of investigatory bodies dealing with such cases.

The Committee accordingly called upon the government of Bulgaria rapidly to adopt all outstanding measures and to inform it regularly of the practical impact of the adopted measures, in particular by submitting statistical data on investigations of allegations of ill-treatment by the police. The Committee decided to pursue the supervision of execution until all general measures necessary for the prevention of new, similar violations of the Convention are adopted and their effectiveness raises no doubt.

• Information is still awaited on the above mentioned outstanding issues. During the bilateral consultations held in Sofia on 15-16/06/2010, the Bulgarian authorities presented extensive information on these issues. This information is expected in writing. In addition, confirmation is awaited of the dissemination of the judgments of the European Court in the Ognyanova and Choban and Osman cases to the competent investigation organs in order to draw their attention to the deficiencies of the enquiries conducted in these cases.

59548/00           Dodov, arrêt du 17/01/2008, définitif le 17/04/2008

L’affaire concerne la disparition en décembre 1995 de la mère du requérant - atteinte de la maladie d’Alzheimer - d’une maison de retraite médicalisée gérée par l’Etat et l’incapacité du système juridique bulgare d’établir les circonstances de sa disparition et d’établir et de mettre en jeu la responsabilité des personnes et institutions concernées (violation de l’article 2).

A cet égard, la Cour européenne a relevé en premier lieu que l’enquête pénale avait été caractérisée par des périodes d’inactivité et des décisions contradictoires, et avait abouti à l’abandon de toute poursuite à l’encontre du personnel médical en 2004, pour cause de prescription. Elle a relevé en second lieu l’absence de mesure disciplinaire à l’encontre du personnel médical ainsi que l’absence de toute mesure administrative par les autorités administratives compétentes en vue d’identifier les origines éventuelles du manquement en cause. La Cour a souligné en dernier lieu que le recours civil en indemnisation était toujours pendant, dix ans après son introduction par le requérant. La Cour a estimé que les déficiences des règlements applicables aux activités de personnel des maisons de retraite avaient sans doute contribué à l’incapacité du système à fournir des réponses adéquates et en temps voulu en conformité avec les obligations procédurales de la Convention.

La Cour a conclu que, malgré l’existence en droit bulgare de trois types de voies de recours – pénale, civile et disciplinaire - face à une thèse défendable selon laquelle une négligence avait mis en danger la vie d’une personne, les autorités avaient manqué à leur obligation d’assurer, en pratique, une possibilité efficace d’utiliser les moyens de recours existant dans la loi. 

L’affaire concerne également la durée excessive de la procédure civile engagée par le requérant contre le ministère du Travail et de la Protection sociale, le ministère de l’Intérieur et la municipalité de Sofia (violation de l’article 6§1).

Mesures de caractère individuel : La Cour européenne a octroyé une satisfaction équitable au requérant pour le préjudice moral. La procédure pénale a été close en 2003, l’action publique contre les responsables se trouvant prescrite. L’action civile en réparation était toujours pendante lorsque la Cour européenne a rendu son arrêt.

• Les autorités sont invitées à fournir des informations sur l’état actuel de la procédure civile et sur son accélération, si nécessaire. Des informations sont attendues sur d’éventuelles sanctions disciplinaires imposées aux personnes responsables.

Mesures de caractère général :

            1) Violation de l’article 2 (absence de recours judiciaires permettant d’établir les faits et de mettre en jeu la responsabilité des personnes concernées) :

• Les autorités sont invitées à fournir des informations sur les mesures entreprises, ou envisagées, afin de s’assurer que les recours disponibles, liés aux plaintes relatives à la mise en danger de tiers par des actions négligentes, soient capables en pratique d’établir les faits et d’établir la responsabilité des personnes concernées.

Les autorités sont invitées en particulier à identifier les omissions potentielles dans la gestion, la formation, le contrôle ou la définition des tâches des différentes catégories de personnel dans les maisons de retraite (voir §97 de l’arrêt), lesquelles pourraient mettre en danger la vie des tiers par des actions ou omissions négligentes.

            2) Violation de l’article 6§1 (durée de la procédure civile): cet aspect est à rapprocher du groupe Djangozov (45950/99, rubrique 4.2).

• En tout état de cause sont attendues la publication et diffusion de l’arrêt de la Cour aux autorités concernées, notamment le Bureau du Procureur Général en vue de sa transmission à tous les bureaux du parquet du pays, le Ministère du Travail et de la Protection sociale, le Ministère de l’Intérieur et la municipalité de Sofia, la Cour de première instance de Sofia, la Cour d’appel de Sofia et la Cour suprême de cassation.

391/03              Işyar, judgment of 20/11/2008, final on 20/02/2009

The case concerns the poor conditions in which the applicant was detained in Sofia Prison between 2001 and 2008 (violation of Article 3).

The European Court noted that the applicant’s allegations concerning his conditions of detention (overcrowding, lack of organised activities for prisoners, deplorable standards of hygiene, lack of free access to the sanitary facilities at any time of day and poor-quality food) were corroborated by other evidence in its possession, and in particular by the report on Sofia Prison drawn up by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) after its visit in 2006. In view of the cumulative effect of the poor conditions of detention, and bearing in mind the length of the applicant’s detention and his particular situation (due to the fact that he is an alien and does not speak Bulgarian), the European Court held that the suffering to which the applicant had been subjected amounted to degrading treatment within the meaning of Article 3.

The case also concerns the violation of his right to have the free assistance of an interpreter (violation of Article 6§3e).The European Court observed that the way in which the courts had interpreted domestic law had resulted in the applicant’s being obliged to pay the interpretation costs incurred in the criminal proceedings against him.

Individual measures: The applicant was released on 05/05/2009.The European Court awarded him just satisfaction in respect of the pecuniary damage flowing from the violation of Article 6§3e and of the non-pecuniary damage sustained.

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

General measures:

1) Violation of Article 3: The case present similarities to the Kehayov group (41035/98, 1100th meeting, December 2010).

2) Violation of Article 6§3e: The European Court pointed to a certain discrepancy of the case-law of the Supreme Court of Cassation as to whether the convicted person should be required to pay the interpretation costs (see §§20 and 47 of the judgment). It held that the violation in this case arose from the courts’ interpretation of domestic law (see §48 of the judgment).

In view of the development of the direct effect given by Bulgarian courts to the Convention and to the case-law of the European Court, publication of the European Court’s judgment and its dissemination to the competent courts seem to be sufficient measures for its execution.

• Information is awaited in this respect; information on any other possible measures would be useful.

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

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

The cases relate to the lack of an enforceable right in Bulgarian law to compensation for detention in contravention of the provisions of Article 5 of the Convention (violation of Article 5§5). They also concern violations related to the applicants' pre-trial detention (violations of Article 5§§3 and 4).

Furthermore, in the Yankov case the applicant, who was detained pending trial, was punished without justification in March 1998 by seven days' confinement in a disciplinary cell for having made moderately offensive statements against the judicial and penitentiary systems in a personal manuscript (violation of Article 10). The European Court found that in this context shaving the applicant's hair before his confinement in an isolation cell without specific justification constituted a treatment of sufficient severity to be considered degrading (violation of Article 3).

The Court also found that the applicant had no effective remedy against either the degrading treatment to which he was subjected or the interference with his freedom of expression (violation of Article 13).

The Yankov case concerns finally the excessive length of the criminal proceedings instituted against the applicant (violation of Article 6§1).

Individual measures: The applicants have been released (Yankov, Georgiev and Navushtanov) or sentenced to a term of imprisonment (Radoslav Popov). The criminal proceedings against Mr Yankov were stayed in October 2004 due to his ill-health.

• Information urgently awaited: on the current stage of these proceedings and, if appropriate, on the measures taken for their acceleration.

General measures:

            1) Violation of Article 3: In a letter of 08/02/2005 the head of the Directorate for execution of sentences indicated that a practice consisting of shaving detainees' heads before confining them in disciplinary cells does not exist in penal establishments in Bulgaria. 

            2) Violations of Articles 5§3 (excessive length of the detention on remand, violation of the right to be brought before a judge, lack of sufficient grounds for prolonged detention) and 5§4 (lack of effective judicial review of the lawfulness of the pre-trial detention): The cases present similarities to the Assenov case (judgment of 28/10/1998) closed by Resolution ResDH(2000)109, following a legislative reform of criminal procedure which took effect from 01/01/2000.

            3) Violations of Article 5§5: The authorities indicated that they envisage introducing into domestic law an enforceable right to compensation for detention not in conformity with the requirements of Article 5 of the Convention and that a national expert opinion is expected on this issue. Furthermore, the authorities consider that the seminars on the Convention and the European Court's case-law organised by the National Institute of Justice are also relevant measures for the execution of these cases (more that 23 seminars for more than 798 participants - judges, prosecutors and national experts - took place in the period 2001-2006, of which 4 seminars on Article 5).

• Information is still awaited on the follow-up of this issue.  

            4) Violation of Article 6§1: The Yankov case presents similarities to the Kitov case (37104/97, Section 4.2).

            5) Violation of Article 10: Since the legislation governing disciplinary sanctions on detainees for offensive and defamatory statements was not challenged in this case, the publication and the dissemination of the Yankov judgment to prison authorities and to the competent courts appear to be sufficient measures for execution. The European Court's judgment has been published on the web site of the Ministry of Justice www.mjeli.government.bg.

• Information awaited: on the dissemination of the judgment.

            6) Violation of Article 13: A judicial appeal allowing a detainee to complain against imposition of solitary confinement was introduced into Bulgarian law in 2002, i.e., subsequent to the relevant facts (new Article 78b of the Execution of Sentences Act). Moreover, as from 01/01/2005 the court may decide to stay the execution of a disciplinary sanction during examination of an appeal against it (new paragraph 4 of Article 78b of the Execution of Sentences Act).

74012/01           Gavril Yosifov, judgment of 06/11/2008, final on 06/02/2009

The case concerns the fact that the applicant had no opportunity to take proceedings to challenge the lawfulness of his detention (violation of Article 5§4).

In December 1998 the Sofia District Court found the applicant guilty as charged and sentenced him to three years’ imprisonment. After the Sofia District Court dismissed his appeal on procedural grounds, the applicant was detained on 30/11/1999 in Sofia Prison to serve his sentence. Later, the Sofia City Court found that the district court had erred in dismissing the applicant’s appeal and referred the case back to that court for fresh consideration of his appeal. Although the applicant’s conviction and sentence were since then no longer considered final, the Sofia City Court refused to consider whether the applicant should remain in custody, saying that it was for the Sofia District Court to decide on this matter. However, the latter failed to examine several subsequent requests for release made by the applicant. The applicant was finally released on 26/10/2000, following an order by the Sofia Prosecutor’s Office stating that the applicant’s conviction and sentence were no longer final and that he could not be kept in custody pursuant to them.

The European Court noted that although the applicant had been successful in challenging the dismissal of his appeal and that consequently, neither his conviction nor sentence had been final or enforceable, he had been unable to obtain a speedy judicial ruling as to the lawfulness of his detention, both the courts concerned having declined competence.

Individual measures: The detention at issue was ended on 26/10/2000. In March 2001 the applicant was convicted of some of the crimes of which he had been charged and sentenced to one and a half years’ imprisonment. The period of the detention in question was deducted from the applicant’s prison sentence. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained.

• Assessment: no individual measure seems to be necessary.

General measures: The European Court held that the situation at issue seemed to have been the result of unclear regulation of the courts’ competence in this domain and the fact that Bulgarian law entrusts all issues affecting the legality of the execution of prison sentences solely to the competent prosecutors and not to a judge.

It was also due to the lack in Bulgarian law of a general habeas corpus procedure whereby any individual deprived of his or her liberty, regardless of the grounds for it, is entitled to request a court to review the lawfulness of his or her detention and order his or her release if the detention is not lawful. The European Court noted furthermore that as matters stand, Bulgarian law envisages distinct procedures for challenging specific types of deprivation of liberty, such as pre-trial detention, confinement to a mental institution or detention pending deportation. The result of this approach is that individuals whose deprivation of liberty does not fall within a well-defined category are likely to face serious or even insuperable difficulties in challenging it (see §61 of the judgment).

Finally, when dismissing the government’s objection of non-exhaustion of domestic remedies, the European Court observed that the lack of clear case-law of Bulgarian courts showed the present uncertainty in practical terms of the remedy provided by the State Responsibility for Damage Caused to Citizens Act, insofar as complaints under Article 5§4 of the Convention were concerned (see §51 of the judgment).

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

73281/01           Gulub Atanasov, judgment of 06/11/2008, final on 06/02/2009

The case concerns the unlawfulness of the committal of the applicant, suffering from schizophrenia and placed under house arrest pending proceedings against him, to a psychiatric hospital for the purpose of an examination.

Having been remanded in custody since July 1999, the applicant was placed under house arrest by decision of the Plovdiv Court of Appeal taken on 06/07/2000. On 03/08/2000 the investigator responsible for the case ordered an expert examination; the applicant was admitted to a psychiatric hospital for that purpose from 08/08 to 04/09/2000. In July 2001 the order placing the applicant under house arrest was lifted.

The European Court found that the question of the lawfulness of the applicant’s transfer to a psychiatric hospital concerned the legality of the deprivation of liberty within the meaning of Article 5§1, even though the applicant’s house arrest had been lawful. It further considered that the applicant’s transfer from his home to a psychiatric hospital had been illegal under domestic law, since it had not been based on a valid decision by a court as required by Article 155 of the Bulgarian Code of Criminal Procedure (violation of Article 5§1).

The case also concerns the fact that the applicant could not have his committal reviewed by a court and the lack of enforceable right to compensation.

The European Court noted that, even if the applicant had challenged his house arrest during his confinement in the psychiatric hospital, the courts examining such an appeal would have had no power to review the lawfulness of the investigator’s order of 03/08/2000 and, consequently, the lawfulness of the applicant’s detention in the psychiatric hospital (violation of Article 5§4).

In these circumstances, the European Court considered that Bulgarian law did not secure to the applicant an effective enjoyment of the right to compensation (violation of Article 5§5).

Individual measures: The applicant died in 2006. The European Court awarded his sons just satisfaction in respect of the non-pecuniary damage.

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

General measures:

1) Unlawfulness of the applicant’s committal to a psychiatric hospital (violation of Article 5§1): The European Court found unconvincing the government’s argument that persons under house arrest or in custody could be placed in a psychiatric hospital for examination solely by decision of an investigator or a prosecutor. According to the European Court, such interpretation did not follow from the text and structure of the Code of Criminal Procedure (see §76). In these circumstances, publication of the European Court’s judgment and its dissemination appear to be sufficient for its execution.

• Information is awaited in this respect as well as on any other measure envisaged or already adopted.

2) Impossibility to challenge the applicant’s confinement (violation of Article 5§4): The violation in this case seems to constitute an isolated incident, as the applicant’s placement in the hospital should have been ordered by a judicial decision which could then be appealed to a court.

• Assessment: in these circumstances no general measure appears necessary.

3) Lack of an enforceable right to compensation for detention in contravention of the provisions of Article 5 (violation of Article 5§5): The case present similarities to the Yankov group of cases (39084/97) (Section 4.2).

412/03+            Holy synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and others, judgment of 22/01/2009, final on 05/06/2009

This case concerns unjustified interference in the organisational autonomy of the Bulgarian Orthodox Church by the authorities by way of certain provisions of the Religious Denominations Act 2002 and their implementation, forcing this religious community to unite under one of two leaderships at a time when there was deep and genuine division in the Bulgarian Orthodox Church (violation of Article 9, interpreted in the light of Article 11).

The European Court held that the question of the application of Article 41 (just satisfaction) was not ready for decision as to pecuniary and non-pecuniary damage.

• To date, the authorities have provided no information.

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

This case concerns the violation of the applicant organisation’s right of peaceful assembly, related to environmental issues, due to an unlawful municipal decision to ban a rally it had planned for 19/04/2000 (violation of Article 11).

The case also concerns lack of an effective remedy against this prohibition (violation of Article 13). In this context, the European Court noted that the applicant organisation's use of the existing appeal procedure under the Meetings and Marches Act had been ineffective, as the domestic court decision declaring the municipality's prohibition null and void was not delivered within the prescribed time-limit of five days but almost a year after the planned event. In addition, the European Court observed that the applicant organisation had had no right to seek redress for the unlawful actions of the municipality.

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

• Assessment: no further measure appears necessary.

General measures:

            1) Violation of Article 11: It seems that this was an isolated violation. The judgment of the European Court was translated and published on the internet site of the Ministry of Justice.

• Assessment: no further measure appears necessary.

            2) Violation of Article 13: The Meetings and Marches Act was amended in 2010. According to the amended provisions, organisers of meetings and demonstrations to take place outdoors must inform the mayor of the district concerned 48 hours in advance. The mayor may ban a meeting for the reasons set out in the law, no later that 24 hours after the notification by the organisers. The mayor's decision may be appealed before the competent administrative court, which must give its decision, which is final, within 24 hours.

• This information is being assessed.

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

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

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

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

The European Court noted with concern that one of the prohibitions was imposed in 2003 on grounds, which had been previously declared contrary to the Convention in the case of Stankov and the United Macedonian Organisation Ilinden against Bulgaria (judgment of 02/10/2001). The European Court also observed that on one occasion the authorities appeared somewhat reluctant to take all appropriate measures to prevent violent acts directed against the participants in Ilinden's rally. The last case also relates to the lack of an effective remedy at the applicants' disposal to complain against the prohibitions of their meetings (violation of Article 13).

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

Individual measures:

            1) Meetings in 2006-2007: The Bulgarian authorities informed the Committee that in 2006 only 2 out of 10 requests for organisation of meetings were rejected. One of the refusals concerned a meeting room reserved for another event; the information provided gives no more details concerning the other. The police ensured the security of the participants and the public order at the authorised meetings. However, it should be noted in this respect that another application is at present pending before the European Court relating to prohibitions of meetings organised by the applicants, scheduled initially respectively between 2004-2008 and in September 2006 (see in particular DD(2008)553).

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

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

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

General measures:

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

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

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

            2) Effective remedies: The violation found by the European Court was due to the fact that according to the Meetings and Marches Act as it stood at the relevant time, the mayoral ban of a meeting was appealable before a body that no longer existed (the Executive Committee of the People’s Council). The European Court noted that the possibility to seek judicial review of such bans before the competent courts in accordance with Article 12§6 of the Meetings and Marches Act could in principle operate effectively. However, it was rendered ineffective in the applicants' case as the competent courts decided that they would have jurisdiction to examine an appeal against a mayoral ban only after the Executive Committee of the People’s Council had already dismissed it. The European Court noted that the Supreme Court of Cassation eventually stated that it did not share this position. However this decision was delivered more than four years after the date intended for the meeting and rejected the appeal on the ground that it had become moot.

Since the European Court’s judgment in Ivanov and others, in 2007 and 2008, two draft laws aimed at amending the Meetings and Marches Act have been submitted to Parliament (for more details see the public notes for the 1078th meeting, March 2010).

The Act was amended in 2010 and the relevant provisions entered into force in March 2010. According to the amended provisions, organisers of meetings and demonstrations to take place outdoors must inform the mayor of the district concerned 48 hours in advance. The mayor may ban a meeting for the reasons set out in the law, no later that 24 hours after the notification by the organisers. The mayor's decision may be appealed before the competent administrative court, which must give its decision, which is final, within 24 hours.

• Assessment: the 2010 amendments to the Meeting and Marches Act removed the reference to a nonexistent review body, which was at the origin of the violation found by the European Court. It addition, the amended provisions provide a procedure and short time-limits to ensure that complaints against meeting bans may be examined before the date intended for the meeting. Finally, it was already noted that the grounds on which a meeting may be banned according to the provision in force at the relevant time, appear to make it possible to apply the law in conformity with the Convention, taking into account the awareness and training activities that have taken place (see above). These grounds remain unchanged by the amendments of the Meetings and Marches Act.

In consequence, no further measure appears necessary.

- 3 cases concerning the violation of the right to freedom of movement due to lengthy and disproportionate prohibition on leaving Bulgaria for non-payment of debt[3]

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

34383/03           Gochev, judgment of 26/11/2009, final on 26/02/2010

50/02                Ignatov, judgment of 02/07/2009, final on 02/10/2009

67719/01           Mihalkov, judgment of 10/04/2008, final on 10/07/2008

The case concerns a lack of objective impartiality on the part of the Sofia City Court in that it decided on the applicant’s claim for compensation for an unlawful conviction which it had itself pronounced earlier (violation of Article 6§1).

The European Court noted in particular that the professional links between the judges of the Sofia City Court and one of the parties to the compensation proceedings were sufficient to give rise to legitimate concerns for the applicant about their impartiality. The Court also observed that the compensation which was to paid to the applicant if successful would have been debited from the budget of the same Sofia City Court, which added to the applicant’s concerns. The European Court concluded that the Sofia City Court which examined the applicant’s case at first instance, did not satisfy the conditions of independence and objective impartiality and that this deficiency had not been remedied by the higher courts.

The case also concerns a violation of the applicant’s right of access to court, in the same proceedings for compensation for unlawful conviction, because the court fees the applicant had to pay were more than the compensation of 168 euros he was awarded for having served the unlawful sentence (violation of Article 6§1).

Finally the case concerns the excessive length of the proceedings initiated by applicant’s claim for compensation (violation of Article 6§1).

Individual measures: The proceedings have been closed. The European Court awarded just satisfaction in respect of non-pecuniary damage suffered by the applicant.

• Bilateral contacts are under way to assess the need for further individual measures.

General measures:

1) Lack of objective impartiality of the Sofia City Court (Article 6§1):

• Information is awaited on measures taken or envisaged to prevent new, similar violations. In any event, the translation and wide dissemination of the European Court’s judgment to Bulgarian courts appear necessary.

2) Violation of the applicant’s access to court due to excessive court fees (Article 6§1): The case presents similarities to the Stankov case (68490/01, 1100th meeting, December 2010). It should be noted that the rules of the State and Municipality Liability Act regarding the assessment and payment of court fees due under the act were amended in May 2008 to the effect of introducing a flat state fee in respect of any litigation under this Act. The flat fee is determined by standardised tariffs applicable to state fees collected by courts under the Civil Procedural Code as follows: a) for citizens, sole traders and not-for-profit legal entities – BGN 10 (approximately EUR 5) and b) for other legal entities – BGN 25 (approximately EUR 13). Further, no litigation or enforcement costs are to be paid in advance. The claimants shall pay all costs incurred in the proceedings only if the claim has been rejected in its entirety by the court, or if the claimants withdraw or waive their claim entirely. If the court upholds the claim, in its entirety or partially, the defendant shall be ordered to pay the costs relating to such proceedings, as well as the claimant’s state fee.

3) Length of civil proceedings (Article 6§1): The case represents similarities to the Djangozov case (45950/99, Section 4.2).

33738/02           Nenov, judgment of 16/07/2009, final on 16/10/2009

This case concerns the violation of the applicant’s right to a fair trial in that he received no legal aid in proceedings brought by his ex-wife in 2002 to change his visiting rights with respect to their children, born in 1989 and 1992 (violation of Article 6§1).

The European Court considered that the particular importance of what was at stake for the applicant, i.e. the possibility of maintaining a real link with his children, combined with his mental illness, called for the granting of legal aid. Without legal aid, the applicant encountered great difficulties: he was prevented from taking sufficient part in the decision-making process to ensure the necessary protection of his interests and the fairness of the proceedings as a whole was compromised. The European Court noted that his ex-wife was represented by counsel in the proceedings.

• To date, the authorities have provided no information.

23530/02           Iordanov Iordan and others, judgment of 02/07/2009, final on 02/10/2009

This case concerns a breach of the principle of legal certainty in judicial proceedings brought by the applicants to challenge their dismissal from employment on account of “deep and persistent divergences” in the Supreme Administrative Court’s practice in this area (violation of Article 6§1).

The European Court noted in particular that between 2001 and 2005 the practice of the Supreme Administrative Court had been inconsistent with respect to the applicability of certain procedural guarantees in a particular case concerning the dismissal of officials of the Ministry of the Interior. In the applicants’ case, the Supreme Administrative Court decided that the guarantees in question did not apply and rejected their appeal against the lawfulness of their dismissal, while in another case concerning the same facts, it took the opposite position and declared the order of dismissal void for failure to respect those guarantees.

The European Court also noted that there was a mechanism in domestic law permitting that situation to be remedied, i.e. the possibility of applying for interpretation before the plenum of the Supreme Administrative Court, but no such application was ever brought.

The case also concerns the excessive length of criminal proceedings against one of the applicants (violation of Article 6§1).

• To date, the authorities have provided no information.

15239/02           Velted-98 AD, judgment of 11/12/2008, final on 11/03/2009

The case concerns the unfairness of administrative proceedings brought by the applicant company seeking revocation of a ministerial decree relating to the privatisation of a public company for which it had unsuccessfully submitted a bid (violation of Article 6§1).

The European Court observed that in its judgment of 19/10/2001 the Supreme Administrative Court had failed to examine an issue qualified as substantial by its first chamber when it ruled on the case and on which the parties had exhaustively commented.

Individual measures: The European Court held there was no causal link between the violation found and the alleged pecuniary damage, and awarded the applicant company just satisfaction in respect of non-pecuniary damage sustained. The applicant company had the possibility under domestic law to request the reopening of the proceedings at issue (Article 303 of the Code of Civil Procedure of 2007).

• Assessment: In these circumstances, no further individual measure was considered necessary. 

General measures: The violation found derives from the Supreme Administrative Court’s failure to give an adequate response to the applicant company’s arguments. Publication of the European Court’s judgement and its dissemination to that court therefore appear to be sufficient measures to prevent similar violations.

• Information is awaited in this respect.

75022/01           Popov Petyo, judgment of 22/01/2009, final on 22/04/2009

The case concerns the unfairness of criminal proceedings brought against the applicant, in that he was not informed of the date of the hearing before the Supreme Court of Cassation in 2000 (violation of Article 6§1).

• To date, the authorities have provided no information.

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

The case concerns the violation of the applicant's right to a fair trial and right of the defence in the context of simplified proceedings concerning a minor administrative offence (violations of Article 6§§1 and 3 (a), (b) and (d) taken together). On 8/09/1999 the applicant was arrested during a demonstration and, after several hours, brought to the Pazardzhik District Court, which sentenced her to an administrative sanction of 5 days' detention at Pazardzhik police station. She was informed of the accusations brought against her only shortly before the hearing. The European Court found that the applicant had not been promptly informed in detail of the nature and cause of the accusation against her and did not have adequate time and facilities for the preparation of her defence, only having been informed of the nature of the allegations against her shortly before the hearing. Moreover, the applicant could not obtain the attendance and examination of witnesses on her behalf and only witnesses for the prosecution were heard.

Individual measures: The applicant served her sentence of 5 days' detention in September 1999. This sentence, not being considered as a criminal conviction, does not appear on her criminal record. The European Court awarded her just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measure seems necessary.

General measures: The 1963 Decree on Combating Minor Hooliganism provides an expedited procedure for bringing to court minor offences punishable by an administrative sanction of up to fifteen days' detention at a police station or a fine of between 10 and 200 Bulgarian levs (between 5 and 100 euros). The European Court recognised that the intention of the Decree was to deal quickly and efficiently with petty offences. It also stated that the existence and use of summary proceedings in criminal matters is not in itself contrary to Article 6 as long as they provide the necessary safeguards and guarantees (§40).

• Information is expected on measures taken or envisaged to avoid future violations, and in particular to ensure the procedural safeguards and guarantees of Article 6 in similar situations. Such measures may include, for example, appropriate instructions to the authorities involved in such proceedings. Publication and dissemination of the European Court's judgment to relevant courts and authorities is expected in order to raise domestic courts' awareness of the Convention's requirements as they result from this case.

The Secretariat wrote to the Bulgarian authorities to present an action plan for the implementation of this judgment.

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

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

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

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

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

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

• Assessment: no further individual measure seems necessary.

General measures:

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

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

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

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

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

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

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

22627/03           Zaharievi, judgment of 02/07/2009, final on 10/12/2005

This case concerns a violation of the applicants’ right to the peaceful enjoyment of their possessions due to the manner of execution of a judgment of the Supreme Administrative Court awarding them compensation in the form of a certain number of shares in a company. In 2003, the national authorities transferred the same number of shares in a second company, which had taken over the first company, to the applicants, without examining whether the value of the same number shares differed from one company to the other. The request by the applicants for readjustment of the number of shares was refused by the relevant ministry on the ground that the judgment of the Supreme Administrative Court was final. On 23/11/2004 and 31/05/2005, the Supreme Administrative Court declared an appeal brought by the applicants against that refusal inadmissible.

The European Court considered that the automatic allocation of the shares in the second company, combined with the lack of an effective remedy permitting the applicants to have the merits of their requests for readjustment of the number of shares examined, had upset the fair balance which had to be struck between the general interest and the protection of the applicants’ property rights (violation of Article 1 of Protocol No. 1).

The European Court held that the question of the application of Article 41 (just satisfaction) was not ready for decision as to pecuniary and non-pecuniary damage.

• To date, the authorities have provided no information.

3991/03            "Bulves" Ad, judgment of 22/01/2009, final on 22/04/2009

The case concerns the violation of the applicant company’s right to the peaceful enjoyment of its possessions due to the refusal by the Bulgarian authorities in 2001 to allow it to deduct input VAT it had paid to its supplier who had been late in complying with its own VAT reporting obligations (violation of Article 1 of Protocol No. 1).

On 29/07/2010 the NGO Bulgarian Lawyers for Human Rights Foundation submitted observations on the execution of this case (see DH-DD(2010)377). This information is currently being examined.

- 3 cases concerning the failure to deliver property as compensation for expropriated property[4]

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)

20827/02           Antonovi, judgment of 01/10/2009, final on 01/03/2010

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

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

The case concerns the violation of the applicants’ right to the peaceful enjoyment of their possessions on account of the prolonged impounding of the car belonging to the second and third applicants which had been seized in 1992 in the framework of criminal proceedings initiated against the first applicant for the theft of the car (violation of Article 1 Protocol No 1). The European Court referred in particular to the findings of the prosecution organs which declared, in 1999 and 2000, both the seizure and this impounding contrary to domestic law, given that no protocol had been drawn at the moment when this happened.

The case also concerns the lack of effective remedy to challenge the prolonged holding by the authorities of the seized car and to obtain compensation for the damage caused by this holding (violation of Article 13). The European Court observed that the prosecution organs ordered that the vehicle be returned to the applicants but only after they had discontinued the proceedings against the first applicant in 1999 and not as a response to the numerous requests by the applicants.

Finally, the case concerns the excessive length of criminal proceedings initiated against the first applicant and the lack of effective remedy in this context (violation of Article 6§1 and of Article 13).

Individual measures: The seized vehicle was returned to the applicants in 2000. They have not made a request for just satisfaction before the European Court concerning the material damage caused to their property. The criminal proceedings against the first applicant were terminated in 1999.

• Assessment: In these circumstances no other individual measure appears necessary.

General measures:

1) Violation of Article 1 of Protocol No. 1 and of Article 13: The violation of the right of respect for the property of the applicants appears to be an isolated case of non-respect of domestic law concerning the seizure of material evidence in the framework of criminal proceedings.

As regards the lack of effective remedy to challenge the impounding by the authorities of the seized objects in the framework of criminal proceedings, it suffices to note that the Criminal Procedure Code was modified in 2000. Following this amendment it was specified that the prosecutor can decide to return the seized objects to the right holders before the end of the criminal proceedings and that his refusal can be appealed before the first instance court competent on the subject-matter of the criminal case. The provisions related to this question have been reproduced in the new Criminal Procedural Code of 2006 (Article 111). The question which remains to be clarified concerns the existence in domestic law of a remedy permitting compensation to be obtained for possible damage caused to objects that have been seized.

• Information is awaited as regards this last question. A similar question has been raised in the framework of the Yordanov Krasimir case (50899/99, 1100th meeting, December 2010).

2) Violation of Article 6§1 and of Article 13: The question of the length of criminal proceedings is being examined in the framework of the Kitov group (37104/97, Section 4.2).

54252/00           Manolov and Racheva-Manolova, judgment of 11/12/2008, final on 11/03/2009

The case concerns nationalised property acquired by the applicants and the subsequent proceedings brought against them by the heirs of the pre-nationalisation owners under the Restitution of Stores, Workshops and Storage Houses Act 1991. As a result the applicants were ordered to vacate their property in May 1997, without compensation (violation Article 1 of Protocol No. 1).

While accepting that the 1991 Act pursued a legitimate aim in the public interest, as part of the restitution legislation adopted after the fall of communism, the European Court noted that this Act did not aim at securing redress for expropriations without compensation, as the Restitution Law 1992 did (see the case of Velikovi and others), but at restoring the title of persons who had sold their property to the state in the 1970s and had received payment for it. The injustice which the 1991 Act sought to correct was thus less significant than the arbitrary expropriations for which redress was provided by the Restitution Law 1992. Therefore the European Court found it difficult to accept that the aim of correcting injustices like those that were the subject matter of the 1991 Act could justify depriving the applicants of their property lawfully acquired fifteen years earlier. The European Court finally noted that under the 1991 Act the applicants could only claim compensation for the improvements they had made to the property, not the value of the property itself; moreover, such claim of the applicants could only result in a token award as inflation had drastically reduced its value.

Individual measures: The European Court awarded the applicants just satisfaction covering their pecuniary and non-pecuniary damage.

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

General measures: The case presents certain similarities to the Velikovi and others group (43278/98, 1100th meeting, December 2010) which concerns application of the 1992 Law on the Restitution of Real Property. However, the present case differs from this group in that it concerns specific conditions of the restitution set forth in the Restitution of Stores, Workshops and Storage Houses Act 1991. 

• Information is awaited on any measures taken or envisaged to prevent similar violations.

- 6 cases concerning the failure or substantial delay by the administration in abiding by final domestic judgments[5]

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

16354/02           Belev and others, judgment of 02/04/2009, final on 02/07/2009

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

1152/03            Yanakiev Dimitar, judgment of 02/07/2009, final on 02/10/2009

CM/Inf/DH(2007)33

                       - 35 cases of length of civil proceedings and lack of an effective remedy[6]

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

28583/03           Bratovanov, judgment of 23/04/2009, final on 23/07/2009

27918/02           Demirevi, judgment of 28/05/2009, final on 28/08/2009

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

7254/02            Ilievi, judgment of 28/05/2009, final on 28/08/2009

19207/04           Ivanov Petko, judgment of 26/03/2009, final on 26/06/2009

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

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

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

9161/02            Kouncheva, judgment of 03/07/2008, final on 03/10/2008

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

29802/02           Krastev, judgment of 24/07/2008, final on 01/12/2008

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

20568/02           Marinova and Radeva, judgment of 02/07/2009, final on 02/10/2009

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

15099/04           Nachev, judgment of 05/11/2009, final on 05/02/2010

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

7148/04            Ruga, judgment of 02/07/2009, final on 06/11/2009

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

19256/03           Stefanova Donka, judgment of 01/10/2009, final on 01/01/2010

31036/02           Todev, judgment of 22/05/2008, final on 22/08/2008, rectified on 8/09/2008

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

2380/03            Tzvyatkov, judgment of 22/10/2009, final on 22/01/2010

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

                       - 49 cases of length of criminal proceedings and of lack of an effective remedy[7]

                       (See Appendix for the list of cases in the Kitov group)

- 11 cases against Croatia / 11 affaies contre la Croatie

46423/06           Beganović, judgment of 25/06/2009, final on 25/09/2009

The case concerns the ineffectiveness of the investigation of an alleged physical attack on the applicant, as well as mistakes and delays in the prosecution of the alleged perpetrators which resulted in charges being dropped on grounds of prescription (procedural violation of Article 3).

The European Court found that practices used by the authorities in conducting the case had deprived the applicant of protection against aggression.

Individual measures: The criminal proceedings against the applicant’s alleged assailants were discontinued due to prescription but the applicant brought a civil action against them, seeking damages for the injuries sustained. These proceedings are still pending (§45).

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

▪ Information is awaited on the outcome of the pending civil proceedings.

General measures: Similar violations have been examined in the Šečić case (40116/02, 1100th meeting, December 2010) and in the case of Sandra Janković (38478/05 1100th meeting, December 2010).

The European Court's judgment has been translated into Croat and published on the website of the Ministry of Justice (www.pravosudje.hr). It has been sent out to the Supreme Court, County Court in Velika Gorica, Municipal Court in Velika Gorica, State Attorney’s Office and Criminal Law Directorate of the Ministry of Justice. It will also be published in a journal on the European Court’s case-law.

                       - 4 cases concerning poor detention conditions and lack of an effective remedy

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

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

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

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

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

In the Cenbauer case the European Court found that insufficient space in Lepoglava State Prison, in which the applicant was detained from January 2001 to April 2003, coupled with lack of access to a toilet for over twelve hours a day during the period of about two years and three months were in themselves sufficient to cause the applicant hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and amounted to degrading treatment (§50 of the judgment). However, the Court also noted that following the Benzan case (friendly settlement, Resolution ResDH(2005)49 of 8/11/2002), the Croatian authorities undertook a number of measures including the renovation of Lepoglava State Prison, which was completed in December 2003 (§§11, 51 of the judgment).

In the Pilčić case, although the prison authorities have been aware since July 2003 that surgery had been recommended in connection with the applicant's kidney ailment, no steps were taken to have the surgery carried out (§41 of the judgment). The European Court noted that by failing to organise the necessary surgery and thus leaving the applicant to suffer considerable occasional pain for a prolonged period with no prospect of being permanently relieved of his kidney problems, amounted to inhuman and degrading treatment (§42 of the judgment).

In the Štitić case, the applicant was held from September 2004 to November 2005 and again from March to May 2006 in Unit 2 of Gospić Prison where, inter alia, he was locked in a damp cell with no access to natural light for about twenty hours a day. These conditions, combined with the length of the period during which the applicant was detained, amounted to degrading treatment (§41 of the judgment).

In the Testa case, the European Court noted that the lack of requisite medical care and assistance for the applicant’s chronic hepatitis coupled with the prison conditions in Požega Penitentiary (in particular the excessive number of persons in the cell and the lack of proper hygiene or heating and the general state of repair) which the applicant had to endure since May 2005, amounted to inhuman and degrading treatment (§63 of the judgment).

The Štitić case also concerns the lack of an effective remedy to complain about the prison conditions (violation of Article 13). The European Court noted that the declaration by the judge responsible for the execution of sentences at the Gospić County Court, that he was not competent to hear the applicant's complaint rendered an existing, otherwise effective, remedy ineffective in the circumstances of the case (§86 of the judgment).

Individual measures:

1) Cenbauer: The European Court awarded just satisfaction in respect of non-pecuniary damages sustained by the applicant.

▪ Information provided by the Croatian authorities (13/03/2007): The applicant was released, having served his sentence, on 8/04/2003.

2) Pilčić: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicant.

▪ Information provided by the Croatian authorities (03/09/2008 and 05/11/2008): On 17/10/2008 the applicant underwent the requisite operation for kidney-stones.

3) Štitić: The applicant was moved to another prison before the European Court gave its judgment (May 2006) (§6 of the judgment). He submitted no claim for just satisfaction.

4) Testa: The European Court awarded just satisfaction in respect of non-pecuniary damages sustained by the applicant.

▪ Information provided by the Croatian authorities (25/04/2008 and 13/05/2008): The applicant was released on 7/09/2007.

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

General measures: The CPT’s most recent report on its visit to Croatia in 2007 (CPT/Inf(2008)29) noted in particular that: (i) occupancy rates have been high in Lepoglava Prison, in particular in certain units (§56 of the report); (ii) material conditions at Požega Penitentiary were, on the whole, of a very good standard (§77 of the report); (iii) with respect to health-care staff resources, the situation was generally satisfactory at Požega Penitentiary, while in Lepoglava prison it was unsatisfactory (§82 of the Report); the CPT recommended the authorities to reinforce significantly the medical staff at Lepoglava Prison by employing the equivalent of at least two full-time doctors and substantially increasing the complement of nurses (§83 of the report); (iv) medical equipment could be considered as generally adequate both in Lepoglava Prison and Požega Penitentiary.

▪ Information provided by the Croatian authorities (13/03/2007, 27/03/2007, 11/05/2007, 23/05/2007 and 05/11/2008):

1) Violation of Article 3:

-Measures related to improvement of prison conditions: “B”- wing of Lepoglava State Prison, which was renovated in 2003, has been freshly painted and every cell provided with a toilet and washbasin. Cells now have parquet flooring, new furniture and radiators, new electric sockets and new ceiling lights. There are now showers used by 35-40 inmates (§20 in the Cenbauer judgment). Since 2006 the Croatian authorities have also undertaken a series of measures to increase the capacity of existing prison facilities, in particular in the Glina Penitentiary (creation of additional space for 104 prisoners, renovation of all sanitary facilities in so-called “Ward” facility, complete reconstruction of half of the facility), the Lipovica Penitentiary (creation of additional space for 100 prisoners), the Turopolje Penitentiary (creation of additional space for 14 prisoners)and prisons in Zagreb, Varaždin, Zadar (creation of additional space for 58 persons).

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

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

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

▪ Assessment: Note has been taken of a number of measures taken by the Croatian authorities to improve conditions of detention in prisons. However, it appears from the most recent CPT report that overcrowding and inadequate health-care resources might still pose a problem in Lepoglava Prison in relation to the standards required by the Convention. It appears that Lepoglava Prison has been fully renovated and that conditions of detention have been improved in a number of ways there. Similarly, it appears that the level of medical services in Požega Penitentiary has been brought to a satisfactory level and that the material conditions of detention are of a good standard. No information has been made available on the measures taken to improve the condition in Gospić Prison, in particular in Unit 2.

▪ Information is awaited on measures taken or envisaged to resolve the outstanding issues concerning the overcrowding and medical care in Lepoglava Prison and the improvement of conditions of detention in Gospić Prison.

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

• Assessment: Taking into account the direct effect of the European Convention in Croatia and the existence of appropriate legal framework, publication of the European Court's judgment and dissemination to the relevant courts and authorities seem to be sufficient (see below). Thus, no other measure appears necessary.

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

11223/04           X., judgment of 17/07/2008, final on 01/12/2008

This case concerns the failure to ensure the right to respect for the applicant’s private and family life in that, having been judicially divested of her capacity to act, she was excluded from proceedings which resulted in the adoption of her daughter (violation of Article 8). The applicant’s daughter, born in December 1999, was taken into state care in November 2001. In 2003 adoption proceedings were brought without the applicant’s knowledge, on the ground that the daughter was without parental care as her mother had been divested of her capacity to act and her father had died.

The European Court noted that the relevant considerations to be weighed by an authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision-making process must therefore be such as to ensure that their views and interests are made known to, and duly taken into account by, the authorities and that they are able to exercise in due time any remedies available to them (§48 of the judgment).

The European Court noted regarding this particular case that at no point in the domestic proceedings preceding the adoption had the applicant’s relationship with her daughter been assessed, even though one of the consequences under domestic law of the decision to divest her of her capacity to act had been her complete exclusion from the adoption proceedings (§51 of the judgment). Nor had any separate decision been taken about the applicant’s parental rights and after she was divested of the capacity to act in May 2001, she still continued to exercise her parental rights at least to a certain extent, since her access rights had been preserved until the adoption (§52 of the judgment). Nevertheless, her daughter had been given up for adoption and the applicant had not been allowed to participate in the ensuing proceedings in any form, save for an alleged telephone call. The European Court found it difficult to accept that anyone divested of the capacity to act should be automatically excluded from adoption proceedings concerning his or her child as provided by Sections 130 and 138 of the Family Act. Instead of being summarily informed of the decision concerning her daughter, the applicant should also have been given an opportunity to express her views about the potential adoption in the proceedings (§53 of the judgment).

Individual measures: The applicant’s daughter was given for adoption in 2003. Consequently, under Sections 130 and 144 of the Family Act, parental custody and all rights and obligations between the applicant’s daughter and her relatives ceased. The European Court accepted that the decisions at issue aimed to protect the best interest of the child and also noted that it was not called upon to determine whether the adoption of the applicant’s child was justified as such, but to determine the compliance of the procedure with the requirements of Article 8 (§§ 46, 50 of the judgment). In this context, the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

• Assessment: No further measure appears necessary.

General measures:

▪ Information provided by the Croatian authorities (30/03/2009 and 13/05/2009): The authorities consider that the European Court did not maintain that the parent divested of the capacity to act should obligatory be a party to the adoption proceedings in respect of her or his child and that Article 138 of the Family Act was in itself contrary to the Convention. The authorities believe that the general measures in this case should not include legislative amendments and that they should rather focus on the change of practice. In this respect, on 08/04/2009 the Ministry of Health and Social Welfare issued a binding instruction to all welfare centres. In accordance to this instruction, all welfare centres shall enable parents divested of the capacity to act to give their opinion on the adoption of their child in the form of minutes, which should constitute a part of the files of the adoption proceedings. In this way, such parents who are not parties to the adoption proceedings due to their lack of the capacity to act will have the possibility to express their point of view in relation to the adoption of their child.

The European Court's judgment has been translated into Croatian and published on the website of the Ministry of Justice (www.pravosudje.hr). It has been sent out to the Constitutional Court, Supreme Court, Ministry of Family, Veteran’s Affairs and Intergenerational Solidarity, Ministry of Health and Social Welfare and the competent social welfare centre. The judgment will be also published in a journal concerning the European Court's case-law.

▪ Assessment: The European Court found it difficult to accept that every person divested of the capacity to act should be automatically excluded from adoption proceedings concerning his or her child. The Court considered in this case that the applicant should have been given an opportunity to be heard in those proceedings and thus the possibility of expressing her views about the potential adoption of her daughter (§53 of the judgment). It appears that the binding instruction will enable such parents to be heard and to express their point of view concerning the adoption of their child.  However, such parents will not be able to exercise in due time any remedy available to them as required by the Court (see §48 of the judgment). In this regard, it appears that the automatic exclusion of such parents from adoption proceedings under Article 138 corroborates such a conclusion.

▪ Information is awaited on measures taken or envisaged to make it possible for parents divested of the capacity to act to participate in adoption proceedings in respect of their children, in particular to be able to exercise in due time any remedy available to them in those proceedings.

- 2 cases concerning the lack of procedural safeguards in eviction proceedings

28261/06           Ćosić, judgment of 15/01/2009, final on 05/06/2009

3572/06            Paulić, judgment of 22/10/2009, final on 01/03/2010

These cases concern the lack of procedural safeguards in proceedings for eviction of the applicants even though they had nowhere else to live (violations of Article 8).

The European Court noted that the domestic courts’ findings were limited to the conclusion that under applicable law the applicant had lost all legal entitlement to occupy the flat and that she therefore had to vacate it. While recognising the applicant’s difficult situation, the domestic courts thus failed to analyse the proportionality of the measure to be applied against the applicant despite their duty not to interpret or apply the provisions of domestic law in a manner incompatible with the obligations flowing from the Convention (§21 of the Ćosićjudgment and §42 of the Paulić judgment).

Individual measures: In the Ćosić case, the European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicant. In the Paulić case, the applicant submitted no claim for just satisfaction.

• Information provided by the Croatian authorities (31/08/2009): The Ministry of Defence will not bring enforcement proceedings to compel the applicant in the Ćosić case to vacate her flat. Under a decision on the sale of flats owned by the Republic of Croatia and managed by the Ministry of Defence adopted by the government on 08/04/2009 (published in the Official Gazette, No. 43/09), the applicant may apply to buy the flat at issue at the latest by 08/04/2010. If the applicant does so, she will have a right of re-emption in respect of the flat.

• Assessment: In view of the above information, no other individual measure appears necessary in the Ćosić case. However, the applicant’s situation in the Paulić case remains to be clarified.

• Information is awaited In this respect.

General measures: The authorities have so far provided no action plan or action report in respect of this case.

• Information provided by the Croatian authorities (31/08/2009): The European Court's judgment has been translated into Croatian and published on the website of the Ministry of Justice (www.pravosudje.hr). It has been sent out to the Constitutional Court, Supreme Court, Ministry of Defence and to the courts involved in the case. The judgment will be also published in a journal concerning the European Court's case-law.

• Information is awaited on an action plan/action report indicating the measures envisaged and/or taken in this case.

48185/07           Prežec, judgment of 15/10/2009, final on 15/01/2010

The case concerns the violation of the applicant's right to a fair trial in that in 2004 he had not been granted free legal assistance at the trial stage in criminal proceedings against him and in that the counsel assigned to him at the appeal stage had not contacted him (violation of Article 6§§1 and 3(c)).

The European Court noted that the applicant’s mental state and the fact that as a convicted prisoner he had been charged with an offence against a prison employee warranted his legal representation in the proceedings at issue (§29 of the judgment). The European Court also observed that in view of the fact that the counsel assigned to the applicant at the appeal stage had never contacted him, the counsel could hardly have been acquainted with the applicant’s version of events. Thus, representation by a legal-aid lawyer during the appeal proceedings did not satisfy the requirements of a fair trial (§§31, 32).

Individual measures: The European Court considered that the finding of a violation of Article 6§§1 and 3(c) of the Convention together with the possibility open to the applicant under national law to seek a fresh trial (Article 430 of the Croatian Code of Criminal Procedure) constituted in itself just satisfaction in the circumstances of the present case (§47).

• Information is awaited as to whether the applicant has requested the reopening of the domestic proceedings, and if so, on the status of those proceedings.

General measures: The authorities have so far provided no action plan or action report in respect of this case.

• Information provided by the Croatian authorities (letter of 12/03/2010): The judgment of the European Court has been translated into Croatian and published on the internet site of the Ministry of Justice (www.pravosudje.hr). It was sent to the Constitutional Court, Supreme Court, County Court in Pula and Municipal Court in Pula. The judgment will be also published in a periodical dedicated to the case-law of the European Court.

• Information is awaited on an action plan/action report indicating the measures envisaged and/or taken in this case.

55759/07           Maresti, judgment of 25/06/2009, final on 25/09/2009

This case concerns the unfairness of bankruptcy proceedings against the applicant’s former employer in which her claims for salary arrears, granted in other civil proceedings, were declared inadmissible (violation of Article 6§1).

In a decision of 16/04/2004 the Zagreb Commercial Court, before which the bankruptcy proceedings against her former employer were pending, declared the applicant’s claim, recognised beforehand by a final judgment of 15/01/2003, inadmissible as lodged out of time (§§9, 26 of the judgment).

The European Court noted that while Section 173§1of the Bankruptcy Act requires that all creditors submit their claims against the bankruptcy debtor to the bankruptcy administrator, Section 173 § 2 imposes a duty on the administrator to make a list of claims of all current and former employees of the debtor in the proceedings and to submit that list to the employees concerned for their signature. In the Court’s view, where such a situation of shared responsibility exists under domestic law, imposing the duty of submitting her claim in the bankruptcy proceedings solely on the applicant, where she had already instituted civil proceedings against the debtor company, would amount to a disproportionate burden. The European Court also stressed that the administrator should have been aware of the civil proceedings of a pecuniary nature previously instituted by the applicant against the bankruptcy debtor (§ 30 of the judgment).

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

• Information provided by the Croatian authorities (09/07/2009): The bankruptcy proceedings have been brought to an end by a decision of 10/11/2004. Therefore, the applicant’s debtor ceased to exist and was deleted from the corporate register.

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

General measures:

▪ Information provided by the Croatian authorities (20/03/2009, 24/03/2009, 29/06/2009 and 09/07/2009): The Croatian authorities believe that the violation found in this case is an isolated incident and not a structural problem. However, the High Commercia l Court was expected to hold a session of all its judges in September 2009 in order to re-assess its case-law concerning the subject matter of the present case.

The European Court's judgment has been translated into Croat and published on the website of the Ministry of Justice (www.pravosudje.hr). It has been sent out to the Constitutional Court, Supreme Court, High Commercial Court and to all commercial courts in the country. The judgment will be also published in a journal concerning the European Court's case-law.

▪ Information is awaited on the outcome of the re-assessment of the case-law of the High Commercial Court as well as on any other measure taken or envisaged.

43595/06           Bačić, judgment of 19/06/2008, final on 01/12/2008

This case concerns the unfairness of bankruptcy proceedings against the applicant’s former employer in which her claims for salary arrears, granted in other civil proceedings, were declared inadmissible (violation of Article 6§1).

In a decision of 16/04/2004 the Zagreb Commercial Court, before which the bankruptcy proceedings against her former employer were pending, declared the applicant’s claim, recognised beforehand by a final judgment of 15/01/2003, inadmissible as lodged out of time (§§9, 26 of the judgment).

The European Court noted that while Section 173§1of the Bankruptcy Act requires that all creditors submit their claims against the bankruptcy debtor to the bankruptcy administrator, Section 173 § 2 imposes a duty on the administrator to make a list of claims of all current and former employees of the debtor in the proceedings and to submit that list to the employees concerned for their signature. In the Court’s view, where such a situation of shared responsibility exists under domestic law, imposing the duty of submitting her claim in the bankruptcy proceedings solely on the applicant, where she had already instituted civil proceedings against the debtor company, would amount to a disproportionate burden. The European Court also stressed that the administrator should have been aware of the civil proceedings of a pecuniary nature previously instituted by the applicant against the bankruptcy debtor (§ 30 of the judgment).

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

• Information provided by the Croatian authorities (09/07/2009): The bankruptcy proceedings have been brought to an end by a decision of 10/11/2004. Therefore, the applicant’s debtor ceased to exist and was deleted from the corporate register.

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

General measures:

▪ Information provided by the Croatian authorities (20/03/2009, 24/03/2009, 29/06/2009 and 09/07/2009): The Croatian authorities believe that the violation found in this case is an isolated incident and not a structural problem. However, the High Commercial Court was expected to hold a session of all its judges in September 2009 in order to re-assess its case-law concerning the subject matter of the present case.

The European Court's judgment has been translated into Croat and published on the website of the Ministry of Justice (www.pravosudje.hr). It has been sent out to the Constitutional Court, Supreme Court, High Commercial Court and to all commercial courts in the country. The judgment will be also published in a journal concerning the European Court's case-law.

▪ Information is awaited on the outcome of the re-assessment of the case-law of the High Commercial Court as well as on any other measure taken or envisaged.

- 73 cases against the Czech Republic / 73 affaires contre la République tchèque

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

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

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

In the Havelka and others case, the first 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 that the family was threatened with eviction from a flat owned by the Prague municipality because of outstanding rent payments. The first applicant was evicted in the beginning of 2007.

In the Wallová 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.

The European Court noted that the fundamental problem for the parents in these cases was housing for their families. Neither their capacity to bring up the 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 European 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 life as the placement of the children in public institutions. The European Court reiterated that 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.

In the Havelka and others case (§62 of the judgment), the European Court also considered it regrettable that, inter alia, the first applicant’s children, who were at the time 13, 12 and 11 years old, had not been heard directly by the courts.

Individual measures:

            1) Havelka and others: In 2010, the first applicant will be 60 and his children 16, 17 and 18 years. According to the information provided by the Czech authorities, the children are still in public care and their placement is subject to judicial review at six-month intervals pursuant to Section 46§3 of the Family Act. The President of the competent court, the Prague 10 District Court, promised to take into account the European Court's judgment when reviewing the situation of the children. Between November 2007 and July 2009, this court repeatedly requested specific reports from various institutions and persons to collect information on the children’s well-being and their contacts with the father. Although requested, no information was received from Mr. Havelka. Having taken into account the state of contacts between the children and their father, Mr Havelka’s housing situation and his attitude towards the children, the court concluded that Mr Havelka had still not created even very basic conditions for the return of the children and was quite indifferent, that the children themselves seemed sceptical about the possibility of returning to their father and that they benefited by the institutional care. Thus, despite a general preference for the natural family environment, any decision to change the current public care would go against the overall interests of the children and their own wishes.

The Czech authorities also stated that in 2007-2008, the first applicant was in regular contact with the children via telephone and he regularly saw them during holidays, when they were all staying together at the applicant's sister’s place. 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 but did not used this opportunity. At the time he did not apply to the courts for the termination of the children's institutional care: it seems that he did not want to initiate such proceedings without the children’s unequivocal support and intended to find an appropriate housing first. This was difficult due to his economic situation and health problems. His only regular income was his partial disability pension as he had not succeeded in finding stable employment. Furthermore, the applicant seems unable to fulfil basic requirements of the Czech insolvency law for starting a procedure leading to the release of his debts.

In January 2008, the first applicant’s request for a rented flat in Varnsdorf, in the Děčín area where his sister lives, 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). In December 2008, Mr Havelka’s application for a municipal welfare flat was rejected by the Municipal Council of Prague 15, mainly because of his important debts.

The possibility was mentioned of finding him temporary accommodation in one of the asylum houses: talks on this matter were held between representatives of the Ministry of Labour and Social Affairs and the Prague Archdiocese Charity.

On 06/04/2009, a meeting took place between the Government’s Agent and the applicant’s representatives; it was agreed that the latter would try to approach the first applicant again as they have not been in contact since several months, and that the solution to his housing problem should reflect his current wishes. According to the information available on 01/07/2009, the applicant’s representatives had not managed to make contact with him.  

• Bilateral contacts are under way to clarify the situation of the first applicant and his contacts with the children. A copy of a recent judicial decision given pursuant to Article 46§3 of the Family Act, reflecting the applicants’ current situation as well as principles flowing from the European Court’s judgment, would be appreciated.

• Information would be also appreciated on the present situation of the children and in particular on their attitude to the possibility of returning to their father.

            2) Wallová and Walla: 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.

The Czech authorities stated that 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 file a complaint 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.

In their letter of 05/09/2008, the applicants stated that they renounced their application for visiting rights to their children in foster care.

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

General measures: The European Court found that, to observe the requirement of proportionality the Czech authorities should have envisaged other measures, less radical, than taking the children into public care. It considered that the role of the social protection authorities was precisely to help people in difficulty who do not have the necessary knowledge of the system, to guide them in their actions and to advise them, among other things, on different types of social allowances, on the possibilities of obtaining social housing or on other means enabling them to overcome their difficulties (§74 of the judgment in Wallová and Walla).

According to a recent analysis by experts from the Czech Ministry of the Interior, many children are placed in care because of the economic situation of their parents and only a few children in care institutions are actually orphans or ill-treated children. There seems to be no effective procedure to reassess whether the economic situation of the family has improved. The average stay of children in public institution is 14½ years.

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

• Measures taken:

(a) Amendments to the Act 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 Act).

(b) Guidance note of the Ministry of Labour and Social Affairs: On 01/11/2007, the Ministry issued a guidance note which was distributed together with the Havelka judgment to all authorities dealing with socio-legal protection of children. The note requires continuous preventive co-operation with families with economic and housing problems and specifies that economic problems alone must not be a reason for taking a child away from his/her family.

(c) Domestic case-law reflecting the European Court’s judgments: In its decision No. II.ÚS 838/07 of 10/10/2007 quashing the placement of a minor child in public care, the Constitutional Court referred extensively to the European Court’s case-law concerning measures leading to separation of children and their parents and declared that Section 46§1 of the Family Act reflected these principles. In a similar decision No. II.ÚS 1945/08 of 02/04/2009, the Constitutional Court noted inter alia that placement of a child in public care also amounted to an interference with the child’s personal liberty (the family environment being the child’s most natural “space of freedom”), which implied his/her right to be heard before the court in person. By a decision of 13/04/2010, No. II ÚS 485/10, the Constitutional Court quashed decisions that had resulted in the placement of a child in foster care on grounds including the insufficiency of the mother’s housing conditions. The Court referred to the Wallová and Walla and Havelka judgments, invoking the principles they established, such as: (i) it is unacceptable to take a child away from his/her biological parents merely because there is an opportunity to place him/her in a more suitable environment; (ii) public authorities are obliged to deploy measures to preserve family bonds and, in case of separation, take active steps to reunite a separated child and its parents in the shortest time possible, especially if the family is in a difficult economic situation; and (iii) public authorities must inform parents of the consequences of their acts or omissions. According to the authorities, these decisions clearly illustrate that the requirements of the European Court’s case-law are duly implemented at the domestic level.

(d) National Action Plan for transformation and unification of the care system of endangered children:

By Resolution No. 883 of 13/07/2009, the Czech government approved this national action plan, resulting from interdepartmental co-operation, for the period of 2009-2011. It defines key activities, instruments and specific tasks relevant to improving the care of endangered children, and aims in particular at reducing the number of children placed in public care.

In June 2010, a more specific action plan, aimed at solving the specific problems identified by the European Court in the present judgments, was approved by the Inter-ministerial Coordination Group presided by the Minister of Labour and Social Affairs. However, as general elections took place in May 2010 and that a new government is about to be formed, the authorities consider it appropriate to postpone submitting this document until the new government has approved it.

(e) New social housing regulation: The government regulation of 17/08/2009 published under No. 333/2009 provides a legal framework of granting financial support for construction of flats to be rented by persons with low income or by disabled persons.

(f) Recommendation for municipalities: In February 2009, a recommendation aimed at preventing the creation or enlargement of socially excluded communities (with emphasis on housing needs) was issued as a handbook of good practice drawn up by the Ombudsman and relevant state authorities. It also contains a chapter on children’s rights including guidelines on dealing with situations where a child risks being placed in public care due to the loss of housing.

(g) Dissemination: A translation of the European Court 's judgments has been disseminated to socio-legal protection agencies. The judgments were also presented to Constitutional Court judges at their plenary session. In February 2010, the Ministry of Justice sent out a circular to presidents of regional and district courts. It summarised the principles of the Wallová and Walla and Havelka judgments and encouraged the courts to follow them. The courts generally replied that they had already been made aware of these principles and that at present they do not tend to apply law rigidly or without concern for the preservation of bonds between children and parents.

• Additional information on the follow-up mechanism under the Family Act Article 46§3 of the Family Act requires courts, in cases where the placement of the child in public care has been ordered, to review at least once every six months, whether the reasons for placement still exist and whether it is not possible to place the child in a foster family. For that purpose, courts must request reports from the authority providing socio-legal protection to the child, ascertain the child’s position (if the child is capable of expressing his or her opinion, given his or her age and mental abilities) and invite the parents to give their views.

According to the government, this periodic court review is linked to the Act on socio-legal protection which obliges authorities to provide assistance to parents of children placed in care with a view to enabling the return of the child. Competent authorities are also called upon to monitor whether the grounds still exist for continued public care, to visit the child and the parents at least once every three months and to report to the courts.

• Assessment: The measures announced are welcome.

• Information is still awaited on the implementation of the National Action Plan as well as on the progress of the further action plan announced (with the texts of these action plans). Information would be appreciated on budgetary means allocated and on the availability of qualified staff responsible for professional support and counselling for families.

Statistics showing the number of children placed in public care since 2006, as well as examples of decisions in which courts grant direct effect to the European Court’s case-law, would be appreciated in order to assess the impact of the measures taken. Further information would also be useful on the review proceedings provided in Article 46§3 of the Family Act, in particular as to whether a formal decision (which could be appealed against) is given when the court concludes, in the review procedure provided in Section 46§3 of the Family Act, that the conditions for public care still exist.

298/07              Rashed, judgment of 27/11/2008, final on 27/02/2009

The case concerns the unlawful detention of an alien asylum-seeker and the lack of appropriate judicial review of that measure.

The applicant, who is an Egyptian national, applied for asylum on arriving at Prague international airport, on 23/08/2006, and was placed ex lege in the reception centre in the airport’s transit zone. After the Ministry of Interior rejected his asylum application, the applicant was transferred, on 10/09/2006, to the Velké Přílepy facility of that ministry, established following a minister’s decision as a detached extension of the airport reception centre. In April 2007, the applicant was returned to the reception centre; in June 2007 he left the country on a voluntary-return basis after his asylum application had been definitively rejected.

In the meantime, the applicant filed an administrative appeal against his detention in Velké Přílepy with the Prague City Court, alleging that as the Ministry of Interior had not decided on his asylum application within the time-limit set by Article 73§2 of the Asylum Act, he should have been transferred to an ordinary asylum centre which he would have been free to leave. The decision of that court finding that it lacked competence to examine such appeal and inviting the applicant to file a claim under the Code of Civil Procedure was later quashed by the Supreme Administrative Court. This court held that the administrative appeal provided in Article 82 of the Code of Administrative Procedure was the only legal avenue available to the applicant, but did not satisfy the requirement of speediness. It also found, obiter dictum, that the Velké Přílepy facility could not be considered as a detached extension of the airport reception centre and that, consequently, the applicant should have enjoyed the rights of those placed in an ordinary asylum centre and his detention in that facility had no legal basis. On 09/01/2008, the proceedings were closed without any decision on the merits as the applicant had returned to Egypt.

The European Court noted that the applicant had been deprived of his liberty without any formal decision to take him into custody and that he had thus been entitled to speedy and effective review by a court. However, no judicial decision on the lawfulness of his detention had been given during the ten-month detention period (violation of Article 5 § 4). Furthermore, the European Court observed that the quality of the Czech Asylum Act in force at the relevant time had not been sufficient to constitute a legal basis for the applicant’s deprivation of liberty, as it did not afford adequate protection or the necessary legal certainty to prevent arbitrary interference by the public authorities with the rights guaranteed by the Convention (violation of Article 5 § 1).

Individual measures: In June 2007, the applicant returned to his home country. The European Court awarded him just satisfaction in respect of the non-pecuniary damage sustained.

• Assessment: no individual measure appears necessary.

General measures:

            1) Violation of Article 5§1: The European Court noted that the contested provision of Article 73 of the Asylum Act No. 325/1999 was considerably amended on 21/12/2007 (see §§ 30 and 75 of the judgment). As from this date, the amended provision provides the possibility to detain an alien asylum seeker in a centre other than the airport reception centre. It also sets the maximum time-limits for decisions by the competent authorities on an asylum application (beyond which the Ministry of Interior must authorise the alien to enter the territory and transfer him to an asylum centre), as well as the maximum duration of the detention of an asylum seeker in the airport reception centre (see §30 of the judgment). According to the authorities, these modifications ruled out the possibility of a legal interpretation which would be unfavourable to the persons concerned, so that the law currently offers an appropriate protection against any arbitrary interference by public authorities.

• Assessment: no other measure appears necessary in respect of the violation of Article 5§1.

2) Violation of Article 5§4

• Information provided by the Czech authorities (02/10/2009):  The Ministry of Justice, in co-operation with the Ministry of Interior, has begun to draft a bill amending the Asylum Act and the Code of Administrative Procedure. It is envisaged to set a time-limit of seven days for a court’s decision on the appeal that an asylum seeker will be entitled to lodge against a decision refusing him entry to the territory. This bill, which will be joined to another bill transposing Directive No. 2008/115/EC into the Czech law, should enter into force in December 2010.

The European Court’s judgment has been published on the website of the Ministry of Justice. It has also been sent out to the authorities having decided on the case, particularly to the Prague Municipal Court dealing with matters concerning the detention at Prague international airport.

More detailed information is still awaited on the bill mentioned above, to clarify how the persons concerned will be able to challenge possible failures to observe the guarantees of Act No.325/1999. Information would also be useful as to whether the courts will have to examine the merits of the appeal even if the interference in question has ended by the time of adoption of their decision, to enable the applicant, if need be, to claim damages under domestic law.

19970/04           Husák, judgment of 04/12/2008, final on 04/03/2009

The case concerns the unfairness of proceedings relating to the applicant’s pre-trial detention as he could not appear in person (violation of Article 5§4).

The applicant was arrested on suspicion of fraud and placed in pre-trial detention in June 2003. He made several applications for release, which were dismissed without a hearing when examined both by the Brno Municipal Court and by the Brno Regional Court; nor was the applicant heard by the authorities deciding ex officio on the extension of his pre-trial detention.

The European Court considered that since the domestic authorities had not provided the applicant with an adequate opportunity to participate in proceedings which were decisive for the continuation of his detention, the applicant had been deprived of a judicial remedy as required by the Convention.

Individual measures: The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. According to information submitted by the authorities, the applicant was released on 31/08/2004.

• Assessment: no individual measure appears necessary.

General measures: The Court held inter alia that the first fundamental guarantee which flows naturally from Article 5§4 of the Convention is the right to an effective hearing by the judge examining an appeal against detention. For those whose detention falls within the ambit of Article 5§1 (c) of the Convention, Article 5§4 requires that an adversarial hearing is held; this normally involves legal representation and, where appropriate, the possibility of calling and questioning witnesses (see § 41 of the judgment).

By judgment No. 45/04 (published in the Official Journal of 17/06/2005 under No. 239/2005), the plenary of the Constitutional Court repealed the provision of Article 242§2 of the Code of Criminal Procedure (providing that whenever the court decides without a hearing, persons other than the members of the chamber and the registrar are excluded from the session). It took the view that when courts decide on an appeal of the accused against the prosecutor’s decision to extend his detention, Article 5§4 of the Convention required that the accused is heard. According to this Constitutional Court judgment, this principle could nevertheless not be applied to the proceedings relating to the detainee’s requests for release (§33 in fine of the judgment).

In its judgment No. 2603/07 of 21/05/2008, the Constitutional Court however observed that the requirement of a personal hearing established by the unequivocal case-law of the European Court was applicable both to the proceedings on the prosecutor’s decision to extend the detention of the accused and to the proceedings relating to the detainee’s requests for release (§34 of the judgment).

The European Court considered that, as far as procedural guarantees provided by Article 5§4 were concerned, there was no reason to distinguish between ex officio proceedings relating to the extension of the detention and proceedings concerning the applicant’s requests for release (see § 44 of the judgment).

The authorities underline that, as regards hearing of the applicants in proceedings on their continued detention, the Czech Constitutional Court relies on the relevant case-law of the European Court. According to this court, a balance has to be achieved between detainees’ rights and the authorities’ interest in the progress of the criminal investigation, with regard to a possibly very high frequency of proceedings in which the lawfulness of the detention is examined.

Contrary the European Court’s assertion in §44 of the judgment, the Constitutional Court had only declared that, while a personal hearing of the accused is compulsory and unconditional in proceedings concerning appeals against prosecutors’ decisions on the extension of detention, such requirement could be prone to conditions in the framework of proceedings on requests for release. A duty on competent courts to hear the accused personally each time the lawfulness of detention is challenged could impose an excessive burden on the state.

In any event, the Ministry of Justice is currently preparing a new Code of Criminal Procedure which will take into account the requirements flowing from the European Court’s case-law (including the present judgment).

The judgment of the European Court, translated into Czech, has been published on the website of the Ministry of Justice. It was also sent, in March 2009, to the domestic authorities having decided on the case. 

• Further information is still awaited on the concrete application of the above case-law of the Constitutional Court by courts deciding on detention.

39298/04+         Krejčíř, judgment of 26/03/2009, final on 26/06/2009

The case concerns the unlawfulness of the extension of the applicant’s pre-trial detention (violation of Article 5§3). In a decision of 19/12/2003, the prosecutor decided to prolong the applicant’s detention and to invoke Article 71§2 of the Code of Criminal Procedure (CCP) which makes it possible to dispense with the three-month limit on the duration of detention on remand.

The European Court considered that there was a gap in domestic law as to how the three-month time-limit on detention provided in Article 67(b) of the CCP should be declared inapplicable under the second sentence of Article 71§2. Such a gap, found contrary to the requirements of legal certainty and foreseeability flowing from Article 5§3, seems to have been redressed since by an amendment to Article 71§2 which entered into force on 01/07/2004, which requires that such decisions are taken by the judge or by the court (§92).

The case also concerns flaws in the proceedings concerning the applicant’s appeal against the district court’s decision of 20/09/2003 remanding him in custody, as well as the appeal he lodged against the decision of 19/12/2003 extending his detention. These appeals had been examined without a hearing and in the absence of the parties. Having been prevented from making oral submissions regarding factors essential to the assessment of the lawfulness of his detention, the applicant had thus not had the benefit of a review by a court as required by Article 5§4.

Individual measures: The impugned detention of the applicant ended on 17/09/2004 (§27 of the judgment). According to the European Court, the finding of violation constitutes in itself sufficient just satisfaction in respect of possible non-pecuniary damage sustained by the applicant.

General measures: On 02/10/2009, the authorities submitted an action plan / action report in this case.

1) Violation of Article 5§3: The Government observe in this respect that the wording of the Code of Criminal Procedure which was criticised by the European Court had already been amended (§92 of the judgment), and consider that further measures are not necessary.

2) Violation of Article 5§4: As regards the question of hearing the detainees in proceedings concerning their continued detention, the case presents similarities to that of Husák (19970/04, Section 4.2)

Concerning the inaccessibility to the defense of the translated text of a witness statement, this violation constitutes, according to the authorities, an isolated incident which does not require adoption of general measures.

3) Publication and dissemination: The judgment of the European Court, translated into Czech, was published on the website of the Ministry of Justice. It was also sent, in May 2009, to the domestic authorities having decided on the case. 

                        - 68 cases of length of judicial proceedings[8]

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

- 1 case against Denmark / 1 affaire contre le Danemark

26461/06           Valentin, judgment of 26/03/2009, final on 26/06/2009

The case concerns the excessive length of bankruptcy proceedings (violation of Article 6).

The applicant was a partner in a banking and stock-broking firm which went bankrupt in 1988. Bankruptcy proceedings lasted from 29/08/1988 until 20/12/2005 (17 years and four months).

The case also concerns the lack of an effective remedy in Danish law at the time in respect of complaints related to length of bankruptcy court proceedings (violation of Article 13).

Finally, the case concerns a violation of the applicant’s right to the peaceful enjoyment of his possessions, as he had been deprived of the possibility to administer his assets for more than 17 years (violation of Article 1 of Protocol No. 1).

- 4 cases against Estonia / 4 affaires contre l'Estonie

41653/05           Kochetkov, judgment of 02/04/2009, final on 02/07/2009

This case concerns the poor conditions in which the applicant was detained on remand between 17/04 and 2/05/2005 in the Narva remand centre (arestimaja). Assisted in this matter by the report of the CPT (CPT/Inf(2005)6), the European Court found that the severely overcrowded and insanitary conditions (poor food, inadequate ventilation, poor hygiene) of the remand centre amounted to degrading treatment (violation of Article 3).

This case concerns also the lack of an effective remedy in respect of the applicant’s complaint under Article 3. The Court observed that the domestic courts did not grant monetary compensation to the applicant in the absence of any fault or intention to degrade him on the part of officials. The Court considered that this approach was too restrictive and deprived the applicant of an effective remedy in domestic law (violation of Article 13).

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

• Assessment: no further individual measure seems necessary.

General measures:

• Information provided by the Estonian authorities: In their action report of 17/12/2009, the Estonian authorities provided the following information:

- The judgment has been translated into Estonian and made available on the website of Council of Europe Information Centre in Tallinn (www.coe.ee). It has also been forwarded to the Ministry of the Interior, Ministry of Justice and the Supreme Court for action and for communication to subordinate bodies.

- The Estonian authorities undertook a widespread reconstruction and renovation effort with the technical assistance of the Council of Europe and the Nordic-Baltic Prison Reform project. Some old prisons, such as the Central Prison in Tallinn, Pärnu Prison, Ämari Prison and Viljandi Prison, were closed. New prisons were built in Tartu and Viru and a new prison is currently planned to be built in Maardu (the new Tallinn prison). According to the Estonian authorities, these programmes have been carried out over a number of years and are still going on.

- Moreover, a new ventilation system was installed in Narva remand centre, which is still used for short periods of detention following the inauguration in 2008 of a new centre in neighbouring Jõhvi for up to 150 inmates who were previously detained in Narva and Kohtla-Järve remand centres.

- As regards the violation of Article 13 of the Convention, the Estonian courts have been informed of the European Court’s criticism of the interpretation of the Article 9 of the State Liability Act given by the Administrative courts in the present case. A preliminary analysis on the need and the scope of amendments to the State Liability Act has been prepared and a draft amendment of this Act is planned to be submitted to the Government for approval in the first half of 2010.

• Information is awaited on progress with legislative amendments to introduce an effective remedy in respect of allegations of poor detention conditions.

10664/05           Mikolenko, judgment of 08/10/2009, final on 08/01/2010

This case concerns the excessive length of detention of the applicant in a deportation centre, (i.e. more than 3 years and 11 months) during expulsion proceedings.

The European Court, recalling that privation of liberty is justified under Article 5 only for as long as deportation proceedings are being conducted, and that if such proceedings are not being prosecuted with due diligence, such detention is no longer justified, considered that in this case the detention of applicant was not valid for the whole period, due to the domestic authorities’ failure to conduct proceedings with due diligence. The Court noted in particular that it had been provided with no information as to whether any steps with a view to applicant’s deportation had been taken between August 2004 and March 2006 (violation of Article 5§1).

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

• Information provided by the Estonian authorities (18/02/2010): By decision of the Tallinn Administrative Court the applicant was released from prison on 18/10/2007. He has since been at liberty.

General measures:

• Information provided by the Estonian authorities (18/02/2010): The judgment has been translated into Estonian, placed on the website of the Council of Europe Information Office in Tallinn (www.coe.ee) and distributed to all authorities concerned. In the view of the Estonian authorities, as the case would appear as an isolated one, there is no need for specific legislative or regulatory action.

• The information provided by the authorities is being assessed.

                        - 2 cases of length of civil proceedings and lack of an effective remedy

11548/04           Saarekallas Oü, judgment of 08/11/2007, final on 08/02/2008

43276/06           Missenjov, judgment of 29/01/2009, final on 29/04/2009

These cases concern the excessive length of civil proceedings which lasted from 1998 to 2006 (violation of Article 6§1).

They also concern the absence of an effective remedy at the applicants’ disposal whereby it might have sought to expedite the proceedings or redress for delays that had already occurred (violation of Article 13).

The European Court, noting that the Code of Civil Procedure Code set several time-limits to ensure that proceedings were conducted within a reasonable time, did not consider that the domestic court’s failure to comply with these time-limits could have resulted in any legal consequences. Neither was it shown that an appeal against the first-instance court’s decisions on adjournment or suspension of proceedings could have expedited them (§65). Regarding compensatory remedies, the European Court was unable to conclude that one existed which was effective in practice as well as in law, as the government had not referred to any case in which compensation for excessive length of proceedings had been awarded (§66).

In case of (Missenjov, application No. 43276/06, judgment of 29/01/2009, see Section 2.2), the European Court found that the possibility provided by Article 177§5 of the Code of Civil Procedure to appeal against a court ruling adjourning a hearing for more than three months, could have no significant effect on the length of the proceedings as a whole (§48). Moreover, it appeared from the case-law of the Supreme Court examined in the Missenjov case that the higher court could not oblige a lower court to resolve the case before it or take any specific procedural steps within a certain time-limit nor could it give the lower court any other binding instructions to expedite proceedings (§47).

Individual measures: The proceedings in both cases were closed in 2006. The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage.

▪ Assessment: no further individual measure appears necessary. 

General measures:

• Background information: The European Court found a violation on grounds of excessive length of proceedings against Estonia for the first time in the case of Treial (Resolution CM/ResDH(2007)152). The Estonian authorities informed the Committee in the context of that case that there was no systemic problem of length of proceedings in Estonia and that the Estonian courts gave direct effect to the case-law of the European Court. Thus the publication and dissemination of the judgment was considered a sufficient measure to prevent similar violations. In the context of the Treial case, the Committee also assessed measures taken regarding the remedies for excessive length of proceedings.

These measures included the adoption of the Code of Civil Procedure in 2006 (in particular, Article 177§5 mentioned above) and the possibility to complain of the excessive length of proceedings before the administrative courts on the basis of the Constitution, the Convention, the Administrative Procedure Code and the case-law of the Supreme Court.

However, following the violations found in these cases, the Estonian authorities provided the information that appears below. It may be noted that there is no similar case pending before the European Court.

• Information provided by the Estonian authorities (25/04/2008 and 24/06/2009): The Estonian authorities reiterated that the excessive length of civil proceedings is not a systemic problem in Estonia.

Regarding the effective remedies for excessive length of proceedings, the Estonian authorities provided the following information:

(a) Acceleratory remedy: The Ministry of Justice has drafted amendments to the Code of Civil Procedure to introduce a special remedy to expedite civil proceedings by providing that higher courts will be able to order lower courts involved in the particular proceedings to take procedural steps within a specified time-limit.

(b) Compensatory remedy: The Estonian authorities drew attention to a new decision of the Supreme Court rendered in December 2008 (No. 3-4-1-12-08). The Supreme Court stated that a party may apply for damages resulting from the excessive length of proceedings before an administrative court. It also stressed in its judgment that recourse to the administrative court was possible both after a final decision has been made as well as while the underlying proceedings were pending.

• Assessment: Note is taken of the legislative amendments proposed, which should introduce an acceleratory remedy for the excessive length of civil proceedings. The draft amendments provide the possibility for parties to the proceedings to lodge an application for acceleration of the proceedings if the court was dilatory in taking any procedural step. The European Court found, for example, that a similar preventive remedy introduced in Austria was effective (see Holzinger (No. 1), application no. 23459/94).

Note is also taken of the positive development in the case-law of the Supreme Court, which allows a compensatory remedy specifically for the excessive length of proceedings. In this regard, it is noted that the European Court found the previous case-law of the Supreme Court to be an ineffective remedy on the ground that the respondent state had made no reference to any case in which compensation had been awarded for excessive length of proceedings (§66). The Supreme Court did not refer specifically in previous decisions to compensation for excessive length of proceedings but rather found that administrative courts were authorised to award compensation to individuals for actions – including delays – of public authorities even in cases where no specific legal provisions existed to that effect (§59). However, it appears that the decision of the Supreme Court rendered in December 2008 specifically authorised compensation for damages resulting from excessive length of proceedings. Thus, it seems that the shortcomings criticised by the European Court with respect to the previous case-law have been remedied.

• Information provided by the Estonian authorities (05/01/2010): The Estonian authorities have provided an unofficial English translation of the draft law amending the Code of Civil Procedure and the Code of Criminal Procedure to introduce a specific remedy to expedite court proceedings, criminal, civil and administrative, available to all parties to these proceedings. The authorities reiterated that the draft had been laid before Parliament in October last year and adoption is foreseen during the present Parliamentary session.

• Information is awaited on the progress of the amendments to introduce an effective acceleratory remedy in respect of the excessive length of civil proceedings.

• Publication and dissemination: The European Court’s judgment was translated into Estonian and placed on the website of the Council of Europe Information Office (www.coe.ee). It has been distributed to all courts and other authorities concerned.

- 43 cases against Finland / 43 affaires contre la Finlande

3514/02            Eerikäinen and others, judgment of 10/02/2009, final on 13/03/2009[9]

13566/06          Pietiläinen Kari-Pekka, judgment of 22/09/2009, final on 18/11/2009

This case concerns a violation of the applicant’s right of the defence and the requirements of a fair trial in that in 2005 the Helsinki Appeal Court discontinued his appeal due to his failure to appear, although he was represented by counsel (violation of Article 6§§1 and 3(c).

The European Court considered that the Helsinki Appeal Court had a duty to allow the applicant’s counsel to defend him, even in his absence. The discontinuance of the applicant’s case constituted a particularly rigid and severe sanction, particularly in view of the rights of the defence and the requirements of a fair trial.

22635/04           Vilén, judgment of 17/02/2009, final on 17/05/2009

The case concerns the unfairness of insurance proceedings with regard to sickness benefits of the applicant, who was denied the opportunity to comment on several medical opinions included in his case file between 2002 and 2003. The European Court concluded that the applicant had therefore not been able to participate properly in the proceedings (violation of Article 6§1).

The facts of the case occurred after the adoption and publication of the K.P. judgment (No. 31764/96, judgment of 31/05/2001, closed by the Resolution ResDH(2006)59, adopted on 02/11/2006), and similar cases which have since been submitted to the Committee of Ministers seem to indicate that the problem persists in judicial practice.

• Information provided by the Finnish authorities (08/01/2010): The judgment has been published and sent out.

• Assessment: This information cannot be considered as an action plan or action report. An action plan/action report is still awaited from the authorities.

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 five times referred back 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.

Individual measures: The European Court awarded the applicants just satisfaction in respect of both pecuniary and non-pecuniary damages suffered. On 26/04/2006, the Health Board finally complied with the judicial decisions and ordered the applicants’ neighbours to take certain measures within 60 days from the date on which its decision acquired legal force. On 27/02/2007, the Administrative Court rejected the appeals introduced by both parties. The Supreme Administrative Court gave its decision on 08/11/2007, upholding the lower court’s decision. The applicants submitted no claims for individual measures.

• Assessment: No further individual measure appears necessary.

General measures:

            1) Failure to comply with a final judicial decision: An excerpt from the judgment was published in Finnish in the Finlex legal database (www.finlex.fi) and the judgment was sent out to the Parliamentary Ombudsman, the Office of the Chancellor of Justice, the Parliament / Constitutional Law Committee, the Supreme Court, the Supreme Administrative Court, the Ministries of Justice and Social Affairs and Health, the Åland Parliament and the Mariehamn District Court.

The authorities provided information on 30/06/2010.

• Assessment: The information provided by the authorities cannot be considered as an action plan or action report. An action plan/action report is still awaited.

2) Length of the proceedings: See the Kangasluoma group (48339/99) (Section 4.2).

                        - 39 cases of length of judicial proceedings

48339/99          Kangasluoma, judgment of 20/01/2004, final on 14/06/2004

23667/06           Ahlskog Rafael, judgment of 13/11/2008, final on 13/02/2009

2511/02            Aho, judgment of 16/10/2007, final on 16/01/2008

24732/06           Aiminen, judgment of 15/09/2009, final on 15/12/2009

4799/03            Eloranta, judgment of 09/12/2008, final on 09/03/2009

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

36288/97           Fryckman, judgment of 10/10/2006, final on 10/01/2007

33173/05           G., judgment of 27/01/2009, final on 27/04/2009

14724/02           Hagert, judgment of 17/01/2006, final on 17/04/2006

39509/08           Horsti, judgment of 10/11/2009, final on 10/02/2010

39105/05           Jaanti, judgment of 24/02/2009, final on 24/05/2009

64436/01           Kajas, judgment of 07/03/2006, final on 07/06/2006

7790/05            Knaster, judgment of 22/09/2009, final on 22/12/2009

26890/95           Kukkola, judgment of 15/11/2005, final on 15/02/2006

47628/06           Kukkonen No. 2, judgment of 13/01/2009, final on 13/04/2009

17889/07           Landgren, judgment of 10/11/2009, final on 10/02/2010

22175/06           Lappalainen, judgment of 03/11/2009, final on 03/02/2010, rectified on 23/02/2010

41585/98           Lehtinen No. 2, judgment of 08/06/2006, final on 08/09/2006

45618/04           Lehtinen Toive No. 2, judgment of 31/03/2009, final on 30/06/2009

43160/98           Lehtinen Toive, judgment of 22/05/2007, final on 22/08/2007

34147/96           Lehtinen, judgment of 13/09/2005, final on 13/12/2005

11704/03           Lehtonen, judgment of 13/06/2006, final on 13/09/2006

28631/05           Manninen, judgment of 14/04/2009, final on 14/07/2009

77138/01           Mattila, judgment of 23/05/2006, final on 23/08/2006

10615/03           Molander, judgment of 07/11/2006, final on 07/02/2007

13102/03           Narinen No. 2, judgment of 06/03/2007, final on 06/06/2007

16385/07           Nieminen, judgment of 03/11/2009, final on 03/02/2010, rectified on 23/02/2010

38158/07          Oy Hopotihoi Suomen Lelukamarit Toy & Hobby Ltd and Matti Kangasluoma, judgment of 22/09/2009, final on 22/12/2009

26189/06           Petikon Oy and Parviainen, judgment of 27/01/2009, final on 17/02/2009

31021/06           Petroff, judgment of 03/11/2009, final on 03/02/2010, rectified on 01/03/2010

25072/02           Riihikallio and others, judgment of 31/05/2007, final on 12/11/2007

66899/01           Ruoho, judgment of 13/12/2005, final on 13/03/2006

27744/95           T. and others, judgment of 13/12/2005, final on 13/03/2006

38581/97           T.K. and S.E., judgment of 31/05/2005, final on 31/08/2005

25597/07           Taavitsainen, judgment of 08/12/2009, final on 08/03/2010

61222/00           Uoti, judgment of 09/01/2007, final on 09/04/2007 and of 13/01/2009, final on 13/04/2009

10736/03           Väänänen, judgment of 22/05/2007, final on 24/09/2007

36989/05           Vienonen and others, judgment of 24/03/2009, final on 24/06/2009

63235/00           Vilho Eskelinen and others, judgment of 19/04/2007 - Grand Chamber

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

Several cases also concern the absence of an effective remedy enabling the applicants to complain about the length of the proceedings (violations of Article 13).

Individual measures: The proceedings are closed. The European Court awarded the applicants just satisfataction in respect of non-pecuniary damages.

• Assessment: No other individual measure appears necessary.

General measures:

            1) Violation of Article 6: The Finnish authorities confirmed that the judgments of the European Court had been translated, published on Finlex and widely disseminated with a covering letter to various authorities concerned (for example to the Parliamentary Ombudsman, the Chancellor of Justice, the Supreme Court, the Supreme Administrative Court, the appeal courts and district courts concerned, the Ministry of Justice, the Ministry of the Interior and the National Bureau of Investigation).

At the bilateral level, the authorities declared that the following measures had been taken: interaction among police, prosecutor and the court to reduce the length of proceedings, inter alia through common database system; training of judges; improvement of quality of work of the courts.

In June 2009, the authorities stated that further measures were under way with a view to reducing the length of proceedings: namely restructuring the district courts system, introduction of an appraisal system in the civil service and reallocation of resources within the district courts system.

• Assessment: These measures, stemming from the reflection carried out by a working group of the Ministry of Justice, are to be welcomed. Nevertheless, more detailed information would be necessary to assess the impact of these measures.

• More detailed information is awaited on the measures announced by the authorities in June 2009 as well as on possible supervisory measures and on any other measures which might be envisaged. Recent statistics on length of proceedings would also be useful to assess the impact of the measures taken. 

            2) Violation of Article 13: According to information provided by the authorities on 25/05/2009, the government's Bill on compensation for excessive length of proceedings was passed by Parliament in April 2009 and the Act should enter into force at the beginning of 2010. It should amend the Code of Judicial Procedure to provide a preventive measure against excessive length of proceedings, i.e. the possibility for district courts to order a matter to be considered urgent at the request of a party where there is a compelling reason. Moreover, applicants would also be entitled to obtain reasonable compensation from the state budget in case of excessive length of proceedings. The assessment of the length of proceedings and the amount of compensation (to be determined by the court examining the merits of the case) would correspond to the European Court's practice. It is also proposed to reduce administrative financial sanction where the length of proceedings is excessive.

In June 2009, the Constitutional Law Committee of the Parliament requested clarification from the Ministry of Foreign Affairs, the Ministry of Justice, the Office of the Prosecutor General and the Finish Bar Association. The Supreme Court was also given the opportunity to give a statement on the matter.

• Information provided by the Finnish authorities (30/066/2010): The Constitutional Law Committee of the Parliament considered it important to enact the legislation and to expand its scope of application by separate amendments. The new Act provides the possibility for parties to claim compensation from the state budget when the delay in proceedings has been attributable to the authorities. The criteria for assessing whether there has been an unreasonable delay in proceedings include inter alia the case-law of the European Court on the application of Article 6.  The new Act also establishes rules for calculating the amount of compensation for lengthy proceedings.

• Assessment:Information provided by the authorities is welcome.

• Information is awaited on the possible retroactive effect of the new Act in respect of applicants having already applied to the European Court and on the finalisation of the legislative process. A copy and a translation of the relevant legislative provisions would be useful.

- 8 cases against France / 8 affaires contre la France

19576/08           Daoudi, judgment of 3/12/2009, final on 3/03/2010[10]

39364/05           Khider, judgment of 09/07/2009, final on 09/10/2009[11]

                        - Affaire concernant la liberté d’expression

12697/03           Mamère, arrêt du 07/11/2006, définitif le 07/02/2007

Cette affaire concernent une atteinte à la liberté d'expression du requérant, condamné dans le cadre de procédures en diffamation, par un arrêt devenu définitif en 2002, en vertu des articles 29 à 32 de la loi du 29/07/1881 sur la liberté de la presse (violation de l'article 10).

Le requérant, un homme politique, a été condamné pénalement pour une déclaration faite lors d'une émission de télévision. La Cour européenne a estimé que les propos litigieux tenaient tant de jugements de valeurs que d'assertions de fait. Le requérant aurait donc dû pouvoir s'exonérer de sa responsabilité en établissant sa bonne foi quant aux premiers et la véracité des seconds, ce qui n’a pas été le cas. D'une part, les motifs retenus par le juge interne pour conclure à l'absence de bonne foi mettaient en exergue une « particulière raideur » dans la lecture des propos du requérant ; d'autre part, l'article 35 de la loi de 1881 empêchait l'intéressé de faire valoir l'exceptio veritatis, car les faits concernés remontaient à plus de 10 ans.

Mesures de caractère individuel : Le requérant a été condamné pénalement à payer des amendes et dommages-intérêts. Il n'a présenté aucune demande de satisfaction équitable à la Cour européenne.

S'agissant des éventuelles autres conséquences négatives de la violation, en particulier l'inscription des condamnations au casier judiciaire du requérant, il est précisé ce qui suit. L'inscription au casier judiciaire étant la conséquence d'une décision judiciaire, le principe de parallélisme des formes impose que seule une autre décision judiciaire puisse annuler le contenu du casier judiciaire. A cet égard, il convient de noter qu'à la suite d'arrêts de la Cour européenne, le requérant peut, demander le réexamen de la décision nationale incriminée (art. L 626-1 ss. du code de procédure pénale).

En outre, il existe deux autres moyens, en dehors de cette procédure de réexamen d'une décision pénale, de faire modifier le casier judiciaire des requérants qui le souhaiteraient. Ces deux procédures ne concernent toutefois qu'une partie du casier judiciaire (partie n°2, accessible à un certain nombre d'administrations publiques énumérées par le Code de procédure pénale) et si même elles sont mises en œuvre, une partie (n°1) restera néanmoins accessible aux magistrats. Il s'agit d'une part de la procédure de réhabilitation qui est « de plein droit » dans certains cas (selon des délais variant selon la gravité de la peine) ou qui peut être demandée en justice (article 782 ss. du code de procédure pénale). Il s'agit d'autre part de la demande de dispense d'inscription au casier judiciaire permettant aux personnes condamnées de saisir la juridiction qui a prononcé la condamnation pour qu'elle dispense d'inscription au bulletin n° 2 du casier judiciaire ladite condamnation.

Les juridictions compétentes appliquent directement la Convention et ont connaissance de la présente jurisprudence de la Cour européenne (voir les mesures de caractère général). Les principes dégagés par la Cour dans ces affaires ne pourront dont être méconnus par ces juridictions dans l’examen des griefs que les requérants pourraient le cas échéant leur soumettre.

• Evaluation : Dans ces conditions, aucune autre mesure individuelle ne semble nécessaire.

Mesures de caractère général : Ce sont les motifs que les juridictions internes ont retenus (c'est-à-dire leur application des textes pertinents) pour condamner le requérant pour diffamation, qui ont été critiqués par la Cour européenne. Les textes législatifs ne sont pas remis en question. C’est pourquoi des mesures ont été prises pour assurer une large publicité à ces arrêts de la Cour européenne et aux autres arrêts similaires, afin que les juridictions compétentes qui appliquent directement la Convention, puissent en tenir compte en pratique. Pour le détail des mesures prises, voir le groupe Paturel en rubrique 6.1 lors de la 1059e réunion (juin 2009), dont la présente affaire est à rapprocher.

Cependant, cette affaire soulève en particulier l’impossibilité de faire valoir l'exceptio veritatis pour des faits remontant à plus de dix ans : la loi elle-même dispose « la vérité des faits diffamatoires peut toujours être prouvée, sauf (…) b) lorsque l'imputation se réfère à des faits qui remontent à plus de dix années ».

Du point de vue des autorités, l'arrêt Mamère ne constitue toutefois pas une remise en cause expresse et radicale de cet article (article 35 de la loi du 29/07/1881 sur la liberté de la presse). En particulier, la Cour européenne précise que c'est en cas de propos « tenus sur un sujet d'intérêt général » que les personnes poursuivies doivent pouvoir s'exonérer de leur responsabilité en faisant preuve de la vérité des faits imputés. Les autorités en déduisent donc que dans d'autres circonstances (par exemple faits concernant la vie privée) l'interdiction d'en rapporter la preuve serait admise. Elles ajoutent que la Cour semblerait également admettre, d'un point de vue général, une restriction de l'exceptio veritatis fondée sur l'écoulement du temps, dans la mesure où « plus des allégations portent sur des circonstances anciennes, plus il est difficile d'évaluer leur véracité ». Cependant, la Cour estime que « lorsqu'il s'agit d'événements qui s'inscrivent dans l'Histoire ou relèvent de la science, il peut au contraire sembler qu'au fil du temps, le débat se nourrit de nouvelles données susceptibles de permettre une meilleure compréhension de la réalité des choses » ; c'était le cas en l'espèce. Dans ces circonstances, les autorités indiquent que les juges internes disposent d'un pouvoir d'appréciation pour interpréter la règle de droit, notamment à la lumière de l'article 10 de la Convention.

Elles citent un exemple d'arrêt de cour d'appel de 1997 et concluent que le contrôle du juge est à même d'assurer, au cas par cas, la conciliation de la règle législative avec la Convention et la jurisprudence de la Cour européenne.

• Evaluation : Le Secrétariat note que l’article de loi litigieux prévoit purement et simplement une interdiction de prouver la vérité de faits diffamatoires dans les cas similaires à ceux de l’affaire Mamère. Des contacts bilatéraux sont en cours.

24488/04           Guillard, arrêt du 15/01/2009, définitif le 15/04/2009

Cette affaire concerne la violation du droit d'accès du requérant à un tribunal en raison de l'interprétation restrictive par le Conseil d'Etat des conditions de désistement d'office : le Conseil d'Etat a déduit à tort de la formule utilisée par le requérant que ce dernier avait l’intention de produire un mémoire complémentaire et à défaut de production d’un tel mémoire, a considéré que le requérant s’était désisté d'office (violation de l’article 6§1).

• Des informations préliminaires ont été fournies par les autorités en date du 09/10/2009. Des contacts bilatéraux sont en cours en vue de réunir les informations complémentaires nécessaires à la présentation d’un plan/bilan d’action au Comité.

53640/00           Baucher, arrêt du 24/07/2007, définitif le 24/10/2007

Cette affaire concerne le caractère inéquitable d’une procédure pénale à l’encontre du requérant en 1999, et plus particulièrement une atteinte aux droits de la défense (violation de l’article 6§§1 et 3 b)). En effet, il n’a pas pu avoir connaissance de la motivation de sa condamnation en première instance (tribunal correctionnel) avant l’expiration du délai d’appel, de 10 jours à compter du prononcé du jugement. Les seuls éléments du jugement dont il avait connaissance à ce moment, à savoir la peine et les dommages-intérêts auxquels il était condamné, résultaient de la lecture, « particulièrement laconique », du dispositif du jugement en audience (§46). Il n’a pas pu obtenir le jugement complet et par écrit avant l’expiration du délai d’appel, comme le prévoit en principe le droit français (§43). Le requérant aurait eu pour seule issue d’interjeter appel à titre conservatoire sans connaître aucun élément de la motivation retenue par le tribunal ; en l’état du droit à cette époque, cela l’aurait toutefois exposé à un risque d’aggravation de sa peine par la Cour d’appel, sans qu’il ait pu au préalable mesurer ses chances de succès.

Mesures de caractère individuel : Le requérant a demandé à la Cour européenne de lui octroyer, au titre du préjudice matériel subi, une satisfaction équitable correspondant aux sommes au versement desquelles il a été condamné dans la procédure litigieuse ; la Cour européenne a refusé, estimant qu’elle ne saurait spéculer sur le résultat auquel ladite procédure aurait abouti si celle-ci avait respecté la Convention. En vertu des articles L 626-1 ss. du code de procédure pénale, le requérant dispose toutefois de la possibilité de demander le réexamen de sa condamnation à la suite de l’arrêt de la Cour européenne.

Concernant le préjudice moral découlant pour le requérant de l’impossibilité d’évaluer l’opportunité d’un appel, il a été compensé par l’octroi d’une satisfaction équitable.

• Evaluation : Aucune autre mesure de caractère individuel ne semble nécessaire.

Mesures de caractère général :

1) Obligation pour les juges d’indiquer avec une clarté suffisante les motifs sur lesquels ils se fondent, de façon à ce que l’accusé puisse exercer utilement les recours existants : L’article 485 du code de procédure pénale soumet le tribunal correctionnel à l’obligation de motiver ses décisions. Il prévoit également qu’une lecture de l’arrêt, ou au moins du dispositif, doit être donnée en audience - le dispositif devant quant à lui énoncer les infractions dont les personnes citées sont déclarées coupables ou responsables, ainsi que la peine, les textes appliqués, et les condamnations civiles. Dans tous les cas, le texte de l’arrêt (la « minute ») doit être déposé au greffe du tribunal dans les trois jours au plus tard du prononcé du jugement (cette règle n’est pas prescrite sous peine de nullité du jugement). Le Gouvernement a toutefois indiqué devant la Cour européenne que malgré les dispositions ci-dessus, en pratique « il peut arriver (…) que la rédaction complète du jugement soit établie après que les parties ont décidé d’interjeter appel » (§35) et que « la charge de travail des greffes des tribunaux ne leur permet pas toujours de finaliser les jugements dans un délai inférieur au délai d’appel » comme dans la présente affaire (§38).

• Evaluation : Dans ces circonstances, des mesures semblent nécessaires pour assurer que l’accusé puisse dans tous les cas obtenir la motivation de la condamnation suffisamment tôt en vue de pouvoir exercer son droit d’appel.

2) précisions concernant la possibilité d’interjeter appel à titre conservatoire. A l’époque des faits, la possibilité d’interjeter un appel purement conservatoire n’était pas sans conséquence pour une personne dans la situation du requérant, car cela l’exposait à un appel incident du ministère public, sans que son propre désistement postérieur n’ait aucun effet sur cet appel incident ; or dans ce cas, la loi permettait à la cour d’appel de statuer dans un sens favorable ou défavorable au prévenu (pas d’application de l’interdiction de reformatio in pejus comme en cas d’appel par le prévenu). Depuis la loi du 15/06/2000, la situation a changé : si l’appelant se désiste de sons appel principal dans un délai d’un mois, cela entraîne la caducité des appels incidents, y compris celui du ministère public.

39001/97           Maat, arrêt du 27/04/2004, définitif le 27/07/2004

Cette affaire concerne l'iniquité d'une procédure pénale dirigée contre le requérant. D'une part, elle a trait à une entrave disproportionnée au droit d'accès à un tribunal, en raison de l'obligation pour le requérant (sous le coup d'un mandat d'arrêt) de se constituer prisonnier afin de pouvoir former une opposition à l'encontre d'un arrêt d'appel rendu par défaut en 1997, confirmant sa condamnation à 18 mois d'emprisonnement et à une amende d'1 million de francs français, outre les dommages et intérêts alloués aux parties civiles (violation de l'article 6§1).

D'autre part, elle a trait au non-respect des droits de la défense, du fait que la cour d'appel a interdit la représentation du requérant en raison de la non-comparution de ce dernier au cours des débats (violation de l'article 6§3c).

Mesures de caractère individuel :Aucune demande n’a été soumise au titre des mesures de caractère individuel. L'avocate du requérant a indiqué être sans nouvelles de son client.

Mesures de caractère général :

            1) Violation de l’article 6§1 : La Cour européenne a relevé qu'en l'état actuel de la jurisprudence de la Cour de cassation, l'opposition reste le seul recours pour lequel le fait de ne pas déférer à un mandat d'arrêt fait obstacle à sa recevabilité. En effet, cette circonstance n'a plus d'incidence, ni sur la recevabilité de l'appel (jurisprudence Zutter de la Cour de cassation, arrêt du 24/11/1999), ni sur celle du pourvoi en cassation (jurisprudence Rebboah de la Cour de cassation, arrêt du 30/06/1999).

Compte tenu de l’effet direct accordé à la Convention par les juridictions françaises, et vu les évolutions précitées de la jurisprudence nationale sur des questions proches (voir ci-dessus), de nouvelles violations similaires devraient pouvoir être évitées en portant cet arrêt à la connaissance des juridictions compétentes en la matière. C’est pourquoi des informations ont été demandées sur la publication / diffusion de cet arrêt. 

• Informations fournies par les autorités : les autorités ont indiqué de façon générale que les arrêts de la Cour européenne contre la France étaient systématiquement diffusés aux juridictions concernées ; en l’espèce, l’arrêt a par conséquent dû être diffusé à la Cour de cassation et aux juridictions en cause dans cette affaire.

• Evaluation : il semblerait nécessaire d’avoir au moins une confirmation d’une diffusion à l’ensemble des juridictions pouvant être confrontées à un cas similaire, c’est-à-dire les juridictions pénales. Des exemples d’un éventuel revirement de jurisprudence sont attendus, s’il en existe.

2) Violation de l’article 6§3c :Cette affaire est à rapprocher de l'affaire Poitrimol (Résolution finale CM/ResDH(2007)154 du 19/12/2007), close au vu des évolutions dans la jurisprudence des juridictions nationales. La Cour elle-même a souligné l'apport de l'arrêt Dentico rendu par l'Assemblée plénière de la Cour de cassation le 02/03/2001 (soit après l'introduction de la présente requête devant la Cour européenne). Aux termes de cet arrêt, « le droit au procès équitable et le droit de tout accusé à l'assistance d'un défenseur s'opposent à ce que la juridiction juge un prévenu non comparant et non excusé sans entendre l'avocat présent à l'audience pour assurer sa défense ».

• Evaluation : Aucune mesure complémentaire n’est nécessaire.

35787/03           Walchli, arrêt du 26/07/2007, définitif le 26/10/2007

L’affaire concerne le caractère inéquitable d’une procédure pénale, le requérant n’ayant pas eu accès à un tribunal en vue de faire annuler les actes de la procédure d’information ayant mené à sa condamnation, devenue définitive en 2003 (violation de l’article 6§1). La requête déposée par son avocat en vue d’obtenir cette annulation fut rejetée par les juridictions internes pour non-respect d’une condition de forme. Dans les circonstances particulières de l’espèce, la Cour européenne a estimé que, sur ce point, les juridictions internes avaient fait preuve d’un formalisme excessif.

Mesures de caractère individuel : Le requérant a été condamné à une amende de 1500 euros et, au plan civil, au versement de 2250 euros. Le requérant a demandé à la Cour européenne de lui accorder, au titre du préjudice matériel, le montant des condamnations dont il avait dû s’acquitter au terme de la procédure litigieuse. La Cour a toutefois estimé ne pas pouvoir spéculer sur le résultat auquel celle-ci aurait abouti si la violation de l’article 6§1 n’avais pas eu lieu. Selon le droit français (art. L 626-1 ss. code de procédure pénale), le requérant dispose de la possibilité de demander la réouverture de la procédure pénale en cause.

• Evaluation : Dans ces circonstances, aucune autre mesure ne semble nécessaire.

Mesures de caractère général : Selon l’article 173 du code de procédure pénale, une requête en annulation d’actes d’une procédure d’information doit, à peine d’irrecevabilité, faire l’objet d’une « déclaration » au greffe de la juridiction compétente (chambre de l’instruction) ; elle doit être constatée et datée par le greffier qui la signe, ainsi que le demandeur ou son avocat. Dans la présente affaire, l’avocat du requérant s’est présenté en personne au greffe pour y remettre sa requête, intitulée « requête afin d’annulation » et dûment signée ; la présentation de cette requête fut constatée par le greffier, qui apposa sur la première page le cachet de la juridiction, indiquant la date et l’heure de dépôt et y inscrivit sa signature. Pour déclarer cette requête irrecevable, les juridictions internes ont retenu qu’en plus de sa requête, le requérant aurait également dû faire une « déclaration » sur ce point au greffe.

La Cour européenne a constaté que le libellé de l’article 173 ne permet pas de trancher la question de savoir si la requête en nullité d’actes de la procédure d’information doit faire l’objet ou non d’une déclaration formelle au greffe par un document spécialement prévu à cet effet. Toutefois dès lors qu’en principe il ne lui appartient pas d’apprécier elle-même les éléments de fait ayant conduit une juridiction nationale à adopter telle décision plutôt qu’une autre, la Cour a tenu pour acquise la position des juridictions nationales (à savoir que le mis en examen a une obligation de déclarer la requête au greffe, concomitamment à son dépôt et à son enregistrement). En revanche, dans les circonstances particulières de l’espèce, vu notamment les formalités accomplies par l’avocat, la clarté de la requête par laquelle la juridiction a été saisie et le rôle joué par le greffier (auxiliaire de justice, garant de la procédure) qui a réceptionné la requête présentée par l’avocat et aurait, pour le moins, pu lui rappeler les formalités à accomplir, la Cour a conclu que les juridictions internes avaient fait preuve d’un formalisme excessif en ce qui concerne les exigences procédurales entourant le dépôt de ladite requête.

• Des informations semblent nécessaires sur les mesures prises ou attendues pour clarifier, à l’attention des professionnels concernés (avocats, greffiers, magistrats…), les formalités requises pour déposer valablement une requête en annulation d’actes d’une procédure d’information. Par ailleurs, en tout état de cause, il serait nécessaire d’assurer la publication et la diffusion de l’arrêt de la Cour européenne.

1946/06            Bowler International Unit, arrêt du 23/07/2009, définitif le 23/10/2009

Cette affaire concerne une ingérence dans le droit au respect des biens de la société requérante, propriétaire de bonne foi, en raison de l’impossibilité d’exercer un recours effectif lui permettant de contester utilement la confiscation de ses marchandises. La seule action possible - contre l’auteur de l’infraction - ne constituait pas une possibilité adéquate d’exposer sa cause aux autorités, qui avaient reconnu sa bonne foi (violation de l’article 1 du Protocole n^o 1).

• Des informations ont été fournies par les autorités en date du 8/02/2010. Des contacts bilatéraux sont en cours en vue de réunir les informations complémentaires nécessaires à la présentation d'un bilan d'action au Comité.

- 17 cases against Georgia / 17 affaires contre la Géorgie

- 3 affaires concernant le défaut d’enquête effective sur les allégations des requérants au sujet de mauvais traitements qu’ils auraient subis

73241/01           Davtyan, arrêt du 27/07/2006, définitif le 27/10/2006

68622/01           Danelia, arrêt du 17/10/2006, définitif le 17/01/2007

11830/03           Gharibashvili, arrêt du 29/07/08 définitif le 29/10/08

L'affaire Davtyan concerne l'absence d'enquête effective sur les plaintes du requérant en date du 9/11/1999 quant à des mauvais traitements que la police lui aurait infligé en juin 1999, lors d'une garde à vue (violation de l'article 3 sous son volet procédural). La Cour européenne a notamment souligné que le seul commencement d'une enquête, interrompue à un stade précoce sans jamais aboutir à une décision quelconque, ne pouvait passer pour approfondie et effective au regard des exigences de la Convention.

L'affaire Danelia concerne également l'absence d'actes d'investigations par les autorités géorgiennes en vue de déterminer l'éventuelle responsabilité des agents du Ministère de l'intérieur quant aux tortures dont le requérant aurait fait l'objet lors d'une garde à vue en octobre 2000 (violation de l'article 13). Cette affaire concerne en outre l'impossibilité pour le requérant de se faire examiner par des experts médicaux indépendants (violation de l'article 3 sous son volet procédural).

L’affaire Gharibashvili concerne l’absence d’enquête effective sur les mauvais traitements que le requérant allègue avoir subi pendant sa garde à vue au poste de police de Rustavi du 23 au 25 mai 2001 (violation de l’article 3 sous son aspect procédural).

Dans ces trois affaires, la Cour a également conclu que, notamment en raison des insuffisances de l'enquête conduite par les autorités compétentes, il ne pouvait être établi de violation substantielle de l'article 3 de la Convention.

S’agissant des défaillances de l’enquête, la Cour a relevé les points suivants :

dans l’affaire Davtyan :

-           l’instructeur chargé de l’enquête n’a pas demandé d’expertise médicale ;

-           le requérant n’a pas été confronté aux policiers alors qu’il avait déclaré pouvoir reconnaître celui l’ayant torturé ;

-           l’instructeur n’a pas interrogé la seule personne de la famille du requérant à qui celui-ci s’était confié ;

dans l’affaire Danelia :

-           il n’a pas été possible pour le requérant de se faire examiner par des experts médicaux indépendants ;

-           ni le requérant ni les agents de l’Etat en charge du requérant pendant sa garde à vue n’ont été interrogés ;

-           aucune confrontation n’a eu lieu entre le requérant et ses prétendus tortionnaires.

dans l’affaire Gharibashvili

la Cour a distingué deux périodes : la première, avant la communication au gouvernement de la requête introduite devant la Cour européenne des droits de l’homme par M. Gharibashvili et la deuxième après la communication de la requête au gouvernement le 5 décembre 2005.

La Cour européenne a noté en particulier que : 

- l’enquête préliminaire avait été confiée à la même division de l’autorité de poursuite – le parquet du district de Rustavi – que celle à laquelle appartenait l’auteur allégué de l’infraction, et ce bien que le requérant ait clairement protesté contre un conflit d’intérêts aussi manifeste ;

- le requérant lui même n’a jamais été entendu tout au long de l’enquête ; cette défaillance a été relevée par la Cour Suprême de Géorgie, mais il n’y a pas été remédié par la suite ;

- aucune enquête n’a été menée, et donc aucune réponse n’a été donnée, au sujet des allégations de mauvais traitements infligées par le prétendu auteur ;

- c’est seulement après la communication de la requête du requérant à l’Etat défendeur que le Parquet général a décidé d’entamer une procédure, le 24 janvier 2006, soit près de deux ans après que le requérant eut introduit une requête à cette fin ;

- le parquet de Tbilissi s’est, dans une grande mesure, fondé sur les informations fournies par le parquet du district de Rustavi et les officiers de police de Rustavi directement ou indirectement impliqués dans les faits contestés, sans chercher d’information dans les témoignages du requérant ou sans confronter le requérant lui-même aux trois personnes qu’il avait directement mises en cause ;

- le parquet de Tbilissi n’a pas envisagé d’interroger le médecin de la prison n°5 de Tbilissi qui avait examiné le requérant à l’époque des faits et qui aurait refusé de consigner dans son rapport les marques de mauvais traitements sur le corps du requérant ; enfin, au lieu d’ordonner un examen médical complet et indépendant de l’état de santé du requérant le parquet de Tbilissi a limité l’enquête à la lecture du registre médical de la prison ;

- la fin de l’enquête a été confirmée par les tribunaux internes siégeant à huis clos, sans tenir d’audience. Celle-ci n’a été remplacée par aucune procédure écrite transparente et contradictoire. La Cour relève à ce sujet qu’un contrôle public et contradictoire a l’avantage, même si le tribunal en question n’est pas compétent pour mener une enquête indépendante ou établir les faits, de fournir un forum garantissant le respect de la légalité dans une procédure contentieuse relative à une affaire de mauvais traitements, dans laquelle le requérant et les autorités de poursuites sont tous deux parties.

Mesures de caractère individuel : M. Davtyan a été libéré en septembre 2005 et la Cour européenne lui a octroyé une satisfaction équitable au titre du préjudice moral. M. Danelia n'est plus détenu et la Cour européenne lui a alloué une satisfaction équitable au titre du préjudice moral. M. Gharibashvili n’a soumis aucune demande de satisfaction équitable et, par conséquent, la Cour ne lui a accordé aucune somme à ce titre.

            1) Sur la possibilité de mener une nouvelle enquête à la suite d’un constat de violation de l’article 3 par la Cour européenne des droits de l’homme :

La position établie du Comité dans ce type d'affaire étant qu'il existe une obligation continue de mener une enquête dans la mesure où une violation (procédurale) de l'article 3 a été constatée, il a été demandé aux autorités géorgiennes si des enquêtes pouvaient être menées sur les faits dénoncés dans ces arrêts.

Par lettre en date du 27/03/2007, les autorités géorgiennes, reprenant pour l'essentiel les arguments qu'elles avaient déjà invoqués devant la Cour européenne dans le cadre de l'examen du grief tiré de l'article 3 dans l’affaire Davtyan ont déclaré qu'il n'existait  pas de base légale pour reprendre l'enquête dans cette affaire.

Un courrier précisant la nature des obligations relatives à l'adoption de mesures individuelles dans ces affaires a été adressé aux autorités géorgiennes le 23/08/2007.

Par lettre en date du 3/10/2007 la délégation de la Géorgie a produit une nouvelle fois une partie du courrier déjà adressé le 27/03/2007.

Le Secrétariat a rappelé (courrier du 23/08/2007) que « les demandes de nouvelles enquêtes dans les cas d'allégations de torture ou de mauvais traitements sont basées sur l'obligation des Etats membres de prendre des mesures individuelles en faveur des requérants afin de mettre un terme à la violation constatée par la Cour et effacer ses conséquences afin de parvenir autant que faire se peut à la restitutio in integrum. Dans ce contexte, la répétition d'arguments déjà rejetées par la Cour ne peut pas constituer une réponse adéquate ».

Enfin, le 2/04/2009, le Secrétariat a adressé un nouveau courrier aux autorités géorgiennes rappelant que des informations étaient attendues sur la manière dont les autorités géorgiennes entendaient s’acquitter de l’obligation de mener une enquête et posant les questions suivantes : quelles sont les possibilités, en droit géorgien, d’ordonner l’ouverture ou la reprise d’une enquête close par un enquêteur ? Par exemple, le procureur dispose-t-il d’un tel pouvoir ? Par ailleurs quelle est l’autorité compétente pour tirer les conséquences d’un arrêt de la Cour européenne constatant une violation procédurale de l’article 3 et ordonner l’ouverture ou la reprise d’une enquête ?

• Informations fournies par les autorités géorgiennes (lettre du 1/07/2009) : L’article 400 du Code de procédure pénale (CPP) prévoit la possibilité de rouvrir une enquête préliminaire ou des poursuites pénales closes « si le délai de forclusion n’est pas épuisé » ;

Le réexamen d’une décision judiciaire est possible lorsque des circonstances nouvelles sont découvertes ou établies ; l’article 593 du CPP prévoit ces circonstances mais un arrêt de la Cour européenne des droits de l’homme ne constitue pas une circonstance nouvelle.  

• Des informations complètes et détaillées sur la possibilité de rouvrir une enquête sont attendues de manière urgente. Sont en particulier attendus la traduction intégrale des articles du CPP mentionnées ci-dessus et des informations supplémentaires sur l’article 400 du CPP (l’article 400 prévoit-il la forclusion ou bien la prescription de l’action publique?) et sur son éventuelle application aux affaires ici en cause.

2) Nouvelle enquête dans l’affaire Davtyan : Par lettre en date du 27/03/2007, les autorités géorgiennes, reprenant pour l'essentiel les arguments qu'elles avaient déjà invoqués devant la Cour européenne dans le cadre de l'examen du grief tiré de l'article 3 et ajoutant que le requérant n'a pas fait appel de « la décision du procureur du 10/12/1999 refusant l'ouverture d'une enquête », ont déclaré qu'il n'existait pas de base légale pour reprendre l'enquête dans l'affaire Davtyan. Le 20/08/09 les autorités ont produit une copie d’une décision du 10/12/1999 du procureur du district de Samgori, accompagnée d’une traduction de la notification de cette décision à l’avocat du requérant.

• Evaluation : Le Secrétariat observe que ce document n’a pas été produit devant la Cour (cf. fin §46 : « le seul commencement d'une enquête, interrompue à un stade précoce sans jamais aboutir à une décision quelconque, ne saurait passer pour approfondie et effective ») et ne saurait donc être valablement invoqué devant le Comité des Ministres. L’exigence d’une nouvelle enquête reste donc entière.

3) Nouvelle enquête dans l’affaire Danelia : Aucune information n'est parvenue à ce jour en ce qui concerne la réouverture de l’enquête dans l’affaire Danelia

4) Nouvelle enquête dans l’affaire Gharibashvili : Aucune information n'est parvenue à ce jour en ce qui concerne la réouverture de l’enquête dans l’affaire Gharibashvili

• Des informations sont attendues de manière urgente  sur les démarches entreprises par les autorités pour rouvrir les enquêtes dans ces trois affaires ; en particulier des informations sur la qualification juridique des actes commis par la police dans ces affaires, les sanctions encourues et les délais de prescriptions seraient très utiles.

Mesures de caractère général :

• Informations fournies par les autorités géorgiennes (courrier du 27/03/2007 et du 22/01/2008) : de nombreuses mesures ont été adoptées pour éliminer la torture et les mauvais traitements en détention et améliorer le traitement des plaintes relatives à la torture ou des mauvais traitements.

En application de l'article 92 de la loi sur la détention, toute personne qui entre en prison doit faire l'objet d'un examen médical. Toutes les informations relatives à des blessures doivent être consignées dans les « notes journalières » (Krebsi) qui doivent être automatiquement transmises à l'Unité de contrôle des services pénitentiaires et de la protection des droits de l'homme près les services du Procureur de la Géorgie. En application de l'article 263 du Code de procédure pénale, cette information est suffisante pour qu'une enquête préliminaire soit automatiquement ouverte. Une enquête est également ouverte dès qu'une information relative à des mauvais traitements est reçue par un procureur, que cette information provienne d'une personne physique ou morale, d'un organe public local, d'officiels, d'autorités d'instruction (operative-investigative authorities) ou de media.

De nombreuses formations sont organisées pour les forces de l'ordre notamment par le Centre de formation du bureau du Procureur (créé en 2006) et par le centre de formation du Ministère de l'Intérieur (créé en 2004). Un code d'éthique à l'intention des procureurs et un code d'éthique pour la police ont été adoptés en juin 2006.

Les statistiques de l'année 2006 montrent un accroissement du nombre d'enquêtes sur des faits de tortures et mauvais traitements, accroissement qui est la conséquence de la volonté du gouvernement d'enquêter sur tous les cas d'abus. En 2006, 137 enquêtes ont été menées ; des poursuites ont été engages contre 16 fonctionnaires et 7 fonctionnaires ont été condamnés dans 4 affaires.

Ces arrêts ont été traduits en géorgien, publiés au journal officiel (Matsne n° 55 du 26/11/2007 et Matsne n° 6 du 26/01/2009) et les arrêts Davtyan et Danelia ont été diffusés aux différents corps d'Etat. Les traductions en géorgien de ces affaires sont également disponibles sur le site Internet officiel du Ministère de la Justice de la Géorgie.

S'agissant de la question de l'examen médical par des experts indépendants, les autorités géorgiennes indiquent dans leur courrier du 22/01/2008 que l'article 364 du code de procédure criminelle prévoit la possibilité de mener une expertise à l'initiative d'une partie.

• Evaluation : Cet article du code de procédure pénale était déjà en vigueur à l'époque des faits de l'affaire Danelia (voir §16 page 3 et §30 page 7 de l'arrêt de la Cour) ; des informations sont donc attendues sur les mesures mises en œuvre afin d'assurer que le recours à l'article 364 du code de procédure pénale soit efficace. Des exemples concrets d'application de cette disposition seraient utiles.

En outre, la diffusion de l’arrêt de la Cour dans l’affaire Gharibashvili au tribunal régional et à la Cour d’appel de Tbilissi ainsi qu’aux parquets, est attendue.

Enfin, dans le courrier du 2 avril 2009 (voir sous mesures individuelles), le Secrétariat relève que l’arrêt Gharibashvili, dont les faits sont récents, semble suggérer que les procédures d’enquête sur des allégations de mauvais traitements subis en garde à vue ne sont toujours pas conformes à la Convention et indique que des informations sont attendues sur les mesures prises ou envisagées pour remédier aux insuffisances relevées par la Cour, afin que le Comité des Ministres puisse évaluer si ces mesures permettront de prévenir des violations similaires.

• Informations fournies par les autorités géorgiennes en réponse (lettre du 1/07/2009) : l’article 9 de la loi relative à la détention prévoit que les enquêtes sur les infractions commises dans les établissements pénitentiaires se déroulent conformément aux règles établies dans le CCP et notamment de ses articles 261 (ouverture de l’enquête préliminaire) et 263 §1 (fondements de l’ouverture de l’enquête) ;

L’article 26 §b de la loi relative à la détention prévoit la possibilité de déposer plainte contre les actes illégaux de l’administration ou du personnel des établissements pénitentiaires ;

L’article 73 §b de la loi relative à la détention prévoit qu’une personne peut demander un examen médical ou une expertise médicale dès son arrestation ou sa mise en examen ; le refus d’accéder à une demande d’expertise peut être contesté devant le tribunal de district qui doit examiner la plainte dans les 24 heures.

L’article 62 §2 du CPP prévoit que les enquêtes sur les infractions commises notamment par un procureur, un enquêteur et un policier sont du ressort de l’enquêteur du parquet, qui est donc un organe différent de celui dont les personnes susmentionnées sont les représentants.

• La traduction exacte de ces articles et des exemples concrets de leur application seraient les bienvenus. En outre, le Secrétariat souhaiterait savoir si des modifications ont été apportées à ces articles dans le nouveau code de procédure pénale qui doit entrer en vigueur en octobre 2010.

522/04              Aliev, arrêt du 13/01/2009, définitif le 13/04/2009

L’affaire concerne les conditions inhumaines et dégradantes dans lesquelles le requérant a été détenu, de mai 2002 à janvier 2005, à la prison n° 5 de Tbilissi (violation substantielle de l’article 3). L’affaire concerne en outre l’absence d’enquête menée sur la proportionnalité de la force utilisée contre le requérant par les agents de l’Etat lors d’une rébellion survenue dans la nuit du 3 au 4/10/2002 dans la cellule qu’il partageait avec 15 autres prisonniers (violation procédurale de l’article 3).

Mesures de caractère individuel et général : La Cour européenne a accordé une satisfaction équitable au requérant pour préjudice moral. Le requérant n’est plus détenu.

Toutefois, il est rappelé que la position établie du Comité dans les affaires où une violation (procédurale) de l'article 3 a été constatée est qu'il existe une obligation continue de mener une enquête.

1) Violation substantielle de l’article 3 : La Cour européenne a estimé que les conditions dans lesquelles le requérant avait été détenu à la Prison n°5 de Tbilissi étaient de nature à causer au requérant une souffrance allant au delà de ce que comporte inévitablement une peine d’emprisonnement.

• Informations fournies par les autorités géorgiennes dans le cadre de l’examen des affaires  Ghavtadze et Poghossian : La prison n° 5 de Tbilissi a été démolie en 2008 et remplacée par un nouveau bâtiment, équipée d'une infrastructure moderne et où les conditions sont conformes aux standards internationaux. 

Dans son analyse du moyen tiré du non-épuisement des voies de recours interne, la Cour a relevé que les dispositions relatives aux recours pour se plaindre des conditions de détention n’étaient ni suffisamment claires ni suffisamment précises (§§58 et 59 de l’arrêt de la Cour).

2) Violation procédurale de l’article 3 : La Cour européenne a notamment souligné que les autorités compétentes auraient dû mener une enquête, sans attendre que l’intéressé dépose formellement une plainte précise à cet égard/cette fin (voir notamment les §§104 à 107 de l’arrêt).

• Informations fournies par les autorités géorgiennes : L'arrêt de la Cour européenne a été traduit et publié au Journal officiel de Géorgie n°72 du 21/10/2009.

30779/04           Patsuria, arrêt du 6 novembre 2007 définitif le 6 février 2008

L’affaire concerne une atteinte au droit à la liberté et à la sûreté en raison du placement et du maintien en détention provisoire du requérant, en 2004, pour des motifs qui ne sauraient passer pour « pertinents » et « suffisants » (violation de l’article 5§3).

La Cour européenne a dit qu’en s’appuyant essentiellement sur la gravité des accusations dirigées contre l’intéressé, les juridictions géorgiennes avaient omis de traiter les circonstances spécifiques de la cause ou d’envisager d’autres mesures provisoires. La Cour a en outre souligné qu’il était particulièrement préoccupant que la dernière décision de prolongation de détention provisoire soit en fait un modèle standard avec un raisonnement pré-imprimé.

Mesures de caractère individuel : La Cour européenne a alloué au requérant une satisfaction équitable au titre du préjudice moral. Le requérant n’est plus en détention provisoire.

• Evaluation : Aucune autre mesure ne semble donc nécessaire.

Mesures de caractère général :

• Informations fournies par les autorités géorgiennes : L’arrêt de la Cour européenne des droits de l’homme a été traduit et publié au Journal officiel de Géorgie n°19 du 30/04/2008. Des formations ont été organisées pour les procureurs, notamment en juillet 2008 dans le cadre d’un programme joint Conseil de l’Europe – Commission européenne, et l’affaire Patsuria a été présenté comme cas pratique lors de ces séminaires.

Le Code de procédure pénal a été modifié et la mention relative à la gravité du crime commis comme motif valable pour imposer une mesure de détention provisoire (ancien article 151§3 in fine) a été supprimée ; le nouvel article 151 du Code de procédure pénale, dans sa version du 25/03/2005, pose le principe dans son paragraphe premier que « une mesure de détention provisoire ne peut être ordonnée que si les objectifs qu’elle vise ne peuvent être atteints par une mesure moins sévère ». Ce principe est rappelé, à l’attention des procureurs au paragraphe 3 et à l’attention des juges au paragraphe 4 de ce même article.

• La confirmation est attendue de la diffusion de l’arrêt de la Cour aux tribunaux de districts, aux tribunaux régionaux et à la Cour Suprême ainsi que la confirmation de ce que des dispositions ont été prises pour empêcher l’utilisation du modèle standard pré-imprimé de prolongation de détention.

1704/06            Ramishvili et Kokhreidze, arrêt du 27/01/2009, définitif le 27/04/2009

L’affaire concerne les conditions inhumaines et dégradantes dans lesquelles le premier requérant a été détenu en cellule disciplinaire à la prison n° 5 de Tbilissi (violation de l’article 3), la détention du second requérant dans une cellule surpeuplée à la prison n° 5 de Tbilissi (violation de l’article 3) ainsi que les conditions inhumaines et dégradantes (placement des requérants dans une cage en métal durant l’audience, présence des forces spéciales dans la salle) dans lesquelles s’est déroulé l’audience du 2/09/2005 dans laquelle les requérants contestaient leur placement en détention provisoire (violation de l’article 3).

L’affaire concerne en outre une violation du droit à la liberté et à la sûreté (violation de l’article 5§1c) en raison de l’absence d’autorisation judiciaire pour la détention des requérants du 27/11/2005 au 13/01/2006.

Enfin elle concerne le caractère inéquitable du contrôle exercé par le juge, le 2/09/2005, du placement en détention provisoire des requérants (violation de l’article 5§4) et l’absence de réponse à « bref délai » sur le recours formé par les requérants le 6/12/2005 contre l’illégalité de leur détention (violation de l’article 5§4).

Mesures de caractère individuel : La Cour européenne a alloué une satisfaction équitable pour dommage matériel et moral aux deux requérants. Le deuxième requérant, condamné à trois ans d’emprisonnement, a bénéficié d’une grâce présidentielle le 26/05/2007 et a été libéré.

Le premier requérant a été condamné à une peine de quatre ans d’emprisonnement. Sa situation actuelle n’est pas précisée.

Mesures de caractère général :

1) Violations de l’article 3

a) Conditions de détention du premier requérant en cellule disciplinaire de la prison n°5 de Tbilissi : Préalablement à son examen des conditions de détention, la Cour européenne a relevé que les autorités avaient choisi la sanction disciplinaire la plus sévère parmi celles existantes, sans se poser la question de la proportionnalité de cette mesure punitive additionnelle.

La Cour a ensuite analysé les conditions de détention en cellule disciplinaire (voir notamment §§84 à 88 de l’arrêt)

b) Conditions de détention du deuxième requérant à la prison n°5 de Tbilissi

• Informations fournies par les autorités géorgiennes dans le cadre de l’examen des affaires  Ghavtadze et Poghossian : La prison n° 5 de Tbilissi a été démolie en 2008 et remplacée par un nouveau bâtiment, équipée d'une infrastructure moderne et où les conditions sont conformes aux standards internationaux. 

c) Traitements des requérants durant l’audience le 2/09/2005 : La Cour a notamment relevé que le Gouvernement n’avait pas pu justifier le placement des requérants dans une cage en métal durant l’audience et la présence des forces spéciales dans la salle d’audience.

2) Violations relatives au droit à la sécurité et à la liberté (article 5§4) : Les questions soulevées par ces violations seront examinées dans le cadre des affaires Patsuria (30779/04) et Gigolashvili (18145/03) (rubrique 4.2).

• Informations fournies par les autorités géorgiennes : L'arrêt de la Cour européenne des droits de l'homme a été traduit et publié au Journal officiel de Géorgie n°80 du 11/11/2009.

37048/04           Nikolaishvili Giorgi, arrêt du 13/01/2009, définitif le 13/04/2009

L’affaire concerne plusieurs atteintes au droit à la liberté et à la sûreté du requérant en raison

- de son arrestation, le 30/03/2004, dans un but étranger au sous-paragraphe c de l’article 5§1 de la Convention (le requérant a été arrêté alors qu’il avait été cité à comparaître comme témoin dans une affaire d’homicide où son frère était soupçonné, et ce, dans le but de faciliter l’enquête visant son frère) (violation de l’article 5§1) ;

- de son placement en détention provisoire du 30/03/2004 au 24/01/2005 sans que cette détention ne soit autorisée par une décision judiciaire (violation de l’article 5 §1c) ;

- de l’absence de motifs suffisants et pertinents à son placement et à son maintien en détention provisoire (violation de l’article 5§3) ;

- du non-respect du caractère contradictoire de la procédure et de l’égalité des armes lors du contrôle juridictionnel de sa détention le 24/01/2005, du fait de l’absence d’audience (violation de l’article 5§4).

Enfin, l’affaire concerne une atteinte à la vie privée du requérant en raison de l’affichage public de sa photographie en tant que « personne recherchée », dans plusieurs postes de police (violation de l’article 8).

Mesures de caractère individuel : La Cour européenne a alloué au requérant une satisfaction équitable pour dommage moral. Le requérant n’est plus détenu. D’après l’arrêt de la Cour, la photographie du requérant a été retirée des postes de police (voir §14 de l’arrêt de la Cour)

Mesures de caractère individuel :

1) Violations du droit à la sécurité et à la liberté (article 5§1, 5§1c, 5§3 et 5§4) : Les questions soulevées par ces violations seront examinées dans le cadre des affaires Patsuria (30779/04) et Gigolashvili (18145/03) (rubrique 4.2).

2) Violation de l’article 8 : La Cour européenne a relevé que d’après les articles 393 et 606(1) du Code de procédure pénale (CPP), seule une personne accusée ou condamnée qui se soustrait à une enquête, un procès ou une condamnation peut être déclarée « recherchée ». La Cour a en outre relevé que les articles 93 et 94 du CPP, définissant le statut, les droits et responsabilités des témoins ne prévoyaient pas la possibilité de déclarer un témoin « recherché » en relation avec une affaire criminelle. Dans la présente affaire, le requérant n’était ni accusé ni soupçonné dans l’affaire de meurtre et par conséquent, il n’aurait pas dû être désignée comme personne « recherchée ». Le Cour a par conséquent conclu que l’ingérence dans le droit du requérant ne pouvait être considérée comme “prévue par la loi” au sens de l’article 8 § 2 de la Convention.

Il ressort de l’arrêt de la Cour que le requérant n’a pu disposer d’un recours interne efficace (voir §§108 à 117). Dans ce contexte, la  Cour a souligné que, lorsque des informations de nature privée ont été divulguées en violation de l’article 8 de la Convention, l’obligation positive d’assurer le respect de la vie privée entraîne une obligation de mener une enquête effective afin de redresser autant que possible la situation. La Cour a noté que, malgré la reconnaissance par le Gouvernement défendeur de l’erreur commise dans le cadre de la procédure devant la Cour européenne, les autorités compétentes nationales n’ont jamais identifié ou sanctionné les agents de l’Etat responsables.

• Informations fournies par les autorités géorgiennes : L'arrêt de la Cour européenne a été traduit et publié au Journal officiel de Géorgie n°72 du 21/10/2009.

18145/03           Gigolashvili, arrêt du 08/07/08 définitif le 08/10/08

L’affaire concerne une atteinte du droit du requérant à la liberté et à la sécurité (violation of Article 5 §1c) en raison de son maintien en détention provisoire du 5/06 au 27/10/2004 sans que cette détention ne soit autorisée par une décision judiciaire. La Cour européenne a souligné que le fait que, durant cette période, le requérant et son avocat étudiaient le dossier pénal qui a par la suite été envoyé, avec l’acte d’accusation au tribunal compétent pour jugement, ne pouvait constituer une base « légale », au sens de l’article 5§1 (c) de la Convention, pour le maintien en détention du requérant.

Mesures de caractère individuel : Le requérant n’a soumis aucune demande de satisfaction équitable et par conséquent, la Cour ne lui a accordé aucune somme à ce titre. Le requérant n’est plus en détention provisoire.

• Evaluation : Aucune mesure individuelle ne semble nécessaire.

Mesures de caractère général : La procédure pénale distingue deux périodes dans la détention provisoire : la détention « pendant l’enquête» et la détention « en attendant le procès », c’est à dire, postérieurement au transfert du dossier à la juridiction compétente pour juger l’accusé.

A l’époque des faits, l’article 406§4 du Code de procédure pénale (CPP) prévoyait que le temps passé par l’accusé et son représentant à étudier le dossier pénal n’était pas comptabilisé dans la période de détention provisoire (alors même que les individus restaient détenus). Lorsque l’affaire était transmise à la juridiction compétente pour juger l’accusé, celle-ci devait tenir une audience sur la recevabilité de l’affaire et devait également décider si une mesure restrictive de liberté s’imposait ; toutefois les délais dans lesquels l’audience devait avoir lieu étaient sans rapport avec le dossier de l’inculpé mais liés à la date à laquelle le juge avait rendu une décision finale dans la dernière affaire qu’il avait eu à traiter.

Il en résultait que les individus pouvaient être privés de liberté pour des périodes illimités, sans autorisation judiciaire.

Depuis les faits de cette affaire le cadre législatif de la détention provisoire a été modifié.

Dans un premier temps, par un arrêt du 16/12/2003 dans l’affaire « The Public Defender v. the Parliament of Georgia », la Cour constitutionnelle a déclaré l’article 406§4 du CCP inconstitutionnel et incompatible avec l’article 5§1 de la Convention tout en décidant que l’annulation de la disposition incriminée devait être reportée au 25/09/2004 afin « d’éviter de créer des difficultés pour les autorités d’investigation ».

Ensuite les articles du Code pénal régissant la détention provisoire ont été modifiés.

• Informations fournies par les autorités géorgiennes : L’article 406§4 du CPP a été définitivement abrogé et, depuis le 1/01/2007, l’article 162 du CPP prévoit que la durée totale de la détention provisoire ne peut excéder 9 mois.

L’arrêt de la Cour européenne a été traduit et publié dans le Journal officiel n°4 du 14/01/09.

• Des contacts bilatéraux sont actuellement en cours afin de clarifier la procédure de prolongation de la détention provisoire, notamment concernant la détention « en attendant le procès ».

1678/01            Gurgenidze, arrêt du 17/10/2006, définitif le 17/01/2007

L'affaire concerne l'absence de protection suffisante, par les juridictions géorgiennes, de la vie privée du requérant à la suite de la publication par un journal de sa photographie et d'une série d'interviews contenant des propos outrageant à son égard. Les juridictions ont rejeté la demande de compensation morale du requérant.

La Cour européenne a considéré que l'atteinte à sa personne et le défaut de protection suffisante de la part des juridictions internes avaient dû causer au requérant des inconvénients dans sa vie privée et professionnelle ainsi qu'un fort sentiment de honte l'empêchant d'affronter le regard d'autrui (violation de l'article 8).

Mesures de caractère individuel : La Cour européenne a alloué au requérant une satisfaction équitable au titre du préjudice moral.

• La publication et la diffusion de l'arrêt de la Cour européenne (voir ci-dessous) constituera une mesure supplémentaire afin d'effacer les conséquences de la violation.

Mesures de caractère général : Le 5/12/2007, le Secrétariat a reçu une copie du Journal officiel de Géorgie, n° 55 en date du 26/11/07, dans lequel l'arrêt de la Cour européenne traduit en géorgien a été publié. L'arrêt traduit a été distribué à différents organes de l'Etat. Il est en outre disponible sur le site web du Ministère de la Justice : www.justice.gov.ge/gurgenidze.pdf.

• Confirmation est attendue de la diffusion de l’arrêt aux tribunaux de districts et aux cours régionales, avec une circulaire attirant leur attention sur leurs obligations en vertu de la Convention, telle qu'interprétée par le présent arrêt.

9103/04            Parti travailliste géorgien, arrêt du 08/07/2008, définitif le 08/10/2008

L’affaire concerne une violation du droit du parti requérant de se présenter aux élections législatives de 2004 en raison de l’impossibilité pour les électeurs des districts de Khulo and Kobuleti d’exercer leur droit de vote (violation de l’article 3 du Protocole n^o 1)

A la suite de la « Révolution des Roses », la Cour Suprême de Géorgie annula les résultats de la partie des élections législatives qui avaient eu lieu à la proportionnelle, en novembre 2003. De nouvelles élections eurent lieu le 28/03/2004. Saisie de plusieurs plaintes dénonçant des irrégularités dans le déroulement des élections législatives du 28/03/2004 à Kobuleti et Khulo, circonscriptions de la République autonome d’Adjarie, la Commission électorale centrale (CEC) en annula les résultats par une ordonnance du 2/04/2004. La CEC fixa la date du nouveau scrutin au 18/04/2004. Toutefois, les bureaux de vote n’ouvrirent pas le jour dit, privant ainsi 60 000 personnes de la possibilité de voter. Par une décision prise à la majorité, la CEC prononça les résultats des élections sans tenir compte du fait que celles-ci n’avaient pu avoir lieu dans les circonscriptions de Khulo et de Kobuleti.

La Cour européenne a dit que l’annulation des résultats des élections des circonscriptions de Khulo et de Kobuleti découlant de la décision prise par la CEC le 2/04/2004 avait manqué de transparence et de cohérence ; que la CEC n’avait pas fondé cette décision sur des motifs pertinents et suffisants et ne l’avait pas assortie de garanties procédurales adéquates contre un abus de pouvoir ; que de surcroît, la CEC avait pris la décision hâtive de mettre fin aux élections nationales sans entreprendre de démarches pour organiser des élections dans les circonscriptions de Khulo et de Kobuleti après le 18/04/2004 et sans la moindre justification valable. La Cour a conclu que l’exclusion de ces deux circonscriptions du processus des élections législatives était incompatible avec un certain nombre de principes de l’Etat de droit et avait eu pour effet pratique de priver une partie non négligeable de la population de la possibilité d’exercer son droit de vote.

Mesures de caractère individuel : La Cour a dit que le constat de violation fournissait en soi une satisfaction équitable pour le préjudice moral subi par le parti requérant et qu’elle ne discernait aucun lien de causalité entre la seule violation constatée dans cette affaire et le dommage matériel invoqué. Des élections législatives ont eu lieu en 2008 auxquelles le parti travailliste géorgien a participé.

• Evaluation : Aucune mesure ne semble nécessaire

Mesures de caractère général : A l’origine de la violation se trouve la manière dont la CEC a pris sa décision du 2/04/2004. Il convient de noter dans ce contexte que la Cour européenne a dit que la composition des commissions électorales à tous les niveaux n’offrait pas de garanties suffisantes pour contrebalancer le pouvoir du Président et que ces commissions pouvaient difficilement être indépendantes face à des pressions politiques extérieures.

• Informations fournies par les autorités géorgiennes : l’arrêt de la Cour européenne a été traduit en géorgien et publié au Journal officiel n°4 du 14/01/2009

• Informations fournies par les autorités géorgiennes (7 avril 2010) : Depuis les faits de cette affaire, les règles de nomination des membres de la CEC ont été modifiées ; la CEC est composée de 12 membres et de son Président ; cinq membres sont élus par le Parlement sur une liste présentée par le Président de Géorgie et sept sont désignés par les partis politiques. Le Président de la CEC est élu par les membres de la CEC qui ont été désignés par les partis politiques, à l’exclusion du membre désigné par le parti ayant eu le meilleur résultat lors des dernières élections législatives. Le Président de la CEC est choisi parmi une liste de trois candidats nommés par le Président de la Géorgie (amendements de décembre 2009).

Les dispositions relatives à la prise de décision au sein de la CEC ont également été modifiées : les décisions de la CEC sont prises à la majorité des membres présents et représentant au moins un tiers du nombre total de ses membres. Les décisions de la CEC concernant l’annulation des décisions des commissions subordonnées, y compris les décisions d’annulation des résultats des élections des circonscriptions/bureaux de vote, d’ouverture des paquets fournis par les commissions des bureaux de vote, de dépouillement des bulletins de vote et des enveloppes spéciales, doivent être prises à la majorité des deux tiers des membres présents. 

• Evaluation : les amendements relatifs à la composition de la CEC sont positifs et doivent être salués. Des informations plus précises sur les dispositions relatives au vote au sein de la CEC seraient utiles : existe-t-il un quorum pour la prise de décision concernant l’annulation des résultats des élections des circonscriptions/bureaux de vote, l’ouverture des paquets fournis par les commissions des bureaux de vote, le dépouillement des bulletins de vote etc ? Quelles sont les modalités de convocation des membres de la CEC ?

• Des informations restent attendues sur d’autres mesures envisagées afin d’améliorer le processus de décision au sein de la CEC concernant en particulier les procédures d’invalidation de résultats électoraux ; dans ce contexte, l’attention des autorités géorgiennes doit être attirée sur les avis conjoints de la Commission de Venise et de l’OSCE/ODHIR sur le Code électoral de Géorgie lesquels soulignent la nécessité de revoir les dispositions relatives à l’invalidation des résultats afin de les rendre claires et cohérentes (voir en particulier les paragraphes 103 à 106 de l’avis conjoint CDL-AD(2009)001 du 9/01/2009 et les §§67 à 70 de l’avis conjoint CDL-AD(2010)013 du 9/06/2010). Des informations sont également attendues sur les recours disponibles pour contester les décisions de la CEC.

3 affaires concernant le manquement ou le retard substantiel de l'administration à se conformer à des arrêts internes définitifs

28537/02           « Iza » Ltd et Makrakhidze, arrêt du 27/09/2005, définitif le 27/12/2005

2507/03            « Amat-G » Ltd et Mebaghishvili, arrêt du 27/09/2005, définitif le 15/02/2006

16277/07           Kvitsiani, arrêt du 21/07/2009, définitif le 21/10/2009

            CM/Inf/DH(2009)28

Les affaires « Iza » Ltd et Makrakhidze et « Amat-G » Ltd et Mebaghishviliconcernent des violations du droit des sociétés requérantes à un tribunal en raison de l'impossibilité d'obtenir l'exécution par l'administration d'arrêts internes définitifs (de mai 2001 et de décembre 1999 respectivement) ordonnant à l'Etat de payer certaines sommes aux sociétés requérantes (violations de l'article 6§1) ainsi que l'absence de recours effectif à cet effet (violations de l'article 13).

Enfin, ces affaires concernent des violations du droit des sociétés requérantes au respect de leurs biens, à partir du 7/06/02 (date d'entrée en vigueur du Protocole n° 1 en Géorgie), en raison de l'absence d'exécution des arrêts internes (violations de l'article 1 du Protocole n° 1). La Cour européenne a relevé que l'inexécution d'arrêts définitifs par les autorités budgétaires géorgiennes, motivée par des insuffisances budgétaires, était un problème persistant, reconnu par les autorités nationales.

L’affaire Kvitsiani concerne l’inexécution, durant plus de cinq ans et demi, d’une décision de justice définitive d’octobre 2002 ordonnant le paiement d’un dédommagement au requérant à la suite d’une procédure mettant en cause la responsabilité de l’Etat (violation de l’article 6§1 et de l’article 1 du Protocole n° 1).

Mesures de caractère individuel : La satisfaction équitable octroyée par la Cour européenne dans les affaires « Iza » Ltd et Makrakhidze et « Amat-G » Ltd et Mebaghishvili couvre les sommes qui faisaient l'objet des arrêts internes inexécutés. Dans l’affaire Kivitsiani, le requérant a finalement été payé le 2/04/2008. La Cour européenne lui a accordé une satisfaction équitable pour dommage moral.

Mesures de caractère général :

Violation de l’article 6§1 et de l’article 1 du Protocole n° 1 et Violation de l’article 13 de la Convention :

Les arrêts « Iza » Ltd et Makrakhidze et « Amat-G » Ltd et Mebaghishvili ont été traduits en géorgien, publiés au Journal Officiel (Sakartvelos Sakanonmdeblo Matsne) et largement diffusés. Ils sont également disponibles en géorgien sur le site Internet du ministère de la justice : http://www.justice.gov.ge/makrakhidze.pdf . L’arrêt Kivitsiani a été traduit et publié au Journal Officiel n° 80 du 11/11/2009.

Lors de la 1051e réunion (mars 2009), les autorités géorgiennes ont apportées un certain nombre d’informations concernant des changements législatifs et des arrangements budgétaires, en vue de prévenir de nouvelles violations similaires de la Convention. Ces informations sont contenues dans le document CM/Inf/DH(2009)28.

S’agissant des insuffisances budgétaires relevé par la Cour dans ses arrêts, les autorités géorgiennes ont indiqué que ce problème n’existait plus et ont fourni des statistiques concernant, d’une part, le budget de l’Etat affecté à l’exécution des décisions de justice interne, et, d’autre part, le montant engagé pour l’exécution des décisions de justice interne par le bureau national de l’exécution, ainsi que le nombre de décisions exécutées. Les autorités géorgiennes ont indiqué que « la quasi-totalité des dettes, (dettes salariales des personnes physiques, pour l’indemnisation de dommages, subventions, frais de traitement médical et autres sommes) ont été payées » et qu’ « en ce qui concerne les nouvelles décisions qui ont force exécutoire, elles sont ou seront exécutées sans entrave, dans les délais réglementaires et conformément à la procédure prescrite par la loi ». Les autorités géorgiennes ont en outre indiqué que les structures administratives chargés de l’exécution avaient été réformées, avec notamment la création en octobre 2008 du Bureau national de l’exécution et la mise en place progressive d’un système mixte d’huissiers, et que de nombreuses mesures visant à moderniser ces services et à accroître le professionnalisme des agents d’exécution avaient été prises.

Enfin, les procédures d'exécution sont actuellement régies par la loi du 16/04/1999 telle que modifiée le 15/07/2008 entrée en vigueur le 1/10/2008 ainsi que par le code civil et le code de procédure civile.

• Le Secrétariat est en train de mettre à jour le mémorandum CM/Inf/DH(2009)28 sur la base des dernières informations fournies par les autorités géorgiennes. Le Secrétariat note que des questions relatives aux recours disponibles permettant de dénoncer la non-exécution d'un jugement et de réparer le préjudice occasionné par le délai écoulé dans la procédure d'exécution restent en suspens.

7932/03            Jgarkava, arrêt du 24/02/2009 définitif le 24/05/2009

L’affaire concerne une atteinte au droit à un procès équitable en raison du rejet, par la Cour suprême de Géorgie en septembre 2002, par des motifs ni clairs ni suffisants, d’une demande d’indemnisation à la suite d’une détention provisoire (violation de l’article 6§1).

Le requérant accusé d’extorsion de fonds a été détenu durant 7 mois et 8 jours en 1995-1996, libéré sous caution en février 1996 pour raisons de santé puis a bénéficié, le 20/07/1998, d’un non-lieu « faute de preuves de culpabilité ». La procédure pénale intentée contre le requérant était fondée sur le Code de procédure pénal, tel qu’en vigueur jusqu’au 15/05/1999, lequel ne prévoyait pas de droit à compensation pour les personnes acquittées ou ayant bénéficié d’un non-lieu ; la procédure en indemnisation intentée par le requérant était fondée sur le « nouveau code de procédure pénal », tel qu’en vigueur à l’époque où le requérant a introduit sa requête (juin 2000), lequel code ne connaissait plus la notion de « non-lieu faute de preuves de culpabilité » mais prenait en considération le statut de « personne réhabilitée ».

Mesures de caractère individuel : Le requérant n’a pas adressé de demande de satisfaction équitable dans le délai prévu par le règlement de la Cour et la Cour a donc estimé qu’il n’y avait pas lieu d’attribuer une somme à cet égard.

• Des informations sont attendues sur la possibilité pour le requérant de demander la réouverture de la procédure.

Mesures de caractère général : La Cour européenne a relevé que l’origine du problème soulevé par la présente affaire résidait dans le fait que la situation du requérant relevait en partie de l’ancien code de procédure pénal et en partie du nouveau code de procédure pénale. Elle a souligné en outre que, amenée à statuer sur l'affaire en l'absence de précisions nécessaires dans la législation applicable, la Cour suprême tira de celle-ci des conclusions fondées sur des motifs qui n'étaient pas clairs et suffisants.

• Informations fournies par les autorités géorgiennes le 28/10/2009 : L'arrêt de la Cour européenne a été traduit et publié au Journal officiel de Géorgie n° 72 du 21/10/2009.

• Des informations sont attendues sur les dispositions actuellement applicables aux demandes d’indemnisations à la suite d’une détention provisoire, sur les éventuelles modifications à ces dispositions dans le Code de procédure pénale qui doit entrer en vigueur en octobre 2010 et, le cas échéant, sur les mesures envisagées pour éviter la répétition du type de violation constatée dans cette affaire.

30323/02           Pandjikidzé et autres, arrêt du 27/10/2009, définitif le 27/01/2010

4313/04            Gorguiladzé, arrêt du 20/10/2009, définitif le 20/01/2010

Ces affaires concernent une atteinte au droit des requérants à un procès équitable dans la mesure où ils ont été jugés par un tribunal qui ne peut être considéré comme un « tribunal établi par la loi », deux des trois juges de la formation de jugement étant des magistrats non professionnels dont l’exercice n’était régi par aucune loi (violations de l'article 6§1).

L’affaire Gorgiladzé concerne en outre les conditions inhumaines et dégradantes dans lesquelles le requérant a été détenu, janvier à août 2003 ainsi que de décembre 2004 à juillet 2005, à la prison n° 5 de Tbilissi (violation de l'article 3).

Dans l’affaire Pandjikidzé et autres, trois des requérants ont été jugés coupables de haute trahison le 8/11/2001 et condamné à 3 ans ou 2 ans et 5 mois d’emprisonnement.

M. Gorgiladzé a été condamné le 21/05/2003 à 18 ans d’emprisonnement pour homicide. Il est toujours en détention.

Dans toutes ces affaires, la Cour européenne a alloué aux requérants, une satisfaction équitable pour dommage moral. Elle a en outre dit que lorsqu'il y a eu, comme en l'espèce, une condamnation en premier ressort par un tribunal qui n'était pas établi par la loi contrairement aux exigences de l'article 6 de la Convention, et qu'un nouvel examen global de l'affaire au fond n'a pas eu lieu par la suite, un nouveau procès ou une réouverture de la procédure quant au fond, à la demande des requérants concernés, représente en principe un moyen approprié de redresser la violation constatée.

Informations fournies par les autorités géorgiennes (28/04/2010) : l’arrêt de la Cour européenne a été traduit et publié dans le journal officiel n°37 du 19 avril 2010.

69852/01           Kidzinidzé, arrêt du 29/01/2008, définitif le 07/07/2008

L’affaire concerne la durée excessive d’une procédure introduite par le requérant en février 2000 devant la Cour suprême de la République autonome d’Ajarie ainsi qu’une atteinte au droit à un tribunal en raison du refus implicite du tribunal de Batoumi d’examiner une requête du requérant introduite en octobre 2000 (violations de l’article 6§1).

Le requérant co-fondateur d’une société et président, durant une certaine période, de cette société, fit importer en République autonome d’Adjarie, à la demande du Président Abachidzé, plusieurs milliers de tonnes de farine ; le requérant et la société importatrice n’obtinrent jamais le paiement complet de cette importation et se seraient vus au contraire extorquer de l’argent par les autorités locales adjares. Les procédures engagées par le requérant devant la Cour suprême de la République autonome d’Ajarie et devant le tribunal de Batoumi visent à se faire rembourser ces créances et les sommes d’argent qui auraient été extorquées, et à obtenir compensation des préjudices matériel et moral subis.

Mesures de caractère individuel : La Cour européenne a estimé qu'aucune des sommes réclamées devant elle par le requérant au titre du dommage matériel ne traduisait les pertes effectivement subies en conséquence directe des violations constatées et n’a donc alloué aucune somme à ce titre. Elle a alloué au requérant une somme pour dommage moral.

La requête introduite devant la Cour suprême de la République autonome d’Ajarie était toujours pendante devant cette juridiction lorsque la Cour européenne a rendu son arrêt. Le requérant n’a jamais reçu de réponse à la requête qu’il a déposé devant le tribunal de Batoumi.

• Des informations sont attendues sur les points suivants :

- quel est l’état d’avancement de la procédure introduite par le requérant devant la Cour suprême de la République autonome d’Ajarie, la procédure a-t-elle été accélérée depuis que l’arrêt de la Cour européenne est devenu définitif ?

- la requête devant le tribunal de Batoumi a-t-elle été finalement enregistrée et est-il procédé à son examen ?

Mesures de caractère général : L’arrêt de la Cour européenne a été traduit en géorgien et publié au Journal officiel n°4 du 14/01/2009.

• Des informations sont attendues sur l’importance du contentieux pendant devant les juridictions adjares et l’éventuelle nécessité d’adopter des mesures de caractère général.

- 1 case against Georgia and the Russian Federation /

1 affaire contre la Géorgie et la Fédération de Russie

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

- 32 cases against Germany / 32 affaires contre l'Allemagne

22028/04           Zaunegger, judgment of 03/12/2009, final on 03/03/2010

The case concerns discrimination against the applicant in his capacity as father of a child born out of wedlock due to provisions of domestic law (Article 1626a §2 of the German Civil Code) and court decisions of 2003 that prevented him from assuming joint custody of his daughter (violation of Article 14 taken in conjunction with Article 8).

The European Court observed that under Article 1626a §1 of the German Civil Code, the parents of a minor child born out of wedlock may exercise joint custody if they make a declaration to that effect (joint custody declaration) or if they marry. Otherwise Article 1626a§2 provides that the mother obtains sole custody.

The European Court did not share the assumption that joint custody against the will of the mother is prima facie not in the child's interest. While it was true that legal proceedings on attribution of parental authority might unsettle a child, domestic law provided for judicial review of the attribution of parental authority in cases where the parents were or had been married or had opted for joint parental authority. The European Court did not see sufficient reasons why the situation in the present case call for a lesser degree of judicial scrutiny. The Court concluded that in respect of the discrimination at issue there was not a reasonable relationship of proportionality between the general exclusion of judicial review of the initial attribution of sole custody to the mother and the aim pursued, namely the protection of the best interests of a child born out of wedlock.

• Information provided by the German authorities (31/03/2010 and 26/04/2010): The German authorities’ action plan provides as follows:

Individual measures: In this case, individual measures are linked to the general measures.

General measures:

            1) Publication and dissemination of the judgment: The European Court's judgment was published in German on the German webpage of the European Court. It will be published in the Annual Report 2009 of the Ministry of Justice concerning European Court’s judgments against Germany. It was also sent to a number of legal journals for publication, and was sent out to the competent authorities including the courts that were involved in the court proceedings. The judgment was published in the following legal periodicals: in the Newsletter Menschenrechte (“Human Rights Newsletter”) 2009/6, page 348; in the Zeitschrift für das gesamte Familienrecht (FamRZ) (“Journal of Family Law”) 2010, page 103; and in the Neue Juristische Wochenschrift (NJW) (“New Legal Weekly”) 2010, page 501.

            2) Legislative measures: A new draft law is under preparation by the Federal Ministry of Justice to amend the current law for the purposes of execution of this judgment. It is envisaged that fathers should have the opportunity to obtain joint parental custody without the mandatory consent of the mother.

• Information is awaited on the content of this draft law and the further steps to be taken for its adoption.

10597/03           Ommer No. 1, judgment of 13/11/2008, final on 13/02/2009

26073/03           Ommer No. 2, judgment of 13/11/2008, final on 13/02/2009

30175/07           Wetjen, judgment of 25/03/2010

The Ommer cases concern the excessive length of various criminal proceedings against the same applicant on charges of fraud concerning his business activities. The Wetjen case concerns the excessive length of criminal proceedings against the applicant on charges of a number of offences allegedly committed while he had been acting as a court-appointed liquidator, including the grant of an undue benefit and embezzlement (violations of Article 6§1).

In the case of Ommer No.1, proceedings concerning the DETAG investment trust corporation began on 19/02/1987 and ended on 24/09/2002 with the Federal Constitutional Court’s refusal to admit the applicant’s constitutional complaint about the excessive length of the criminal proceedings following his acquittal (final on 4/02/2002). The proceedings thus lasted for more than 15 years and 7 months (at the investigation stage and 3 levels of jurisdiction).

In the case of Ommer No.2, the investigation proceedings against the applicant concerning property funds of the IHV company began on 6/12/1990 and ended on 3/02/2003 with the prosecutor’s decision to discontinue the proceedings. They thus lasted for approximately 12 years and 2 months.

In the Wetjen case, the proceedings began on 7/02/2000 and ended on 9/06/2008 (eight years and four months) when the Halle Public Prosecutor withdrew the appeal against the decision of Halle Regional Court of 17/03/2008 acquitting the applicant of all of charges.

The Wetjen case also concerns the lack of an effective remedy which could have expedited the proceedings or provided adequate redress for delays that had already occurred (violation of Article 13).

Individual measures: The proceedings at issue are over.

• Assessment: No further individual measure appears necessary.

General measures:

            1) Lack of staff: The European Court found that unreasonable delays occurred before the Cologne investigation authorities and Regional Court due to lack of staff (see §55 of the Ommer (No.1) judgment).

(a) Cologne Public Prosecutor’s office: The German authorities have indicated that in 2003 a special division composed of highly qualified experts was created in the Cologne Public Prosecutor’s office to deal with organised economic crimes and large-scale criminal cases. Modern technological facilities were installed. In 2009, additionally recruited prosecutors in North-Rhine-Westphalia were allocated to divisions dealing with economic crimes.

(b) Cologne Regional Court: Furthermore, the Cologne Regional Court has also been reinforced with additional personnel. For several years, members of the civil section assisted the criminal section. Since May 2007, four additional judges were assigned to the Cologne Regional Court. These measures have contributed to accelerating criminal proceedings.

       2) Acceleratory and compensatory remedies for excessive length of criminal proceedings following acquittal or discontinuation of investigations (Action Plan dated 23/06/2010 concerning Sürmeli group): See Sürmeli group (75529/01, Section 4.2) regarding the measures underway.

            3) Publication and dissemination: The European Court’s judgments were published in German on the German webpage of the European Court (http://www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/Volltext/Urteile/) and in the Annual Reports 2008 and 2009 of the Ministry of Justice concerning judgments against Germany (http://www.bmj.de/files/-/3852/EGMR%20Rechtsprechung%202008.pdf). They were also sent to a number of legal journals for publication, and were sent out to the competent authorities.

- 28 cases mainly concerning the length of judicial proceedings and the lack of an effective remedy

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

54215/08           Abduvalieva, judgment of 26/11/2009, final on 26/02/2010

44036/02           Adam, judgment of 04/12/2008, final on 04/03/2009

10732/05           Bähnk, judgment of 09/10/2008, final on 09/01/2009

1479/08            Ballhausen, judgment of 23/04/2009, final on 23/07/2009

8453/04            Bayer, judgment of 16/07/2009, final on 16/10/2009

7634/05            Bozlar, judgment of 05/03/2009, final on 05/06/2009

1126/05            D.E., judgment of 16/07/2009, final on 06/11/2009

7369/04            Deiwick, judgment of 26/03/2009, final on 26/06/2009

17878/04           Deiwick, judgment of 11/06/2009, final on 11/09/2009

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

1182/05            Hub, judgment of 09/04/2009, final on 09/07/2009

10053/08           Jesse, judgment of 22/12/2009

37820/06           Kindereit, judgment of 08/10/2009, final on 08/01/2010

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

21061/06           Kressin, judgment of 22/12/2009

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

58911/00           Leela Förderkreis E.V. and others, judgment of 06/11/2008, final on 06/02/2009

71972/01           Mianowicz No. 2, judgment of 11/06/2009, final on 01/03/2010, rectified on 13/10/2009

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

901/05              Peterman, judgment of 25/03/2010

485/09              Reinhard, judgment of 25/03/2010, rectified on 31/05/2010

32338/07           Ritter-Coulais, judgment of 30/03/2010

46682/07           Sinkovec, judgment of 30/03/2010

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

47757/06           Sopp, judgment of 08/10/2009, final on 08/01/2010

54188/07           Volkmer, judgment of 30/03/2010

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

The cases of Sürmeli, Bähnk, Kirsten, Mianovicz No. 2, Ritter-Coulais and Volkmer also concern the lack of an effective remedy. The cases of Sürmeli, Mianovicz No. 2, Ritter-Coulais,Volkmer and Bähnk concern 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: Proceedings are still pending in the cases of Ballhausen, Mianovicz No. 2, Reinhard, Ritter-Coulais and Volkmer.

• Information is awaited as to whether the proceedings still pending may be accelerated.

General measures:

            1) Violations of Article 6§1:

• Information provided by the German authorities (letter of 29/01/2009): In 2008, the average length of civil proceedings before district courts was 4,5 months (4,5 months in 2007 and 4,4 months in 2005), before regional courts 8,1 months (7,9 months in 2007 and 7,4 months in 2005).

In 2007, for appeal cases before the regional courts the average length of civil proceedings was 5,5 months (4,9 months in 2005), which amounted to 16,5 months (15,5 months in 2005) including the length of procedure at first instance. Before the Court of Appeal the average time of appeal was 7,5 months (7,5 months in 2005), but including the length of proceedings before the previous instances it amounted to 24,1 months (23,2 months in 2005).

The German authorities have indicated that the length of main proceedings has continuously shortened in recent years and that the average length of proceedings may be considered reasonable.

            2) Violations of Article 13: 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). The European Court considered that the proposed preventive remedy would address the root cause of the problem of length of proceedings and therefore 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 (23/06/2010): A draft Act on legal protection in case of excessive length of court proceedings and criminal investigation proceedings was prepared by the Federal Ministry of Justice and transmitted to the relevant federal ministries and federal courts in March 2010. The aim of the draft legislation is to prevent excessively long proceedings and to provide adequate redress for delays which have already occurred. In April 2010, the draft was also forwarded to the Länder, to relevant associations, to the offices of the parliamentary groups in the German Bundestag and Bundesrat. Following the deadline for the submission of the comments (beginning of June 2010), all the comments received would be subjected to thorough analysis. According to the information provided by the German authorities, the legislative process of the bill, involving the Cabinet, the Head of Federal Chancellery, the Bundesrat, and the Bundestag could take some time.

According to this draft law:

-           Complaints of delay should first be lodged in the framework of the original proceedings. The court concerned may react to a complaint by taking remedial action, otherwise, action for damages may be brought while the proceedings are still pending.

-           A new kind of compensatory remedy would be introduced for cases in which the length of proceedings is excessive. This remedy would be applicable to all types of proceedings and would be established in the Courts Constitution Act (Gerichtsverfassungsgesetz, GVG). It is planned that jurisdiction in respect of compensatory actions would reside with the higher regional courts (Oberlandesgericht, OLG). Decisions should be taken by the divisions in the higher regional courts. Leave to appeal on points of law to the Federal Court of Justice may be granted in order to guarantee uniformity of rulings. However, in order to ensure that compensation proceedings cannot be protracted, there will be no legal remedy against denial of leave to appeal.

-           These regulations would also be applicable to applications pending before the European Court.

The authorities indicated that a comparable solution will be drawn up for the Federal Constitutional Court in accordance with the special features applicable to constitutional proceedings.

• Information is awaited on the further steps taken regarding the adoption of this draft law.

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, pp. 2389 and Europäische Grundrechtezeitschrift (EuGRZ 34 10-14/2007, pp. 255) and was further sent out by letter of the Government Agent of 9/06/2006 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.

The German authorities further stated that most of the judgments would be included in the Report on the Case-Law of the European Court of Human Rights and on the Execution of Judgments asainst the Federal Republic of Germany (2009 and 2010) prepared by the Federal Ministry of Justice. These reports are widely disseminated and publicly available via the website of the Federal Ministry of Justice (www.bmj.de, Themen/Menschenrechte/EGMR/Rechtsprechung des EMGR).

- 3 cases against Greece / 3 affaires contre la Grèce

36970/06           Vamvakas, judgment of 16/10/2008, final on 16/01/2009

This case concerns the violation of the applicant's right of access to a court due to the excessive formalism of the Court of Cassation in 2006, in declaring inadmissible the applicant's appeal on points of law, against a decision taken by the appeal court sentencing him to four years’ imprisonment for forgery (violation of Article 6§1).

The applicant, who was held in prison at the relevant time, lodged his appeal on points of law with the prison governor. He filled in a standard form and attached an additional document, stating in greater detail the grounds for his appeal on points of law. The prison governor signed the official form but not the appended document. The Court of Cassation rejected the appeal as inadmissible, finding it insufficiently grounded.

It was held that the reasons included in the standard form were vague and could not be supplemented by reference to another document. On this ground, the Court of Cassation refused to take into account the appended document, also because it had not been signed by the governor.

The European Court noted that the standard form lacked space and it was logical for the applicant to append an additional document, in which he stated in a more detailed manner the reasons for appeal. The Court of Cassation, by finding that it could not consider reasons included in another document raised in a formalistic way an excessive obstacle to the applicant’s right of access to a court. The same conclusion was reached regarding the Court of Cassation’s subsidiary argument, that the document had not been signed by the governor, since the applicant could not be penalised for a formality for which he was not responsible.

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained. The applicant is entitled to request reopening of the proceedings following the judgment of the European Court, in accordance with Article 525§1.5 of the Code of Criminal Procedure.

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

General measures: The European Court noted that the issue under consideration is whether the manner in which the Court of Cassation interpreted and implemented the procedural law violated the applicant’s right of access to a court (§22). A recent decision of the Court of Cassation (judgment 136/2010) appears to be in line with the Court’s requirements, regarding the first finding. In particular, the Court of Cassation found that an appeal on points of law is admissible when an additional document is appended, since they both form a whole.

As for the issue of lack of signature by the governor, this case presents similarities with that of Boulougouras, judgment of the 27/05/04 (66294/01, Section 6.2). In that case the Greek authorities informed the Committee of Ministers that the Criminal Chamber of the Court of Cassation, in its judgment No. 677/2005 (of 15/03/2005), had promptly given direct effect to the judgment of the European Court. In this judgment (No. 677/2005), the Criminal Chamber stated that a cassation appeal was not to be declared inadmissible on the sole ground that it had not been countersigned by the court registrar. The Greek authorities have stressed that this new domestic case-law is an adequate guarantee for avoiding similar violations in the future.

These findings were endorsed in a recent judgment (1341/2009) of the Court of Cassation.

On 22/09/2009 the authorities provided information on the dissemination of the judgment in Greek to the Court of Cassation. The judgment is also available on the State Legal Council’s website (www.nsk.gr).

• In the light of the above, and given that the Court of Cassation’s judgment that gave rise to the violation found in the present case (No 450/2006) was subsequent to that one referred to by the authorities in the Boulougouras case, information is awaited as to whether reasoning in line with the European Court’s findings now constitutes standard case-law.

46929/06           Elyasin, judgment of 28/05/2009, final on 06/11/2009

This case concerns the violation of the applicant’s right of access to a court in that a court bailiff failed to exercise appropriate diligence when notifying him of a judgment by which he had been convicted, under the procedure for “persons of unknown address” even though the applicant had a known address; and on account of the rigidity with which the Athens Court of Appeal dismissed his appeal against the notified judgment as out of time (violation of Article 6§1).

46368/06           Zeïbek, judgment of 09/07/2009, final on 09/10/2009

This case concerns discriminatory interference in the right of the applicant to the peaceful enjoyment of her possessions due to the dismissal in 2001 of her application for a pension payable for life as mother of a large family. The application was dismissed on the ground that, as one of her four children did not have Greek nationality, the requirements of Law No. 1982/1990 were not met. Upon appeal by the applicant, this dismissal was upheld by the Council of State in 2006 (violation of Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14).

The European Court noted that according to Greek law and practice, the status of mother of a large family was in principle to be retained for life, even when one or more of the children ceased to be attached to the family and regardless of the children’s nationality (provided the mother lived permanently and legally in Greece). The applicant and certain members of her family had been reinstated as Greek nationals in 2000, but the applicant did not benefit from all the ensuing rights. The reinstatement should have involved recognising the applicant as the mother of a large family with all the benefits arising from that status, as if the withdrawal of nationality had never taken place.

Individual measures: The European Court awarded just satisfaction in respect of pecuniary damage in an amount corresponding to that which the applicant would have received in the form of the claimed pension, between 2001 and 2007. The European Court also awarded just satisfaction in respect of non-pecuniary damage.

The government indicated that it was open to the applicant to re-apply for the pension required, as she fulfils all requirements provided by law (§42 of the judgment).

General measures: Preliminary information was provided by the authorities on 09/06/2010.

• Bilateral discussions are currently under way to secure the additional information necessary to present an action plan/action report to the Committee.

- 4 cases against Hungary / 4 affaires contre la Hongrie

- 2 cases concerning freedom of expression

5380/07            Karsai, judgment of 01/12/2009, final on 01/03/2010

12188/06           Csánics, judgment of 20/01/2009, final on 29/04/2009

These cases concern violations of the applicants’ right to freedom of expression, due to domestic courts’ decisions ordering the applicants to rectify certain assertions they had made at a trade union demonstration concerning a certain company and its director (case of Csánics), and in an article where the applicant was criticising the right-wing press (Karsai).

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

• Assessment: no further individual measure seems necessary.

General measures:

• Information provided by the Hungarian authorities (22/10/2009): The National Council of the Judiciary was informed of the content of the European Court’s judgment and a translation published on the website of the Ministry of Justice and Law Enforcement (www.irm.gov.hu).

• Information is awaited on measures envisaged to remedy the problems highlighted by the European Court (i.e. interpretation by domestic courts of defamation provisions, including the distinction between value judgments and factual statements, in similar cases).

33629/06           Vajnai, judgment of 08/07/2008, final on 08/10/2008

This case concerns the violation of the applicant's right to freedom of expression due to his conviction in 2005 for wearing a totalitarian symbol (i.e. the red star) during a lawfully organised, peaceful demonstration, in his capacity as vice-president of a registered, left-wing political party with no known totalitarian ambitions (violation of Article 10).

The domestic courts relied on Section 269/B of the Criminal Code, which prohibited the use of totalitarian symbols, including the red star.

The European Court held that the red star cannot be understood as representing exclusively Communist totalitarian rule and that it also clearly still symbolises the international workers' movement, working for a fairer society, as well as certain lawful political parties active in various countries (§52).

Furthermore, Section 269/B of the Hungarian Criminal Code does not require proof that actual display of a red star amounted to totalitarian propaganda; instead, the mere display is irrefutably considered to be so. For the European Court, this indiscriminate feature of the prohibition corroborates the finding that it is unacceptably broad (§56).

Accordingly the Court stated that the fine imposed on the applicant was not proportionate to the legitimate aim pursued since such sanction belonged to the criminal law sphere and entailed the most serious consequences (§58).

Individual measures: The European Court considered that the finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered (§62). 

• Information provided by the Hungarian authorities (19/01/2009 and 06/07/2009): On 17/12/2008, the Prosecutor General’s Office filed a petition ex officio for review in respect of the final judgment convicting the applicant. Thereafter, the applicant’s case was reopened before the Supreme Court.  On 10/03/2009, the Supreme Court reversed the previous decisions and acquitted the applicant.

• Information provided by the applicant’s representative (12/01/2010): Mr. Vajnai is taken to the police station whenever he wears a red star in public and the police confiscate the red star. According to the applicant’s representative, such administrative practice, based on the Hungarian Criminal Code in force but not necessarily leading to criminal proceedings against the applicant, deprives him of his right to freedom of expression. In this respect, the applicant’s representative submitted a report of the Independent Police Board (Független Rendészeti Panasztestület) and a decision of the Chief Police Commissioner (országos rendörfökapitánt) to substantiate these allegations.

• Information is awaited on the current situation of the applicant and whether there is such an administrative practice as alleged by his representative, which could have a dissuasive effect for the applicant on his future activities. The authorities are also expected to provide the Supreme Court’s judgment concerning the applicant’s acquittal. 

General measures:

• Information provided by the Hungarian authorities (19/01/2009): On 10/03/2009, the Supreme Court acquitted the applicant and reversed the previous decisions in this matter (see above). Thus, the Supreme Court changed its case-law concerning Section 269/B of the Hungarian Criminal Code at issue. The European Court’s judgments and the Supreme Court’s decisions, including the Supreme Court’s decision of 10/03/2009, are binding upon lower courts in Hungary. However, if any similar case appears before the Supreme Court, it will apply its recent case-law. 

The European Court’s judgment was translated and published on the website of the Ministry of Justice and Law Enforcement (www.irm.gov.hu) as well as in professional journals. It was sent to the Office of the National Judicial Council for dissemination to courts nationwide and to the Prosecutor General’s Office in order to initiate the review proceedings.

• Information is awaited on this new case law of the Supreme Court and on examples of decisions rendered by lower courts in this matter according to this new case law.

31475/05           Kenedi, judgment of 26/05/2009, final on 26/08/2009

The case concerns the excessive length of enforcement proceedings in respect of a judgment authorising the applicant’s access to documents concerning the Hungarian secret services for the purpose of historical research. The proceedings began in 1998 and were still pending when the European Court gave its judgment. So far the applicant has had unrestricted access to all but one remaining document (violation of Article 6§1).

The case also concerns the violation of the applicant’s right to freedom of expression (right to receive information). The Court concluded that the authorities, in obstinately maintaining their reluctance to comply with the court orders authorising the applicant’s access to the documents had acted arbitrarily and in defiance of domestic law (§45) (violation of Article 10).

Finally, the case concerns the lack of an effective remedy in respect of the violation of the applicant’s right of freedom of expression. The European Court noted that the state body, being itself bound by the rule of law, adamantly resisted the applicant’s lawful attempts to secure the enforcement of his right, as granted by the domestic courts (§48) (violation of Article 13 in conjunction with Article 10).

• Information provided by the Hungarian authorities (8/10/2009): The Ministry of Justice and Law Enforcement officially handed over all the relevant documents to the applicant on 24/09/2009.

- 2 cases against Iceland / 2 affaires contre l'Islande

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

The case concerns the lack of objective impartiality of the Supreme Court of Iceland which rejected, in 1997, the applicant's appeal in compensation proceedings he had brought against the National Bank of Iceland, while one of the Supreme Court’s judges, and her husband, were closely linked to the National Bank (violation of Article 6§1).

The applicant lodged two petitions with the Supreme Court requesting the reopening of the proceedings. These petitions were rejected in July and October 1997.

Individual measures: Under Article 169 (2) of Code of Civil Procedure, re-opening of proceedings can be applied for only once. Before the European Court handed down its judgment, the applicant had already applied twice before the Supreme Court of Iceland for re-opening of the proceedings in his case: the second application was rejected because, in accordance with the relevant provisions of the civil procedure law, a party could apply only once for the reopening of a case. Consequently, it seems that even if Icelandic law in principle does not appear to exclude the possibility of reopening the proceedings at issue in order to give effect to the judgments of the European Court (Article 169 (1) of the Code of Civil Procedure), a potential new request for reopening by the applicant has no chances of success. The individual measures are therefore linked to the general measures as reopening of the proceedings seems the most appropriate means to allow the applicant to have his case decided without lack of objective impartiality (see below).

General measures:

            1) Measures to guarantee the impartiality of Supreme Court judges: The judgment of the European Court has been translated and sent out to the Icelandic judicial authorities and the Icelandic version has been published on the website of the Ministry of Justice (www.dkm.is).

• Assessment: Taking into account the direct effect given to the Convention and to case-law of the European Court by Icelandic Courts, these measures are sufficient for execution (examples of this direct effect have been provided in the framework of the case Arnarsson against Iceland, judgment of 15/07/2003, final on 15/10/2003, Final Resolution CM/ResDH(2007)82).

            2) Reopening of the proceedings: A review of the procedural obstacles to reopening the impugned proceedings could be useful. The Icelandic delegation informed the Secretariat on 23/09/2005 that the Ministry of Justice has asked the Permanent Committee on Procedural Law to give its opinion on whether the provisions of the Code of Civil Procedure concerning the reopening of proceedings following a judgment of the Supreme Court should be revised,

• Information is still awaited on the follow-up given to the request of the Ministry of Justice as well as on possible legislative changes and their timetable for adoption.

42628/04           Westlund Súsanna Rós, judgment of 06/12/2007, final on 07/07/2008

The case concerns a violation of the applicant’s right to a fair trial because of the unjustified lack of an oral hearing in civil proceedings brought by the applicant before the Supreme Court of Iceland (violation of Article 6§1).

The European Court noted that the applicable legislation conferred upon one of the parties – the defendant – the de facto possibility to decide unilaterally whether or not the Supreme Court should hold an oral hearing. The Court concluded that the absence of a hearing in the applicant’s case was a direct consequence of the application of the Code of Civil Procedure which contained an apparent discrepancy between the national standards and the Convention’s requirements as regards the right to a fair trial.

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damages, and costs and expenses. The applicant has applied for the reopening of proceedings. The request is under consideration by the Supreme Court (26/02/2010).

• Information is awaited on the proceedings subsequent to the applicant's request.

General measures:

• Information provided by the Icelandic authorities (26/02/2010): The Ministry of Justice and Human Rights has requested the Permanent Committee on Procedural Law to take into consideration Article 158 of the Code of Civil Procedure, No 91/1991, concerning oral hearings in civil proceedings brought before the Supreme Court of Iceland, in the upcoming general revision of the Code. In the letter, reference was made to the Westlund Súsanna Rós judgment of the European Court.

The judgment of the European Court has been translated and published on the website of the Ministry of Justice (<http://eng.domsmalaraduneyti.is>), thus ensuring its dissemination to practicing lawyers and other interested persons. It has also been published in a periodical on the case-law of the European Court.

• Information is awaited on action taken following the request of the Ministry of Justice and Human Rights as well as on possible legislative changes.

- 188 cases against Italy / 188 affaires contre l'Italie

- 10 cases concerning the danger that the applicants might be subject to torture or to degrading or inhuman treatment in their country of origin (Tunisia) if deportation orders against them were to be enforced

37201/06           Saadi, judgment of 28/02/2008 – Grand Chamber

2638/07            Abdelhedi, judgment of 24/03/2009, final on 14/09/2009

38128/06           Ben Salah, judgment of 24/03/2009, final on 14/09/2009

46792/06           Bouyahia, judgment of 24/03/2009, final on 14/09/2009

44006/06           C.B.Z., judgment of 24/03/2009, final on 14/09/2009

11549/05           Darraji, judgment of 24/03/2009, final on 14/09/2009

16201/07           Hamraoui, judgment of 24/03/2009, final on 14/09/2009

37257/06           O., judgment of 24/03/2009, final on 14/09/2009

37336/06           Soltana, judgment of 24/03/2009, final on 14/09/2009

12584/08           Sellem, judgment of 05/05/2009, final on 06/11/2009

These cases concern the risk that the applicants might be subject to torture or to degrading or inhuman treatment (Article 3) in their country of origin, Tunisia, if deportation orders against them were to be enforced.

The European Court observed that the danger of terrorism and the difficulties states face in protecting their communities from terrorist violence should not call into question the absolute nature of Article 3. The Court reaffirmed that for a forcible expulsion to be in breach of the Convention it was necessary – and sufficient – for substantial grounds to be shown for believing that there was a risk that the applicants would be subject to ill-treatment in the receiving country. It considered that in the present cases, on the basis of the evidence received, and not rebutted by any of the evidence provided by the Italian government, there were substantial grounds to believe the risk was real. This conclusion was not challenged by the diplomatic assurances provided by the Tunisian government.

Individual measures: The European Court considered that the finding of the violation constituted just satisfaction in respect of non-pecuniary damages suffered by the applicants.

            1) Saadi: The applicant was lawfully resident in Italy from December 2001 to October 2002 and placed in pre-trial detention as from 09/10/2002 on suspicion among other things of international terrorism. On 09/05/2005, the Milan Assize Court found him guilty of criminal conspiracy (the previous offence of international terrorism having been thus reclassified because of the lack of evidence), of forgery and receiving, and sentenced him to 4 years and 6 months' imprisonment. The Assize Court ordered that after serving his sentence, the applicant was to be expelled from Italy. The applicant having being released on 6/08/2006, the Minister of Interior ordered his deportation to Tunisia (8/08/2006) under the provisions of Law No. 155 of 31/07/ 2005 on “urgent measures to combat international terrorism” and placed him in a temporary holding centre. On 3/11/2006 he was released. Meanwhile (May 2005) a military court in Tunis convicted the applicant of membership of a terrorist organisation acting abroad in peacetime and of incitement to terrorism and sentenced him to 20 years' imprisonment.

On 07/02/2008 the Milan Assize Court of Appeal sentenced the applicant to 8 years and 10 months' imprisonment, banning him from exercising public office for life and confirming the other aspects of the first- instance decision.

• Information provided by the Italian authorities (18/11/2009 and 01/03/2010): The applicant is currently serving his prison sentence (until 27/04/2012) on the basis of the judgment of the Milan Assize Court of Appeal of 07/02/2008 (see above). According to the Italian authorities, currently there is no expulsion order against the applicant and there is nothing to suggest that a new order will be issued.

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

            2) Abdelhedi: The applicant had resided in Italy since 1989 and in 2002 the Prefecture (Questura) of Varese granted him an open-ended residence permit. In 2003 he was arrested on suspicion of belonging to a criminal association linked to foreign terrorist groups and suspected of arms trafficking, handling stolen goods, the falsification of documents and aiding illicit immigration.

On 03/12/2004 the Milan Court sentenced him to 4 years and 8 months’ imprisonment and ordered that after serving his sentence, the applicant was to be expelled from Italy. On 29/09/2005 the Court of Appeal of Milan reduced the sentence to 3 years and 4 months’ imprisonment, otherwise confirming the first-instance judgment. On 30/03/2006 the Principal State Prosecutor of Milan ordered the deferment of the remaining prison sentence (1 year, 3 months and 17 days) and the applicant filed before the Execution Court of Milan a request for probationary assignment to the social services (affidamento in prova al servizio sociale). Pending the proceedings before the Execution Court of Milan, Law No. 241 of 31/07/2006 establishing the conditions for general remissions of sentences (indulto) entered into force: pursuant to that law, the remaining prison sentence that the applicant had to undergo was entirely remitted. According the information given to the European Court by the applicant on 28/03/2007, on that date the Execution Court of Milan was waiting to receive a formal decision on the remission of his remaining prison sentence. On 23/05/2007 the Prefecture of Varese revoked the applicant’s residence permit.

• Information is awaited on the current situation of the applicant, as well as on measures taken with regard to him.

            3) Ben Salah: The applicant lawfully entered Italy in 2003. In February 2006 he was arrested with seventeen others in a police operation concerning a terrorist association. On 11/04/2006 the preliminary investigation judge of Bologna rejected the request to remand the applicant in custody as it had not been established that he belonged to an association with terrorist aims. This decision was upheld by the Court of Bologna. On 01/09/2006 the Minister of Foreign Affairs, pursuant to Law No. 155 of 2005 on “urgent measures to combat international terrorism”, ordered the expulsion of the applicant to Tunisia, on the grounds that it appeared from his dossier that he played a significant role in (Islamic terrorist) associations having subversive aims. On 11/09/2006 the Prefect (Questore) of Bologna revoked the applicant’s residence permit. On 12/09/2006 the applicant was put in a temporary holding centre in Rome and on 15/09/2006 the Rome justice of the peace of confirmed the expulsion order.   

• Information is awaited on the current situation of the applicant, as well as on measures taken with regard to him.

4) Bouyahia: The applicant resided in Milan. On 28/11/2003 he was arrested and remanded in custody on suspicion of international terrorism. On 24/01/2005 the Milan preliminary hearing judge (GUP) dismissed the charge of international terrorism and sentenced him to 3 years for forgery of documents. The decision was upheld on 28/11/2005 by the Assize Court of Appeal. Subsequently, the Court of Cassation quashed the judgment and referred it back to the Court of Appeal. On 30/08/2006 the applicant was freed and on 09/11/2006 the Prefect of Milan ordered his expulsion to Tunisia: the expulsion order was confirmed by the justice of the peace on 11/11/2006 and the applicant was transferred to a temporary holding centre in Milan for a certain period of time. Subsequently, the procedure to grant him the refugee status was initiated: according to the information provided by the government, on 17/05/2007 this procedure was still pending and in any case the applicant’s residence permit was valid until 04/08/2007. In the meantime, the applicant was sentenced in absentia by the Military Court of Tunis to 8 years imprisonment.

• Information is awaited on the current situation of the applicant (i.e. status of the proceedings before the Assize Court of Appeal following the referral of the Court of Cassation; status of the procedure to grant the applicant the refugee status), as well as on other measures taken with regard to him.

• Just satisfaction:opinions diverge as to the formalities needed to authorise the applicant and his counsel to receive payment. The Italian authorities have recently indicated (04/01/2010) that the documents provided by the applicant's counsel are not in conformity with the requirements of Italian law. The Secretariat will offer its good offices to assist the parties in finding a solution.

• Bilateral contacts are under way as regards just satisfaction.

            5) C.B.Z.: The applicant had been lawfully resident in Italy since 1994. He was accused of belonging to a fundamentalist terrorist group. On 11/04/2006 the preliminary investigations judge (GIP) of Bologna rejected a request to remand the applicant in custody in the absence of strong evidence of his guilt. This decision was upheld by the Court of Bologna on 27/06/2006.

On 01/09/2006 the Minister of Interior, pursuant to Law No. 155 of 2005 on “urgent measures to combat international terrorism”, ordered the expulsion of the applicant, on the grounds that it appeared from his dossier that he belonged to a complex Islamist network with terrorist intent. On 12/09/2006 the Prefect (“Questore”) of Bologna revoked the applicant’s residence permit he was put in a temporary holding centre in Milan. On 14/09/2006 the justice of the peace confirmed the expulsion order. On 14/11/2006 the applicant filed a request before the Regional Administrative Court of Latium to have the expulsion order deferred and declared null.

• Information is awaited on the current situation of the applicant (i.e. status of the proceedings before the Regional Administrative Court of Latium), as well as other the measures taken with regard to him.

            6) Darraji: The applicant resided in Milan. He was accused of belonging to a criminal association linked to a fundamentalist Islamic group and of aiding illicit immigration. On 03/12/2004 the Milan Court sentenced him to 5 years and 10 months’ imprisonment and ordered that after serving his sentence, he was to be expelled from Italy. The applicant appealed the decision. On 29/09/2005 the Court of Appeal of Milan, considering that there was no evidence that the criminal association to which the applicant belonged was linked to terrorist groups, reduced the criminal conviction to 3 years and 7 months (otherwise confirming the first-instance judgment). This decision was upheld by the Court of Cassation. On 12/01/2007 the applicant was taken to the Prefecture of Varese, apparently with view to the execution of the expulsion order contained in the judgment of the Court of Milan; he was then placed in a temporary holding centre. On 15/01/2007 the Milan justice of the peace confirmed the expulsion order. In the meantime, on 10/11/2006 the applicant applied for refugee status and the hearing before the competent commission was held on 01/02/2007.

The applicant was also sentenced in absentia by a Tunisian court to 10 years’ imprisonment for affiliation to a terrorist organisation.

• Information is awaited on the current situation of the applicant (i.e. status of the procedure to grant him refugee status), as well as on other measures taken with regard to him.

            7) Hamraoui: The applicant resided in Brescia. On 01/04/2003 he was arrested and remanded in custody on suspicion of belonging to fundamentalist Islamic groups and of aiding illicit immigration. On 13/07/2005 the Brescia preliminary hearing judge (GUP) sentenced him to 3 years and 4 months’ imprisonment in respect of the first charge and ordered that after serving his sentence, the applicant was to be expelled from Italy. On 16/11/2005 the preliminary investigations judge, at the applicant’s request, placed him under house arrest. In the meantime, the first-instance decision was confirmed by the Assize Court of Appeal of Brescia on 16/06/2006 and this judgment was confirmed by the Court of Cassation. On 15/03/2007 the applicant applied for refugee status: his request was rejected. The applicant was also the object of in absentia proceedings in Tunisia, for affiliation to a terrorist organisation.

• Information is awaited on the current situation of the applicant, as well as on measures taken with regard to him.

• Just satisfaction (information provided by the Italian authorities on 02/02/2010 and 22/03/2010): ongoing contacts between the applicant (in prison) and the authorities as regards modalities of payment.

            8) O.: The applicant had resided in Italy since 1987. In 1997 he (and thirty-nine others) were subject to criminal investigations into the activity of an armed Islamic network. In a judgment of 21/11/2000, the preliminary investigations judge of the Court of Bologna discharged the applicant of belonging to a terrorist association. Subsequently, on 13/01/2003 the Court of Bologna also acquitted the applicant of belonging to a criminal association and of forgery of documents, and sentenced him to 6 months’ imprisonment for “arbitrary exercise of his rights with violence on other persons” (“esercizio arbitrario delle proprie ragioni con violenza alle persone”, Art. 393 of the Criminal Code). On 31/10/2005 the Prefect (“Questore”) of Bologna refused to renew the applicant’s residence and work permits which had expired on 13/08/2005. In February 2006 the applicant was arrested in the framework of a new investigation on terrorist groups. On 11/04/2006 the Bologna preliminary investigations judge rejected the request to remand the applicant in custody in the absence of any strong evidence of his being guilty of international terrorism. The decision of the preliminary investigations judge was upheld by the Court of Bologna on 27/06/2006. On 01/09/2006 the Minister of Interior, pursuant to Law no. 155 of 2005 on “urgent measures to combat international terrorism”, ordered the expulsion of the applicant to Tunisia, on the grounds that it appeared from his dossier that he played a significant role in an Islamist terrorist organisation. On 12/09/2006 he was put in a temporary holding centre in Rome. On 14/09/2006 the applicant applied for refugee status: his request was rejected on 21/09/2006. In the meantime, on 15/09/2006 the Rome justice of the peace confirmed the expulsion order.

• Information is awaited on the current situation of the applicant, as well as on measures taken with regard to him.

            9) Soltana: The applicant had been lawfully resident in Italy since 1989. He was accused of belonging to a fundamentalist terrorist group. On 11/04/2006 the preliminary investigations judge (GIP) of Bologna rejected a request to remand the applicant in custody in the absence of any strong evidence of his guilt. This decision was upheld by the Court of Bologna on 27/06/2006, which stressed that the only strong evidence concerned instigation to commit crimes by the applicant in 2002 (therefore not requiring remand in custody). On 01/09/2006 the Minister of the Interior, pursuant to Law no. 155 of 2005 on “urgent measures to combat international terrorism”, ordered the expulsion of the applicant, on the grounds that it appeared from his dossier that he had been very active proselytising in support of members fundamentalist Islamic units present in Italy and abroad. On 12/09/2006 he was put in a temporary holding centre in Milan in order to execute the expulsion order, which was confirmed on 14/09/2006 by the Milan justice of the peace. On the same date, the applicant applied for refugee status: his request was declared inadmissible by the Prefect (Questore) of Milan on 15/09/2006. Finally, the Tunisian Consulate in Italy refused to renew the applicant’s passport.

• Information provided by the Italian authorities (01/03/2010): The applicant is free. According to the Italian authorities, currently there is no expulsion order against him and there is nothing to suggest that a new order will be issued.

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

10) Sellem: The applicant had resided in Italy since 1990. On 06/11/2007 he was under investigations for terrorism: the criminal proceedings were still pending when the European Court delivered its judgment. On 13/03/2008 the prefecture served on him an expulsion order, as his residence permit was expired and he did not ask for its renewal. On 15/04/2008 the applicant appealed against the expulsion order before the justice of the peace of Milan: the appeal was granted and the execution of the expulsion suspended.

The applicant was also sentenced in absentia by a Tunisian court to 10 years’ imprisonment for affiliation to a terrorist organisation.

• Information is awaited on the current situation of the applicant (i.e. status of the criminal proceedings), as well as on measures taken with regard to him.

General measures: As regards general measures, these cases present similarities to the case Ben Khemais against Italy (246/07, Section 4.3). It is worth noting that the European Court's judgments in these cases, which are of general interest inasmuch as they re-affirm the requirements of the Convention as regards deportation, deserve broad dissemination in Italian, not least via modern electronic media and through the organisation of courses/seminars for judges, Prefects and other relevant entities.

All judgments have been published on the Internet site of the Court of Cassation, in the database on the case-law of the European Court of Human Rights (http://www.italgiure.giustizia.it), and on the government's website (<http://www.governo.it/presidenza/contenzioso>), translated into Italian. These websites are widely used by all those who practice law in Italy: civil servants, lawyers, prosecutors and judges alike. Furthermore, all judgments have been sent by the Ministry of Justice to the authorities concerned, i.e. supervisory magistrates (competent for the validation of the security measure of expulsion ordered by the court sentencing a person to imprisonment) and the justices of the peace (competent for the validation of the expulsion orders issue by the Interior Ministry or by the Prefect).

• Information is awaited on the other measures envisaged or already taken for the execution of these judgments.

29768/05           Errico, judgment of 24/02/2009, final on 24/05/2009

This case concerns a violation of the applicant’s right to respect for his family life due to the delay by the competent judge in closing a preliminary investigation against the applicant for sexual abuse of one of his children, following the request of the public prosecutor (violation of Article 8).

Following the investigatory phase which began in mid-2002 and during which contacts between the applicant and his daughter were suspended, on 10/11/2003 the Public Prosecutor of the Court of Benevento asked the preliminary investigations judge (“GIP”) to close the file against the applicant. Three months later, on 28/02/2004, the applicant filed a request to accelerate the procedure before the GIP. However, it was only 15 months later (on 10/02/2005) that the GIP issued his decision, allowing the request of the Public Prosecutor.

The European Court observed that, if the suspension of contacts between the applicant and his daughter were justified as long as the investigations against him were not concluded, excessive delay, which had a direct impact on the applicant’s family life, occurred in the criminal proceedings. Italian authorities therefore failed to take all the necessary measures which they could be reasonably expected to take to re-establish the applicant’s family life with his daughter, in the interest of both (§61).

Individual measures: Following the decision of the GIP on 10/02/2005 to close the file against the applicant, on 16/03/2005 the Appeal Court of Naples re-established his parental authority with respect to his daughter. The European Court also granted just satisfaction in respect of non pecuniary-damages suffered by the applicant.

• Information provided by the Italian authorities (28/04/2010 and 16/06/2010): Following the judgment of the European Court, the Public Prosecutor General’s office at the Court of Cassation initiated disciplinary proceedings against the competent GIPs for delay in closing the preliminary investigation. The Italian authorities consider that the initiation of such an inquiry is a sufficient measure for execution of the judgment. In these circumstances, the Italian authorities consider that no further individual measure is necessary. 

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

General measures: The European Court recalled that “the issue at stake in the proceedings for the applicant required to be urgently handled because the passage of time may have irreparable consequences on the relations between the child and the parent who is not living with him/her” (§60 of the judgment). Furthermore, the Court noted that not only was such a delay not necessary to decide on the request of the Public Prosecutor, but also that “during that period of time the applicant did not have any remedy against the decision of the youth court suspending his parental authority and prohibiting him to meet his daughter” (§59 of the judgment). All these elements led the Court to conclude that there had been a violation of Article 8.

The judgment has been published with an Italian translation on the Internet site of the Court of Cassation, in the database on the case-law of the European Court of Human Rights (www.italgiure.giustizia.it), and on the government’s website (www.governo.it/presidenza/contenzioso).These websites are widely used by all those who practice law in Italy: civil servants, lawyers, prosecutors and judges alike. The judgment has also been sent to all competent authorities through an explanatory note.

In their note of 16/06/2010, the Italian authorities expressed the view that this was an isolated violation and that, together with publication and dissemination of the judgment, the initiation of disciplinary proceedings (see above under individual measures) was a sufficient measure to avoid future violations. It will have a dissuasive effect on judges dealing with similar issues, in that the possibility of being subject to disciplinary proceedings will encourage the acceleration of proceedings and avoid delays.

• Assessment: Considering that it was one of the elements leading to the finding of a violation and in the light of the principle of subsidiarity (see also Committee of Ministers’ Recommendation CM/Rec(2004)6), the authorities’ assessment regarding the Court’s finding as to the absence of remedy at the applicant’s disposal would be useful. 

39128/05           Lombardi Vallauri, judgment of 20/10/2009, final on 20/01/2010

The case concerns the breach of the applicant’s freedom of expression as he was given no reasons for the decision taken by the faculty board of a catholic university in Milan not to consider his application for a teaching post in 1998 (violation of Article 10). It also concerns the failure to grant him access to a court given that the administrative authorities to whom the case was submitted refused to rule on the lack of reasoning in the decisions they handed down in 2001 and 2005 (violation of Article 6§1).

The decision of the Faculty Board was based on the fact that the Holy See had refused to grant the applicant the approval required for teaching in the catholic university in question on the grounds that some of his views were “in clear opposition to Catholic doctrine”.

The European Court first noted that the Faculty Board had omitted to explain to the applicant how his views, which supposedly ran counter to Catholic doctrine, were reflected in his teaching and how they were liable to affect the University’s interests in dispensing teaching based on Catholic doctrine. With regard to the judicial review of the decision, the Court noted that the domestic courts had refused to rule on the fact that the Faculty Board had failed to explain to the applicant which of his opinions the Holy See authorities objected to. It also noted that, far from implying that the judicial authorities themselves should rule on the compatibility between the applicant’s views and catholic doctrine, the fact of communicating these elements to the applicant would have made him aware of and given him the opportunity to challenge the alleged link between his opinions and his teaching. In conclusion, the Court considered that the University’s interest in dispensing teaching based on Catholic doctrine could not extend to impairing the very substance of the procedural guarantees afforded to the applicant by Article 10 of the Convention (§§47, 52 and 55). The fact that there had been insufficient judicial review of the case led the Court to conclude that the applicant’s right of effective access to a court had also been violated.

Individual measures: In the view of the Italian authorities (26/07/2010), restitutio in integrum is not possible. The only form of reparation is represented by just satisfaction in respect of non-pecuniary damages, which has been awarded by the European Court. The authorities further specify that in any case the violations found by the Court had no negative consequences either for the applicant’s public or private life, or for his professional career.

• Assessment: in the light of the authorities’ considerations, no further individual measure appears to be necessary. In addition, any suggestion of reopening the proceedings at issue would seem to run up against the principle of legal certainty to which the other party to the proceedings is entitled.

General measures: In a note of 09/07/2010 the Italian authorities observe that both the violations found by the European Court are the result of a wrong application of the general requirement prescribed by Italian administrative law, pursuant to which any administrative decision has to be adequately motivated.

The authorities therefore consider that no legislative modification is needed and that a case-law approach would be the most appropriate general measure to avoid future similar violations. To this end, publication and appropriate dissemination are considered by the Authorities to be necessary and sufficient.

The judgment has been published on the Internet site of the Court of Cassation, in the database on the case-law of the European Court of Human Rights: this website is widely used by all those who practice law in Italy: civil servants, lawyers, prosecutors and judges alike. It has been also extensively disseminated, together with an explanatory note, to the University concerned, to public and private institutions, and to the judicial authorities competent for this kind of cases.

• Assessment: in the light of the above, no further individual measures appear to be necessary.

75909/01           Sud Fondi Srl and others, judgment of 20/01/2009, final on 20/04/2009

This case concerns the infringement of the principle of “no punishment without law” in that land and buildings in Bari belonging to the applicant companies were confiscated without legal basis and that the sanction imposed was accordingly arbitrary (violation of Article 7).

The case also concerns a violation of the applicants' right to the peaceful enjoyment of their possessions in that the interference (i.e. the confiscation) was arbitrary and unjustified having regard to the fair balance that must be struck between the demands of the general interest and the protection of individuals’ fundamental rights (violation of Article 1 of Protocol No. 1).

In 1995 the municipality of Bari granted to the applicant companies building permits (for houses, offices and warehouses) on the costal area of Punta Perotti. In 1997 the State Prosecutor of Bari ordered the conservative seizure of all buildings built in the meantime on that area: Punta Perotti being a protected natural site, they were considered illegal. Legal proceedings went through several degrees of jurisdiction and on 29/01/2001 the Court of Cassation, while it considered the building estate project and the building permits illegal, acquitted the legal representatives of the applicant companies on the following grounds: they did not act with negligence or with intent; they committed an inevitable and justifiable error in the interpretation of the legal provisions infringed; the applicable regional law in combination with the national law was vague and badly drafted; its interference with the national law determined a contradictory case-law; the municipality of Bari had authorised the building estate and had assured the applicants of its regularity. However, despite the acquittal of the applicants and in accordance with the case-law interpretation of to the applicable law (Article 19 of Law No. 47 of 1985), the Court of Cassation ordered the seizure of the buildings and lands: in fact, seizure applies automatically regardless of the acquittal of the builders (§§ 37,38,112 of the judgment).

Under Article 7 of the Convention, the European Court observed that the legal basis of the offence did not meet the criteria of clarity, accessibility and predictability, and that it was thus impossible for the applicants to anticipate that a sanction might be inflicted (§ 114). It further observed that, although it is within the competence of criminal courts, this confiscation is considered by case-law as an administrative sanction against a situation (buildings) per se illegal (§§ 65, 66): therefore, the constitutional principles on which criminal law is based do not apply to it. This implies that the existence of a psychological element (negligence or intention) between the violation and its author is not necessary and therefore confiscation applies also in case of acquittal of the builders and towards third parties. However, as the European Court qualified this confiscation as a criminal sanction (see admissibility decision, letter a), pages 17 and 18), in order for it to be justified, Article 7 of the Convention implicitly requires the existence of a mental link (consciousness and will) in order to detect liability in the behaviour of the author of the violation (§§ 115, 116).

Under Article 1 of Protocol No. 1, the European Court noticed that the extent of the confiscation, covering both the illegal buildings and the land (in this case, 85% of the non-built land), “in the absence of any compensation, is not justified with reference to the claimed goal, that is to conform the land to the rules on town-planning. It would have been more than sufficient to order the demolition of the buildings in breach of the relevant law provisions and to declare the building estate null and void” (§ 140).

Individual measures: the Court granted just satisfaction in respect of non-pecuniary damages and legal expenses. As regards pecuniary damages, considering the complexity of the issue and the possibility that the parties might reach an agreement, the Court reserved its decision.

General measures: It appears from the judgment (§48) that on 9/04/2008, in the framework of criminal proceedings not concerning the applicants, the Appeal Court of Bari questioned the constitutional legitimacy of the measure of confiscation automatically also applied where no criminal liability has been ascertained, referring the issue to the Constitutional Court.

• Information provided by the Italian authorities (March and June 2010): In its decision No. 42741 of 24/10/2008, the Court of Cassation criticised the current case-law approach according to which confiscation may also be applied against persons not involved in the commission of the violation who came into possession of goods in good faith. It stated that the generic wording of Article 22, § 2 of Decree No. 380 of 2001 of the President of the Republic (which simply quotes Article 19 of Law no. 47 of 1985 – see above) raises considerable interpretative issues and, due to its indiscriminate application, doubts as to its constitutional legitimacy. Contrary to the predominant case-law, it stressed that the administrative nature of this confiscation – albeit a sanction – in any case implies the need to respect the general principles on administrative sanctions (Law No. 689 of 24 November 1981). Thus it cannot be applied in respect of persons not implicated in the violation and acting in (ascertained) good-faith.

The authorities also provided a copy of a letter of July 2009 from the President of the third Section of the Court of Cassation, stating that it is revising its approach to the issue of confiscation following illegal construction, in order to comply with the principles fixed by the European Court in this judgment.

According to the authorities, this allows the closure of the supervision of general measures.

• Assessment: This decision of the Court of Cassation (No. 42741) should be welcomed, as it is in line with the principles set out by the European Court on relevance to be given to negligence or intent when ordering confiscation. The engagement to this end of the President of the third Section of the Court of Cassation is also welcomed. Considering the contradictory case-law on this issue (see, for example, the decisions of the Court of Cassation quoted in §§ 65, 66 of the judgment), it would be useful to see further developments and also the current approach of lower courts in similar cases. To this end, information is also awaited on the referral by the Appeal Court of Bari to the Constitutional Court on the issue of constitutional legitimacy of the measure of confiscation, also automatically applied where no criminal liability has been ascertained (§48).

The authorities' assessment regarding the finding of the European Court that the legal basis of the offence did not meet the criteria of “clarity, accessibility and predictability” (§ 114) – also with reference to the way in which the regional law is drafted and to its co-ordination with national law (§§ 37, 38, 112)– would be useful. The same applies to the issue of the extent of the confiscation, as illustrated above (§ 140).

- 4 cases concerning the uncertain status of property due to the authorities’ refusal to allow the applicants to build on their land on the grounds of administrative decisions expired more than 20 years before and the authorities’ subsequent inactivity

37710/97          Elia s.r.l., judgment of 02/08/01 (merits), final on 02/11/01, judgment of 22/07/04 (just satisfaction), final on 22/10/04

7977/03            Rossitto, judgment of 26/05/2009, final on 10/12/2009

36815/97           Scordino No. 2, judgment of 15/07/2004, final on 15/10/2004

27265/95           Terazzi S.A.S., judgment of 17/10/2002 (merits), final on 21/05/2003, judgment of 26/10/2004 (just satisfaction), final on 26/01/2005

These cases concern violations of the applicants’ right to the peaceful enjoyment of their possessions due to the authorities’ refusal to allow them to build on their land on the basis of expired administrative decisions adopted more than 20 years before with a view to expropriation, and to the subsequent inactivity of the authorities, resulting in a state of total uncertainty as to the future of the applicants’ properties (violations of Article 1 of Protocol No. 1).

Pursuant to Law No. 1187 of 1968, the authorities could absolutely prohibit building on land, with a view to its expropriation by adopting a general development plan (piano regolatore generale, (PRG)). A PRG was deemed to have expired if a detailed development plan was not approved within 5 years. However, despite the expiration of the PRG, the land does not automatically revert to the use for which it was originally intended: to this end, a positive measure – such as a detailed development plan – is required on the part of the administrative authorities. Pending such measure (for which no time-limit is provided), according to the jurisprudence Article 4 of Law No. 10 of 1997 applies: i.e. a strict requirement to obtain a building permit.

In all these cases, although several PRGs expired, due to the inactivity of the authorities, the applicability of Article 4 and thus the building ban, lasted for more than 20 years by reference to the date of the judgments of the European Court, i.e. since 1974 (Elia) 1977 (Terazzi) 1975 (Scordino No. 2) and 1972 (Rossitto).

Furthermore, in the Elia case, upon appeal by the applicant, domestic courts ordered the authorities to adopt a positive measure to determine the use of his land as the PRG had expired. However, the authorities did not comply with these orders and adopted a second PRG.

In all these cases, the European Court considered that although it was established that the interference in the right of property satisfied the requirements of the general interest, the applicants were, throughout the periods concerned, in a state of total uncertainty as to the future of their properties. Furthermore, the Court stressed that “the circumstances of the case, in particular the uncertainty and the lack of any effective domestic remedy capable of rectifying the situation, coupled with the interference with the applicant company’s full enjoyment of its right of property and the absence of any compensation, lead the Court to conclude that the applicant company has had to bear an individual and excessive burden which has upset the fair balance that should be struck between the requirements of the general interest and the protection of the right to the peaceful enjoyment of possessions” (see Elia judgment, §83; Terazzi judgment, §91; Scordino No. 2 judgment, §98; Rossitto judgment, §45).

Individual measures: In all cases, the European Court awarded just satisfaction in respect of pecuniary and non-pecuniary damages suffered by the applicants (for loss of use). In fact, considering that the interference in the right of property satisfied the requirements of the general interest and therefore the measures adopted by the authorities could be considered neither illegal nor arbitrary, the Court considered that the path of restitution in integrum could not be followed in these cases (see Elia and Terazzi judgments, just satisfaction, §§19, 20, 21 and 31, 33, 34 respectively).

In determining the amount of just satisfaction, the European Court referred to the interest calculated on the probable value of the property when the interference with the full enjoyment of the applicants’ right of property began, until the date of the judgment itself.

• information is awaited on the current situation of the applicants’ properties, in particular whether the state of uncertainty on which the violation found by the European Court is grounded still exists.

General measures: The European Court found that the following issues were at the basis of the violations of the applicants’ right to the peaceful enjoyment of their possessions:

            1) Absence of a domestic remedy capable of rectifying the consequences of inactivity on the part of the authorities: As mentioned above, when a building ban lapses, it is for the municipal council to determine promptly the use of the land concerned. However, no time-limit is laid down.

As indicated by the European Court, although inaction on the authorities’ part may form the basis for a complaint to the administrative courts, in its judgment No. 67/1990 the Constitutional Court held that this remedy was inoperative and thus of limited effectiveness, as the administrative courts may order the municipal authorities to determine the use to which the land is to be put, although the courts are not empowered to take such a decision in place of the relevant authorities. Subsequently, in its judgment No. 185/1993, the Constitutional Court held that the legislature alone was responsible for taking swift and appropriate action to remedy the situation (see Elia judgment, §§41, 42). In the Rossitto judgment (§42), the European Court again noted that domestic legislation does not make it possible to remedy uncertainty affecting the applicant’s land (see also, in this respect, the Terazzi judgment, §88).

• Information is awaited on the current practice of the administrative authorities in this field and as to whether any domestic remedy aimed at putting an end to the authorities’ inactivity has been adopted.

            2) Absence of compensation: In its judgment No. 179 of 12-20 May 1999, the Constitutional Court, leaving intact the authorities’ right to renew building bans, declared unconstitutional the lack of statutory provision for compensation in cases where an authorisation for expropriation or a prohibition on building had been renewed by the administrative authorities with the result that the right of property was severely affected. The Constitutional Court noted that restrictions on the right of property were problematic where a prohibition had been renewed or extended indefinitely or had been renewed several times for a specified period and specified that the requirement to pay compensation applied only to the time after the initial five years of the prohibition (the exemption period) (see Elia judgment, §§45-47).

• Legislative modification: Decree No. 327 of the President of the Republic of 2001 (Consolidated text on expropriations), entered into force on 30/06/2003. Article 39 states that “while waiting for reorganisation of the matter, in case an authorisation of expropriation or a limitation having in its substance an expropriation effect are re-imposed, the owner of the land is entitled to compensation with regard to the damages suffered”. However, as noted by the European Court, there is no provision determining the conditions or the modalities of payment of such compensation. Furthermore, the Court took noted that the government filed no domestic judgment showing the application of this case-law or of the Consolidated text. Therefore, “in these circumstances the Court was not convinced by the arguments of the government according to which, since 1999, there exists a compensation at domestic level” (see Scordino No. 2 judgment, §§45, 59, 60, 61).

• Information provided by the Italian authorities on 03/12/2009: The Italian authorities, on the basis of the wording of Article 39 of the consolidated text on expropriations, claim that the provision provides an accessible and effective domestic remedy for cases similar to these.

• Assessment: on the basis of the European Court’s evaluation of the domestic provision concerning compensation mentioned, case-law showing how and to what extent Italian courts apply it, would be useful for an appropriate assessment.

            3) Publication and dissemination: The judgments have been published on the government's website (www.governo.it/presidenza/contenzioso), with a translation into Italian. This website is widely used by all those who practise law in Italy: civil servants, lawyers, prosecutors and judges alike. The judgment has also been transmitted to all competent Authorities.

38746/97           Buffalo S.r.l. in liquidation, judgment of 03/07/03 (merits), final on 03/10/03, judgment of 22/07/2004 (just satisfaction), final on 15/12/2004.

The case concerns a violation of the right of the applicant company (in liquidation since 1994) to the peaceful enjoyment of its possessions on account of the authorities' delay in paying back tax rebates (violation of Article 1 of Protocol no. 1).

In particular, tax rebates from 1985 to 1991 were paid back 5-10 years late, while a tax rebate for 1992 was still pending when the European Court rendered judgment on the merits in 2003.

The Court found that the financial impact of the delays in paying back tax rebates, coupled with the lack of any effective remedy to expedite reimbursement together with the uncertainty as to when the rebates would be paid, had upset the fair balance that had to be maintained between the general interest of the community and the applicant’s right to the peaceful enjoyment of possessions (§ 39 of the judgment).

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

• Assessment: in light of the above, no further individual measure is necessary.

General measures: The European Court noted that the law applicable to tax rebates (Article 13 of Legislative Decree No. 241 of 9/07/1997, which modified Article 36bis of Decree No. 602/1973 of the President of the Republic, provided no strict time-limit for reimbursements (§28).

Furthermore, as regards the domestic remedy to apply for reimbursement (and in case of inaction to sue the relevant authorities before the fiscal jurisdictions, commissioni tributarie – Articles 37 and 38 of the Presidential Decree), the European Court noted that “the government provided no precedent case and failed to demonstrate that the applicant company had at its disposal an accessible and effective remedy against the lengthy wait for reimbursement, insofar as favourable decisions by fiscal commissions may only be executed once they become final, i.e. after three levels if jurisdiction” (§3 of the admissibility decision; see also §39 of the judgment).

The judgment has been published on the Internet site of the Court of Cassation, in the database on the case-law of the European Court of Human Rights, and on the government's website. These websites are widely used by all those who practice law in Italy: civil servants, lawyers, prosecutors and judges alike. It has also been disseminated to all relevant authorities.

• Information required: it would be useful to know what is the current practice as regards tax rebates, in particular whether and to what extent reimbursements still undergo long delays. The authorities’ assessment of the remarks of the European Court would also be useful.

50550/06           Scoppola, judgment of 10/06/2008, final on 26/01/2009, rectified on 07/04/2009

The case concerns degrading treatment suffered by the applicant, a life prisoner, due to the conditions of his of detention, which were not appropriate to his state of health (violation of Article 3).

In 2003 the applicant, who was confined to a wheelchair and suffered from several diseases, unsuccessfully asked to be transferred from the Regina Coeli Prison in Rome to another prison in Rome where he could benefit from more humane conditions of detention. In June 2006, the Rome court responsible for the execution of sentences, supported by medical evidence, granted the applicant detention at home, but because he did not have a home adapted to his needs, the decision was set aside. In December 2006, the competent bodies of the Ministry of Justice ordered the applicant’s transfer to Parma prison, which had appropriate facilities for disabled inmates. The transfer did not take place until September 2007.

The European Court considered that keeping the applicant in the Regina Coeli Prison, which the court responsible for the execution of sentences had deemed inappropriate to his health status, must inevitably have placed him in a situation that aroused sufficiently strong feelings of anxiety, inferiority and humiliation amounting to ”inhuman or degrading treatment” (§51).

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

The European Court considered that it did not have sufficient information to enable it to give an opinion of the facilities in Parma Prison (where he was transferred in September 2007) or, more generally, the conditions of the applicant’s detention in that prison (§51). In any case, the Court observed that being unable to care for the applicant at home and there being no adequate institution available to care for him, the state should have either transferred him to a better-equipped prison to avoid the risk of inhuman treatment or deferred execution of a sentence that had become tantamount to treatment contrary to Article 3 of the Convention (§50).

- New application before the European Court and information provided by the Italian authorities in March 2010 on the new application: Mr. Scoppola filed a new application before the European Court in 2009 (No. 65050/09, not yet communicated) complaining of the conditions of detention in Parma Prison. On 11/12/2009 the Court indicated an interim measure under Rule 39 of the Rules of Court, requiring the Italian government to transfer the applicant urgently to a facility appropriate to his state of health, in order to avoid inhuman and degrading treatment – in the interest of the parties and the proper conduct of the proceedings before the Court.

On 24/12/2009 noting that despite several requests to territorial health units (USL) to transfer the applicant to a hospital capable of coping with his very serious health problems, no place was found, the Supervisory Magistrate (magistrato di sorveglianza) of Reggio Emilia ordered that Mr. Scoppola be placed in Parma Hospital, pending the availability of an appropriate hospital bed in the Rome region. The applicant, however, refused to be hospitalised in Parma Hospital.

On 07/01/2010 the Bologna Supervisory Court (tribunale di sorveglianza) issued another order in which, having highlighted his very serious health problems, underlined the need to place him in a facility able to cope with them. The Court noted that, despite repeated requests and although his name is on waiting lists, no adequate hospital has been found so far: it therefore ordered deferment of the execution of the sentence for a year (until 09/01/2011), pursuant to Article 147 of the Criminal Code as requested by the applicant’s counsel.

Following this order, on 20/01/2010 the European Court decided to lift the interim measure issued on 11/12/2009 under Rule 39.

As from 20/01/2010 the territorial health unit of Frosinone (Rome) wrote several times to Mr Scoppola’s counsel and his statutory guardian (as well as the supervisory court of Bologna) informing them of the availability of 2 hospitals: Mr. Scoppola’s name was placed on the waiting list, pending his acceptance. However, as no answer was provided within the deadline of 03/02/2010, his name was removed from the waiting list.

• Information provided by the Italian authorities (23/06/2010): In relation to the new application, the authorities forwarded a letter of May 2010 from the applicant’s counsel to the European Court. It appears from this letter that, once released, Mr. Scoppola was transferred to a medical clinic near Parma (Casa di Cura Valparma) where he underwent a medical examination on 19/02/2010. The doctor that visited him stated that, in the light of his very serious health problems, he should be put in an appropriate facility to undergo a specific orthopaedic programme for at least 8 months. On 08/04/2010 the applicant was transferred to the Hospital “San Secondo” in Fidenza. His lawyers still claim that he should be transferred to an appropriate facility. 

• Assessment: it would be useful to know whether, according to the authorities, the San Secondo Hospital in Fidenza is an appropriate facility to deal with the applicant’s serious health problems, as also highlighted by the Bologna Supervisory Court and by the doctor at the Casa di Cura Valparma Clinic.

General measures:

• Information provided by the Italian authorities (08/03/2010): The Italian authorities indicated that to avoid future similar violations, whenever necessary the Ministry of Justice will, together with the supervisory magistrates, monitor the establishment of efficient co-operation with territorial health units to find appropriate medical facilities for the hospitalisation of detainees in need of special treatment.

The judgment has been published on the Internet site of the Court of Cassation, in the database on the case-law of the European Court of Human Rights (http://www.italgiure.giustizia.it), and on the government's website (<http://www.governo.it/presidenza/contenzioso>). These websites are widely used by all those who practice law in Italy: civil servants, lawyers, prosecutors and judges alike.

• Assessment: The adoption of effective general measures is extremely important considering that the Court, after its judgment in the present case, issued an interim measure under Rule 39 in a new case concerning the same violation regarding Mr. Scoppola, and also the impossibility of rapidly finding an appropriate medical facility as noted by the supervisory magistrates, see above.

• It would therefore be useful to receive more detailed information in practical terms on how the Ministry of Justice, together with the supervisory magistrates, intend to deal with future similar situations in effective co-operation with the territorial health units. Information is also awaited as to whether the authorities envisage a broad dissemination of the judgment, including courts responsible for the execution of sentences and to territorial health units, in order to stress the importance of a swift reaction by all actors concerned.

                        - 85 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).

The Di Pietro, Gautieri and others, and Milazzo cases also concern judicial proceedings in which the applicants appealed to domestic courts to obtain compensation under the Pinto Act. They either received no compensation (Milazzo), or received compensation but the amount was insufficient and the payment delayed, which without affecting the applicants’ “victim” status, constituted an aggravating circumstance regarding the breach of the requirement of “reasonable time” (violations of Article 6§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:

            1) Constructive expropriation (violations of Article 1 of Protocol No. 1)

• 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 refuse 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: Section 2/89 (e) of the 2008 Finance Act (Law No. 244) of 24/12/2007 amended the Consolidated text on expropriation and established that in cases of constructive expropriation the compensation payable must correspond to the market value of the property, with no possibility of a reduction. That provision is applicable to all expropriation proceedings under way on 1/01/2008, except those in which the decision on compensation for expropriation has been accepted or had become final.

• 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 administrative case-law are to be welcomed.

• Criteria for calculating the amount of compensation to be awarded

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 was referred to the Grand Chamber. In its judgment of 22/12/2009 on just satisfaction, the Grand Chamber confirmed its new approach to the application of Article 41 in the case of indirect expropriation. This new approach is adopted “regard being had also to the developments in the domestic legislation (see §§44 and 45) and the fact that the domestic courts have taken account of the Court's case-law in the sphere of the right of property. It considers that the new principles laid down in the present judgment could be applied by the domestic courts to the disputes which are currently pending before them and to future cases” (§104).

The previous method of calculation had been based on the reasoning followed in the judgment Papamichalopoulos and others against Greece ((Article 50) Series A no. 330-B), according to which the respondent state had to pay to the applicants for damages and loss of enjoyment of their land since the “usurpation” by the authorities, the current value of the land on the day on which the Court’s judgment was delivered, plus the gross value of the work carried out by the state on the property (§ 98).

In its recent judgment the Grand Chamber stated that it “is of the opinion that the particular features of the Papamichalopoulos case make it inappropriate to apply the principles laid down in it to cases of constructive expropriation” (§ 102-103). It based this departure from the case-law on the following considerations:

-           its concern to avoid unequal treatment of applicants depending on the nature of the public works constructed by the authorities, which is not necessarily related to the potential of the land in its original state;

-           its wish to avoid leaving scope for arbitrary decisions;

-           its refusal to assign a punitive or dissuasive role to compensation with regard to the respondent state, rather than a compensatory role with regard to the applicant;

-           acknowledgement of the change in domestic legislation (the Finance Act 2007) following the Constitutional Court's judgments Nos. 348 and 349 of 22/10/2007, which provided that in cases of constructive expropriation, compensation was to correspond to the market value of the property, with no possibility of reduction (§ 56).

The new method of calculation takes into consideration the market value of the property on the date on which the applicants lost ownership of their land. The amount thus obtained will have to be converted to current value (to offset the effects of inflation) and increased by interest due on the date on which the judgment was adopted by the Court, plus the amount due for loss of opportunity (i.e. calculated on the period from the beginning of the lawful occupation until the date of loss of ownership), less any compensation already paid at national level.

In several judgments (Nos. 26275/2007, 591/2008, 599/2008, 11479/2008, 29115/2008, 3189/2008, and 2714/2009), the Court of Cassation has already applied a method of calculation of damages in line with the Constitutional Court’s judgment No. 349/2007 and with the Act on the 2008 Budget (see above): this is now reflected in the Grand Chamber’s judgment.

• Information is awaited on the current situation, in particular whether there is any reduction or suppression of the practice of indirect expropriation, 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.

            2) Compensatory remedy for excessive length of proceedings (Pinto Act): The cases Di Pietro, Gautieri and others, and Milazzo present similarities to the Mostacciuolo group (64705/01, Section 4.2).

- 84 cases mainly concerning the effectiveness of the compensatory remedy (Pinto Act)

                       (See Appendix for the list of cases in the Mostacciuolo group)

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).

The European Court found in all these cases that the national redress available turned out to be inadequate for the following reasons:

(1) the amount of compensation awarded by domestic courts, or, if need be, the refusal to award  compensation, was not enough compared to what the European Court awarded in just satisfaction in comparable cases;

(2) the amount of the awards was reduced by certain fees, for example court decision registration fees;

(3) the inadequacy of the compensation was compounded by the fact that it was paid with unacceptable delay: in some cases enforcement proceedings had to be brought to secure payment.

In the Simaldone case, the Court also found that the delay in payment of compensation under the Pinto Act also constituted a violation of the applicant’s right to the peaceful enjoyment of his possessions (violation of Article 1 of Protocol No. 1).

Four of these cases (Scordino n°1, Stornaiuolo, Gigli Costruzioni S.R.L., and Pisacane and others) concern also 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 (violations of Article 1, Protocol No. 1) as well as of the right to fair proceedings due to the retroactive application of a new compensation regime providing payments lower than the market value of the property (violations of Article 6§1). For these aspects, these four cases present similarities to the Sarnelli group (37637/05, Section 1.1), for which individual and general measures have already been adopted.

Individual measures: In all these cases, “the Court considers, however, that where an applicant can still claim to be “a victim” after exhausting that domestic remedy he or she must be awarded the difference between the amount obtained from the court of appeal and an amount that would not have been regarded as manifestly unreasonable compared with the amount awarded by the Court if it had been awarded by the court of appeal and paid speedily” (Cocchiarella, §140).

In practice, the Court examined the percentage that the national compensation represented in comparison to the amount it would have awarded as just satisfaction in the absence of the domestic remedy. When the Court considers the national compensation unreasonable, it awards an additional sum for the non-pecuniary damages sustained by the applicants, as well as, if necessary, a supplementary sum for the frustration endured while waiting for the payment of the compensation due from the state. With respect to the delay in payment, the Court also considered that, in order to be effective, a compensatory remedy must be accompanied by adequate budgetary provision so that effect can be given, within six months of deposit with the registry, to appeal court decisions awarding compensation, which, in accordance with the Pinto Act, are immediately enforceable (section 3(6) of the Pinto Act) (Cocchiarella §§101 and 130 in the framework of the application of Article 46).

The authorities indicated that in all cases, the applicants received the compensation awarded by domestic courts under the Pinto Act.

• Bilateral contacts are under way concerning the status of proceedings in the cases of Mostacciuolo No.1, Musci, Campana and Simaldone, as they were still pending when the European Court issued its judgments.

General measures: It should be noted that the issue of the excessive length of judicial proceedings before administrative courts will be examined at the 1078th meeting (March 2010) and of other types of proceedings at the 1086th meeting (June 2010).

As to the current application of the Pinto remedy, the European Court concluded that there was a large-scale problem and under Article 46 of the Convention invited the Italian authorities “to take all measures necessary to ensure that domestic judgments [in the context of the Pinto procedures] are not only compatible with the Court's case-law, but also enforced within six months of their deposit with the registry”.

The following issues arise:

1) Measures to ensure adequate compensation:

(a) Increase of compensatory amounts: With its decisions no. 1338, 1339, 1340 and 1341 dated 27/11/2003, the United Sections of the Court of Cassation underlined the need for courts of appeal to follow the case-law of the European Court when applying the Pinto Act. In particular, in its decision No. 1340, the Court of Cassation stated that “the determination of non-pecuniary damage by the court of appeal in conformity with Article 2 of Law No. 89/2001, although by nature based on equity, has to be done within the limits established by the Law, as it must be consistent with the amounts granted in similar cases by the Court of Strasbourg, although it is possible to move away from its parameters in a reasonable way” (§13 in Simaldone). Case-law subsequent to the judgments delivered in 2004 shows that the Court of Cassation took into consideration the case-law of the European Court concerning the just amount of the compensation to be awarded in proceedings brought under the Pinto Act. See, ex multis, decisions Nos 21857 of 11/11/2005, 19288 of 3/10/2005, 19029 of 29/09/2005, 18686 of 23/09/2005, 19205 of 30/09/2005, 8034 of 6/04/2006, 2247 of 2/02/2007, 16086 of 8/07/2009.

• Assessment: the developments of the case-law of the Court of Cassation concerning the award of compensation for excessive length of proceedings are welcomed and show compliance with the criteria set by the European Court. No further measure therefore seems necessary in this respect.

(b) Proposed reinstatement of procedural fees – draft law C.3137 (for an assessment of the draft Law, see below): Although Decree No. 115 of the President of the Republic of 30/05/2002, published in the Official Journal No. 139 of 15/06/2002, abolished all procedural fees related to proceedings under the Pinto Law (section 10), it is noted with concern that Article 2, letters a) and b) of the draft Law provide re-introduction of such procedural fees (“contributo unificato”). 

Pursuant to decision No. 522 of the Constitutional Court (6/12/2002), no fee is payable for obtaining the original or a copy of a decision needed to proceed with the execution.

• Assessment: The proposed re-introduction of a procedural fee in order to file a complaint under the Pinto Act represents a backward step in the process of adjusting the Pinto procedure to the requirements of the European Convention. The attention of the Italian authorities is therefore drawn to this issue, with an invitation to consider amending the draft law to avoid future violations of the Convention.

2) Measures to ensure rapid enforcement of court decisions: delay in payment of compensation:

(a) Finding of the European Court: The Court pointed out it could “accept that the authorities need time in which to make payment. However, in respect of a compensatory remedy designed to redress the consequences of excessively lengthy proceedings, that period should not generally exceed six months from the date on which the decision awarding compensation becomes enforceable” (Cocchiarella, §89). The European Court stressed “the fact that, in order to be effective, a compensatory remedy must be accompanied by adequate budgetary provision so that effect can be given within six months of their being deposited with the registry to decisions of courts of appeal awarding compensation, which, in accordance with the Pinto Act, are immediately enforceable” (Apicella, § 99).

The Court also considered that “the late payment, following enforcement proceedings, of amounts owing to the applicant cannot cure the national authorities' longstanding failure to comply with a judgment and does not afford adequate redress” (Cocchiarella, §89). Finally, it reiterated that “it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt” (ibid., §90).

The European Court's judgments show that delays in payment are due to the slowness of procedure, which oblige applicants to bring enforcement proceedings, and to financial obstacles preventing the payment of compensations. In his report on the administration of justice for 2007, the President of the Court of Cassation stated that the sums asked for from the state in application of the Pinto Act increased from 1.7 million euros in 2002 to 17.9 million in 2006. In Interim Resolution CM/ResDH(2007)2, the Ministers' Deputies also noted “the constant increase in the amounts paid in compensation by the state in this respect”.

This issue requires very urgent action by the Italian authorities, considering that the Court noticed that since September 2007, more than 500 applications concerning exclusively the delay in payment of compensation under the Pinto Act have been communicated to the Italian government. However, the Court noted that between 2005 and 2007, courts of appeal competent under the Pinto Act delivered some 16 000 judgments, “so that the number of applications filed before the Court concerning the delay in payment of the “Pinto” compensations, although relevant, does not reveal, for the time being, a structural ineffectiveness of the “Pinto” remedy”. In particular, the Court drew the government's attention to “the necessity for the national authorities to adopt all adequate and sufficient means to assure the respect of the obligations lying with them on the basis of the accession to the Convention and to avoid the docket of the Court being blocked by a relevant number of repetitive cases concerning the compensations awarded by the Courts of appeal in the framework of the “Pinto” procedures and/or the delay in payment of the compensations at issue, which constitutes a threat for the effectiveness in the future of the mechanism of the Convention” (Simaldone, §§82-85).

(b) Draft law modifying the Pinto Act. In Resolution CM/ResDH(2009)42 the Committee strongly encouraged the Italian authorities “to consider amending the Pinto Act with a view to setting up a financial system resolving the problems of delay in the payment of compensation awarded, to simplify the procedure and to extend the scope of the remedy to include injunctions to expedite proceedings”.

A draft law modifying inter alia the Pinto Act was submitted in March 2009 to the Italian Parliament. A revised draft law (C.3137, “Misure per la tutela del cittadino contro la durata indeterminata dei processi […]”) was subsequently tabled before the Chamber of Deputies and approved: it is now under assessment before the Senate (S.1880). The main modifications proposed concern both procedural and substantial aspects, in particular: 

(i) the request for compensation is submitted by the applicant before the President of the Court of Appeal. The assistance of counsel is not required;

(ii) the decision of the President of the Court of Appeal is served on the Ministry concerned, which will have to pay the compensation awarded within 120 days from service;

(iii) the re-introduction of procedural fees, already abolished by Decree No. 115 of the President of the Republic of 30/05/2002 (see above point 1 above);

(iv) damages are paid only for the period exceeding the “normal length of proceedings”, the latter being 2 years (for each of the first and the second instances, as well as for proceedings before the Court of Cassation), which may be increased by the judge up to 1 year in specific circumstances;

(v) the proceedings in which, within specific time-limits (6 months before the expiration of the above period of “normal length”), the applicant filed a “request for acceleration”, are treated by priority;

(vi) postponement of hearings not exceeding 90 days, requested or agreed by the parties, is not considered in calculation of damages;

(vii) the amount of damages is reduced by up to ¼ where the claims in the main proceedings have been rejected or it appears evident that they are unfounded;

(viii) if an appellant, dissatisfied with the decision rendered at first instance by an appeal court under the Pinto Act, appeals against that decision and his appeal is rejected, and if the adverse party (i.e. the state) declines to take part in the appeal proceedings, the appellant is ordered to pay a sum of between 1000 and 20 000 euros into the “fines bank” (cassa delle ammende).

• Assessment: A preliminary assessment of the draft law underlines some positive aspects, such as the simplification of the first phase (i.e. the assistance of a counsel is not necessary), to speed up the Pinto procedure (see also the “request for acceleration”). On the contrary, besides the re-introduction of procedural fees (see point 1 above), the method of calculation of damages  might lead to outcomes not in line with the case-law of the European court, especially when the length of proceedings is slightly beyond the (non awarded) “normal length” (i.e. first instance proceedings lasting 3-4 years).

• Information is awaited on the status of the draft law before Parliament and on the provisional calendar for its adoption. Clarification by the authorities on the functioning of the provisions concerning the calculation of the period relevant for compensation would be appreciated, as well as on the expected impact of the provision under point viii) above. Urgent information is also awaited on how and by means of which budgetary provisions the Italian Authorities are willing to face and solve the relevant problem of delay in payment of compensation awarded under the Pinto Act, as more than 500 applications exclusively concerning this issue have been communicated to the Italian government (see the Simaldone judgment)

- 2 cases against Latvia / 2 affaires contre la Lettonie

798/05              Miroļubovs and others, judgment of 15/09/2009, final on 15/12/2009

This case concerns a violation of the applicants' right to freedom of religion (Article 9) owing to the manner in which the national authorities intervened in an internal dispute concerning their religious community (violation of Article 9).

The first applicant was the "spiritual master" of this religious community of the Old Orthodox faith and the other two applicants were the Chair and a member of the parish council of the community in Riga.

Following the election of a new parish council and the adoption of new statutes in 1995, a splinter group within the community refused to recognise these changes and seceded with a number of the parishioners. This group was subsequently registered as a parish by the Religious Affairs Directorate. However, a dispute arose between the two rival groups, each of which claimed to constitute the only legitimate assembly of this religious community.

In August 2002 the Religious Affairs Directorate cancelled the registration certificate issued to the applicants' community and issued a new certificate to the rival group. On the basis of expert reports, the national courts upheld the Directorate's decision.

The Court held that, in intervening in this dispute between the two communities, the Directorate had issued a decision giving insufficient reasons in breach of the state's obligation of neutrality in religious matters.

65014/01           Pacula, judgment of 15/09/2009, final on 15/12/2009

This case concerns a violation of the applicant’s right to a fair trial insofar as he was convicted on the basis of evidence submitted by the victim whom he was unable to question at the hearing.

In October 1999 the Riga District Court sentenced the applicant to eight years’ imprisonment for theft. Although, immediately after his arrest, the police brought the applicant face to face with the victim, the latter did not appear before the trial courts for health reasons. The European Court held that an inter partes hearing of the victim, whose evidence was decisive for the outcome of the case, was in principle required in order to comply with Article 6 of the Convention. 

The case also concerns the opening and reading of the applicant’s correspondence with the European Court by the prison authorities in pursuance of Article 41.7 of the Code on the Enforcement of Sentences (violation of Article 8).

- 7 cases against Lithuania / 7 affaires contre la Lituanie

27527/03           L., arrêt du 11/09/2007, définitif le 31/03/2008

L’affaire concerne le manquement de l'Etat à son obligation positive d’assurer le respect du droit à la vie privée faute pour les autorités d'avoir adopté une législation d’application qui permettrait à un transsexuel de subir une opération de conversion sexuelle complète et de faire changer son identification sexuelle sur les documents officiels (violation de l’article 8).

A sa naissance en 1978, le requérant a été inscrit sur le registre d’état civil comme étant de sexe féminin mais, très tôt, il s’est senti appartenir au sexe masculin. En 1997, il a consulté un médecin en vue de changer de sexe. Bien qu'il ait conclu que l’intéressé était transsexuel, son médecin a refusé de lui prescrire une thérapie hormonale, car il n'était pas certain qu’il serait juridiquement possible de procéder à une conversion sexuelle complète. Le requérant a été contraint alors de suivre un traitement hormonal de manière non officielle. A la suite de l’adoption du nouveau code civil, en 2000, qui a instauré pour la première fois le droit à la chirurgie de conversion sexuelle en droit lituanien (article 2.27 §1), l’intéressé a subi une opération de changement partiel de sexe. Néanmoins, il a convenu avec les médecins de suspendre toute autre opération en attendant les lois d’application fixant les conditions et la procédure de conversion sexuelle. A ce jour, aucune loi d'application n’a été adoptée à cette fin comme le prévoyait l'article 2.27 §2 du Code civil en raison d’une forte opposition parlementaire au projet. Le requérant est toujours considéré comme appartenant au sexe féminin au regard du droit interne et, bien qu’il ait finalement été autorisé à choisir un nouveau nom qui n'était pas marqué sexuellement, son code personnel figurant sur son nouvel acte de naissance et son passeport, ainsi que son diplôme universitaire, continuent de l’indiquer comme étant du sexe féminin.

La Cour européenne a établi que cette lacune législative plaçait le requérant dans une pénible incertitude quant à sa vie privée et à la reconnaissance de sa véritable identité. Les contraintes budgétaires des services de santé publique pouvaient peut-être justifier certains retards initiaux dans la mise en œuvre des droits des transsexuels en vertu du Code civil, mais pas une attente de plus de quatre ans. Dès lors, l’Etat n’a pas ménagé un juste équilibre entre l’intérêt général et les droits de l’intéressé (§ 59 de l'arrêt).

Mesures de caractère individuel : La Cour européenne a estimé que l’Etat lituanien devait répondre aux demandes de réparation du requérant au titre du préjudice matériel en adoptant les textes d’application nécessaires dans les trois mois à compter du jour où l’arrêt serait devenu définitif. A défaut, il devrait verser à l’intéressé 40 000 euros pour les frais liés à la réalisation à l’étranger des interventions chirurgicales nécessaires pour terminer le processus de conversion.

• Informations fournies par les autorités lituaniennes (lettre du 01/10/2008) : Le 28/06/2008, la satisfaction équitable a été payée.

• Evaluation : Dans ces circonstances, aucune mesure individuelle ne semble nécessaire.

Mesures de caractère général : Il ressort de l’arrêt que l'adoption rapide d’une législation d’application serait en mesure de prévenir de nouvelles violations similaires.

Le 07/08/2008, le Secrétariat a adressé une lettre de phase initiale aux autorités lituaniennes en ce qui concerne les mesures générales prises ou envisagées et il les a invitées à fournir des informations sur l'état de la législation mentionnée.

• Informations fournies par les autorités lituaniennes (lettre du 01/10/2008) : Les autorités lituaniennes ont fait savoir que les tribunaux internes étaient en mesure de combler les lacunes juridiques existantes. De plus, un projet de loi, soumis au Parlement le 19/03/2008, propose l'abrogation de l'article 2.27 du Code civil. Il est en cours d'examen. Les autorités ont assuré que l'abrogation éventuelle de cette disposition ne porterait pas préjudice aux possibilités de traitement des transsexuels. Selon elles, les transsexuels sont déjà soignés en Lituanie et leur droit à changer de sexe est reconnu, de même que leur droit à la modification des documents officiels par la suite.

• Informations fournies par les autorités lituaniennes (lettre du 09/04/2010) : Les autorités lituaniennes ont fait savoir que le Comité de surveillance d’amendement du Code civil, formé d’académiciens et de juristes praticiens, a récemment examiné les amendements nécessaires au code civil afin de combler les lacunes juridiques indiquées par la Cour dans cette affaire. Le Comité a par conséquent proposé, dans un premier temps d’adopter des textes d’application de l’article 2.27 du Code civil, d’abroger cet article, ou de l’amender. Cependant, en l’absence d’unanimité sur la question, le projet d’amendement a été retiré. 

La position des autorités lituaniennes est qu’un traitement médical n’a pas besoin d’être réglementé par des actes législatifs et que l’Etat dispose d’une marge d’appréciation pour déterminer les conditions et les procédures à suivre pour assurer le traitement des transsexuels. D’après les autorités, le Code civil peut soit régler la question par des dispositions rédigées de manière abstraite concernant la reconnaissance légale des conversions sexuelles, soit ne comporter aucune disposition régissant la question et les lacunes juridiques pourraient en conséquence être comblées par la jurisprudence des tribunaux internes.

Par ailleurs, en mars 2010, le gouvernement a demandé aux Ministères de la Justice et de Santé d’adopter les mesures nécessaires pour combler la lacune juridique indiquée par la Cour et de présenter des projets de loi pour assurer la mise en œuvre de ces mesures.

Pour ce qui concerne la modification de l’identité sexuelle sur des documents officiels, les autorités lituaniennes ont fait savoir que les intéressés ayant subi une opération de conversion sexuelle, peuvent à l’heure actuelle saisir les juridictions internes si leur demande en modification de l’identité sexuelle est rejetée par les bureaux de l’état civil. D’autre part, le Ministère de la Justice a déjà préparé un projet de loi afin de déterminer la procédure à suivre pour la modification de l’identité sexuelle sur les documents officiels. Selon le projet, il suffit que les intéressés ayant subi une opération de conversion sexuelle, saisissent les instituts de santé afin d’obtenir un rapport médical confirmant la conversion sexuelle, pour obtenir la modification de leur identité sexuelle sur les documents officiels.

• Evaluation : Etant donné l’évaluation faite par la Cour européenne, il ne semble pas qu'il y ait des structures médicales raisonnablement accessibles ou disponibles en Lituanie tant que des textes d'application ne seront pas adoptés (§57 de l'arrêt). Cependant, il semble que les autorités lituaniennes aient retenu une méthode différente pour assurer la reconnaissance légale des conversions sexuelles. Les effets pratiques des mesures prises restent à démontrer. A cet égard, l'attention des autorités est attirée sur les mesures prises dans le cadre de l'affaire Christine Goodwin contre le Royaume-Uni (rubrique 6.2).

• Des informations sont donc attendues sur les mesures prises ou envisagées afin de prévenir de nouvelles violations similaires, notamment sur les effets pratiques des mesures déjà prises.

• Des informations sont aussi attendues sur l’adoption du projet de loi préparé par le Ministère de la Justice concernant la modification de l’identité sexuelle sur des documents officiels.

• Publication et diffusion : L'arrêt de la Cour européenne a été traduit en lituanien et publié sur le site Internet du Ministère de la Justice, accompagné d'une note explicative. L'Agent du gouvernement a informé par écrit l'ensemble des institutions intéressées et des tribunaux internes de l'arrêt et leur a adressé une note explicative à cette fin. De plus, l'Agent du gouvernement a porté l’arrêt de la Cour européenne à l’attention du Président du Parlement et du Ministre de la Santé au sujet de l'arrêt.

                        - 6 cases mainly concerning the length of civil proceedings

16013/02           Četvertakas and others, judgment of 20/01/2009, final on 20/04/2009

27576/05           Aleksa, judgment of 21/07/2009, final on 21/10/2009

26892/05           Igarienė and Petrauskienė, judgment of 21/07/2009, final on 21/10/2009

17997/04           Naugžemys, judgment of 16/07/2009, final on 16/10/2009

12278/03           Padalevičius, judgment of 07/07/2009, final on 07/10/2009

22906/04           Vorona and Voronov, judgment of 07/07/2009, final on 07/10/2009

These cases concern the excessive length of civil proceedings which lasted six years and four months at three levels of jurisdiction (violations of Article 6§1).

As to the government’s objection that the applicants should have claimed for compensation before the domestic courts, the European Court held that a claim for damages under the Civil Code did not acquire a sufficient degree of legal certainty requiring its exhaustion.

Individual measures: The proceedings were closed between 2001 and 2005. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measure appears necessary. 

General measures:

• Information provided by the Lithuanian authorities (letters of 02/10/2009, 08/01/2010 and 23/03/2010): The judgments and their Lithuanian translation were placed on the official internet site of the Ministry of Justice. An explanatory note about the judgments and their contents was also placed on the official internet site. All the relevant institutions and all domestic courts have been informed about the judgments.

• Assessment: The general measures are currently under consideration in the context of bilateral consultations.

- 12 cases against Luxembourg / 12 affaires contre le Luxembourg

76240/01           Wagner et J.M.W.L., arrêt du 28/06/2007, définitif le 28/09/2007

L'affaire concerne une atteinte au droit à un procès équitable (violation de l'article 6§1) en raison du refus des tribunaux civils luxembourgeois (refus définitif en 2001) d'examiner un moyen des requérantes - la première, une citoyenne luxembourgeoise et la deuxième, l'enfant péruvien né en 1996 qu'elle a adopté - tiré de la violation de l'article 8 de la Convention.

L'affaire concerne en outre une ingérence dans le droit au respect de la vie familiale des requérantes (violation de l'article 8) en raison du refus des tribunaux luxembourgeois d'accorder l'exequatur d'un jugement péruvien de 1996 ayant prononcé une adoption plénière, refus résultant de l'absence dans la législation luxembourgeoise de dispositions permettant à une personne non mariée d'obtenir l'adoption plénière d'un enfant. A cet égard, la Cour a notamment relevé que la question de l'adoption par des célibataires se trouvait à un stade avancé d'harmonisation en Europe.

Enfin, l'affaire concerne une violation de l'article 14 combiné avec l'article 8 en raison des différences de traitements que subit la deuxième requérante par rapport à un enfant dont l'adoption plénière étrangère est reconnue au Luxembourg et du fait que la première requérante subit au quotidien, par ricochet, les inconvénients causés à la deuxième requérante, son enfant.

Mesures de caractère individuel : La Cour a rappelé que c'est l'intérêt supérieur de l'enfant qui doit primer dans ce genre d'affaires et a estimé que les juges luxembourgeois ne pouvaient raisonnablement passer outre le statut juridique créé valablement à l'étranger et correspondant à une vie familiale au sens de l'article 8.

Des mesures tendant à assurer la restitutio in integrum ont donc été adoptées très rapidement dès que l’arrêt de la Cour européenne est devenu définitif. Le 13/12/2007, le tribunal d’arrondissement de Luxembourg a jugé que le jugement péruvien du 06/11/1996 concerné en l’espèce était exécutoire au Grand-Duché de Luxembourg, comme s’il émanait d’une juridiction luxembourgeoise. L’exécution provisoire du jugement, nonobstant un éventuel appel ou opposition, a été ordonnée par le même jugement.

Il ressort de l’arrêt que les deux requérantes résident ensemble au Luxembourg (voir notamment §§5 et 8).

Enfin, il est rappelé que la Cour européenne a alloué une satisfaction équitable au titre des préjudices matériel et moral.

• Le Gouvernement considère que les mesures prises permettent de mettre un terme aux violations constatées. Tel semble en effet être le cas, si le jugement accordant l’exequatur devient définitif. Une confirmation serait utile sur ce point.

Mesures de caractère général :

1) Violation de l'article 6§1 : La Cour européenne a noté que la question de l'incompatibilité de la décision de première instance au regard de l'article 8 de la Convention - en particulier sous l'angle de sa conformité à l'ordre public international - figurait parmi les moyens principaux soulevés par les requérantes, de sorte qu'elle exigeait une réponse spécifique et explicite. Or la Cour d'appel a omis de donner une réponse au moyen selon lequel l'ordre public commandait précisément d'accorder, au titre de l'article 8 de la Convention, l'exequatur à la décision d'adoption péruvienne. La Cour de cassation a, de surcroît, entériné cette solution des juges du fond, et ce en dépit de sa jurisprudence selon laquelle la Convention déploie ses effets directs dans l'ordre juridique luxembourgeois.

Le principe selon lequel la Convention est applicable directement en droit luxembourgeois ne semble pas remis en cause. En revanche, des mesures sont apparues nécessaires pour attirer l’attention des autorités compétentes sur cet arrêt de la Cour européenne, afin qu’elles puissent en tenir dûment compte à l’avenir. Ainsi, l'arrêt de la Cour européenne a été transmis par le Ministère de la Justice au Procureur Général d’Etat, qui a lui-même envoyé l’arrêt aux instances judiciaires intéressées (notamment juridictions civiles et Cour de cassation). L’arrêt a également été publié sur le site Internet du Ministère de la Justice (www.mj.public.lu/juridictions/arrets_concernant_le_luxembourg) et dans la revue Codex de juin-juillet 2007.

• Evaluation : Aucune autre mesure ne semble nécessaire.

2) Violations de l'article 8 et de l'article 14 combiné avec l'article 8 : La Cour européenne a relevé qu'à l'origine des violations se trouve notamment l'absence, dans la législation luxembourgeoise, de dispositions permettant à une personne non mariée d'obtenir l'adoption plénière d'un enfant. Le Gouvernement a indiqué réfléchir à une réforme de la législation nationale sur les adoptions, visant notamment à supprimer les distinctions existant entre adoption simple et adoption plénière. Un projet de loi en ce sens devrait être soumis à la Chambre des Députés.

• Des informations complémentaires sont toujours attendues à cet égard.

24720/03           Alliance Capital (Luxembourg) S.A, arrêt du 18/01/2007, définitif le 18/04/2007

L'affaire concerne une entrave excessive du droit d'accès de la société requérante à un tribunal et, partant, à son droit à un procès équitable (violation de l'article 6§1). La société requérante, assignée par deux autres sociétés (Allianz Kapitalanlagegesellschaft et Allianz Asset Management), avait été condamnée en appel à changer sa dénomination sociale. Saisie d’un pourvoi de la requérante, la Cour de cassation rendit un arrêt en sa faveur mais oublia de mentionner l'une des deux sociétés précitées dans son dispositif. La société requérante ne put obtenir que la Cour d’appel de renvoi ne statue sur son recours concernant cette société et s’est par conséquent vue confrontée à deux solutions diamétralement opposées dans un litige concernant pourtant des demandes connexes, voire identiques.

La Cour européenne a conclu à la violation de la Convention car la requérante avait été pénalisée pour une erreur dont elle ne pouvait être tenue pour responsable et contre laquelle elle ne disposait pas de moyens de réagir efficacement.

Mesures de caractère individuel : Il ressort de l'arrêt que le litige opposant la société requérante aux deux autres sociétés a été résolu par un accord transactionnel qui délimite les droits de marque et les droits au nom commercial de chaque partie dans les diverses parties du monde (§21).

• Evaluation : Dans ces circonstances et en l'absence d'autres prétentions de la part de la société requérante, aucune autre mesure ne semble nécessaire.

Mesures de caractère général : Diverses mesures de publication et de diffusion de l'arrêt de la Cour ont été prises. L'arrêt a été transmis dès le 19/01/2007 par le Ministre de la Justice au Procureur Général d'Etat aux fins d'information des instances judiciaires concernées. En outre l'arrêt a été publié sur le site Internet du Ministère de la justice (www.mj.public.lu/juridictions/arrets_concernant_le_luxembourg/Alliance_18_01_07.pdf). Parallèlement, un avis attirant l'attention du public sur cette publication a été inséré au journal officiel luxembourgeois (Mémorial B n° 18 du 12/03/2007, p. 278). Enfin, l'arrêt a été publié dans la revue CODEX de janvier - février 2007.

• L'examen de la question de savoir si d'autres mesures sont nécessaires est en cours.

                        - 7 affaires concernant principalement la durée des procédures pénales

63286/00           Schumacher, arrêt du 25/11/03, définitif le 25/02/04

40327/02           Casse, arrêt du 27/04/2006, définitif le 27/07/2006

11282/05           Electro Distribution Luxembourgeoise (E.D.L.) S.A., arrêt du 31/07/2007, définitif le 31/10/2007

34471/04           S.J., arrêt du 04/03/2008, définitif le 04/06/2008

33747/02           Laghouati et autres, arrêt du 05/04/2007, définitif le 18/05/2007

73983/01           Rezette, arrêt du 13/07/2004, définitif le 13/10/2004

35704/06           Shore Technologies, arrêt du 31/07/2008, définitif le 31/10/2008

Ces affaires concernent la durée excessive de procédures civiles et pénales, débutées en 1991 et 2001 (violations de l'article 6§1).

Ces affaires présentent des similarités dans la mesure où dans chacune d'elles, la durée excessive d'une procédure pénale est principalement en cause ; en effet, les procédures civiles concernées dans les affaires Rezette et Casse avaient été ajournées (en vertu du principe « le criminel tient le civil en l'état ») dans l'attente de l'issue de procédures pénales elles-mêmes excessivement longues.

Les affaires Casse et Laghouati concernent également l'absence de recours effectif pour s'en plaindre (violation de l'article 13).

Enfin, l'affaire Casse l'affaire concerne encore le fait que le requérant n'avait pas été informé des accusations portées contre lui (violation de l'article 6§3a) ; en effet, bien qu'il puisse être considéré comme « accusé » depuis 1996, il n'avait pas encore été inculpé lorsque la Cour européenne a rendu son arrêt, ni même convoqué devant le juge d'instruction.

Mesures de caractère individuel :

            1) Affaires Schumacher, Laghouati et S.J. : aucune, les procédures incriminées étant closes.

            2) Affaires Rezette, Casse et Shore Technologies : dans l'affaire Rezette, la délégation a fait savoir que la procédure pénale en cause était terminée (la requérante n'a pas été inculpée) ; dans ces conditions, la procédure civile a pu reprendre son cours et un arrêt d’appel a été rendu le 14/02/2007. Dans l’affaire Casse, le requérant a été inculpé le 13/03/2008 ; selon les dernières informations disponibles, la procédure pénale se poursuit donc.

• Des informations semblent nécessaires sur l’état actuel des procédures toujours ouvertes et sur leur accélération, en particulier s’agissant des procédures pénales dans Casse (procédure commencée en 1996) et Shore Technologies (procédure commencée en 2001).

Mesures de caractère général :

            1) Violations de l'article 6§1:

• Sources des violations : Il ressort tant des arrêts que de l'analyse communiquée par la délégation que les causes de la durée excessive des procédures pénales en question tiennent, d'une part, à certains facteurs spécifiques aux présentes affaires et, d'autre part, également à la surcharge de travail du Service de la Police Judiciaire et des juges d'instruction du tribunal d'arrondissement de Luxembourg.  En revanche, de l'avis des autorités luxembourgeoises, il n'y a pas de problème structurel proprement dit en ce qui concerne la durée des procédures pénales.

• Mesures adoptées :

- Mesures adoptées pour remédier à la surcharge de travail du Service de Police Judiciaire (SPJ).

Les effectifs du SPJ ont été accrus, passant de 138 agents en 2003 à 169 en 2005. De surcroît, les Ministères de l'Intérieur et de la Justice ont décidé d'une nouvelle organisation du SPJ, mise en œuvre à partir du 1/12//2003. Cette réorganisation, instaurant des réunions régulières entre autorités policières et judiciaires, est principalement dédiée à l'amélioration de l'efficacité du SPJ par le biais, entre autres, d'une meilleure coordination entre les autorités judiciaires et la direction du SPJ, en réduisant, dans la mesure du possible, le délai d'exécution des enquêtes confiées au SPJ, afin d'aboutir à un traitement plus rapide des affaires pénales par les juridictions nationales. Le parquet et les juges d'instruction sont ainsi mieux à même, actuellement, de superviser l'évolution des enquêtes confiées au SPJ. Le Gouvernement a ajouté qu'il travaille de façon continue pour améliorer les conditions matérielles, humaines et organisationnelles des services de police et des juridictions ainsi que les procédures, y compris la procédure pénale.

- Mesures adoptées pour remédier à la surcharge de travail des juges d'instruction.

Premièrement, il a été procédé à des embauches. A cet égard, la délégation a rappelé l'adoption de la loi du 24/07/2001 (programme pluriannuel de recrutement de magistrats et d'autres personnels) déjà constatée dans l'affaire Scheele (ResDH(2003)89) ; un second programme pluriannuel de recrutement a d'ailleurs été adopté par une loi du 1/07/2005 qui a cette fois-ci, notamment, renforcé les effectifs du Ministère public. Plus spécifiquement, un renforcement des effectifs du cabinet des juges d'instruction du tribunal d'arrondissement de Luxembourg a également été prévu par la loi du 12/08/2003, ces juges étant en effet passés de 6 en 1996 à 13 en 2004.

Deuxièmement, cette augmentation d'effectifs a permis une redistribution des dossiers entre les juges d'instruction, tenant compte de leur spécialisation et de leur expérience.

Troisièmement, des améliorations ont été apportées sur le recensement des affaires traitées au cabinet d'instruction.

Enfin, la loi du 6/03/2006, destinée à contribuer à l'amélioration du fonctionnement quotidien de la justice pénale, a notamment introduit des mesures réduisant la charge de travail des juges d'instruction (pour le texte de la loi, voir : http://www.legilux.public.lu/leg/a/archives/2006/0471503/0471503.pdf?SID=b8a998ca93a034e01a0c2f2a48e76ba8). D'une part, il est désormais possible de procéder à davantage d'actes d'instruction sans qu'il soit nécessaire d'ouvrir une instruction préparatoire, qui comporte de nombreux devoirs à la charge du juge d'instruction (instruction simplifiée). D'autre part, la loi introduit en droit luxembourgeois le contrôle judiciaire, mesure alternative à la détention préventive, mesure très sévère exigeant un traitement prioritaire des dossiers où elle intervient et influant ainsi sur la gestion des affaires au sein des cabinets des juges d'instruction.

• Mesure en préparation concernant le principe « le criminel tient le civil en l'état ». Dans les affaires Rezette et Casse, les procédures civiles en question ont atteint des durées déraisonnablement longues car elles avaient été ajournées dans l'attente de l'issue de procédures pénales elles-mêmes excessivement longues. Le principe « le criminel tient le civil en l'état » n'a en lui-même, en revanche, pas été incriminé par la Cour ; elle a, au contraire, rappelé que « le fait de se prononcer sur la procédure civile avant que la procédure pénale ne soit achevée pouvait éventuellement ne pas être compatible avec le principe d'une bonne administration de la justice ».

Vu l'ensemble de ces éléments, le Gouvernement a indiqué élaborer un projet de loi visant à conférer un caractère facultatif à la disposition en vertu de laquelle « le criminel tient le civil en l'état » (article 3 du code d'instruction criminelle). Selon les toutes dernières informations disponibles, cette question reste à l’examen, des études concernant l’application de ce principe à l’étranger étant en cours.

• Publication et diffusion des arrêts.

L'arrêt Rezette a été publié au Codex n°12 de décembre 2004 et au Bulletin des Droits de l'Homme (n°11/12 - 2005) édité par l'Institut luxembourgeois des Droits de l'Homme. L'arrêt Schumacher a quant à lui été publié au Codex n°2 de février 2004. De surcroît, les deux arrêts ont été transmis par le Ministère de la justice au Procureur Général d'Etat, respectivement le 29/07/2004 et le 11/12/2003, aux fins d'information de toutes les instances judiciaires intéressées. Enfin, l'arrêt Casse a été transmis dès le 03/05/2006 au Procureur général d’Etat aux fins d’information des instances judiciaires intéressées, information qui a bien été réalisée ; il a également été publié, au Codex n°6 de juin 2006 et sur le site Internet du Ministère de la Justice (www.mj.public.lu/juridictions/arrets_concernant_le_luxembourg).

• Evaluation de l'effet de ces mesures sur la durée des procédures pénales : Compte tenu du volume des arriérés qui s'était accumulé durant les années précédant les mesures prises pour y remédier, l'effet bénéfique des mesures sur la durée des procédures pénales a commencé à se faire sentir en 2006. A cet égard, les autorités luxembourgeoises ont confirmé, concernant plus spécifiquement la question de la charge de travail des juges d'instruction, que les mesures prises (voir ci-dessus) avaient permis de diminuer de façon considérable les arriérés qui s'étaient accumulés avant l'entrée en vigueur des lois des 24/07/2001 et 12/08/2003.

• Des indications seraient utiles sur le point de savoir si les premiers effets bénéfiques constatés se sont confirmés.

            2) Violation de l'article 13

• Situation actuelle. Les autorités luxembourgeoises ont indiqué que le droit luxembourgeois permet d'obtenir réparation du préjudice subi par un administré du fait du fonctionnement défectueux de l'administration par le biais d'une action en responsabilité qui peut être intentée, soit sur la base des articles 1382 ss. du code civil luxembourgeois (règles générales), soit sur la base d'une loi spéciale du 01/09/1988.

Toutefois, la Cour européenne a elle-même jugé dans l'arrêt Rezette précité que les dispositions citées par les autorités n’offraient pas un recours effectif pour se plaindre de la durée excessive des procédures. Cette jurisprudence de la Cour a été confirmée encore récemment (voir par exemple la décision sur la recevabilité dans l’affaire Mertens-Pechackova contre Luxembourg, du 26/06/2008, n° 28369/05).

Les autorités ont un temps pris en considération la possibilité d’une modification de la loi du 01/09/1988, mais ont finalement décidé de ne pas progresser dans cette voie. Elles ont en effet précisé que de leur point de vue, le libellé très large de cette législation offre déjà une voie de recours appropriée, le seul problème étant que les parties préfèrent s'adresser directement à la Cour européenne plutôt que d'épuiser cette voie de recours interne.

Les autorités ont toutefois conclu que des réflexions seraient menées concernant d’éventuelles alternatives au titre des mesures générales.

            3) Violation de l'article 6§3a) Dans l'affaire Casse, la violation en question résultait de l'absence de notification au requérant des accusations portées contre lui par le juge d'instruction.

• Les autorités ont indiqué que des réflexions seraient entamées sur la possible introduction en droit luxembourgeois de la notion de « témoin assisté » telle qu’elle existe dans d’autres systèmes juridiques (par exemple en France). Ce « témoin assisté », sans être inculpé, devrait disposer de tous les droits reconnus aux personnes inculpées. Concernant la diffusion d’ores et déjà réalisée de l’arrêt Casse, voir ci-dessus (point 1).

- 3 affaires concernant la violation du droit d'accès à un tribunal due au rejet d'un pourvoi en cassation pour des motifs excessivement formalistes

17140/05           Kemp et autres, arrêt du 24/04/2008, définitif le 24/07/2008

18522/06           Dattel n° 2, arrêt du 30/07/2009, définitif le 10/12/2009

33094/07           Nunes Guerreiro, arrêt du 05/11/2009, définitif le 05/02/2010

Ces affaires ont trait au caractère inéquitable d'une procédure devant les juridictions civiles (violations de l'article 6§1).

Dans l’affaire Kemp, l'Etat avait acquis, en 1970, des terrains ayant appartenu aux parents des requérants, dans le cadre d'un projet de construction d'une autoroute, lequel ne fut cependant pas réalisé selon le plan initialement établi. Les intéressés se virent opposer un refus à leur demande de rétrocession des terrains litigieux. Le pourvoi en cassation exercé dans ce contexte fut rejeté en 2004 au motif que les moyens de cassation n'étaient pas suffisamment détaillés.

Dans l’affaire Dattel n° 2, suite à une première procédure, les requérants avaient engagé, en 2001, une seconde procédure civile, afin d’obtenir le remboursement d’une créance auprès de la banque H.B. Luxembourg (« HBL »). En 2002, le tribunal d’arrondissement déclara leur recours irrecevable, au vu de l’autorité de la chose jugée des décisions judiciaires rendues dans la première procédure. En 2005, la Cour de cassation rejeta leur pourvoi, pour manque de précision dans l’expression de leurs moyens de cassation.

Elle estima que le moyen était « constitué d’un amalgame de cas d’ouverture de cassation partiellement reproduits dans les différentes branches et sans lien logique entre eux, qui ne permettait pas d’en saisir le sens et la portée ».

Dans l’affaire Nunes Guerreiro, en 2004, la demande du requérant d’une allocation de pension d’invalidité fut rejetée. Ses recours contre cette décision furent également rejetés, d’abord par le conseil arbitral des assurances sociales, puis par le conseil supérieur des assurances sociales. Dans son moyen de cassation, l’avocat reprochait aux juges d’avoir mal interprété la loi pour déclarer son appel non fondé ; dans la discussion du moyen, il indiquait le sens dans lequel les dispositions légales auraient, selon lui, dû être lues. Le 1/02/2007, la Cour de cassation rejeta le pourvoi au motif que le moyen ne précisait pas en quoi les dispositions légales visées auraient été violées ou mal appliquées.

Dans ces affaires, la Cour européenne a jugé que ces décisions étaient excessivement formalistes et que la limitation au droit d'accès à un tribunal imposée par la Cour de cassation n'était pas proportionnée au but poursuivi consistant à garantir la sécurité juridique et la bonne administration de la justice.

Mesures de caractère individuel :

            1) Affaire Kemp : Les requérants ont indiqué qu’ils souhaitaient obtenir la réouverture de la procédure litigieuse en vue d’une restitutio in integrum. A leurs yeux, si l'irrecevabilité du pourvoi litigieux était contraire à l'article 6§1, il devrait, après l'arrêt de la Cour européenne, être jugé sur ses mérites.

Au titre de la satisfaction équitable, les requérants ont réclamé principalement la restitution des terrains litigieux ou, à défaut, la valeur vénale actuelle des terrains (soit selon eux plus de 3,5 millions d'euros), ainsi qu'une indemnisation pour la perte de jouissance (évaluée à plus de 2,2 millions d'euros). La Cour européenne a rejeté ces demandes au motif qu'elle « a conclu à une violation de l'article 6 de la Convention et à une non-violation de l'article 1 du Protocole n° 1. Elle n'aperçoit pas de lien de causalité entre la violation constatée et le dommage matériel allégué et rejette dès lors cette demande ». Elle a toutefois indemnisé le préjudice moral subi par les requérants.

• Evaluation : Des informations semblent nécessaires sur les éventuelles mesures prises ou envisagées suite aux demandes répétées des requérants Kemp souhaitant obtenir la réouverture de la procédure litigieuse.

2) Affaire Dattel n°2 : Au titre de la satisfaction équitable, les requérants ont demandé une somme correspondant au préjudice moral subi (1,4 millions d'euros). La Cour européenne a rejeté cette demande car elle n’a constaté aucune apparence d’arbitraire dans la manière dont les juges nationaux avaient statué et conclu au caractère illicite de la créance pour les deux comptes bancaires. La créance alléguée n’était pas suffisamment établie pour s’analyser en une « valeur patrimoniale » appelant la protection de l’article 1 du Protocole n°  1.

3) Affaire Nunes Guerreiro : La Cour européenne a octroyé au requérant une somme au titre du préjudice moral subi.

Mesures de caractère général : La règle appliquée par la Cour de cassation pour se prononcer sur le caractère recevable du pourvoi en cause est une construction jurisprudentielle (§52 de l'arrêt Kemp). La Cour européenne a estimé « que la précision exigée par la [Cour de cassation] dans la formulation du moyen de cassation litigieux n'était pas indispensable pour que cette dernière puisse exercer son contrôle. Pareille exigence affaiblit à un degré considérable la protection des droits des justiciables devant la haute juridiction nationale, surtout si l'on tient compte du fait que le Luxembourg ne connaît pas le système des avocats aux Conseils spécialisés » (§58 de l'arrêt Kemp).

En outre, dans l'arrêt Dattel n°.2  la Cour européenne a estimé que le mémoire en cassation devait être considéré dans son ensemble, en ce sens que les requérants devaient avoir formulé leurs doléances à l'égard de l'arrêt d'appel soit dans l'énoncé du moyen de cassation même, soit au besoin dans la discussion qui développe le moyen (§39).

L'arrêt Kemp a été publié dans la revue Codex, mensuel juridique et politique du Luxembourg (www.codex-online.com). Il a également été diffusé à la Cour de cassation qui applique directement la Convention telle qu'interprétée par la Cour européenne et été transmis au Procureur Général d’Etat, aux fins d’information des instances judiciaires intéressées. 

• Evaluation: Des informations sont attendues afin de confirmer que les mesures de diffusion de l’arrêt de la Cour européenne suffiront à induire un changement dans la jurisprudence de la Cour de Cassation.

- 11 cases against Malta / 11 affaires contre Malte

11956/07           Stephens No. 1, judgment of 21/04/2009, final on 14/09/2009

The case concerns the unlawfulness of the applicant’s detention for ten days (between 12/11/2004 and 22/11/2004) after his arrest order had been declared unlawful (violation of Article 5§1).

In August 2004, the applicant was arrested and detained in Spain following a request for his extradition by the Maltese authorities, pursuant to an arrest warrant issued by the Court of Magistrates. Following proceedings brought by the applicant, on 12/11/2004 the Civil Court in Malta held inter alia that the arrest warrant in question should be annulled as the issuing court had acted ultra vires, and granted the applicant compensation in this respect. The applicant appealed this decision in respect of other issues before the Constitutional Court. On the same day the Civil Court delivered its judgment, the Maltese authorities informed their Spanish counterparts that the warrant had been declared unlawful, but that the judgment was not final and had no effect until the appeal had been decided. Pending the main constitutional proceedings, the applicant filed another application with the Constitutional Court requesting his release in accordance with the judgment of 12/11/2004. On 22/11/2004 the Constitutional Court upheld the applicant’s request, stating that the judgment of 12/11/2004 was provisionally enforceable. It found the compensation granted by the Civil Court to be adequate and confirmed the sum. That day the applicant was granted bail by the Spanish authorities.

The European Court noted that the Constitutional Court had confirmed the first-instance judgment insofar as there was a violation of Article 5§1 because the arrest warrant was null and void, and had confirmed the compensation granted in this respect. However, the European Court observed that the judgment of the Constitutional Court made no reference to the ten-day period of detention between 12/11/2004 and 22/11/2004, and did not increase the compensation granted in the light of this continued unlawful detention. The European Court held that the violation resulting from this further period was also imputable to Malta and had not been redressed.

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

• Assessment: No other individual measures appear necessary.

General measures: The judgment has been published and disseminated.

• Assessment: No other general measures appear necessary.

26111/02           Mizzi, judgment of 12/01/2006, final on 12/04/2006[13]

7333/06            Lombardo and others, judgment of 24/04/2007, final on 24/07/2007[14]

77562/01          San Leonard Band Club, judgment of 29/07/2004, final on 29/10/2004

The case concerns a violation of the applicant’s right to a fair hearing before an impartial tribunal, in that in 1996, in the context of a petition for retrial of civil 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 hold that the applicant's fears as to the lack of impartiality of the Court of Appeal were objectively justified (§65).

Individual measures: The applicant submitted no claim for just satisfaction. 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).

In a decision of 18/05/2005, the Constitutional Court ordered that the applicant’s petition for retrial of 21/05/1994 should be heard afresh, and that the Court of Appeal should not be composed of the same judges who had presided over the previous proceedings. The domestic proceedings were subsequently reopened and a new panel of judges, different from those having sat in the original first-instance or appeal proceedings, presided over the new proceedings. On 27/02/2009 the proceedings were completed.

• Assessment: No further individual measure appears necessary.

General measures:

•Information provided by the Maltese authorities (6/07/2010):The European Court’s judgment has resulted in a change of judicial practice: in the event of a request for retrial the judges involved have to date, always abstained from presiding over the retrial proceedings.

The judgment has been published and disseminated.

• Assessment: The information on the change of judicial practice appears positive, but a similar issue concerning a fair hearing by an impartial tribunal is currently pending before the European Court in the case of Central Mediterranean Development Corporation Limited (II) against Malta (application no. 18544/08).

• Information awaited: In light of the above, information would be welcome on any further measures envisaged. Clarification of the date and publication by which the judgment of the European Court was disseminated would also be welcome.

47045/06           Amato Gauci, judgment of 15/09/2009, final on 15/12/2009[15]

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)

17647/04           Edwards, judgment of 24/10/2006, final on 24/01/2007 and of 17/07/2008, final on 06/04/2009 (Article 41)

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)

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 Edwards) 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), more than 30 years (Edwards), and for almost 65 years (Fleri Soler and Camilleri) , and the restrictions on the landlords’ 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 of judgment on just satisfaction) that the government had restored the requisitioned property in 2007.

However, in the Ghigo and Edwards cases 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.

• Assessment: as the property in question in the Fleri Soler and Camilleri case has been restored, no individual measure is required.

Individual measures in the cases of Ghigo and Edwards appear linked to the general measures (see below).

• Information would be welcome on any interim measures anticipated for the Ghigo and Edwards cases. Information is awaited on the current situation of theapplicants in the Ghigo and Edwards cases 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 Article 41 judgment in Ghigo).

• Information provided by the Maltese authorities (25/06/2010): In 2009 a rent reform was initiated resulting in legislative amendments in the Civil Code.

Articles 1531A and 1531M have been introduced which have the effect of increasing the rents on premises leased after 01/01/2010. Those rents will be regulated exclusively by contract and by the provisions of the Civil Code. However, the new provisions are not currently applicable to the applicants’ situation since they do not cover premises requisitioned or taken in the public interest. An enabling provision has also been introduced in the Civil Code which vests the Minister with the power to make regulations extending the new rent reform to such premises. Articles 1531M and 1622A are to remedy this shortcoming through a mechanism enabling the minister responsible for accommodation, from time to time and following consultations with the ministers responsible for finance, to adopt regulations to “extend the application of the provisions of the Civil Code regarding the lease or part of it with regards to cases where a person has been accommodated in a residence under Housing Act, or where a public authority has taken possession of a residence in terms of the Land Acquisition (Public Purposes) Ordinance…”.

This mechanism aims to maintain a fair balance between the rights of the lessor, of the tenant and the public interest. It is envisaged to extend the application of the rent reform provision to requisitioned premises and premises taken possession of in the public interest within six months.

• Assessment: The information provided on legislative measures appears positive. A timetable on adoption of the regulations enabling the applicants to benefit from the legislative reform would be useful.

• Information awaited: Once the process of legal reform has been completed, information would be welcome on the final legal framework indicating which provisions permit redress for the applicants in the Ghigo and Edwards cases.

                        - 3 cases of length of civil proceedings

34539/02          Debono, judgment of 07/02/2006, final on 07/05/2006

15091/06           Bezzina Wettinger and others, judgment of 08/04/2008, final on 08/07/2008

35829/03          Central Mediterranean Development Corporation Limited, judgment of 24/10/2006, final on 24/01/2007

These cases concern the excessive length of civil proceedings initiated between 1964 and 2000, and closed between 1981 and 2003 (violations of Article 6§1).

In the case of Central Mediterranean Development Corporation Limited, the Constitutional Court in 2003 declared that there had been a violation of Article 6§1 of the Convention on account of the unreasonable delay in proceedings; however the non-pecuniary damage which it awarded was held to be insufficent by the European Court.

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

• Assessment: No individual measure appears necessary.

General measures:

• Information provided by the Maltese authorities (06/07/2010): Legislative amendments have been introduced providing measures to address the excessive length of civil proceedings. In general terms these include:

-       provision for mediation and arbitration;

-       simplification of procedures for adoption of various judicial decrees; and

-       introduction of a new procedure through an enforceable judicial letter issued without formal hearing unless the debtor contests it by judicial action.

A mechanism to monitor the progress of individual cases has been established, and the Commission on the Administration of Justice also deals with cases of unreasonable length of proceedings, monitoring the reasons and circumstances which can lead to delays in proceedings.

• Assessment: The information provided on legislative amendments and the monitoring mechanism appears positive.

• Information awaited: An assessment on the effectiveness of these measures is awaited to complete the Action Plan. Details of the amendments including the dates on which the legislation came into force would be welcome.

Information would also be useful on particular cases demonstrating the effectiveness of the monitoring mechanism (if available); and on any research or analysis the Commission on the Administration of Justice might have conducted regarding the causes of unreasonable length of proceedings and whether this is still a problem.

Clarification of the date and publication by which the judgment was disseminated would also be welcome.

It is also noted that a similar case has recently been communicated by the European Court (26771/07 Gera de Petri Testaferrata Bonici Ghaxaq).

- 7 cases against Moldova / 7 affaires contre la Moldova

2638/05            Roşca Petru, judgment of 06/10/2009, final on 06/01/2010

The case concerns the authorities’ failure to investigate the applicant’s complaints of excessive use of force by police officers during his arrest (procedural violation of Article 3). 

The European Court found a number of deficiencies in the investigation, such as the failure to identify and hear witnesses; the failure to establish the manner in which the injuries had been caused to the applicant; the lack of an in-depth medical examination of the applicant.

The case further concerns the applicant’s conviction for an administrative offence in the absence of a lawyer without being given sufficient time to prepare his defence (violation of Article 6§1 in conjunction with Article 6§3 (c) and (d)).

In particular, the European Court noted that even if the applicant made no request to be assisted by a lawyer or for time to prepare his case, the domestic court must have realised that after a night in detention and having seen only the record of his arrest, the applicant could not have prepared for the hearing, for instance by identifying witnesses on his behalf or undergoing a medical examination. Therefore under the circumstances, regardless of any request to offer the applicant time and facilities to prepare his case, such an opportunity should have been given to him by the court ex officio, the more so since he risked fifteen days' administrative detention as punishment.

Individual measures:

• Information provided by the Moldovan authorities (March 2010): On 30/11/2009 the Court of Appeal granted the prosecutor’s motion to re-examine the contested proceedings and constituted a new panel of judges for that purpose.

• Information is awaited on the outcome of these new proceedings. Information is also awaited on measures taken by the authorities to investigate the violation under the Article 3 of the Convention.

General measures:

To date the authorities have provided no information.

13936/02          Manole and others, judgment of 17/09/2009, final on 17/12/2009 and of 13/07/2010, possibly final on 13/10/2010

The case concerns a violation of the applicants’ right to freedom of expression due to censorship and political control in 2001-2006 by state authorities of the State Television Company, Teleradio-Moldova (TRM), in which the applicants worked as journalists, editors and producers, and which also resulted in the applicants’ dismissal (violation of Article 10).

The European Court noted in particular that during the relevant period there was a significant bias towards reporting on the activities of the President and Government in TRM’s television news and other programming, with insufficient opportunity for representatives of the opposition parties to gain access to television to express their views. In addition, there was a policy of restricting discussion or mention of certain topics because they were considered to be politically sensitive or to reflect badly in some way on the government.

The Court further noted that in view laws ensuring TRM’s independence from political interference and control, the state authorities were under a duty to ensure a pluralistic audiovisual service. However, during the period taken into consideration by the Court, i.e. from February 2001 to September 2006, when one political party controlled Parliament, Presidency and government, domestic law did not provide a sufficient guarantee of political balance in the composition of TRM's senior management and supervisory body nor any safeguard against interference from the ruling political party in these bodies' decision-making and functioning, despite a number of recommendations by the Council of Europe.

Thus the Court ruled that the state had not discharged its positive obligation under Article 10, as the legislative framework throughout the period in question was flawed in that it did not provide sufficient safeguards against the control of TRM’s senior management, and thus its editorial policy, by the political organ of the government. These flaws were not remedied when Law No. 1320-XV was adopted and amended.

As regards the application of Article 46 of the Convention, the Court held that as a response to its finding of a violation Moldova, subject to monitoring by the Committee of Ministers, should at the earliest opportunity take general measures, including legislative reform, to ensure that the legal framework complies with the requirements of Article 10 and takes into account the Council of Europe’s relevant recommendations.

On 13/07/2010 the Court delivered its judgment on the issue of just satisfaction under Article 41.

To date the authorities have provided no information.

39391/04           Business Si Investitii Pentru Toti, judgment of 13/10/2009, final on 13/01/2010

The case concerns the violation of the applicant company’s right of access to a court due to the failure by domestic courts to consider its claim or to involve it as a party to proceedings which concerned its rights and obligations as well as to the dismissal of its request to reopen the said proceedings (violation of Article 6§1).

Individual measures: The European court awarded just satisfaction in respect of non-pecuniary damages.

• Information is awaited as to whether the applicant has requested reopening of the proceedings.

General measures: To date the authorities have provided no information.

- 2 cases concerning the violation of the right to a fair hearing in administrative proceedings due to inadequate notification procedure

61821/00          Ziliberberg, judgment of 01/02/2005, final on 01/05/2005

7413/05            Russu, judgment of 13/11/2008, final on 13/02/2009

These cases concern violations of the applicants' right to a fair trial due to the domestic courts’ failure to summons them properly, thus depriving them of the possibility of being present and/or preparing their defence (violation of Article 6§1).

The violations were due to the absence of legal provisions on traceability of delivery of summons under the old legislation (Code of Administrative Offences and Code of Criminal Procedure).

The Court found that the evidence of servicing the summons, as provided for in the old legislation, was insufficient to prove proper service and that evidence of service of the summons was required. Moreover, in Ziliberberg case the Court indicated that the summons should be served prior to the hearing so that the person has time to prepare for the hearing. The old Code of Administrative Offences and Criminal Procedure Code did not indicate how much time the person should be allowed between the delivery of summons and the hearing.

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

• Information is awaited as to whether the applicants have requested reopening of the proceedings.

General measures: The new Codes of Administrative Offences and of Criminal Procedure introduced the following provisions on traceability of summons and prior notice:

            1) Code of Administrative Offences: The new Code of Administrative Offences (Article 382) refers to the provisions on serving summons set out in the Code of the Criminal Procedure (Articles 235-242). Article 382 provides that summons must be served on the person concerned not later than 5 days before the hearing.

            2)Code of Criminal Procedure: The new Code of Criminal Procedure was adopted in 2003. Articles 235-242 regulate the procedure for serving summons. Article 236 of the Code does not require summons to be sent by “registered mail with confirmation”, as does the Code of Civil Procedure Code, but only “by post”, or by a courier duly authorised for the purpose. However, proof of receipt by the person concerned – his/her signature – is required for the summons to be considered as duly served. According to the Article 236 of the Code, summons are to be served not later than 5 days before the hearing.

• The need for further general measures is being assessed.

            3) Publication and dissemination: The European Court's judgments in the Ziliberberg and Russucases have been translated and published at the website of the Ministry of Justice (www.justice.md) as well as in the Official Journal of the Republic of Moldova and sent out to all relevant authorities.

- Violation of the right to a fair hearing in civil proceedings due to inadequate notification procedure

17023/05           Godorozea, judgment of 06/10/2009, final on 06/01/2010

This case concerns a violation of the applicant's right to a fair trial due to the failure by the domestic court failure to summons her properly, thus depriving her of the possibility of being present and/or preparing her defence (violation of Article 6§1).

A signed receipt of the summons was not obtained from the applicant as proof of service despite the fact that Article 105 of the new Code of Civil Procedure explicitly required it.

Individual measures: The European court awarded just satisfaction in respect of non-pecuniary damage.

Article 499 (h) of the Moldovan Code of Civil Procedure provides the possibility to request the reopening of proceedings following the finding of a violation by the European Court.

• Information is awaited as to whether the applicant has requested such reopening.

General measures: On 12/12/2005 the Supreme Court of Justice adopted a decision “Regarding the application of the rules of the Code of Civil Procedure to the examination of cases by first-instance courts”, which concerned the application of Article105 of the new Code of Civil Procedure. In point 5 of that decision the court noted that examining a case in the absence of a party who had not been properly summonsed was contrary to the law. It added that under Article 105§5 of the Code of Civil Procedure, a person should be considered as lawfully summonsed only if he or she had been personally served with the summons and had countersigned the receipt. The Supreme Court of Justice subsequently adopted several decisions (Nos. 2ra-3/08 of 30/01, 2ra-1097/08 of 04/06, 2r-156/08 of 25/06/2008) confirming the requirement of personal service of summons and counter-signature by the addressee, failing which the summons was considered as not having been properly served.

• Information is awaited on measures taken or planned to ensure compliance by domestic courts with the rules on summonsing. Information is also awaited on publication and dissemination of the judgment.

14385/04          Oferta Plus SRL, judgments of 19/12/2006, final on 23/05/2007 and of 12/02/2008 (Article 41), final on 07/07/2008

The case concerns a violation of the applicant company’s right to a fair hearing and to the peaceful enjoyment of its possessions due to the three-year failure to enforce a final judgment given in its favour in 1999, followed by the unjustified extension of the time limit for lodging an appeal by the opposite party and the wrongful quashing of the final judgment in violation of the principle of legal certainty (violations of Article 6§1 and Article 1 of Protocol No. 1).

The European Court specified that by extending the time-limit for lodging requests for revision without giving reasons, and by allowing the revision of the case notwithstanding the absence of any reasons or relevant new fact, the Supreme Court of Justice had infringed the principle of legal certainty and had interfered disproportionately with the applicant company's right to the peaceful enjoyment of its possessions.

The case also concerns a violation of the right of individual petition due to the institution of criminal proceedings against the chief executive of the company and the consequent impossibility for the applicant company’s legal representative to communicate with the chief executive during his detention without being separated by a glass partition. The European Court considered also on the basis of the materials before it that there were sufficiently strong grounds to infer that the criminal proceedings against the chief executive had been started with the aim of discouraging the company from pursuing its case before the European Court (double violation of Art. 34).

Subsequently, while the just satisfaction issue was pending before the European Court, the Supreme Court of Justice, whilst revoking the annulment of 1999 judgment, ordered on 29/10/2007 that this judgment was never to be enforced. In its Article 41 judgment of 12/02/2008 the European Court expressed serious concern that despite its abundant case-law and regardless of its findings in its principal judgment, the Supreme Court had adopted a solution which once again failed to respect the finality of the judgment of 1999 (§ 69 of the judgment).

Individual measures: Just satisfaction awarded in respect of the outstanding debt under the original judgment of 1999 and the non-pecuniary damage sustained by the applicant as a result of the violations found have been paid.

As regards the criminal proceedings initiated against the chief executive of the applicant company, the chief executive was acquitted by the first-instance court on 28/06/2007. The appeals of the public prosecutor on 12/10/2007 and on 1/04/2008 were dismissed by the Chişinău Court of Appeal and the Supreme Court of Justice respectively.

General measures:

            1) Violations of Article 6§1 and Article 1 of Protocol No. 1: The general issues raised by this case present similarities notably with Luntre (non-enforcement of domestic judicial decisions, 2916/02, 1100th meeting, December 2010) and Popov No. 2 (use of revision procedure) (19960/04, 1100th meeting, December 2010) in which the Moldovan authorities are currently adopting measures to prevent new, similar violations. The special criticism directed by the European Court against the judicial practices will be taken into account in the context of the examination of the aforementioned groups.

• Taking into account the judgment of the Supreme Court of Moldova of 29/10/2007 information is awaited on measures to align the practice of the Supreme Court with the precedent law of the European Court and with the principles of the Convention violated in the present case.

            2) Violations of Article 34: this case presents certain similarities to that of Boicenco (41088/05, 1100th meeting, December 2010).

• Information provided by the Moldovan authorities:

Legislative measure: Law No. 294-XIII on the Prosecutors Office was adopted on 25/12/2008.

• Assessment: It remains unclear to what extent the adoption of a new law contributes to the prevention of similar violations. Clarification in this respect would be welcome.

Organisational measures:

The issue of the glass partition was resolved in 2007 (see Boicenco case). In general, the Collegium of the Prosecutor General’s Office conducts an annual examination of the European Court’s judgments against Moldova and fixes concrete objectives for action to prevent new, similar violations. Judgments of the European Court concerning issues arising from the action of prosecutors are published on the website of the Prosecutor General’s Office.

• Information is awaited on the practical objectives established and measures adopted in respect this particular case.

In addition, the Prosecutor General’s Office has prepared a number of documents on methodology which have been distributed to all prosecutors:

-           Methodological guidelines on the provisions of Article 22 of the Code of Criminal Procedure, which guarantees the right not to be persecuted or judged twice for the same act. The study on the substance and procedure of the provisions concerning the right of not being persecuted or judged twice for the same act was published in the Information Bulletin No.11 of the Prosecutor General’s Office  (November 2008). Proposed changes to Article 22 were drawn up and submitted to the government, to ensure that the reopening of proceedings in criminal cases is in conformity with the standards of the Convention.

-           Instruction to prosecutors to take account of recommendations ensuing from the jurisprudence of the European Court relating to privation of liberty in criminal proceedings;

-           Instruction on application of the law on criminal procedure related to the reopening of criminal proceedings;

-           Instructions on procedures of arrest and of extension of remand in criminal proceedings.

• Copies of these documents would be useful in order to assess the effectiveness of these measures. Information is also awaited on the legal status of these documents and on how compliance with them is ensured in practice.

• Information is awaited on the publication and dissemination of the full version of the Article 41 judgment of the European Court among relevant national authorities (prosecutors, police and judges).

- 1 case against Monaco / 1 affaire contre Monaco

43376/06           Prencipe, arrêt du 16/07/2009, définitif le 16/10/2009

Cette affaire concerne la durée excessive de la détention provisoire subie par la requérante : du 7/01/2004 au 13/12/2007 (4 ans environ dont 2 ans relevant de la compétence de la Cour européenne).

La Cour européenne a constaté que la longueur de la privation de liberté subie par la requérante ne reposait pas sur des motifs sinon pertinents du moins suffisants dans les circonstances de l’espèce, la pertinence initiale des motifs retenus pour maintenir l’intéressée en détention ne résistant pas à l’épreuve du temps (violation de l’article 5§3).

Mesures de caractère individuel : La requérante a été libérée le 13/12/2007. La Cour européenne lui a accordé une satisfaction équitable au titre de dommage moral.

• Evaluation : Aucune autre mesure individuelle ne semble nécessaire.

Mesures de caractère général :

• Informations fournies par les autorités (15/12/2009) : l’article 194 du code de procédure pénale modifié par la loi n° 343 du 26/12/2007, restreint la durée des détentions avant jugement.

• Des informations sont attendues de la part des autorités sur leur évaluation de l’impact de cette mesure sur la violation constatée (bilan d’action) et sur la nécessité de mesures complémentaires (plan d’action si nécessaire).

- 1 case against Montenegro and Serbia[16] / 1 affaire contre le Monténégro et la Serbie

11890/05           Bijelić, judgment of 28/04/2009, final on 06/11/2009

The case concerns violation of the applicants' right to the peaceful enjoyment of their possessions due to the authorities’ failure to enforce a judgment final as of 27/04/1994, ordering the eviction of a third party from the applicants’ flat in Podgorica (violation of Article 1 of Protocol No.1).

The European Court noted that the police themselves had conceded that they were unable to fulfil their duties under the law, which had ultimately caused the delay in question (§§32, 84).

Individual measures:

• Information provided by the Montenegrin authorities (11/01/2010): On 15/07/2009 and 23/07/2009 respectively, the occupant was evicted and the apartment handed over to the applicants.

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

General measures:

• Information provided by the Montenegrin authorities (02/06/2010):

1) Legislative measures: To increase the efficiency of enforcement procedures, the Montenegrin authorities have prepared a draft Enforcement Act and a draft Act on Bailiffs. Council of Europe experts have prepared an opinion on the draft Enforcement Act. The new legislation should introduce a number of novelties to Montenegrin enforcement procedures to ensure rapid and full enforcement of final decisions. It is expected that the government will forward the final draft to Parliament by the end of this year.

2) Backlog: Special measures have been taken to reduce the backlog in all types of cases in Montenegrin courts, including in enforcement proceedings. Backlog cases have been accorded high priority. They are subject to special recording procedure. The presidents of all courts in Montenegro have regular monthly meetings with the President of the Supreme Court to discuss backlog issues. During 2009 the backlog cases were reduced by 51%.

3) Training: The European Court’s case-law, including this judgment, has been included in the training programme for judges and prosecutors in Montenegro.

4) Publication and dissemination: The European Court’s judgment has been published in the Montenegrin Official Gazette, No. 82/09 of 14/12/2009 as well as on the website of the Supreme Court of Montenegro (www.vrhsudcg.gov.me). The judgment has also been published in a book, Selected Judgments of the European Court of Human Rights, which has been forwarded to all judges and prosecutors in Montenegro.

• Assessment: It appears that the Montenegrin authorities have taken measures to increase the efficiency of enforcement procedures. The draft Enforcement Act and the introduction of private bailiffs should be capable of resolving the problem of non-enforcement of final decisions in Montenegro. Note is also taken of the continuing efforts to reduce the backlog in enforcement proceedings and of the awareness-raising measures.

• Information is thus awaited on the further developments in adopting the announced draft legislation and reducing the outstanding backlog in enforcement proceedings.

- 1 case against Norway / 1 affaire contre la Norvège

21132/05           Tv Vest As and Rogaland Pensjonistparti, judgment of 11/12/2008, final on 11/03/2009

This case concerns the violation of the freedom of expression of the applicants, TV Vest AS Ltd. – a television broadcasting company – and the Rogaland Pensioners Party (Rogaland Pensjionistparti), on account of a fine imposed by the State Media Authority on 10/09/2003 for breaching legislation prohibiting television broadcasting of political advertisements (violation of Article 10).

The decision of the State Media Authority concerned advertisements aired in 2003 by TV Vest and was based on the prohibition on television broadcasting of political advertising under section 3-1(3) of the Broadcasting Act 1992. The prohibition is permanent and absolute and applies only to television, political advertising in other media being permitted.

The European Court noted that the rationale for the statutory prohibition of television broadcasting of political advertising had been, as stated by the Supreme Court in rejecting the appeal of one of the applicants, the assumption that allowing the use of such a powerful and pervasive form and medium of expression had been likely to reduce the quality of political debate and to give richer parties and groups more scope for opportunities for marketing their opinions.

However, the European Court found that “paid advertising on television had been the sole means for the Pensioners Party to get its message across to the public through that type of medium” (§73). By being denied this possibility under the law, the Pensioners Party had been put at a disadvantage in comparison with the major parties, which had obtained broader editorial broadcasting coverage. Moreover, the content of the advertising was not as such as to lower the level of public debate. Therefore the Court considered that “the fact that the audio-visual media has a more effective and powerful effect than other media could not justify the disputed prohibition and fine imposed in respect of the broadcasting of the political advertising at issue” (§76).

The Court accordingly concluded that there had not been a reasonable relationship of proportionality between the legitimate aim pursued by the prohibition of political advertising and the means deployed to achieve that aim. The restriction could not therefore be regarded as having been necessary in a democratic society (§ 78).

Individual measures: The Court did not award the applicants just satisfaction as they submitted their claim out of time.

• Information provided by the Norwegian authorities: Following the judgment of the Court, on 8/07/2009, the Media Authority annulled its decision of 10/09/2003 fining TV Vest under section 10-3 of the Broadcasting Act and section 10-2 of the Broadcasting Regulations. The fine was never collected due to the dispute concerning its legality.

The applicants have recently requested the re-opening of the case in order to claim legal costs pertaining to the proceedings before the national courts and the European Court. According to the government, as the Court decided not to award just satisfaction, a claim for compensation cannot be based on the Article 46 of the Convention. Section 407(7) of the Code of Civil Procedure permits the re-opening of internal proceedings following a judgment of the European Court finding a violation.

• Information is awaited as to the outcome of the applicant’s request for reopening of the proceedings.

General measures: Section 3-1(3) of the Broadcasting Act 1992 reads: ”Broadcasters may not transmit advertisements for life philosophy or political opinion through television. This applies also to teletext”. 

The European Court acknowledged that the absence of a European consensus with regard to the extent of the regulation of television broadcasting of political advertising could be viewed as emanating from the different perceptions regarding what is necessary for the proper functioning of the “democratic” system in the respective states. However, on the basis of its assessment on the circumstances of the case (see above), it concluded that “the view expounded by the respondent Government, supported by the third party intervening Governments, that there was no viable alternative to a blanket ban must [therefore] be rejected” (§77).

• Information provided by the Norwegian authorities: The prohibition in Section 3-1(3) of the Broadcasting Act has remained unchanged. The Norwegian authorities have however indicated that they have implemented two general measures to prevent similar violations. These were proposed in a white paper of the Ministry of Culture and Church Affairs and approved by the Norwegian Parliament on 29/05/2009.

First, the Statutes of the national public broadcaster (NRK) have been amended. The NRK is now obliged to provide broad and balanced coverage of elections in accordance with the amended Section 12 (b) of the Statutes of the NRK , “The NRK shall provide a broad and balanced coverage of political elections. All parties and lists over a certain size shall normally be included in the editorial election coverage.” According to the white paper, the objective behind this amendment is to provide that smaller political parties, such as the Pensioners Party, are included in the NRK’s editorial coverage. The Media Authority will monitor NRK’s obligations according to these articles. The NRK has given an account of the editorial principles that will govern its election coverage during elections in 2009 (parliamentary elections) and 2011 (municipal elections) in a letter dated 10/03/2009 to the Ministry: “Parties with eligible candidates in more than half of the Regions in the national elections or in more than one municipality in the local elections, will normally be included in the NRK’s election coverage.” This includes the Pensioners Party and other political parties of a similar size. Smaller parties may also be covered according to NRK’s obligation to provide a broad and balanced coverage. In any case, according to the Norwegian authorities, such parties will be covered by the second general measure. The Norwegian authorities reported that during the last parliamentary elections (September 2009), the Pensioners Party and other political parties of similar size were included in the NRK’s election coverage.

Secondly, all political parties are able to use Frikanalen (the Open Channel) as a means to communicate with the public. This also includes political parties smaller than the Pensioners Party. Frikanalen is an open television channel in which organisations or individuals broadcast their own programmes. The channel is owned by more than 60 different non-profit organisations in Norway and is financed by support from the Ministry of Culture and Church Affairs and a membership fee. Frikanalen was started in October 2008 and is distributed through the digital terrestrial television network which covers more than 95 % of households. The terms of the licence permit the editor of the Frikanalen to delegate editorial responsibility to organisations or individuals. The editor’s sole obligation is to divide broadcasting time between the different organisations and to schedule their broadcasts. The Channel as such does not produce or broadcast any programmes of its own. To facilitate party political broadcasts during elections, the Ministry of Culture and Church Affairs in May 2009 signed an agreement with Frikanalen which states: “Reference is made to the objectives of the Frikanalen ‘to strengthen the freedom of speech and democratic participation by enabling new groups the opportunity to communicate by way of the television medium’. Reference is furthermore made to the Ministry’s objectives concerning an open channel. In order to fulfil these aims Frikanalen is to facilitate freedom of speech for all political parties and lists. During the last three weeks before an election such political parties and lists shall be given priority.

Frikanalen shall furthermore enable regionalisation of its signals in connection with Municipal and Regional Elections in order for local parties and lists to obtain television coverage through Frikanalen.”

The Norwegian authorities report that during the last parliamentary elections the Pensioners Party exercised the opportunity to broadcast programmes on Frikanalen. At present four political parties have broadcast their programmes on this Channel, including smaller political parties.

In addition, the Court’s judgment highlighted the direct effect of the European Court’s case-law accepted by the State Media Authority.

A summary of the judgment in Norwegian, with a link to the original judgment, was published on the Internet site Lovdata (<http://www.lovdata.no/avg/emdn/emdn-2003-012148-2-norge.html>). The Lovdata web site is widely used by all who practice law in Norway, civil servants, lawyers, prosecutors and judges alike. The Norwegian Centre for Human Rights (an independent national human rights institution) writes the summaries of the Court's judgments for the database.

• Assessment:  The measures taken by the respondent Government are welcome.

At the outset, it should be recalled that the European Court found a violation in this case taking account of the fact that paid advertising on television had been the sole means available to the Pensioners’ Party to convey its message to the public. The European Court concluded that contrary to the rationale of this statutory prohibition, by being denied this possibility, the applicant political party had been put at a disadvantage in comparison with the major parties, which had obtained broader editorial broadcasting coverage. In this respect, it should be noted that the prohibition prescribed by Section 3-1(3) of the Broadcasting Act 1992 remains unchanged.

It is observed that the measures taken by the Norwegian authorities aimed at securing access to the media for small political parties. The Norwegian authorities preferred to make changes in the public service broadcaster NRK’s mandate to allow for political parties’ access to the TV media (editorial coverage). In this respect, it should first be noted that all the parties and lists “over a certain size shall normally be included in the editorial election coverage”, i.e. all parties and lists are not guaranteed editorial coverage (the modification of Section 12 (b) of the Statutes of the NRK). In addition, it is not clear whether the mandate entails a requirement of equal treatment, or how the respect of this obligation is monitored. Nor is it clear how the “parties and lists over a certain size” were included in the editorial election coverage in practice.

The Norwegian authorities have also supported the Open Channel in order to guarantee TV access for all political parties during the election period. However, more detailed information is awaited as to the efficiency of this measure taken (whether or not it allows small parties to have access to the TV media). In this connection the Secretariat takes note the OSCE/ODHIR Needs Assessment Mission Report (22-25 June 2009) dated 4/08/2009, in which it was stated that “the open channel is currently functioning on a limited basis, as it is potentially available to some 30% of the population and only broadcasts five and a half hours a day...The Government is also proposing changes to the public broadcaster’s mandate to ensure broad and balanced coverage of elections. However, this will not necessarily ensure that smaller parties, which formed the basis for the ECHR judgment, receive television news coverage.”

• Further information is necessary In this respect to make a more conclusive assessment as to whether or not these measures are sufficient to prevent similar violations and secure access to the edited media for small political parties.

- 454 cases against Poland / 454 affaires contre la Pologne

17885/04           Orchowski, judgment of 22/10/2009, final on 22/01/2010

17599/05           Sikorski Norbert, judgment of 22/10/2009, final on 22/01/2010

The cases concern inhuman and degrading treatment of the applicants due to imprisonment in inadequate conditions, particularly overcrowding (violations of Article 3). From 2003 and 2001, respectively, the applicants were detained in several different prisons where they did not benefit from the statutory minimum living space of 3m² per prisoner. This lack of space had been aggravated by factors such as the lack of exercise, particularly outdoor exercise, lack of privacy, insalubrious conditions and frequent transfers. The European Court held unanimously that the distress and hardship endured by the applicants had exceeded the unavoidable level of suffering inherent in detention.

“Quasi-pilot-judgment” procedure: The European Court recalled that imprisonment in inadequate conditions constituted a recurrent problem in Poland. It held that from 2000 until at least mid-2008, overcrowding in Polish prisons and remand centres revealed a persistent structural dysfunction, qualified as a practice incompatible with the Convention (i.e. § 147 of the Sikorski judgment). The Court further observed that in the recent case of Kauczor (No. 45219/06, 1092nd meeting, September 2010), it had held that the excessive length of pre-trial detention in Poland revealed a structural problem consisting of a practice incompatible with Article 5§3 of the Convention and that the solution to the problem of overcrowding of detention facilities in Poland was indissociably linked to the solution of that identified in the Kauczor case.

            1) General measures to solve problems at the basis of the repetitive violations: The European Court underlined that consistent and long-term efforts must continue in order to achieve compliance with Article 3. It acknowledged that solving the systemic problem of overcrowding in Poland could call for the mobilisation of significant financial resources, but stressed that it is incumbent on the respondent government to organise its penitentiary system so as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (i.e. § 153 of the Sikorski judgment). The Court concluded that if the state is unable to ensure that prison conditions comply with the requirements of Article 3, it must abandon its strict penal policy in order to reduce the number of incarcerated persons or put in place a system of alterative means of punishment.

            2) Effective domestic remedies: The European Court encouraged the respondent state to develop an efficient system of complaints to the authorities supervising detention facilities, in particular the penitentiary judge and the administration of these facilities, which would be able to react more speedily than courts and to order, when necessary, a detainee's long-term transfer to an establishment in which the conditions were compatible with the Convention (i.e. § 154 of the Sikorski judgment).

The European Court took also note of an emerging practice civil courts which allows prisoners to claim damages in respect of prison conditions. In this connection, the Court emphasised the importance of the proper application by civil courts of the principles which had been set out in the relevant judgment of the Polish Supreme Court of 26/02/2007.

3) Individual applications lodged before the delivery of the quasi-pilot judgment and communicated to the government: Approximately 160 cases concerning similar facts were pending before the Court at the time of the adoption of the present judgments. The European Court did not adjourn the examination of other cases raising similar issues pending the adoption of domestic remedial measures by the Polish authorities.

Individual measures: The applicants have been transferred to prisons which are not categorised as overcrowded.

• Assessment: In the circumstances, no further individual measure appears necessary.

General measures:

• Information is awaited on the adoption of the measures required by the quasi-pilot judgment. The relevant issues were raised with the authorities during the mission of the Secretariat to Warsaw in March 2010. Substantial information was provided orally to the Secretariat and this will be supported by information in writing to be submitted by the Polish authorities.

23052/05           Kaprykowski, judgment of 03/02/2009, final on 03/05/2009

28300/06           Musiał Sławomir, judgment of 20/01/2009, final on 05/06/2009

44369/02           Wenerski, judgment of 20/01/2009, final on 20/04/2009

These cases concern inhuman and degrading treatment of the applicants due to lack of adequate medical care in detention facilities (violations of Article 3).

Kaprykowski: The applicant suffered from epilepsy, encephalopathy and dementia and was held on remand in several detention facilities. He had frequent epileptic fits and required constant medical supervision. The European Court found that during his detention on remand at various times between 2005 and 2007 in the Poznan Remand Centre, he did not receive adequate medical treatment and was placed in a position of dependency and inferiority vis-à-vis his healthy cellmates. This was not least because the establishment did not specialise in treating neurological disorders and the applicant spent almost seven months in an ordinary cell, without constant medical supervision.

Musiał: The applicant suffers from epilepsy, schizophrenia and other serious disorders, and has been detained on remand since April 2005. During nearly three and a half years’ detention he has for the most part been detained with healthy inmates in ordinary detention facilities, even though he requires regular psychiatric supervision.

In addition, the European Court observed that the establishments in which he has been held faced overcrowding and hygiene problems and that the cumulative effects of the inadequate medical care and inappropriate detention conditions were such as to be qualified as inhuman and degrading.

Wenerski: The applicant was remanded in custody in 2001 and has been serving a prison sentence since 2003. He suffered from a serious eye problem and, according to a 1998 medical report, needed urgently to undergo an operation on his right eye-socket. However, until 2004 the prison authorities failed to take the necessary steps to ensure that this operation was carried out, even though at least two hospitals agreed to have it performed “under escort”, thus not requiring the applicant to be released.

The case also concerns a violation of the applicant’s right to respect for his correspondence in that a letter sent to him by the European Court in 2003 had been opened and marked “censored” (violation of Article 8).

Findings under Article 46 in the Musiał judgment: The Court, mindful of the structural nature of these problems, called upon the Polish authorities in the Musiał judgment under Article 46 to take the necessary legislative and administrative measures to secure appropriate conditions of detention, in particular adequate conditions and medical treatment for prisoners needing special care owing to their state of health (§ 107 of the judgment). It also urged them to put an end to the violation of Article 3 in this case by securing adequate detention conditions for the applicant as soon as possible in an establishment capable of providing him with the necessary psychiatric treatment and constant medical supervision (§108).

Individual measures:

1) Violation of Article 3: In all these cases the European court awarded just satisfaction in respect of non-pecuniary damage. In the Kaprykowski case the applicant was released on 01/12/2007 (§24 of the judgment). According to a letter from the Polish authorities dated 23/06/2009, Mr Musiał was released from the Herby State Prison on 18/11/2008. In Mr Wenerski’s case, the necessary surgery finally took place in February 2004. The applicant is still in prison, serving his sentence. He is now awaiting the requested plastic surgery on his eyes, guaranteed to him by the authorities. His state of health is closely monitored.

• Assessment: As Mr Kaprykowski and Mr Musiał are no longer in detention, no further individual measures are required in their cases. Mr Wenerski has been granted medical care according to his wishes and his health care needs are respected. In the circumstances, no further individual measure appears necessary.

2) Violation of Article 8 in the Wenerski case: The European Court awarded just satisfaction.

• Assessment: the censorship of detainees’ correspondence is linked to the general measures (see below).

General measures:

1) Violation of Article 3:

a) Legislative reforms: An amendment of the Minister of Justice’s Ordinance of 31/10/2003 on detailed rules, scope and procedure relating to medical services available to persons deprived of their liberty is to be prepared by 08/07/2010. Furthermore, on 28/08/2009 an amendment to the Code of Execution of Criminal Sentences was adopted by Parliament and subsequently transmitted to the Senate and to the President for further legislative work. The purpose of this amendment is to implement the judgment of the Constitutional Court of 26/05/2008 which found that Article 248 of the Code of Execution of Criminal Sentences (which made it possible under certain circumstances to place detainees, for a specified time, in conditions in which the living space per capita is less that 3 m²) is unconstitutional.

The Central Prison Service Board is working on the rationalisation of the health-care system for persons deprived of their liberty. A significant element of this process is a projected reform of penitentiary hospital facilities, in particular psychiatric wards.

b) Other measures: The Central Prison Service Board intends to enforce more strictly the provisions concerning the obligation to co-operate non-penitentiary health-care establishments in providing medical services for persons deprived of liberty. On 01/092009 the law on the Electronic Supervision System came into force. This is intended to help diminish the overcrowding in the penitentiary units.

c) Publication and dissemination: The judgments of the European Court in the Musiał and Wenerski cases have been published on the public website of the Ministry of Justice (www.ms.gov.pl) and sent out to appeal courts and the Director of the Central Administration for the Prison Service. 

• Assessment: an action plan/action report should be provided for evaluation by the Committee. To this end, further information should be made available including a time-table, further detail of the measures envisaged and already taken and an evaluation of how these measures address the violations found by the Court. In particular information would be welcome on:

-           the scope and functioning of the law on Electronic Supervision System and its implementation;

-           detail of the provisions of the draft amendment to the Code of Execution of Criminal Sentences;

-           clarification of the scope and aim of the reform of procedure relating to the provision of medical services to persons deprived of their liberty and the current state of the legislative process;

-           detailed information on the envisaged rationalisation of the health-care system and the reform of penitentiary hospital facilities.

• The relevant issues were raised with the authorities during the mission of the Secretariat to Warsaw in March 2010. Substantial information was provided orally to the Secretariat and this will be supported by information in writing to be submitted by the Polish authorities.

2) Violation of Article 8 in the Wenerski case: See the Klamecki No. 2 group of cases (31583/96, 1100th meeting, December 2010) dealing with the censorship of prisoners’ correspondence with the European Court. Measures taken to prevent new, similar violations include: publication, awareness-raising measures, new instruction of the Director General of Prison Services, installation of special mailboxes in detention centres for correspondence with the European Court.

47709/99           Rachwalski and Ferenc, judgment of 28/07/2009, final on 28/10/2009

The case concerns ill-treatment inflicted on the applicants in June 1997 in the course of a police action to find the owner of an unlocked car (substantial violation of Article 3). It also concerns unjustified entry by the police to the applicants’ apartment in the middle of the night (violation of Article 8).

The investigation against the police officers involved was discontinued in 1998.

In the European Court’s view, the heavy-handed police intervention to investigate a minor issue of an unlocked car, in the absence moreover of any aggression or behaviour on the applicant' part likely to disturb the public order, was unjustified and disproportionate. Likewise, the European Court found the decision to enter the applicants’ apartment disproportionate in the circumstances. It observed that certain guarantees ensuring effective protection of an individual right under Article 8 in case of entry or search of premises by the police were incorporated in Article 221 of the Code of Criminal Procedure and in the Police Corps Act. However, those guarantees failed to prevent the situation complained of from occurring; the police did not seem to regard them as applicable or relevant.

15562/02           Lewandowski and Lewandowska, judgment of 13/01/2009, final on 13/04/2009[17]

19616/04           Pieniak, judgment of 24/02/2009, final on 24/05/2009

38273/02           Stochlak, judgment of 22/09/2009, final on 22/12/2009

The case concerns the violation of the applicant's right to respect for family life due to the authorities insufficient action to secure return of a child abducted by her mother (violation of Article 8).

The applicant is a Polish national who has lived in Canada since 1985. In 1993 he and his wife, E.S. had a daughter. At the end of a holiday in Poland in 1996 E.S. refused to return to Canada, having decided to remain in Poland with their daughter. From March 1997, the applicant brought a civil and then criminal proceedings, seeking to have the child returned to him. In January 2003 a special police unit was put in charge of looking for the girl. The applicant, deprived of any contact with his daughter during the proceedings, contacted the relevant Polish bodies as well as private detective agencies and the Canadian authorities. He was reunited with his daughter on 14 April 2003.

The European Court recalled that proceedings relating to the granting of parental responsibility required urgent handling, as the passage of time could have irremediable consequences for relations between a parent and his or her child. It was clear in January 1997 that the applicant’s daughter had been unlawfully removed. A year and seven months passed between the district court’s first decision and the dismissal of the appeal. Furthermore, the European Court observed that in the context of the civil enforcement proceedings, three years passed where no activity by the authorities could be identified. It was only in January 2003 that a meeting was finally organised to ensure effective cooperation between the various State bodies. The European Court found that the authorities had not taken measures to punish the lack of cooperation by the child’s mother, which was the source of most of the problems (§64 of the judgment) and that “when the national legal order did not provide for effective sanctions … it is for each state to equip itself with a sufficient legal arsenal to ensure respect for the positive obligations under Article 8” (§64 of the judgment).

The European Court concluded that notwithstanding the margin of appreciation of the respondent state, the authorities had not made appropriate efforts to respect the applicant’s right to the return of his child; failing to respect his right to family life under Article 8” (§66 of the judgment).

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 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 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 had 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 had 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 behavior 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, stating the following:

-           the Hague Convention is 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 asked the Committee of Ministers to ensure the proper execution of this judgment of the European Court. His lawyer opposed 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.

• By a letter of 21/01/2010 the authorities provided information on the applicant’s situation. The Secretariat is currently assessing it.

• Bilateral contacts are under way to clarify the scope of individual measures in this case and the applicant’s situation. An update on the case was provided orally to the Secretariat during its recent mission and this will be supported by information in writing to be provided by the Polish authorities.

General measures: This case presents similarities to that of H.N. (77710/01) (see the Podbielski group of cases, 27916/95, Section 4.2), in which some measures have already been taken (publication and wide dissemination).

However, due to the peculiar circumstances of this case, the European Court’s judgment was also sent out to competent authorities (criminal courts, prosecutors, guardians and bailiffs).

• Information is awaited on other general measures envisaged or taken with respect to the particularity of the excessive length of enforcement proceedings in child-related cases. 

27209/03           Kuliś and Różycki, judgment of 06/10/2009, final on 06/01/2010

This case concerns a violation of the applicants' right of freedom of expression due to disproportionate and unsjustified findings against them by civil courts in respect of the publication of an article (violation of Article 10).

The first applicant owns a publishing house which publishes a weekly magazine, Angora, and its supplement for children, Angorka. The second applicant was Editor-in-chief of the magazine.

On 16/05/1999 Angorka published an article referring to an advertising campaign by a company, Star Foods, for its potato crisps. The article was critical of an advertisement placed in company’s crisp packaging which called a popular cartoon character for children “a murderer”.

The Star Foods Company brought a civil claim for protection of personal rights under Article 23 of the Civil Code, against both applicants seeking an apology and payment to a charity. This claim was granted by the courts, who found that the applicants’ article had discredited the products of the company. The applicants’ appeals were dismissed in 2002.

The European Court found that the applicants had not aimed to denigrate the quality of the crisps but to raise awareness of the type of slogans used by the company and the unacceptability of such tactics to generate sales. Accordingly, the European Court considered that the domestic courts had “failed to have regard to the fact that the press had a duty to impart information and ideas on matters of public interest and in so doing could resort to some exaggeration or even provocation” (§39 of the judgment), as had been the situation in the present case. The European Court concluded that “the reasons adduced by the domestic courts could not be regarded as relevant and sufficient to justify the interference at issue” (§39 of the judgment).

20436/02           Wojtas-Kaleta, judgment of 16/07/2009, final on 16/10/2009

The case concerns the violation of the applicant's right to freedom of expression in that she was reprimanded by her employer, the Polish Public Television (TVP) on the ground of its general regulation 14§2. The European Court found the reprimand not “necessary in a democratic society” (violation of Article 10).

In 1999 the applicant was reprimanded for having expressed, in an interview, her concerns about lack of support for classical music by the TVP and about the fact that the quality of public television programmes was being negatively affected as a result of fierce competition from private broadcasters. She also signed an open letter addressed to the board of TVP on the same subject. She was reprehended for failing to respect the company's regulations, under which she was obliged to respect her employer's good name and the reprimand was to be kept on her record for up to a year, depending on her behaviour. The applicant lodged a claim against TVP to have the reprimand withdrawn, but to no avail as the courts found her to have breached her obligation of loyalty to her employer.

The European Court drew attention to the fact that the role played by journalists in society and their responsibility to contribute to and encourage public debate limits their obligation of discretion, given that it is in the nature of their functions to impart information and ideas. The European Court further reiterated that there is a little scope under Article 10§2 of the Convention for restrictions on debate on questions of public interest.

                       - 2 affaires concernant la liberté d'expression

28949/03           Sanocki, arrêt du 17/07/2007, définitif le 17/10/2007

15601/02           Kuliś, arrêt du 18/03/2008, final le 18/06/2008

Ces affaires concernent des violations du droit des requérants à la liberté d'expression suite à leurs condamnations au plan civil sur la base de l'article 24 du Code civil, condamnations jugées non « nécessaires dans une société démocratique » par la Cour européenne (violations de l'article 10).

Dans l'affaire Sanocki, le requérant qui était maire de la ville de Nysa à l'époque des faits, fut critiqué dans plusieurs articles publiés par le quotidien local Nowa Trybuna Opolska.

En réplique à un de ces articles l'accusant de mauvaise gestion financière, le requérant fit publier en mars 2000, dans un hebdomadaire local un article intitulé « Les mensonges de la Trybuna », dans lequel il utilisa un langage provocateur. Estimant que cet article portait atteinte à sa réputation, la société éditrice du journal Nowa Trybuna Opolska, intenta une action en justice contre le requérant. Par conséquent, par décision du 20/12/2001, par la suite confirmée en appel, le tribunal régional d'Opole condamna le requérant à publier des excuses à la société éditrice, à lui rembourser les frais de procédure, à verser la somme d'environ 1705,32 euros à des institutions caritatives et à régler les frais de justice.

La Cour européenne a souligné que les expressions incriminées avaient été émises par voie de presse lors d'un débat politique ouvert. Bien que le requérant ait utilisé un langage provocateur et manquant d'élégance envers son adversaire, il aurait dû pouvoir se défendre lorsqu'il considérait que les publications mettant en cause sa personne étaient mensongères et pouvaient induire en erreur l'opinion publique sur sa façon d'exercer le pouvoir. Ainsi, les juridictions internes n'avaient pas établi de manière convaincante l'existence d'un besoin social impérieux de placer la protection des droits du journaliste au-dessus du droit du requérant à la liberté d'expression et de l'intérêt général qu'il y a à défendre pareille liberté lorsque les questions du débat politique sont en jeu.

Dans l'affaire Kuliś, en 1992, le requérant, propriétaire d'une maison d'édition, avait publié un entretien sur l'enlèvement allégué d'un membre de la famille d'un homme politique. Suite à cet article, l'homme politique et sa femme ont institué une procédure civile, réclamant la protection de leurs droits personnels. Les 15/05/1998 et 26/01/1999, le tribunal régional et la Cour d'appel de Łódź ont respectivement accueilli leur demande et ont ordonné au requérant de payer une compensation à la partie demanderesse, de lui rembourser les frais et dépens et de publier des excuses. La Cour européenne a estimé que les tribunaux polonais n'avaient pas établi de juste milieu entre les intérêts en concurrence, notamment entre la protection des droits personnels d'une personnalité publique et le droit du requérant à la liberté d'expression sur un sujet d'intérêt public.

Mesures de caractère individuel :

1) Affaire Sanocki : La Cour européenne a accordé au requérant une satisfaction équitable au titre du préjudice moral et matériel subi, notamment pour couvrir toutes les sommes qui lui avait été imposées.

• Evaluation : aucune autre mesure individuelle ne semble nécessaire.

2) Affaire Kuliś : La Cour européenne a octroyé une satisfaction équitable au titre des préjudices moral et matériel, incluant les sommes versées à la partie demanderesse au titre de la compensation.

Le 20/04/2010, le tribunal de district Łódź-Śródmieście, statuant sur la demande de la partie demanderesse, a décidé de ne plus poursuivre la procédure interne concernant l'exécution de l'obligation de publier des excuses.

• Evaluation : aucune autre mesure individuelle ne semble nécessaire.

Mesures de caractère général :Les violations constatées sont dues à la pratique des tribunaux nationaux n'ayant pas pris en compte les critères découlant de la Convention concernant le droit à la liberté d'expression.

• Informations fournies par les autorités polonaises (22/07/2010): Les arrêts ont été traduits et publiés sur le site Internet du Ministère de la Justice (www.ms.gov.pl) et diffusés aux juges de la Cour suprême et aux tribunaux de tous les niveaux. De surcroît, ils ont été envoyés à l’Ecole Nationale de la Magistrature et des Parquets afin de les inclure dans le programme de formation.  

• Les informations sur les mesures générales fournies par les autorités sont à l’analyse.

4317/04            Kaźmierczack, judgment of 10/03/2009, final on 10/06/2009[18]

5422/04            Wojciechowski, judgment of 09/12/2008, final on 05/06/2009

25924/06           Nowiński, judgment of 20/10/2009, final on 20/01/2010

The case concerns a violation of the applicant’s right of access to a court in that his claim for compensation against the Wrocław Court of Appeal was declared inadmissible on the sole ground that the applicant had not provided his home address (violation of Article 6§1).

The applicant provided the Wrocław Regional Court with his work address and post-office box address for correspondence. However, the court considered that in spite of that information he had not indicated his “place of residence” with the meaning of Article 126 § 2 of the Code of Civil Procedure. Consequently, on 16/05/2005 the Regional Court refused his claim.

The European Court found that the applicant, who was the claimant in the case, was in permanent contact with the domestic courts and it was in his interest to ensure that the proceedings progressed without problems. He had therefore provided a fixed address through which he could be contacted. The Court recalled that the right of access to a court is not absolute; it may be subject to limitations, provided those limitations pursue a legitimate aim and are proportionate. The European Court accepted that “a requirement to indicate a place of residence served a legitimate aim …However, it considered that the strict application [of the rule] in the applicant’s case” was disproportionate (see §34 of the judgment). The Court concluded that as “the Government failed to submit any arguments making it possible to assess the need for the limitations imposed on the applicant, the Court cannot but conclude that the requirements of Article 6§1 were not complied with” (§35 of the judgment). 

                       - 6 cases concerning deficiencies in the legal aid system[19]

8932/05            Siałkowska, judgment of 22/03/2007, final on 09/07/2007

2815/05            Antonicelli, judgment of 19/05/2009, final on 19/08/2009

41373/04           Arciński, judgment of 15/09/2009, final on 15/12/2009

18353/03           Kulikowski, judgment of 19/05/2009, final on 19/08/2009

59519/00          Staroszczyk, judgment of 22/03/2007, final on 09/07/2007

2619/05            Zapadka, judgment of 15/12/2009, final on 15/03/2010

                       - 5 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

34030/07           Jałowiecki, judgment of 17/02/2009, final on 17/05/2009

37469/05           Luboch, judgment of 15/01/2008, final on 15/04/2008

38886/05           Rasmussen, judgment of 28/04/2009, final on 28/07/2009

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).

Ms Rasmussen, a retired judge, was divested by the National Judicial Council on 20/07/2005 of the special pension to which she was entitled on account of her status as a retired judge as a result of lustration proceedings

In Jałowiecki case, the applicant, a Polish member of European Parliament, was found by the Warsaw Court of Appeal on 17/02/2006 to have had lied in his lustration declaration by denying that he had co-operated with the secret services. The European Court considered that the applicant’s ability to prove that the contacts he had had with the communist-era secret services did not amount to “intentional and secret collaboration” within the meaning of the Lustration Act, had been severely curtailed.

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.

21508/02           W.S., judgment of 19/06/2007, final on 24/09/2007

This case concerns the violation of the applicant’s right to a fair trial and right to obtain attendance and examination of witnesses (violation of Article 6§1 in conjunction with Article 6§3(d)).

By a judgment of 06/11/1997 of the Łòdź Regional Court, the applicant was convicted of sexual abuse of his four-year-old daughter, X, and sentenced to four years’ imprisonment. His conviction, upheld at appeal, was mainly based on the opinions of a psychologist who had interviewed X in 1994 and 1995, according to relevant provisions on taking evidence from minors.

The European Court noted that X had never at any stage been questioned either by the police, the prosecutor or the court. The authorities did not attempt to test the reliability of the victim in a less invasive manner, such as an interview in the presence of a psychologist with written questions from the defence or, in a studio, enabling the applicant or his lawyer to be present indirectly via a video-link or one-way mirror. No procedure was introduced to counterbalance the difficulties faced by the defence and the applicant and the latter was not given an adequate and proper opportunity to challenge and question this witness against him.

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

Under Article 540§3 of the Code of Criminal Procedure, the applicant may apply to have the criminal proceedings reopened invoking the finding of a violation by the European Court (see the Skałka case, 43425/98, Section 6.2).

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

General measures: It appears that the violation in this case resulted from the decisions of the prosecutors and the criminal courts. In any event, the Code of Criminal Procedure was amended on 03/06/2005 by addition of Articles 185a§1 and 185b on the conduct of the examination of victims and witnesses under 15. Pursuant to Article 185a§1 of the Code, a victim younger than 15 should be examined only once in cases concerning sexual offences or offences against the family and guardianship, unless essential facts are disclosed which require additional examination or unless the accused, who had not had defence counsel in the course of the first examination, demands it. Pursuant to Article 185b§1, a witness who is under 15 at the time of examination may be examined under conditions specified under Article 185a§1 in cases concerning offences committed with violence or unlawful threats, only if his/her testimony might have an essential bearing upon the outcome of the case. A psychologist is always involved in the examination of such victims or witnesses.

The judgment of the European Court was published on the website of the Ministry of Justice (www.ms.gov.pl) and sent out to all presidents of appeal courts and subsequently to all other district and regional criminal courts, along with a circular.

On 21/07/2010 the authorities provided information on Article 185a§1 of the Code of Criminal Procedure and on the relevant case-law of the Supreme Court.

• This information is currently being assessed.

- 2 cases concerning the refusal to grant compensation for an unlawfully expropriated property due to divergences in the domestic case-law

22279/04           Plechanow, judgment of 07/07/2009, final on 07/10/2009

38016/07          Sierpiński, judgment of 03/11/2009, final on 03/02/2010 and of 27/07/2010 – Friendly settlement

These cases concern an infringement of the applicants' right to the peaceful enjoyment of their possessions in that the authorities refused to pay them compensation for a property unlawfully expropriated from them in 1964 (violations of Article 1 of Protocol No. 1).

The applicants’ claims for compensation against public entities failed because, in the domestic courts’ view (reflected in the final judgments of the Supreme Court of 10/12/2003 and 10/01/2006), they sued the wrong defendant.

The European Court held that the question of liability for damages resulting from flawed administrative decisions was by no means clear at the time the applicants’ claim was examined and the divergences in case-law continued for several years afterwards. The Court concluded that shifting the responsibility of identifying the competent authority to be sued to the applicants and depriving them of compensation on that basis was a disproportionate requirement and failed to strike a fair balance between the public interest and the applicants’ rights.

21700/02           Polańscy, judgment of 07/07/2009, final on 07/10/2009

The case concerns an infringement of the applicants' right to the peaceful enjoyment of their possessions, due to almost 9 years’ delay in payment of compensation in respect of an expropriation (violation of Article 1 of Protocol No. 1).

The applicants had an enforceable claim to receive compensation for their property expropriated for a public road as of at least 29/10/1998. The payment was delayed by the lack of funds on the part of administrative authorities and not effected until 13/09/2007.

The European Court held that by failing during that period to comply with the statutory obligation to pay the compensation, the national authorities prevented the applicants from receiving the money to which they were entitled. The Court further noted that the compensation granted had contained no element of redress for the non-pecuniary damage that the applicants must have suffered as a result of the delay.

74168/01           Wilkowicz, judgment of 04/11/2008, final on 04/02/2009[20]

                        - 150 cases of length of detention on remand

                        Interim Resolution CM/ResDH(2007)75

                        (see Appendix for the list of cases in the Trzaska and Kauczor group)

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

The Bagiński, D.P. and G.K. cases also concern the prolonged detention on remand of the applicants, without a legal basis, from 01/01/1997 to 24/01/1997 due to the fact that the Polish authorities' request to extend their detention had been filed after the expiry of the time-limit fixed in interim domestic provisions of 1995 (violations of Article 5§1).

In the case of Łatasiewicz, the European Court found that the applicant's detention was irregular in that it was not based on a judicial decision (violation of Article 5§1).

The Bagiński case also concerns the failure to bring the applicant promptly before a judge, in that he was initially placed in detention on the basis of a decision by the prosecutor (violation of Article 5§3).

In the Bagiński, G.K., Trzaska, Wedler, Wesołowski and Zywicki cases, the European Court found that the proceedings to review the lawfulness of the applicants' detention on remand were not adversarial (violations of Article 5§4). Moreover, the Trzaska, Jabłoński and Iłowiecki cases concern the domestic courts' failure to examine promptly the applicants' requests for release between 1993 and 1996 (violations of Article 5§4).

The cases of Jabłoński, Szeloch, Iłowiecki, Kauczor, Kreps and Olstowski also concern the excessive length of the criminal proceedings brought against the applicants (violations of Article 6§1).

The Cabała, Cegłowski, Dzyruk, G.K., Gąsiorowski and Góral cases also concern the violation of the applicants' right to correspond with the organs of the Convention (violations of Article 8).

Finally, in the Bagiński case, the European Court found a violation of the applicant's right to respect for his family life (violation of Article 8), since the restrictions placed on visits by his mother between December 1995 and May 1996 exceeded what was necessary in a democratic society to defend public order and prevent the commission of offences.

Individual measures:

            1) Violations of Article 5§3: In most of the cases the European Court awarded just satisfaction in respect of non-pecuniary damage.

• Information provided by the Polish authorities: In the Jarzyński, Jaworski, Kankowski, Kozlowski and Krawczak cases the applicants were released from detention.

• Information is awaited concerning the applicants' situation in the Choumakov, Konrad and Pakos cases.

            2) Violations of Article 6§1:

• Information provided by the Polish authorities: In the Olstowski and Iłowiecki cases, the proceedings were closed respectively on 03/02/2004 and 14/09/2004.

• Assessment: no further measure appears to be necessary.

General measures:

1) Violations of Article 5§3:

a) Legislative measures and Constitutional Court judgments: The grounds for placement and maintaining in detention on remand were modified with the entry into force on 01/09/1998 of the new Code of Criminal Procedure. Detention on remand may be ordered if there is a strong probability that the accused has committed an offence and, cumulatively, if there is a risk of his or her absconding, obstructing the proceedings or, in certain cases, re-offending. According to Article 258§2 of the Code of Criminal Procedure, an accused may be detained on remand if he or she risks a long term of imprisonment (if the charges relate to offences punishable by at least 8 years of imprisonment or if a court of first instance sentenced the accused to a minimum of 3 years of imprisonment). The maximum period of detention on remand before the case is referred to a court is limited to 3 months; in exceptional cases, to 12 months. Before a judgment is given, the maximum duration of detention on remand is limited to two years unless the appeal court extends it beyond that limit for any of the reasons set out in Article 263§4 of the Code of Criminal Procedure.

In its judgment of 24/07/2006 (reference No. SK 58/03) the Constitutional Court found that Article 263§4 of the Code of Criminal Procedure was in contradiction with the Polish Constitution in that it permitted the extension of remand beyond the two-year limit, in the context of investigation, in the case of “insurmountable obstacles”. The article was consequently amended on 12/01/2007: it is no longer possible to prolong the detention beyond two years for such reasons. This only applies to detention on remand ordered prior to the completion of the preliminary investigation.

• Developments following the interim resolution:

On 10/06/2008 the Constitutional Court delivered another judgment concerning detention on remand (reference No. SK 17/07). In this case, it found that the courts' practice of not taking into account the periods during which a suspect/accused remains in prison following a final conviction in different proceedings while counting the two-year limit for the detention on remand, was unconstitutional. Consequently, courts will have to change their practice.

On 30/04/2009 the government indicated that the Code of Criminal Procedure had been amended. The amendment, in force as of 22/01/2009, implies among other things a change in Article 263§4a, removing “insurmountable obstacles” as a ground for the extension of detention on remand.

Moreover, two other grounds for extending detention on remand were removed from Article 263§4: prolonged psychiatric observation of the accused and prolonged preparation of an expert opinion. Consequently, the extension of detention on remand will be possible only on grounds precisely mentioned in this provision: suspension of criminal proceedings, actions aiming at establishing or confirming the identity of the accused, conduct of evidentiary action in a particularly intricate case or abroad, or intentional protraction of proceedings by the accused.

A further draft amendment to the Code of Criminal Procedure is pending before the Ministry of Justice. It aims at imposing an obligation on prosecutors to provide detailed grounds on which requests for extension or imposition of detention on remand are based.

Finally, the authorities have created a working group to improve the monitoring of trends concerning the length of the detention on remand.

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

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

• Developments following the interim resolution: On 22/02/2008 the Ministry of Justice wrote to presidents of appeal courts asking the presidents of criminal sections to draw special attention to the drafting of decisions on the imposition or extension of detention on remand and to consider in every case the use of other preventive measures. A copy of the Interim Resolution CM/ResDH(2007)75 was attached to this letter.

The issue of the imposition and extension of detention on remand in accordance with the Convention is now included in the programme of courses for judges. A conference on this topic for appeal court judges took place in March 2008 in Cracow. Further conferences of this kind have been scheduled for 2009.

            c) Courts' practice: In March 2006 the Polish authorities provided information on the practice of criminal courts concerning the imposition and extension of detention on remand. Out of the 11 appeal courts in the country six have made express reference in certain of their decisions to the case-law of the European Court and also in some cases to the circular sent out by the Ministry of Justice. In most of these cases the courts decided to bring an end to the detention on remand and replace it by some alternative measure of constraint, such as the obligation to report to the police or prohibition on leaving the country.

In two other appeal courts, similar decisions have been handed down in three cases, but without reference to the case‑law of the European Court.

• Developments following the interim resolution: Copies of 21 recent court decisions from four appeal courts' jurisdictions showing “good practice” in the use of preventive measures have been provided. In these decisions, courts referred to the Convention and the European Court's case-law while deciding on the use of such measures, including detention on remand. In a few cases detention on remand, ordered at the earliest stage of criminal proceedings, was replaced by other preventive measures.

            d) Statistics: The Polish authorities have also provided statistics on the average duration of detention on remand (see Interim Resolution CM/ResDH(2007)75).

• Developments following the Interim Resolution: Because of the inconsistency of data derived from different sources, a special group has been created in the Ministry of Justice to draw up an efficient mechanism for evaluating trends concerning length of detention on remand and new forms for the statistical data concerning the imposition and extension of detention on remand.

According to the data provided by the Ministry of Justice, in the year 2007 public prosecutors all over Poland lodged with the district courts 36,408 motions to remand in custody, i.e. 4,8% fewer than in 2006 (38,272). Courts allowed 31 271 motions, which is 0,2% fewer than in 2006. In the first half of 2008 (until 30/06/2008) the number of such motions amounted to 13 887, which was 28,7% fewer than in the first half of 2007 (19 495). Courts allowed 11 582 motions, i.e. 31,2% fewer than in the first half of 2007 (16 845).

On 31/12/2007, 10 461 people remained in detention on remand pending proceedings before district and regional courts, which was 13,2% fewer than at the end of 2006 (12 055 people). On 30/06/2008 the number of people in detention on remand pending proceedings before these courts amounted to 7 633, which was 35,3% fewer than at the end of the first half of 2007 (10 328).

As regards the number of people on remand pending investigation, this number amounted to 33 109 in the course of 2007 (no data have been provided for previous reporting periods). On 30/06/2008 the number of such people amounted to 15 656.

Concerning detention lasting between 12 months and 2 years or more than two years, in 2007 the number of such detentions pending proceedings before district courts has slightly increased and amounted respectively to 952 (918 in the year 2006) and 203 (192 in the year 2006). On 30/06/2008 the number of pre-trial detentions pending proceedings before district courts and lasting between 12 months and 2 years amounted to 586 (compared with 955 on 30/06/2007) and the number of pre-trial detentions lasting over 2 years amounted to 157 (compared with 185 on 30/06/2007).

Concerning pre-trial detentions pending proceedings before regional courts and lasting between 12 months and 2 years or more than two years, in 2007 their number decreased: respectively to 1 306 (1 362 in 2006) and 793 (850 in 2006). On 30/06/2008 their number amounted respectively to 1 264 and 701.

Concerning detention on remand pending investigation before the prosecutor, in the course of 2007 165 people were detained for a period between 6 months and 2 years and 29 remained in detention on remand for over 2 years (no data have been provided in this respect for previous years). On 30/06/2008 these figures amounted respectively to 61 and 16.

The authorities are of the opinion that the number of detainees on remand is gradually decreasing. According to the data provided by the prison authorities, in May 2001 it amounted to 25,000 (32% of the prison population), while in February 2008 to 11,000 (12,5% of the prison population). The statistics for 2008 show that the number of the court remand orders further decreased in comparison to 2007 (by almost 23 %). On 31/12/2008 the number of pre-trial detainees was 22,1 % lower than in 2007. As regards "long" detentions (between 12 months and 2 years and beyond 2 years) on 31/12/2008, the tendency was declining. Their number considerably decreased in 2008 before district courts (approximately by 50 %) and slightly decreased with respect to those ordered by regional courts.

• Assessment: the above data indicate a general downward trend in the number of suspects/accused remanded in custody. In 2008, the number of prosecutors' motions for applying pre-trial detention, the number of detentions ordered by courts, the number of people detained pending investigation and proceedings before district and regional courts decreased compared with the situation in 2007. Moreover, the number of long detentions (between 12 months and 2 years and over 2 years) has decreased in case of detention pending proceedings before district courts. Concerning detention pending proceedings before regional courts, the number of detentions lasting over 2 years has decreased, but that of detentions lasting between 12 months and a year has remained almost unchanged. The number of detentions on remand lasting over 6 months pending the prosecutor's investigation has also decreased. Thus the data for 2008 show a downward trend as regards long detentions.

Despite these positive developments, however, the Secretariat still notes with concern that the number of judgments of the European Court finding violations of Article 5§3 has increased. In the recent judgment of Kauczor (judgment of 3/02/2009, see also DD(2009)39), followed by a judgment in the case Hilgartner (judgment of 3/03/2009, final on 3/06/2009) the European Court concluded that many cases have demonstrated that the excessive length of detention on remand in Poland revealed a structural problem consisting of “a practice that is incompatible with the Convention” (§60) and invited the Polish authorities, under Article 46, to make further efforts to take general measures to solve this problem (§§61-62). It noted that approximately 145 applications raising this issue were currently pending before it, out of which nearly ninety had already been communicated to the Polish government (§ 56).

The measures taken/envisaged by the Polish authorities in response to Interim Resolution CM/ResDH(2007)75 are welcomed but the Polish authorities are also encouraged to take further steps to solve the problem of excessive length of detention on remand. The examples of good practices provided in 2008 are very restricted and concern only 6 out of 11 appeal courts in the country. The domestic courts still very rarely decide to replace detention on remand by another preventive measure, even if in some cases the domestic judges refer to the Convention and the case-law of the European Court.

• Information is awaited on the impact of the amendment to Article 263 and on the adoption of further amendments to the Code of Criminal Procedure, on further awareness measures (publication and dissemination of the European Court's judgments) and monitoring of courts' practice concerning the imposition of detention on remand and other preventive measures as well as the introduction of an efficient mechanism for evaluating the trends in this respect. Moreover, it would be useful to receive information on the trends in 2009 concerning length of detention on remand, and in particular long detentions. Clarification would be also useful on the number of remands decided by district and regional courts and on the trends concerning detention pending investigation. Information is also awaited on the outcomes of the working group created to improve the monitoring of trends concerning the length of detention on remand.

2) Violations of Article 5§1 in the cases of Bagiński, D.P and G.K.:

• Information provided by the Polish authorities: For the year 2005 the Minister of Justice adopted “The guidelines for the exercise of supervision of the activity of ordinary courts”, on the basis of the Decree of 25/10/2002 on the Procedure of supervision of the administrative activity of courts. According to these guidelines, pending criminal cases in which detention on remand has been extended for more than 2 years are placed under the supervision of the presidents of courts of appeal, who are to ensure that proceedings are expedited rapidly.

In February 2006, the Minister of Justice wrote to all prosecutors reminding them of the legal rules concerning detention on remand. In this letter the Minister emphasised inter alia that prosecutors should conduct investigations promptly and that they should ask judges to prolong detention on remand, in principle, in cases in which a detainee is suspected of having committed a crime or an offence liable to a sentence of 8 years' imprisonment or more.

Moreover, in March 2007, the Minister of Justice sent out a circular to Presidents of courts of appeal concerning the finding of such a violation in the D.P. judgment.

• Assessment: In the circumstances, no further measure appears necessary.

3) Violation of Article 5§1 in the Łatasiewicz case: The European Court found that the domestic practice of prolonging detention on the sole basis of a criminal charge was the result, at the material time, of the lack of any precise rule in national law governing the situation of detainees during judicial proceedings, after expiry of the period of detention fixed by the detention order issued at the investigatory stage. This practice is no longer possible in the light of the provisions of the Code of Criminal Procedure to the effect that any extension of detention must be on the basis of a court decision.

• Assessment: This being the case, no further measure appears necessary.

4) Violation of Article 5§3 concerning the right to be brought promptly before a judge and violations of Article 5§4 in respect of the lack of fairness of the procedure to review the lawfulness of the applicants' detention on remand: These cases present similarities to that of Niedbała (judgment of 04/07/2000) closed by Resolution ResDH(2002)124 following the entry into force on 01/09/1998 of the new Code of Criminal Procedure. According to Article 249 of the Code, before deciding on the application of preventive measures, a court shall hear the defendant. His counsel shall also be allowed to attend the court's session.

• Assessment: no further measure appears necessary.

5) Violations of Article 5§4 (prompt examination of appeals against detention pending trial):

• Information provided by the Polish authorities: Under the terms of Article 252§3 of the new Code of Criminal Procedure, any appeal against a preventive measure (including placing and keeping someone in detention pending trial) must be examined promptly. Article 254§1 provides that applications requesting lifting or modification of preventive measures must be decided by a prosecutor at the preliminary investigation stage, or by a judge when the criminal proceedings are at the trial stage, within three days.

• Assessment: This being the case, no further general measure appears necessary.

            6) Violations of Article 6§1: The cases present similarities to other cases concerning the length of judicial proceedings before criminal courts (see Kudła, 30210/96, Section 4.2).

            7) Violations of Article 8: The cases also present similarities to that of Klamecki No. 2 (31583/96, Section 4.2, 1100th meeting, December 2010).

            8) Publication of the judgments of the European Court: The judgments in the cases of Trzaska, Baranowski, Chodecki, Goral and Iłowiecki were published in the Bulletin of the Council of Europe Information Centre and disseminated to the competent authorities. The D.P., Olstowski and Chodecki judgments were also published on the website of the Ministry of Justice, www.ms.gov.pl <http://www.ms.gov.pl>.

- 53 cases mainly concerning the length of criminal proceedings and the lack of an effective remedy

                       Interim Resolution CM/ResDH(2007)28

                        (see Appendix for the list of cases in the Kudła group)

These cases concern the excessive length of criminal proceedings against the applicants, running from 1990 (violations of Article 6§1).The cases of Kudła and Stasiów also concern the lack of effective remedies to enforce, at national level, the right to a hearing “within a reasonable time” before the entry into force of 2004 law on complaints against excessive length of judicial proceedings, and the cases of Borowski, Krawczak, Szklarska and Zwozniak - after its entry into force (violations of Article 13).

The Iwanczuk case concerns the infliction of degrading treatment on the applicant while on remand in Wroclaw prison, in that, on 19/09/1993, he was ordered without justification to strip naked in front of a group of prison guards and was verbally abused by them (violation of Article 3). It also concerns unjustified delays before releasing the applicant on bail (violation of Article 5§3).

Moreover, in the cases of Abramczyk, Amurchanian, Bąk, Czajka, Holowczak, Kudła, Malikowski, Naus, Osiński, Poplawski, Ratusznik, Adam Sienkiewicz and Szydlowski the European Court found that the applicants' detention on remand was excessively lengthy (violations of Article 5§3).

The case of Abramczyk concerns also an interference “not provided by law” in the applicant's right to respect for her correspondence as, while she was detained on remand, her letters to the European Court had been marked with the word "censored" (violation of Article 8).

Individual measures:

            1) Violations of Article 5§3: in the cases of Abramczyk, Amurchanian, Bąk, Czajka, Kudła and Ratusznik the applicants are no longer detained on remand.

• Assessment: No further individual measures are necessary.

            2) Violations of Article 6§1: In most of the cases the domestic proceedings have been closed.

• Information is expected on the state of proceedings and their acceleration and/or closure, if need be, in the cases of Bąk, Abramczyk, Amurchanian, Dublas, Dudek, Krawczak, Malikowski, Osiński, Poplawski, Ratusznik, Adam Sienkiewicz, Szklarska and Szydlowski.

General measures:

            1) Violation of Article 3 in the case of Iwánczuk:

On 31/10/2003 the Minister of Justice adopted new regulations on safety in penitentiary establishments, which were amended on 29/03/2007 (amendment in force on 01/06/2007). Article 94 of these regulations concerning searches henceforth only concerns “cursory searches”, the term “body search” having been deleted. This provision contains a list of situations in which detainees may be subjected to search, including where it is justified for the protection of order or security.

• Assessment: no further general measure seems necessary.

            2) Violation of Article 5§3 in the case of Iwánczuk (unjustified delays before the release):

The judgment of the European Court was published on the website of the Ministry of Justice (www.ms.gov.pl) and in the Bulletin of the Council of Europe, issue No. 3 of 2002. In 2003, it was also sent out by the Ministry of Justice to prison authorities and courts.

• Assessment: no further general measure appears necessary.

            3) Violations of Article 5§3 (excessive length of detention on remand) : The Abramczyk, Amurchanian, Bąk, Czajka and Kudła cases present similarities to those of Trzaska and others against Poland (25792/94, Section 4.2,).

            4) Violations of Article 6§1:

• Measures taken:

- Legislative measures: A number of legislative measures were taken to accelerate criminal proceedings in the framework of the 1997 Code of Criminal Procedure, in particular the amendments which came into effect on 01/07/2003. According to the most important provisions, courts may no longer refer cases back to the preliminary proceedings in order to conduct further investigations; increased possibilities of closing criminal proceedings by way of settlement are provided and preliminary proceedings and those concerning several co-defendants are simplified.

- Structural measures to cut the duration of court proceedings and reduce the existing backlog: The authorities undertook a reform of the court system and recruitment of new judges, assessors and judicial assistants (referendarze sądowi). Other measures were aimed at better administrative organisation of courts and case-management, improvement of the efficiency of the activity of court experts and of the execution of judgments, implementation of information technology resources, increase of the courts' budget, etc.

- Supervisory measures: The Minister of Justice is involved in analysing the causes of delay in judicial proceedings in the framework of its competence of administrative supervision of courts' work.

• Measures taken and envisaged following the adoption of Interim Resolution CM/ResDH(2007)28:

Several structural and legislative measures have been taken (see the Podbielski group, Section 4.2). Moreover, as regards criminal proceedings, further amendments to the Code of Criminal Procedure were adopted on 16/11/2006 and 15/03/2007 introducing an “accelerated procedure” (postępowanie przyspieszone) and 24-hour courts for cases in which the perpetrator was caught in flagranti, and limiting the participation of lay judges in adjudicating panels. On 01/02/2008 the Act on Court Medical Advisers entered into force, according to which only a court-appointed physician is entitled to issue a medical certificate confirming the sickness of a party or participant in the proceedings.

Statistics for 2007 and 2008 were provided. In 2007, the number of new criminal cases amounted to 2 642 826 and 2 669 291 cases were completed. In that respect, an increase of new cases before the regional courts has been noted (from 65 972 to 74 872). Concerning appeal courts, the number of cases slightly decreased (by 2.6%).

In 2008 there were 2 546 296 new criminal cases introduced before courts. The courts completed 2 536 773 cases. The backlog increased from 390 876 cases pending at the end of 2007 to 399 585 at the end of 2008. The average length of proceedings reached 1 year and 9 months in 2008, comparing to 1 year and 8 months in 2007.

• Assessment: in 2007 the number of new criminal cases was slightly lower than the number of cases completed. However, at the end of 2008 the number of cases completed decreased and the criminal courts still face an increasing backlog. The average length of criminal proceeding increased by one month in 2008.

• Further information on current statistics is expected. The authorities are also requested to submit further information on the impact of the measures undertaken following the adoption of Interim Resolution CM/ResDH(2007)28, as well as on further general measures envisaged. Information on functioning and outcomes of the supervisory measures undertaken by the Ministry of Justice would also be useful in this respect.

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

• Measures taken:

            - Legislative measures: On 17/06/2004 the Polish Parliament adopted a law on complaints against excessive length of judicial proceedings (entry into force on 17/09/2004), which allows those involved in court proceedings to file a complaint concerning the length of their civil or criminal proceedings while these are still pending. The appellate court may find a violation of Article 6 of the Convention and instruct the lower court to take measures to accelerate the proceedings. The appellate court can also award the complainant compensation of up to 10,000 zlotys (approximately 2,550 euro). On 17/06/2004, the Polish Parliament also adopted an amendment to the Civil Code (entry into force on 01/09/2004) concerning the civil liability of the State Treasury for actions or omissions of public authorities.

The Polish authorities have provided additional information on the implementation of the 2004 law on effective remedy. In 2007 the number of complaints under this law amounted to 2 617 (1.6% fewer than in 2006). The number of complaints examined was 2 594 (with the backlog slightly increasing). The average compensation awarded by courts in case of finding of excessive length amounted to 2 007 PLN (557 euro). In 2008, the number of such complaints amounted to 2 737 complaints (3.5% increase in comparison to 2007). The highest percentage (59%) concerned complaints about excessive length of civil proceedings.

The courts dealt with the influx completely: 2 188 complaints were rejected on formal grounds or dismissed as unfounded and 549 were admitted with undue delays in the proceedings having been found. Compensation had been awarded in 370 of these cases, on average 2 368 PLN (approximately 590 euro) in each case. The relationship between justified complaints leading to a monetary satisfaction and justified complaints without that satisfaction being awarded, remained on the similar level - 67,4% in 2008 and 67,8 % in 2007.

Moreover, it should be noted that on 01/03/2005 the European Court declared inadmissible two Polish test cases concerning the length of judicial proceedings (Charzyński and Michalak), because the applicants had not made applications under a new 2004 law which could have provided them with an effective remedy. However, in the Czajka judgment of 2007 it noted that this domestic remedy had turned out to be ineffective, the Gdańsk Appeal Court having awarded the applicant manifestly inadequate compensation (nearly 25% of the amount awarded by the European Court in comparable cases) and the lower court having taken a further year to conclude the trial despite of an explicit instruction to finish it within a much shorter period (§56).

In the case of Zwoźniak, the European Court found a violation of Article 13, because the domestic court had refused to grant the applicant compensation for non-pecuniary damage without any reason, even though it had allowed his complaint about excessive length of proceedings. Furthermore, in the cases of Borowski, Krawczak and Szklarska, the European Court found a violation of Article 13 because the domestic courts had not taken into account the length of the investigation when assessing the overall length of the proceedings. In the Krawczak judgment, the European Court also criticised the fact the domestic court had excluded from its examination the period preceding the entry into force of the 2004 law. Moreover in the cases of Sobczynski and Tur (see Podbielski group, Section 4.2) the European Court found a violation of Article 13 because the domestic court had not taken into account the overall length of domestic proceedings, but only of the proceedings before one degree of jurisdiction.

•Measures taken and envisaged following the adoption of the Interim Resolution CM/ResDH(2007)28:

On 20/02/2009 the Parliament adopted an amendment to the Law of 17/06/2004, which entered into force on 01/05/2009. It aims, in particular, at:

- introducing an effective remedy against excessive length of investigation;

- obligatory adjudication by courts of a fixed amount of compensation if the complaint was justified (between 2 000 and 20 000 PLN);

- introducing a possibility of using supervisory measures by the president of the competent court or the higher prosecutor, if the complaint was justified;

- limiting the lodging of subsequent complaints: a new complaint could be lodged only 12 months after the previous one was examined; in cases in which detention on remand has been ordered this time-limit would be of 6 months.

Comprehensive assessment of the effectiveness of the amended Act will be conducted on the basis of data submitted quarterly by the presidents of all courts of appeal. A system has been put in place to monitor processing of the complaints and the number of instructions issued for the undertaking of relevant actions by courts examining merits of cases or by prosecutors in charge of supervising preliminary proceedings.

• Assessment: The adoption of the 2009 amendment to the 2004 law is to be welcomed. However, further information is awaited on measures to ensure that national courts examine the overall length of proceedings in accordance with the European Court's case-law. In this context, publication and dissemination of the European Court's judgment in the Krawczak case would be useful.

• Information would be also useful on the number of complaints lodged under the amended 2004 law (after May 2009) and the average compensation awarded by courts in case of finding of excessive length of proceedings. Moreover, the 2009 statistics on the average length of criminal proceedings and the number of protracted proceedings pending for more than five years would enable to assess the effectiveness of the introduced amendment.

            - Other measures to be adopted: Publication and wide dissemination of the European Court's judgment in Scordino against Italy (judgment of 29/03/2006), to make magistrates aware of the problem of the amount of just satisfaction for non-pecuniary damage caused by excessive length of proceedings; various training covering the problem of effective remedy, organised in the framework of the newly created National Training Centre for Judges and Prosecutors (created on 04/09/2006).

            6) Violation of Article 8 in the case of Abramczyk:  The case presents similarities to the group Klamecki No. 2 (31583/96, 1100th meeting, December 2010).

                        - 218 cases of length of proceedings before civil and labour courts

                        Interim Resolution CM/ResDH(2007)28

                        (see Appendix for the list of cases in the Podbielski group)

These cases concern the excessive length of civil proceedings (violations of Article 6§1). In the Lizut-Skwarek, Chyb, Sobczynski, Swat and Tur cases, the European Court also found a violation of the right to an effective remedy (Article 13).

In the Górska, Kroenitz, Krzak and Zynger cases, the European Court found that, having regard to the applicants' age, special diligence was required from the Polish authorities. Also, in the Durasik, R.P.D., Koblański, Sibilski and Irena Pieniążek cases, the European Court noted that having regard to what was at stake for the applicants (respectively compensation for bad medical treatment in the first two cases, compensation for wrongful conviction and unjustified detention, divorce and protection of personal rights) special diligence was required from the domestic courts in handling them.

As far as the Orzeł, Pachnik and Rychliccy cases are concerned, the European Court indicated that the proceedings (which dealt with compensation claims for medical malpractice and in respect of an accident) were of considerable importance for the applicants.

The cases of Lipowicz, Marszał, Mejer and Jałoszyńska, Wiatrzyk, Czech and Kędra concern the excessive length of certain proceedings before labour courts (proceedings in which the applicants sought reinstatement). In all these cases, the European Court noted that the domestic courts should have handled the cases with special diligence, taking into consideration what was at stake for the applicants.

Moreover, the case of H.N. concerns a violation of the applicant's right for respect of his family life (violation of Article 8). This violation was due to the authorities' lack of adequate and effective efforts to ensure the return of the children of the applicant, a Norwegian national, in proceedings based on the Hague Convention of 1980 on the Civil Aspects of International Child Abduction. The European Court criticised in particular the periods of inactivity before courts, the bailiff's omissions in preventing the escape of the applicant's ex-wife with the children and the lack of action by the Ministry of Justice and the police following the information received from the Norwegian Central Authority.

Individual measures:

            1) Violations of Article 6§1: In most of the cases the Polish authorities have provided information on the progress of the proceedings which were still pending when the European Court rendered its judgments. In certain cases the domestic proceedings have been already closed (Fojcik, Górska, Hulewicz, Krzak, Kwiatkowski, Mączyński, Malinowska-Biedrzycka, Pachnik, Wyszczelski).

Moreover, the Polish authorities indicated that measures to accelerate the proceedings (e.g. the cases were placed under the administrative supervision of the president of the court and of the Ministry of Justice; the president of the competent court was urged by the Ministry of Justice to give priority to the applicants' cases, etc.) had been taken in most of these cases.

• Information is expected on the state of proceedings and their acceleration, if need be, in the cases of Czaus, Górkiewicz, Jagiełło, Krzysztof Kaniewski, Kuczkowska, Kyziol, Romaniak, Sadura Tekiela and Wolnicka.

            2) Violation of Article 8 in the case of H.N.: The three children have been returned to the applicant.

• Assessment: no further individual measure is necessary.

General measures:

            1) Statistics: In 2007 the number of all new cases brought before the Polish civil or criminal courts amounted to 10 682 000 (5,6% more than in 2006). During that year 12 373 000 cases were pending (6,6% more than in 2006) and 10 683 000 cases have been completed (7,7% more than in 2006). Concerning civil cases, the number of completed cases exceeded the number of new cases, except in those concerning registration of companies and other entities and certain family law cases.

In the first half of 2008 (until 30/06/2008), the number of all new cases brought before the Polish courts amounted to 5 659 021, which was 9% more than in the first half of 2007, and 5 565 530 cases were completed, i.e. 5,9% fewer than the number of new cases. On 30/06/2008 the backlog amounted to 1 782 054 cases, i.e. 9,4% more than at the end of the first half of 2007. Concerning civil cases, the number of new cases (1 237 044) increased by 15% compared with the first half of 2007. The number of completed cases (1 188 443) was lower than the number of new cases. On 30/06/2008 the backlog of civil cases amounted to 430 647 cases, i.e. 12,51% more than at the end of the first half of 2007. Overall, the statistics for the first semester of 2008 reveal an increase in new civil cases lodged and in the courts' backlog. The same tendencies emerge from the statistics provided on 05/05/2009 for the whole year 2008.

2) Structural measures to cut the duration of court proceedings and reduce the existing backlog

Measures taken: reform of the court system, recruitment of new judges, assessors and law clerks (referendarze sądowi), better administrative organisation of courts and case-management, improvement of the efficiency of the activity of court experts and of the execution of judgments, implementation of information technology resources, adoption of special measures to reduce the backlog of certain specific courts (particularly in Warsaw), increase in courts' budget, etc. (for more details see Interim Resolution CM/ResDH(2007)28).

Further measures taken and/or envisaged following the Interim Resolution (information provided in February 2008):

- Between 2006 and 2007 the number of judges and court staff increased (up to 8 599 judges, 2 714 judges' associates and 1 524 law clerks at the end of 2007).

- The Ministry of Justice (the Office for Analysis and Posts in Common Courts) is preparing a study on “map of courts' workload” in order to ensure a balanced division of workload between courts and court staff.

- In 2007 several courts were re-organised by the creation of new sections and/or courts.

- The budget of the judiciary has increased in the last few years. In 2007 common courts' expenses amounted to PLN 4 723 161 000. The Budgetary Act for 2008 (of 23/01/2008) allocated the amount of PLN 5 116 404 000 to their expenditure.

- Concerning court premises, in 2007 twelve investments were finalised, by which a surface of 38 762 sq. m was added and a surface of 6,830 sq. m was modernised.

- As regards computerisation, by the end of 2007 relevant software was introduced in 203 sections of 163 courts. Consequently all courtrooms (4,200) are now equipped with computers. In 180 courts and prosecutors' offices the LAN network has been set up. Moreover, the implementation of a computerised central database for land registers is in progress.

3) Supervisory measures: the Minister of Justice is also involved in analysing the causes of delay in judicial proceedings in the framework of the exercise of its competence of administrative supervision of courts' work.

• Further measures taken and/or envisaged following the Interim Resolution: In the document “The Trends in the Supervision of Common Courts in 2008” the Minister of Justice indicated as a priority the systematic control of the efficiency and speediness of judicial proceedings in the light of the Convention requirements.

4) Legislative measures: following amendments to the Civil Procedure Code, certain types of court procedures have been simplified. Moreover, a mediation procedure has been made available (for more details see Interim Resolution CM/ResDH(2007)28).

• Further measures taken and/or envisaged following the Interim Resolution: On 20/03/2007 another amendment to the Civil Procedure Code entered into force. It aims at simplifying the examination of cases concerning economic activities and enlarging the competences of law clerks (referendarze sądowi) so that the judges' workload be alleviated in civil cases. Moreover, a group of expert in the Ministry of Justice is currently elaborating a report on foreseen amendments to the legislation on procedural rules (in particular the Civil Procedure Code). The Council of Ministers also approved a very first draft law on electronic proceedings in the summary proceedings (Articles 497¹ - 505 of the Civil Procedure Code).

            5) Publication and wide dissemination of the European Court's judgments: most of these judgments have been published on the Ministry of Justice's website www.ms.gov.pl and sent out to the competent courts.

            6) Creation of an effective remedy in case of excessive length of proceedings (violations of Article 13): information has been provided by the Polish authorities in the context of the examination of the case of Kudła against Poland (30210/96, Section 4.2). The cases of Sobczynski, Swat and Tur concern a violation of Article 13 under the provisions of the 2004 Law concerning complaints against excessive length of proceedings, in particular because the domestic courts, when examining the complaints lodged under this law, failed to take into account the overall length of domestic proceedings.

The Marszał case presents also similarities to the Kudła group relating to the excessive length of criminal proceedings.

• Assessment: the measures taken/envisaged following the adoption of the Interim Resolution CM/ResDH(2007)28 are to be welcomed and further information on their progress and impact is expected. However, it should be noted that the number of new cases introduced before Polish civil courts was still increasing in 2008 and the backlog of old cases has not decreased.

• Information is therefore still awaited on further measures aimed particularly on reducing the backlog. Statistics concerning the trends in 2009 are also expected. Moreover, clarification would be useful concerning the statistics provided (in particular on the average length of proceedings) and the functioning and outcomes of the supervisory control exercised by the Ministry of Justice over the speediness of judicial proceedings.

Publication and dissemination of the European court's judgments in Sobczynski, Swat and Tur would also be useful in order to draw domestic courts' attention on the requirements stemming from the European Court's case-law concerning the assessment of “the reasonable time” of proceedings.

            7) Violation of Article 8 in the case of H.N.:

Publication, dissemination and related measures: The Ministry of Justice has sent the judgment of the European Court out to presidents of district courts with a view to its dissemination to judges and guardians. A similar letter has been sent out to the Chief Commander of the National Police for the dissemination of the judgment to police officers.

The European Court's judgment has been published on the internet website of the Ministry of Justice www.ms.gov.pl.

In addition, the judgment has been discussed by civil servants dealing with the application of the Hague Convention in the Ministry of Justice (acting as the Central Authority in the meaning of the Hague Convention). The issue of expediting proceedings conducted on the basis of the Hague Convention will be included in the programme of the training for judges dealing with family law.

Enforcement of the Hague Convention in Poland: According to the Minister of Justice, in the majority of cases, this Convention is applied in an effective manner. Between January 2001 and October 2007, Polish courts delivered 34 decisions allowing applications introduced on the basis of its provisions. For the time being three judicial decisions ordering the return of a child to his or her parent living abroad remain unenforced due to the fact the children have been hidden by the other parent. Examples of cases in which abducted children were found by the police have been provided.

The problem of enforcement of judicial decisions concerning the return of children to parents who have been granted parental authority is governed by Sections 598⁶ - 598 ¹² of the Code of Civil Procedure. In case of non-enforcement of such a decision by the person concerned, the court may order the guardian to take the child by force. In doing so, the guardian may be assisted by the police, who may in particular help him in establishing the child's home.

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

- 3 cases against Portugal / 3 affaires contre le 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 a right of access. A year later, in 1998, 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 in 2003 with the decision by the court to impose a moderate fine on the mother and to award equally moderate damages to the applicant.

Pointing out that the applicant had last seen his daughter on 04/10/1997, when she had been just two years old, the European Court found that the measures taken by the Portuguese authorities with a view to enforcing the agreement, which was still valid, had been automatic and stereotyped and that those authorities had failed to take practical and concrete steps to resolve the issue. The European 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 had 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 the right of access 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 (06/05 and 13/05/2008) between the parents accompanied by their counsel. During the second meeting the child was heard and 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.

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. 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. As no answer was provided, the order was reiterated at the beginning of November 2008. At the meeting held on 19/02/2009 between the judge, the parents and their counsels and a social adviser, it was confirmed that the parents did not oppose the psychotherapeutic intervention. Following the judge’s order, the social adviser made an approach to two institutions and found two psychotherapists willing to carry out the “systemic psychotherapeutic intervention”. On 11/03/2009, it was decided to inform the parents and to have a new meeting so that they could choose one of the two psychotherapists and agree on the starting date of the therapy. On 30/03/2009 the judge ordered the re-establishment of relations between the father and the child through the mediation of the Centre for Children Development (CADIN), which filed two reports on developments in the situation (on 27/05/2009 and 10/08/2009). On 23/09/2009 the judge issued a further order, expressly asking the CADIN to provide further updated information in order to re-assess his latest order of 30/03/2009. On 20/10/2009 the CADIN filed a further report illustrating the latest developments. In particular, the father had a meeting with the psychotherapist on 30/04/2009: although he expressed the wish to meet his daughter and develop his relations with her, he was aware of the need to respect her feelings and to wait for his child to change her current position (i.e. refusal to have contact with him). On 14/07/2009 the mother, the stepfather and the child met the psychotherapist: the mother said that she would not oppose visits between the child and the father, underlining that in any case her daughter had to decide freely on the issue. Although the child appeared intransigent in her will not to meet her father (being convinced that he had abandoned her), the doctor described the feelings of her father and the importance of her relation with him, proposing that the child reflected on the issue. According to the psychotherapist, no further meetings with the child are necessary if she does not express her will to meet her father: in any case, considering the importance of the father-child relationship, the psychotherapist deems it necessary to have a new decision by the judge clarifying the objectives of an intervention. Following a meeting on 27/01/2010 between the judge, the psychotherapist and the parents – and with the consent of the latter – the judge ordered the CADIN and the doctor to begin a psychotherapeutic intervention with the child, aimed at a possible re-establishment of father-child contact. The judge also ordered the CADIN to file a report assessing the situation within 60 days from the beginning of the intervention. On 11/06/2010 the authorities indicated that the psychotherapeutic intervention with the child had begun.

• Information provided by the applicant’s counsel (17/08/2009 and 28/08/09): the applicant, bearing in mind the well- being of his daughter, is not willing to use coercive measures in order to see her, which he thinks would be detrimental to the development of his relationship with his child.

• Bilateral contacts between the Secretariat and the authorities, in order to evaluate the necessity of further measures, are under way.

General measures:

            1) Publication and dissemination: A copy of the judgment was 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 was also 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 Portuguese authorities have indicated that the Institute is carrying out activities addressed to all professionals co-operating with courts in civil tutelary matters aimed at improving their intervention in the field. Moreover, in 2008, 24 training activities on Mediation and conflict management and the Evaluation of parental competences have been carried out. In 2009, the Institute for Social Security carried out 13 training activities on the new law 61/2008 and until the end of 2009 other 13 training activities concerning “Interview Techniques in cases of parental conflict“, as well as two workshops on “positive parental relations” are scheduled.

            3) Legislative measures: Law No. 61/2008 on divorce (entered into force on 01/12/2008) 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 the right of access 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.

However, it should be noted that the new law No. 61/2008 does not apply to cases (like this one) already pending when it entered into force (1/12/08).

• 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. The training measures adopted are to be welcomed as well, in the light of their importance to ensuring execution of judicial decisions on means of exercise of parental authority.

31276/05           Women on Waves and others, judgment of 03/02/2009, final on 03/05/2009

The case concerns the Portuguese administrative authorities’ decision to prohibit the ship Borndiep, which had been chartered with a view to staging activities promoting the decriminalisation of abortion, from entering Portuguese territorial waters, on the basis of maritime law and Portuguese health laws (violation of Article 10). The European Court noted the lack of sufficiently strong evidence of any intention on the part of the applicant associations deliberately to breach Portuguese abortion legislation and considered that in seeking to prevent disorder and protect health, the Portuguese authorities could have resorted to other means that were less restrictive of the applicant associations’ rights.

• Preliminary information was provided by the authorities on 09/08/2010 on publication and dissemination of the judgment. Bilateral discussions are currently under way aimed at securing the additional information necessary to present an action plan/action report to the Committee.

50812/06          Almeida Santos, judgment of 06/10/2009, final on 06/01/2010 and of 27/07/2010, possibly final on 27/10/2010

This case concerns the infringement of the principle of equality of arms, and thus of the right to a fair trial, on account of the fact that the applicant was not given the same possibility of the opposite party to participating in inventory legacy proceedings for estate division (violation of Article 6§1)

The proceedings took place in 1992-1993 before the Court of Caldas de Rainha without the participation of the applicant on which, being her a heir not residing in the judicial district of the competent court, only the act of commencement of the proceedings was served (pursuant to the legislation – Article 1330 of the Code of Civil Procedure - applicable at the time of the facts). Therefore, at the meeting between the interested parties (conferência de interessados) scheduled by the judge on 30/01/1993, only the other party was present; on 03/03/1993 the Court confirmed the division of the legacy estate. Once aware of this decision (final on 15/03/1993), the applicant challenged it: on 14/02/2003 the action to set aside the estate division was rejected by the same Court. However, on 15/06/2004 the Court of Appeal of Lisbon granted her application, stating that the applicant did not have a fair trail pursuant to Article 6 of the European Convention and that Article 1330 of the Code of Civil Procedure was also contrary to the constitutional principle of fair trial (Article 20 of the Constitution). Subsequently, on 06/04/2005 the Constitutional Court ruled that said article is not unconstitutional as “it is not disproportionate to require that the interested person residing outside the judicial district of the competent court keeps him/herself updated on the developments of the proceedings” (§ 16) . The case was therefore sent back to the Appeal Court of Lisbon. In its judgment of 20/09/2005, although it conformed to the decision of the Constitutional Court as regards the constitutionality of Article 1330, the Court of Appeal considered that the outcome of the meeting between the interested parties was contrary to the principles of good faith and unjust enrichment and therefore it invalidated said act, inviting the Court of Caldas Rainha to organise a new meeting between the parties with the participation of the applicant. Finally on 08/06/2006 the Supreme Court quashed the judgment of the Appeal Court and confirmed the decision of the Court of Caldas de Rainha: the Supreme Court underlined that the applicant was regularly summoned and that the lack of service in view of participating to the meeting between the parties was not among the limited reasons of invalidity of the estate division listed by the law applicable at the time of the facts (§ 19).

The European Court observed that the applicant was placed in a situation of clear disadvantage compared with the adverse party and that in any case nothing could lead to conclude that she waived her rights and the possibility to fully participate in the legacy proceedings for estate division (§§ 40-41). In addition, the Court considered that the legislation applicable at the time of the facts to persons in the same situation of the applicant was far from fulfilling such requirements (§ 42).

• Preliminary information was provided by the authorities on 09/08/2010 on publication and dissemination of the judgment. Bilateral discussions are currently under way aimed at securing the additional information necessary to present an action plan/action report to the Committee.

- 111 cases against Romania / 111 affaires contre la Roumanie

2712/02            Agache and others, judgment of 20/10/2009, final on 20/01/2010

The case concerns the ineffectiveness of the criminal investigation of the death of the applicants’ relative, a police officer murdered by private individuals during the anti-communist demonstrations which took place in Romania in December 1989 (procedural violation of Article 2).

The European Court noted that the procedure had lasted for more than eleven years. The Court considered that the investigation had been extremely complex but noted that between June 1994 and November 1997 no measure had been taken with a view to concluding the investigation, nor had any procedural steps been taken. It was only after receiving a written request to this end from the higher prosecutor’s office that the competent prosecutor’s office committed the five persons suspected of having attacked and murdered the applicants’ relative to trial, in December 1997. The Court also noted that the authorities had taken evidence from only three witnesses and two of the accused and had based their findings on the statements made by the other witnesses during the investigation. According to the Court, in absence of other evidence, the domestic courts should have heard the eyewitnesses who had been found, to establish the facts and the identity of the perpetrators. Finally, the Court noted that three of the persons convicted for the violence that led to the death of the applicants’ relative have not served their prison sentences, the Romanian authorities not having taken the necessary steps to secure their extradition.

The Court concluded that the criminal proceedings had not been conducted with sufficient diligence and they failed to afford appropriate redress for the infringement of the right to life.

• To date the authorities have provided no information.

3990/04            Trufin, judgment of 20/10/2009, final on 20/01/2010

The case concerns the lack of an effective investigation of the violent death of the applicant’s brother in 1992 (violation of Article 2). In May 1992, the applicant’s 66-year-old brother was found unconscious in the suburbs of Botosani. A few days later, he died and a criminal investigation was initiated.

The main deficiencies of the investigation revealed by the Court concern:

- the overall duration of the investigation (eleven years and six months) and its obvious slowness, even after the authorities established that the death had been violent and the case was one of homicide;

- the fact that the initial autopsy report did not reveal any skull fracture while the subsequent report, issued in 1996, noted the existence of such a fracture;

- the fact that the measures taken by the authorities to clarify the circumstances of the death were limited to an investigation on the spot and the medical examinations and that all these acts seem to have been carried out only as a consequence of repeated complaints and requests submitted by the applicant, the authorities taking no initiative to carry out an effective investigation.

Regarding the involvement of the applicant in the proceedings, the Court noted that she was twice refused access to certain documents in the investigation file, the only reason communicated to her being that the investigation was still pending. Important decisions taken during the investigation procedure were communicated to the applicant with significant delay and only at her repeated requests.

All the information addressed to the applicant comprised only the decision taken, without other details concerning the reasons for them. Consequently, the Court found that the requirements of public control and access of the victim’s family to the investigation were not observed during the procedure.

It should be mentioned that in May 2004, the applicant received a letter from the prosecutor’s office attached to the High Court of Cassation and Justice, informing her among other things that given that the prosecution had become statute-barred, the proceedings had been discontinued. 

• To date the authorities have provided no information.

64301/01           Velcea and Mazăre, judgment of 1/12/2009, final on 1/03/2010 

The case concerns the failure to conduct an effective investigation of the murder of relatives of the applicants in 1993, by third parties (procedural violation of Article 2).

On 7/01/1993, Georgeta V and Tatiana A. (mother and daughter) were killed during a fight that had started between Tatiana A. and her husband, Aurel A, who was accompanied by his brother, George L., an off-duty police officer. Aurel A. committed suicide after confessing to the murder in writing. The criminal investigation in respect of Aurel A. was discontinued on the ground that the he committed suicide and no-one else had been involved. The first applicant lodged a criminal complaint against George L. The proceedings were discontinued in 2004.

The European Court noted the following deficiencies in the investigation:

-           although they had been informed of George L’s involvement in the incident, it was not until several months later, after the applicants had lodged a formal criminal complaint, that the authorities opened an investigation in his regard;

-           as George L was a police officer (although he was not acting in that capacity when the incident occurred), the investigation in his regard has been carried out by military prosecutors, who were not independent officers;

-           the investigation of George L’s involvement, which lasted 11 years, was not conducted with the requisite speed;

-           the applicants were not duly informed of the orders discontinuing the proceedings, which might have prevented them from challenging those decisions effectively.

The case also concerns the violation of the first applicant’s right to respect for his family life to the extent that the domestic courts allowed the murderer’s family to inherit from Tatiana A (violation of Article 8). In this respect, the courts gave a restrictive interpretation to Article 655 of the Civil Code, which required, with a view to disqualifying an individual from inheriting from the deceased, that he/she had been convicted for murdering that person.  

According to the European Court, there was no doubt that Aurel A. had killed Tatiana A. Without calling into question the personal and non-transferable nature of criminal responsibility, the Court considered that it was unacceptable that following a person’s death the unlawfulness of his acts should remain without effect. In the specific circumstances of this case, by applying the provision of the Civil Code on causes of unworthiness mechanically and too restrictively, the Romanian courts had gone beyond what was necessary to ensure adherence to the principle of legal certainty.

• To date the authorities have provided no information.

- 2 cases mainly concerning unlawful detention pending expulsion

12338/02           Hussain, judgment of 14/02/2008, final on 14/05/2008

69273/01           Galliani, judgment of 10/06/2008, final on 10/09/2008

These cases concern the unlawful detention of the applicants in the transit centre of Otopeni Airport respectively from 1 to 17/08/2001 and from 4 to 7/05/2000 (violations of Article 5§1 f)).

The Galliani case also concerns the lack of access to a court which could decide speedily on the lawfulness of the applicant’s detention (violation of Article 5§4).

In the Hussain case, the European Court observed that that the legislation in force at the time, Law No. 123/2001 on the status of aliens in Romania and Government 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. 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 this 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, as there was no decision, the applicant had had no opportunity to appeal against the measure (§93 of the judgment).

In the Galliani case, the Court noted that the applicant had never been given the choice to leave the country of her own free will, as envisaged by the legal provisions in force at the time and the domestic courts had never been called on to assess the regularity of her detention, as no appeal against the expulsion order was provided by law (§46 of the judgment).

The Hussain case also concerns the failure of the authorities to conduct an effective investigation of 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, by complaining, informed the competent authorities of the alleged violations, the authorities’ response had been simply to inform him that the police had been instructed to carry out further investigations. Moreover, the government had supplied no 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).

Individual measures: The applicants were released from the transit centre in August 2001 and in May 2000 respectively. In the Hussain case, the European Court awarded just satisfaction in respect of non-pecuniary damage. The Romanian authorities observed that a new investigation of the applicant’s allegations could not be opened due to the prescription of criminal liability (five years in similar situations). In the Galliani case, the European Court held that the finding of a violation constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage sustained.

• Assessment: no further individual measure appears necessary.

General measures:

1) Violation of Article 3: The case presents similarities to the Filip case (41124/02, 1100th meeting, December 2010).

2) Violation of Article 5§1f: In the Galliani judgment, the Court noted that the legislation has changed several times since 2001. Nowadays, Emergency Ordinance No. 194/2002, as amended by Law No. 56/2007 and Emergency Ordinance No. 55/2007, regulates the procedure concerning the internment of aliens in special centres, the duration of such measure, the possibility to contest it before the Court of Appeal of Bucharest, as well as the right to be informed in writing of the motives of the measure in question.

Judgments of the European Court against Romania are regularly published in the Official Journal. The judgment in the Hussain case was sent to the Superior Council of Magistracy (http://www.csm1909.ro/csm/index.php?cmd=9503), with a view to 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.

• Bilateral contacts are under way to assess the need for further measures.

- 4 cases mainly concerning ill-treatment inflicted on the applicants by their fellow-prisoners during the detention on remand

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

29761/02           Tase, judgment of 10/06/2008, final on 10/09/2008

22383/03           L.Z., judgment of 03/02/2009, final on 03/05/2009

34022/05           Radu Alexandru Marius, judgment of 21/07/2009, final on 21/10/2009

The Pantea and Alexandru Marius Radu cases concern ill-treatment inflicted on the applicants by fellow-prisoners in January 1995 and September 2005 respectively, during detention on remand, in circumstances which engaged the state's responsibility (substantive violations of Article 3).

In the Alexandru Marius Radu case, the European Court noted that the national authorities did not properly investigate the applicant’s allegations of ill-treatment inflicted on him by other prisoners (§§ 47, 48). Also, the Pantea and L.Z. cases concern shortcomings of investigations carried out by the Romanian authorities into the applicants’ allegations of ill-treatment (procedural violations of Article 3).

The Pantea and Tase cases also concern the illegality of the applicants' remand in custody in July 1994 and June 2002, respectively.

In addition, the Pantea case concerns the fact that the applicant was kept in detention until April 1995, after expiry of the warrant committing him to prison in August 1994 (violations of Article 5§1).

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

The Tase case also concerns the lack of concrete reasons in the domestic court’s decisions repeatedly extending the applicant’s detention on remand (violation of Article 5§3).

In addition, in the Pantea case, the competent court took more than three months (December 1994 - April 1995) to rule on the applicant's request to be freed from detention on remand (violation of Article 5§4).

The Pantea and Tase cases also concern the fact that Romanian law provided no possibility to obtain compensation for illegal detention in the applicants' situations (violations of Article 5§5).

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

Individual measures:

1) Violations of Article 3:

• Information provided by the Romanian authorities in the Pantea case: The Romanian authorities indicated, during a meeting with representatives of the Secretariat held in June 2004 that the applicant's fellow-prisoners, as well as the prison warders, could no longer be prosecuted due to the expiry of the statutory limitation period for the relevant criminal offences (5 years, counting from the date of the events).

By letter of 4/02/2005, the Romanian authorities indicated that a report had been drawn up on 13/06/2003 following an internal investigation. This revealed shortcomings in the conduct of the warders and of the deputy commander of the prison, who failed to prevent the incident, to intervene adequately to protect the applicant and to conduct a prompt internal investigation. Nevertheless, in view of the expiry of the statutory limitation period for disciplinary action against the warders, they were not punished. In any event, the Romanian authorities indicated that none of the prison officials involved in the events is still serving today in the National Penitentiary Administration.

• Information is awaited as to the possibility of reopening the investigations into the applicants’ allegations in L.Z and Alexandru Marius Radu cases.

            2) Violations of Article 5: The applicants in the Pantea and Tase cases were released in 1995 and 2002 respectively. The European Court awarded them just satisfaction in respect of pecuniary and non-pecuniary damage.

• Assessment: no further individual measure seems necessary.    

1 3) Violation of Article 6§1:

• Information provided by the Romanian authorities: The Romanian authorities have tried to accelerate the proceedings by contacting the competent court and the Pantea case has been transferred to another court, at the applicant's request. Subsequently, by a decision of 30/05/2007 the Regional Court of Dolj decided to close the criminal proceedings due to special criminal statute of limitation. The applicant appealed against this decision to the Court of Appeal of Craiova. On 28/11/2007, the proceedings were suspended due to the applicant’s constitutional complaint. In a letter of 28/01/2009, the authorities stated that on 31/10/2008, the High Court of Cassation and Justice had decided to transfer the case before the Court of Appeal of Bacau.

• Clarification is expected as to the current situation of the applicant.

General measures:

1) Violations of Article 3: The Romanian authorities have pointed out that the findings of the European Court in the Pantea case have been disseminated among the staff of the National Penitentiary Administration. To avoid any repetition of this kind of incidents, the Penitentiary Administration has instructed its staff to inform the competent authorities immediately of any physical aggression against prisoners and stressed the obligation of medical staff to note any finding concerning ill-treatment inflicted on prisoners, as well as their statements, in their medical records. The strict prohibition of the excessive use of force has been reiterated, as well as the need to give particular protection to more vulnerable prisoners.

• The authorities’ assessment as to whether the measures taken are sufficient to prevent similar procedural violations of Article 3 is expected.

• Information is awaited on measures taken or envisaged to prevent similar procedural violations of Article 3.

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

The question concerning the lack of concrete reasons for extending the detention on remand is being examined in the context of the Calmanovici group of cases (42250/02, Section 4.2).

In the Tase case, the Court noted that the applicant was unable to claim compensation as his detention has never been declared unlawful by the domestic courts.

• Information is expected on measures taken or envisaged to avoid violations of Article 5§5 similar to that found by the Court in the Tase case.    

3) Violation of Article 6§1: The question concerning the length of criminal proceedings is being examined in the context of the Stoianova and Nedelcu group of cases (77517/01+, Section 4.2).

4) Publication and dissemination: The Romanian authorities confirmed the publication of the Pantea judgment in the Official Journal, as well as its broad dissemination amongst courts and public prosecutors' offices.

• Publication and dissemination of the European Court’s judgments in the other three cases is also expected.

74785/01           Năstase-Silivestru, judgment of 4/10/2007, final on 4/01/2008

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 (33343/96, Section 4.2).

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.

                        - 5 cases concerning the consequences of racially motivated violence against Roma

41138/98+        Moldovan and others, judgment No.1 of 05/07/2005 - Friendly settlement

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

62954/00           Tănase and others, judgment of 26/05/2009, final on 26/08/2009 – Striking-out

                        CM/Inf/DH(2009)31; CM/Inf/DH(2009)31-rev

These cases concern complaints raised by the applicants, all of Roma origin, concerning the consequences of certain events which took place between 1990 and 1993.

In the Moldovan and others, judgments No 1 and No. 2, violent clashes occurred in September 1993 between the Roma community and the other villagers in the Hădăreni village, leading to the death of three Roma and to the destruction of the applicants' houses and of much of their personal belongings. By a court verdict delivered in 2004 (final in February 2005), several non-Roma villagers were found guilty and were ordered to pay civil compensation to the applicants.

In the judgment on the merits (Moldovan and others, judgment No. 2) the European Court found that, in view of the direct repercussions of the acts of state agents on the applicants' rights (in particular due to the involvement of police officers in the burning of the Roma houses), the government's responsibility was engaged with regard to the applicants' living conditions, even after 20/06/1994, when Romania ratified the Convention. Thus, it concluded that the general attitude of the national authorities had perpetuated the applicants' feelings of insecurity and affected their right to respect for their private and family life and their homes. In this respect, the European Court noted, inter alia, that the Public Prosecutors' Office had failed to institute criminal proceedings against the state agents involved in the burning of the applicants' houses, that the domestic courts had refused for many years to award the applicants pecuniary damages for the destruction of their belongings and furniture, that some of the houses had not been rebuilt by the authorities and those which supposedly had been rebuilt remained uninhabitable, etc. (violations of Article 8).

Further, the European Court found that the applicants' living conditions over the last ten years (in overcrowded and unsuitable dwellings), together with the racial discrimination to which they had been publicly subjected by the way in which their grievances had been dealt with by the various (judicial and administrative) authorities, had constituted an interference with their human dignity which, in the special circumstances of the case, had amounted to “degrading treatment” within the meaning of Article 3 (violations of Article 3).

The European Court also found that the proceedings brought by the applicants for compensation against the civilians accused of violent acts had lasted too long. These proceedings began in September 1993, when the applicants became civil parties to criminal proceedings against the presumed perpetrators.

They ended on 25/02/2005 with the confirmation by the Court of Cassation of a lower court's verdict ordering those who had already been convicted in 1999 for taking part in the violent incidents, to pay compensation to the applicants who had sustained both pecuniary and non-pecuniary damage (violation of Article 6§1).

Finally, the European Court noted that the applicants' Roma origin seems to have had a decisive influence on both the duration and the outcome of the domestic proceedings. Particular note was taken of the authorities' discriminatory remarks throughout the proceedings and the fact that a court decision to reduce the amount of compensation awarded to the applicants for non-pecuniary damage had been motivated by observations directly linked to their ethnic origin (violation of Article 14 taken together with Articles 6 and 8).

In the Moldovan and others, judgment No.1, the European Court took note of the friendly settlements concluded between the respondent state and some of the applicants.

The Kalanyos and others and Gergely cases concern the failure of criminal investigations to clarify fully the circumstances which led to the destruction of houses belonging to Roma villagers in Plăieşii de Sus and Caşinul Nou (district of Plăieşii de Jos, Harghita County) by local population in August 1990 and June 1991. The government recognised that these events left the applicants living in precarious conditions, depriving them of their right to bring a civil action to establish liability and recover damages and making it difficult to exercise their right to respect for home, private and family life. The government has also expressed its regret concerning remarks made by certain authorities concerning the applicants' Roma origin and accordingly admitted that the circumstances constituted violations of Articles 3, 6, 8, 13 and 14. The European Court took note of the government's regret and acknowledgment of the violations and of its proposals concerning individual and general measures for settlement of these cases.

Individual measures:

1) Moldovan and others no. 1 (friendly settlement): The Romanian government offered to pay the applicants various sums of money covering pecuniary and non-pecuniary damage, as well as costs and expenses. Both the government and the applicants indicated that this payment constitutes a final settlement of the case, including the applicants' domestic civil claims.

2) Moldovan and others no. 2 (judgment on merits): The European Court, under Article 41, awarded the applicants just satisfaction in respect of pecuniary and non-pecuniary damages.

In May 2006, the authorities examined the legal possibility of opening criminal proceedings against the government agents involved in the events of 1993. It was noted that no evidence in the case-file showed that they had committed homicide. Only the crimes of incitement to destruction or incitement to perjury could have been held against them. However, due to the prescription of criminal liability (five years in similar situations) new criminal proceedings could not be opened.

According to the information submitted in February 2006, the procedure of forced execution of the sums granted to the applicants by the internal decision (final on 25/02/2005, see above) was pending before the Ludus Court.

• Information is expected on further developments with respect to the forced execution.

3) Kalanyos and others, Gergely: The authorities undertook to compensate the damage sustained by the applicants as well as their costs and expenses.

General measures:

            1) Undertakings of the government: Under the terms of the friendly settlement (Moldovan and others, judgment no. 1 case) and in both the Kalanyos and others and the Gergely cases, the Romanian government undertook to adopt several measures to fight against the discrimination against Roma, such as:

- enhancing the educational programmes for preventing discrimination against Roma in the school curricula in the Hǎdǎreni community (Mureş County) and in both Plăieşii de Sus and Caşinul Nou communities (Harghita County);

- drawing up public information programmes to dispel stereotypes, prejudices and practices towards the Roma community in the Mureş public institutions competent for the Hǎdǎreni community and in the Harghita public institutions competent for the Plăieşii de Sus and Caşinul Nou communities;

- initiating legal education programmes together with the members of the Roma communities and ensuring the eradication of racial discrimination within the Romanian judicial system;

- supporting positive changes in public opinion of the Hǎdǎreni, Plăieşii de Sus and Caşinul Nou communities concerning Roma on the basis of tolerance and the principle of social solidarity;

- stimulating Roma participation in the economic, social, educational, cultural and political life of the local community in Mureş County and Harghita County by promoting mutual assistance and community development projects;

- implementing programmes to rehabilitate housing and the environment in the communities and

- identifying, preventing and actively solving conflicts likely to generate family, community or inter-ethnic violence.

Furthermore, in the context of the friendly settlement, the government undertook to prevent similar problems in the future by carrying out adequate and effective investigations and by adopting social, economic, educational and political policies to improve the conditions of the Roma community in accordance with the government's present strategy in this respect. In particular, it declared that it will undertake general measures as required by the specific needs of the Hădăreni community in order to facilitate the general settlement of the case, taking also into account the steps which have already been taken with this aim, such as rebuilding some of the houses destroyed.

It seems that these undertakings could serve, mutatis mutandis, as a basis for the assessment of general measures taken or envisaged for the execution of the judgment on merits (Moldovan No. 2).

• Information on the measures adopted:

(a) Concerning the Moldovan and others cases, the Romanian authorities have informed the Secretariat that the National Agency for the Roma (http://www.anr.gov.ro/), an organ subordinated to the Romanian government, has drawn up a “General Plan of Action” on the implementation of the Romanian authorities' undertakings in order to fulfil the commitments foreseen in the friendly settlement. According to this plan of action, a team made up of governmental experts and experts belonging to civil society visited Hǎdǎreni on several occasions to present the project to its inhabitants, to identify problems and general attitudes in the local community and to choose the people who could help implement the project locally. The conclusions of these visits have been used to draft a “Community Development Programme”, which addresses issues such as education (including health education and legal education), the fight against discrimination, the prevention of family or community conflicts, professional training, employment and the development of infrastructure, culture, etc. A governmental decision approving the Hadareni Community Development Plan 2006-2008 was adopted and published in the Official Gazette on 4/05/2006. By a governmental decision published in the Official Gazette on 16/07/2007, the implementation of the programme was transferred to the United Nations Development Programme (UNDP), whereas the supervision and the assessment of the implementation remained with the National Agency for Roma. On 26/11/2009, the authorities presented further information on the rehabilitation of housing and other buildings in Hadareni.

Concerning the Kalanyos and others and Gergely cases, on 08/10/2008 the government adopted a decision approving a Community Development Programme concerning the prevention of and combating discrimination in Plăieşii de Sus and Caşinul Nou (community Plăieşii de Jos, Harghita County) and the budget for this programme for the period of 2008-2009. According to this decision, the sums necessary for the financing of this programme are to be assigned from the budget of the National Council for Combating Discrimination, which is to co-ordinate the implementation of the programme and to supervise its financial execution.

During a bilateral meeting between the Secretariat and the authorities held in Bucharest in June 2009, the Romanian authorities presented detailed information concerning the implementation of the undertakings foreseen in the Kalanyos and others and Gergely cases. This information is summarised in the information document updated by the Secretariat (CM/Inf/DH(2009)31-rev). On 26/11/2009, the authorities presented a report on the implementation of the “Educational programme for preventing and fighting discrimination against Roma in Plaiesii de Sus and Casinul Nou” issued by the National Council for Combating Discrimination.

(b) By Law No. 103/2006, Romania has ratified Protocol No. 12 to the Convention (published in the Official Gazette on 2/05/2006). The Romanian authorities have also indicated that they envisage amending the legislation concerning the fight against discrimination, in order to create a direct and effective possibility to obtain redress for discriminatory acts.

Moreover, the National Agency for the Roma signed an agreement with UNDP (United Nations Development Programme). The parties committed themselves to establish six assistance social centres for Roma to facilitate their socio-economic integration. One of the centres will have its seat at Targu Mures. Further, according to the Memorandum of Understanding signed by the Romanian government and UNDP in September 2005, 11 projects will be financed within the “Partnership for supporting the Roma 2005” Program.

The Romanian authorities also presented information on general public policies concerning Roma in Romania and on programmes and initiatives of the National Agency for Roma.

(c) Submissions under Rule 9§2: In March 2009, an NGO (European Roma Rights Centre) presented an assessment of the implementation of the undertakings made by the Romanian authorities in these cases which has been subsequently commented by the authorities.

• This information has been examined by the Secretariat and presented in the information document CM/Inf/DH(2009)31, declassified at the 1059th meeting (June 2009).

On 22/06/2009, four NGOs (Accept Association, Centre for Legal Resources, PRO EUROPE League and Romani CRISS) submitted an assessment of the implementation of the undertakings made by the Romanian authorities in the Moldovan and others cases. Later on, the Romanian authorities submitted their comments on this subject. 

• This information is presented in the updated information document on this issue (CM/Inf/DH(2009)31-rev).

• Outstanding issues: in the decision adopted at the 1072nd meeting (December 2009), the Committee of Ministers noted that further information and clarification are necessary concerning the continuation and the financing of the action plan for the Hădăreni village and encouraged the authorities to continue their efforts in implementing the action plan for the localities Plăieşii de Sus and Caşinul Nou, particularly with a view to drawing the consequences of the experts’ conclusions concerning the needs of these communities. The Committee also underlined the need for the authorities to evaluate the impact of measures already implemented, to adopt further measures for all the localities at issue and to inform the Committee of their conclusions in this respect.

            2) Violation of Article 6§1: The problem of the excessive length of the proceedings is being examined in the context of the Stoianova and Nedelcu group of cases (77517/01+, Section 4.2).

            3) Publication and dissemination: The judgement of 12/07/2005 was translated into Romanian and published in the Official Journal. In addition, the judgment has been already included in the training programme for judges and prosecutors of the National Institute of Magistrate.

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.

6289/03+          Popa Irinel and others, judgment of 1/12/2009, final on 1/03/2010

The case concerns several violations related to the applicants’ detention on remand between September 2002 and June 2003.

The case deals with the infringement of the “law” by the prosecutor when remanding the applicants in custody for 30 days (between September and November 2002) (violation of Article 5§1c)). The European Court noted in this respect that neither the prosecutor, nor even the courts which confirmed the remand at issue specified any reasons or facts to establish that the measure was based on relevant provisions of the Code of Criminal Procedure (Article 148 d), g) or h)), but limited themselves to simply citing the provisions at issue. The case also concerns the violation of the right of the applicants, who were placed in detention on remand by a prosecutor, to be brought promptly once detained before a judge (violation of Article 5§3). The case also concerns the courts’ failure to give reasons for extending the applicants’ detention on remand (violation of Article 5§3). In addition, the case concerns the lack of effective access of the applicants’ lawyers to the criminal investigation file during the judicial supervisory procedure concerning the detention on remand (violation of Article 5§4). Finally, the case concerns the fact that some of the applicants were at no stage able to contest the extension of their detention on remand in adversarial proceedings (violation of Article 5§4).

The applicants were released in 2003.

• To date the authorities have provided no information.

- 6 cases mainly concerning the lack of judicial guarantees in the context of detention on remand

42250/02           Calmanovici, judgment of 01/07/2008, final on 01/10/2008, rectified on 10/02/2009

3584/02            Tarău, judgment of 24/02/2009, final on 24/05/2009

13275/03           Mihuţă, judgment of 31/03/2009, final on 14/09/2009

70787/01           Răducu, judgment of 21/04/2009, final on 21/07/2009

3097/02            Stoican, judgment of 6/10/2009, final on 6/01/2010

17689/03           Tiron, judgment of 07/04/2009, final on 07/07/2009

The Calmanovici case concerns the unlawfulness of the applicant’s detention, a former police officer suspected of accepting bribes and misappropriation, between 2 and 31/08/2002 and 21/09 and 19/11/2002. In this respect, the European Court noted that the public prosecutor’s order, which was a basis for the detention between 2 and 31/08/2002, invoked Article 148 h) of the Code of Criminal Procedure without stating facts which could lead to the assumption that leaving the applicant at liberty would present a danger for public order, as required by the relevant provisions. Further, the detention between 21/09/2002 and 19/11/2002 was based on decisions of a military court not competent to consider the applicant’s case (violations of Article 5§1).

The Calmanovici and Răducu cases also concern the delay in freeing the applicants, which did not correspond to the minimum limit in the execution of a final judgment ordering release (violations of Article 5§1).

In the Calmanovici, Mihuţă, Stoican, Tarău and Tiron cases, the European Court also noted that, between 2001 and 2004 the authorities provided no “pertinent and sufficient” reasons to justify extending the applicants’ detention (violations of Article 5§3).

The Stoican and Tiron cases also concern the fact that the applicants, whose detention was ordered by a prosecutor, were not brought promptly before a judge (violations of Article 5§3).

The Mihuţă case also concerns the lack of immediate appeal against court decisions extending detention on remand (violation of Article 5§4).

The applicant in the Tarău case was not brought before a court nor benefited from effective defence in a hearing determining whether her detention was to continue (violation of Article 5§4).

In addition, in the Răducu case, the competent court took 30 days to rule on the applicant's request to be freed from detention on remand (violation of Article 5§4).

The Calmanovici case also concerns the absence of an oral hearing before the Romanian Supreme Court which condemned the applicant on 18/06/2004 (violation of Article 6§1).

The Tarău case also concerns the fact that the applicant had been unable to examine or have examined most of the witnesses against her, as her requests in this respect were dismissed by the domestic courts without coherent reasoning (violation of Article 6§3d). 

The Răducu and Calmanovici cases also concern illegal interception of the applicants’ telephone conversations, on the basis of the prosecutor’s authorisations of 2000 and 2002 respectively (violations of Article 8).

In the Calmanovici case the Court also found violations of the applicant's right to respect for family life and of the right to free elections in view of the automatic prohibition of the exercise of his parental rights and of his right to vote during his imprisonment under Articles 64 a) and d) and 71 of the Criminal Code, as ancillary penalties accompanying the prison sentence (violations of Article 8 of the Convention and of Article 3 of Protocol No. 1).

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

            1) Irregularities of detention (all cases): The Court noted that the periods to be taken into account for the purposes of Article 5 had ended by the time it delivered its judgments.

• Assessment: No further measure appears necessary.

            2) Violations of Article 6§§1 and 3d) (Calmanovici and Tarău): Article 408¹ of the Romanian Code of Criminal Procedure provides the possibility of reopening criminal proceedings in cases in which the European Court has found a violation, as noted by the Court itself in the Calmanovici judgment.

• Assessment: No further measure appears necessary.

            3) Interception of the applicants’ telephone communications (Calmanovici and Răducu):  

• Information is expected as to whether the recordings in question have been destroyed.

            4) Privation of parental rights and of the right to vote (Calmanovici):

• Information is expected as to whether the applicant still suffers from these consequences of his conviction.

General measures:

1) Irregularities of detention:

-           Unlawfulness of the prosecutor’s order: The case presents similarities to the Pantea case (33343/96) (Section 4.2)

-           Lack of competence of the military court:

• Information is expected on the authorities’ assessment as to whether the violation found is of an isolated nature and on possible measures taken or envisaged to avoid similar violations.

-           Delay in the applicants’ liberation:

• Information is expected on measures taken or envisaged to avoid similar violations.

-           Lack of pertinent and sufficient reasons for extending detention on remand:

• Information is expected on measures taken or envisaged to avoid similar violations.

-           Right to be brought promptly before the judge: The cases present similarities to the Pantea case (33343/96) (Section 4.2)

-           Lack of immediate appeal against court decisions extending detention on remand: The case presents similarities to the Samoila and Cionca case (+33065/03) (DH meeting in March 2011) 

-           Delay in resolving the request to be freed from detention on remand: The case presents similarities to the Pantea case (33343/96) (Section 4.2)

2) Lack of oral hearing: The case presents similarities to the Constantinescu case (28871/95) (Section 6.2).

3) Impossibility to examine witnesses: The case presents similarities to the Reiner and others case (1505/02) (Section 4.2)

4) Interception of the applicants’ telephone communications: The cases present similarities to the Dumitru Popescu No. 2 case (71525/01) (DH meeting in March 2011).

5) Privation of parental rights: The case presents similarities to the Sabou and Pîrcălab case (46572/99) (Section 6.2).

6) Privation of the right to vote:

• Information is expected on measures taken or envisaged to avoid similar violations.

7) Publication and dissemination: The judgment in the Calmanovici case has been translated into Romanian and published in the Official Journal.

• Dissemination of the judgment among the relevant courts and authorities is also expected.

23468/02           Sissanis, judgment of 25/01/07, 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.

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.

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.

8727/03            Stanca Popescu, judgment of 07/07/2009, final on 07/10/2009

The case concerns an infringement of the principle of legal certainty due to the reopening, in 2003, of a final judgment of 1996 ordering the return of a plot of land to the applicant (violation of Article 6§1).

The European Court found that the admission of the application to reopen made by the applicant’s neighbours had been, in the circumstances of the case, a disguised reopening of proceedings definitively settled and on grounds which could have been raised during those proceedings.

Individual measures: The consequence of the admission of the application for reopening was that the applicant’s action for recovery of the estate at issue was rejected. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. It should be noted that Article 322§9 of the Romanian Code of Civil Procedure provides the possibility of reopening civil proceedings in cases in which the European Court found a violation of the Convention. 

• Assessment: as private persons are the opposite party to the proceedings, an action plan/action report is awaited.

General measures: an action plan/action report is awaited.

• To date, the authorities have provided no information.

21737/03           Haralambie, judgment of 27/10/2009, final on 27/01/2010 

The case concerns the refuse of the domestic courts in 2003 to examine the legality of an administrative decision concerning the restitution of a plot of land, in view of the exclusive competence of administrative commissions in this field (violation of Article 6§1).

The case also concerns the authorities’ failure in their positive obligation to provide the applicant with an effective and accessible procedure enabling him to obtain access within a reasonable time to his personal file drawn up by the former Securitate (violation of Article 8). The applicant was allowed to study his personal file only in June 2008, more than six years after his first request on this issue.

• To date the authorities have provided no information.

23782/06+         Constantin and Stoian, judgment of 29/09/2009, final on 29/12/2009  

The case concerns the violation of the applicants’ right to a fair trial due to their conviction for drug trafficking in 2005, following active incitement by state agents (violation of Article 6§1).

The European Court considered that the police agent who introduced himself as an alleged buyer, in a transaction with the applicants, had procured a criminal activity which would not have happened otherwise. In addition, the Court considered that the domestic courts had not sufficiently investigated the allegations of incitement. In this context, the Court noted that the applicants had been acquitted by the first-instance court, which noted that there had been active incitement by the police. However, the appeal court sentenced the applicants to 7 and 6 years’ imprisonment respectively, based on the same evidence. The Court noted in particular that the appeal court took no evidence, nor did it directly question the applicants on the merits of the accusations against them.

• To date the authorities have provided no information.

- Case concerning the violation of the right of access to a court due to excessive court fees required[21]

4227/02            Iorga, judgment of 25/01/2007, final on 25/04/2007

- 3 cases mainly 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

9293/03            Bacso, judgment of 04/11/2008, final on 04/02/2009

These cases concern the violation of the applicants' right of access to a court due to 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 all the cases the Romanian courts wrongly applied Article 1201 of the Civil Code. 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. In the Bacso case, in a 2002 decision, the court wrongly dismissed a second action brought by the applicants to set aside a contract of sale, having dismissed their first action without deciding on the merits of this claim.

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.

Finally, the Bacso case also concerns the failure to restore nationalised property to the applicants as a result of the sale of the property by the state to third parties and the refusal of the courts to examine the applicants’ action to set aside the contract of sale (violation of Article 1 of Protocol No. 1).

Individual measures: The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage. Article 322§2 of the Code of Civil Procedure provides the possibility to reopen civil proceedings in cases in which the European Court has found a violation. As regards the Bacso case, the Court noted that, in subsequent proceedings, the action to establish title lodged by the applicants against the third parties who bought the property from the state was successful.

• Assessment: No other measure appears to be necessary.

General measures:

               1) Violation of Article 6§1: The judgments in the Lungoci and Caracas cases have been published in the Official Journal and on the Internet site of the High 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 to prevent new, similar violations. Publication and dissemination of the Court’s judgment in the Bacso case are also expected.

            2) Violation of Article 1 of Protocol No. 1: The case presents similarities to the Străin and others group of cases (57001/00, 1100th meeting, December 2010).

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.

26105/03           Mitrea, judgment of 29/07/2008, final on 01/12/2008

The case concerns the annulment by means of an extraordinary appeal of a final decision in the applicant's favour, given on 17/06/2002, following a request lodged by the defendant (violation of Article 6§1).

The European Court observed that the situation in the present case was a typical example of divergence of views between courts concerning the admissibility and relevance of the evidence adduced, which did not justify the quashing of a final and binding decision. Consequently, the authorities failed to strike a fair balance between the interests at stake.

Individual measures: Romanian law provides, in Article 322§9 of the Code of Civil Procedure, the possibility of reopening civil proceedings in cases in which the European Court found a violation. In addition, the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

• Assessment: No further measure appears necessary.

General measures: The European Court recalled that legal certainty presupposes respect for the principle of res judicata, that is the principle of the finality of judgments. This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of substantial and compelling character (§ 24 of the judgment).

• Information is expected on measures taken or envisaged to avoid new, similar violations. In this context, publication of the European Court’s judgment and its dissemination among relevant courts and authorities is expected.

                       - 10 cases concerning failure by domestic authorities to assist in enforcing final judicial decisions placing obligations on private third parties

34647/97          Ruianu, judgment of 17/06/03, final on 17/09/03

40067/06           Butan and Dragomir, judgment of 14/02/2008, final on 14/05/2008

6580/03            Ciocan and others, judgment of 09/12/2008, final on 09/03/2009

73706/01           Ion-Cetina and Ion, judgment of 14/02/2008, final on 14/05/2008

10395/02           Kocsis, judgment of 20/12/2007, final on 20/03/2008

67007/01           Neamţiu, judgment of 14/02/2008, final on 14/05/2008

25111/02           Negulescu Elena, judgment of 01/07/2008, final on 01/12/2008

24724/03           Oprea Constantin, judgment of 08/11/2007, final on 08/02/2008

22626/02          Schrepler, judgment of 15/03/2007, final on 15/06/2007

40162/02           Vasile, judgment of 29/04/2008, final on 29/07/2008

                        CM/Inf/DH(2007)33

These cases concern the failure of domestic authorities to assist the applicants in enforcement of final judicial decisions related to the obligation of private third parties (violation of Article 6§1 in all cases and, in addition, violation of Article 1 of Protocol No. 1 in the Ion-Cetina and Ion case).

The Ruianu case concerns the non-enforcement of two final court decisions (issued in 1993 and 1995) enjoining the defendants to demolish a building illegally constructed on the applicant's property. The European Court concluded that, in spite of the applicant's repeated requests, only one adequate attempt had been made to enforce the judgments, and this not until 2000. Following this attempt, the subsequent requests made by the applicant for the enforcement of the judgments remained unsuccessful.

The Butan and Dragomir case concerns the failure to enforce a final judicial decision given in 2005, ordering a utility company to sign a contract related the supply of drinking water to the applicants’ apartment.

The Ciocan and others case concerns the failure of domestic authorities to assist the applicants in enforcement of final judicial decisions rendered in 2000 ordering a private company to reinstate the applicants in their posts.

The Ion-Cetina and Ion and Vasile cases concern the non-enforcement of final decisions given, respectively, in 1997 and 1994 requiring third parties to vacate the applicants’ lands.

The Neamţiu case concerns the non-enforcement of two final judicial decisions, given in 1995 and 1996, ordering the expulsion of tenants occupying a building that belonged to the applicant, the demolition of a building adjoining the applicant’s house and payment of court fees.

The Negulescu, Constantin Oprea, Kocsis and Schrepler cases concern the non-enforcement of domestic court decisions, given between 1998 and 2003, ordering payment of a certain sum to the applicants.

The Kocsis case also concerns the excessive length of civil proceedings, including the execution phase (violation of Article 6§1).

Individual measures:

1) Ruianu: Following the friendly settlement reached with their neighbours, the applicant's heirs (she died on 10/03/2005) sold to them the plot of land on which the building at issue stands.

2) Butan and Dragomir: The European Court recalled that the finding of a violation places an obligation on the authorities to put an end to the violation and to erase, as far as possible, its consequences. In the context of the present case this would require the execution of the final judicial decision of 22/11/2005. It should be noted that since the delivery of the European Court’s judgment the applicants have complained several times about the non-execution of the domestic decision.

By letter of 29/04/2010, the authorities provided information on individual measures.

• Bilateral contacts are under way to assess this information.  

3) Ciocan and others: The decisions in question have been executed. The European Court awarded the applicants just satisfaction for non-pecuniary damage.

4) Ion-Cetina and Ion: The European Court noted that the full execution of the final judicial decision of 27/03/1997 (bringing the applicants into possession of the totality of their land) would place them, as far as possible, in the same situation as before the violations. Failing to execute this decision within three months of the date on which the European Court’s judgments became final, the authorities should pay the applicants just satisfaction in respect of pecuniary damage, corresponding to the value of the land in question. In this context it should be noted that the Romanian authorities paid the compensation for the land in question.

5) Kocsis: The European Court awarded the applicant just satisfaction in respect of all heads of damage, corresponding to the sums awarded by domestic jurisdictions.

6) Neamţiu: The European Court recalled that the finding of a violation places an obligation on the authorities to put an end to the violation and to erase, as far as possible, its consequences. In the context of the present case this would require the execution of the final judicial decision of 21/09/1995 and 16/05/1996.

7) Negulescu: The European Court awarded the applicant just satisfaction in respect of all heads of damage, corresponding to the sums awarded by the decision of 7/12/2000.

8) Constantin Oprea: The European Court awarded the applicant just satisfaction in respect of pecuniary damage covering the damage resulting from the non-execution of the final judicial decision of 6/12/2000.

9) Schrepler: The decision of 1998 had still not been executed when the European Court rendered its judgment.

10) Vasile: Under Article 41 the applicant requested the enforcement of the domestic decision in question, ordering the vacation of the applicant’s land, or payment of the compensation for its value. In this context it should be noted that the European Court awarded the applicant just satisfaction in respect of all heads of damage, corresponding to the value of the land in question.

• Assessment: no further individual measure appears necessary in the Ciocan and others, Ion-Cetina and Ion, Kocsis, Negulescu, Constantin Oprea, Ruianu and Vasile cases.

• Information is expected on the current state of execution of domestic decisions in the Neamţiu and Schrepler cases.

General measures:

1) Non-execution of final judicial decisions: In a letter of 31/05/2004 the Romanian authorities provided information concerning the means available in Romanian law to force debtors to execute obligations established by court decisions, such as periodic monetary penalties, fines for non-compliance, or criminal sanctions. Although this information was relevant, the Secretariat noted that the legal means invoked by the government could not avoid the violation in the Ruianu case. Therefore, given the domestic authorities' responsibility for the enforcement stage (see in particular paragraphs 59, 72 and 73 of the judgment in the Ruianu case), additional information was requested concerning the means available in domestic law to ensure the execution of domestic courts' decisions in similar situations.

In this context it should be noted that on 1/01/2007, Law no. 459 of 6/12/2006, modifying the Code of Civil Procedure with respect to the enforcement of civil court decisions, entered into force. Among other things it provides a duty upon public order officials to assist in the enforcement of obligations imposed by domestic law and sanctions in case of non-compliance with this obligation. It also provides a possibility to request the courts to impose a civil fine on a bailiff who refuses to initiate the enforcement procedure or to accomplish any act of enforcement. The court to which the case has been referred to may also, at the request of the interested party, oblige the bailiff to pay compensation for any prejudice caused. This request must be examined with urgency and priority.

Further, the judgment of the European Court in the Ruianu case was published in the Official Journal on 2/12/2004 and has been included in a collection of judgments delivered against Romania between 1998 and 2004, 2000 copies of which have been distributed free of charge to courts and others. It was also transmitted to the Magistrates' Superior Council.

During the bilateral consultations held in Bucharest, on 8/07/2010, the Romanian authorities presented extensive information, part of which has also been submitted in writing, concerning the reform of the enforcement proceedings.

• Bilateral contacts are under way to assess the information provided by the authorities.

• Information is awaited in writing on the aspects which were only presented orally during the bilateral consultations in July 2010. In addition, information is awaited on the authorities' assessment whether the violations found by the European Court in these cases have a structural character (in this context see the conclusions of the Round Table held on 21-22 June 2007, CM/Inf/DH(2007)33).

2) Excessive length of proceedings:The Kocsis case presents similarities to the Nicolau group of cases (1295/02, Section 4.2).

- 18 cases concerning the continued impossibility to dispose of properties and to receive rent for their use resulting from the application of the emergency rent provisions

68479/01+        Radovici and Stănescu, judgment of 02/11/2006, final on 02/02/2007

14578/03           Anghelescu No. 2, judgment of 04/11/2008, final on 04/02/2009

77210/01           Arsenovici, judgment of 07/02/2008, final on 07/05/2008

28106/03           Brumărescu No. 2, judgment of 23/06/2009, final on 23/09/2009

75240/01           Burzo, judgment of 04/03/2008, final on 04/06/2008

7293/02            Dumitrescu Maria and Sorin Mugur Dumitrescu, judgment of 14/10/2008, final on 14/01/2009

29517/02           Dumitrescu No. 2, judgment of 23/09/2008, final on 23/12/2008

2736/02            Kerekeş, judgment of 13/11/2008, final on 13/02/2009

5984/02            Oancea and others, judgment of 29/07/2008, final on 29/10/2008

27086/02           Popescu and Toader, judgment of 08/03/2007, final on 08/06/2007

24171/02           Postolache, judgment of 16/12/2008, final on 16/03/2009

1266/03            Roşca Marcel, judgment of 07/10/2008, final on 06/04/2009

34325/05           Rotaru Rodica Michaela, judgment of 10/11/2009, final on 10/02/2010

3864/03            Spanoche, judgment of 26/07/2007, final on 10/12/2007

28777/03           Schmidt, judgment of 30/06/2009, final on 10/12/2005

75849/01           Tarik, judgment of 07/02/2008, final on 07/05/2008

1242/02            Trifu, judgment of 25/11/2008, final on 25/02/2009

18429/02           Vînătoru, judgment of 14/10/2008, final on 14/01/2009

These cases concern violations of the applicants' right to the peaceful enjoyment of their possessions in that, for a protracted period, they were prevented from controlling their property and from receiving rent from tenants (violation of Article 1 of Protocol No. 1).

Between 1992 and 2001, Romanian authorities ordered the return of properties nationalised during the communist period to the applicants. Following the tenants' refusal to sign a new lease with them, the applicants applied for eviction orders. However, due to the initial failure to comply with the formalities laid down by Emergency Government Order No. 40/1999 on the protection of tenants and the fixing of rents for residential accommodation, the existing leases were extended for five years, preventing the applicants from receiving any rent.

The European Court considered that to penalise landlords who failed to comply with the formal conditions laid down in the emergency order, by imposing on them such a heavy obligation as that of keeping tenants in their property for five years without any realistic prospect of being paid any rent, had placed them under an individual and excessive burden such as to upset a fair balance between the competing interests.

Individual measures: In the Radovici and Stanescu case, the applicants recovered their properties between 2003 and 2005; in addition, the European Court awarded them jointly just satisfaction in respect of both pecuniary and non-pecuniary damage.

In the Spanoche and Schmidt cases, the applicants sold the property in question and the European Court awarded them just satisfaction for pecuniary and non-pecuniary damage, including the lack of use of their property.

In the Brumărescu No. 2 case, the Court found the impossibility for the applicant to receive rent prior to December 2003 violated his right to the peaceful enjoyment of his possessions. After that date the applicant concluded a lease with the tenants and the Court found that his claims relating to the amount of the rent were manifestly ill-founded. The Court awarded the applicant just satisfaction in respect of all heads of damage suffered on account of the violation found. 

In the Burzo case, the tenants were evicted in 2005 and the European Court awarded the applicant just satisfaction in respect of all heads of damage.

In the Dumitrescu No. 2, Maria Dumitrescu and Sorin Mugur Dumitrescu, Kerekeş, Postolache, Trifu and Vînătoru cases, the applicants recovered their flats before the European Court gave its judgments and the European Court awarded them just satisfaction in respect of pecuniary and non-pecuniary damage, including the lack of use of their apartments.

In the Popescu and Toader, Arsenovici, Tarik, Oancea, Anghelescu No. 2, Rodica Mihaela Rotaru and Marcel Roşca cases, the European Court noted that the applicants' properties were still occupied by tenants when it gave its judgments. Except for Arsenovici case, where the applicant did not submit a demand concerning just satisfaction within the time limit, the European Court awarded the applicants just satisfaction for pecuniary and non-pecuniary damage, including the lack of use of their properties.

• Assessment: no further individual measure appears necessary in the Radovici and Stanescu, Spanoche, Schmidt, Burzo, Brumarescu no. 2, Dumitrescu No. 2, Maria Dumitrescu and Sorin Mugur Dumitrescu, Kerekeş, Postolache, Trifu and Vînătoru cases.

• Information is awaited on the current situation of the applicants in the Popescu and Toader, Arsenovici, Tarik, Oancea, Anghelescu No. 2, Rodica Mihaela Rotaru and Marcel Roşca cases.

General measures: The violation resulted from the application of Emergency Government Order No. 40/1999, which ceased to be in force on 8/04/2004. In the case of Anghelescu No. 2, the European Court noted that the domestic courts had to respond to the question of the effects of Emergency Government Order No. 40/1999 in actions for eviction orders of former state tenants lodged by the owners after 8 April 2004, date when the timeframe of five years of extension of the leases mentioned by Emergency Government Order No. 40/1999, as amended by Law no. 241/2001, ended. The analysis of the pertinent domestic case law does not lead to the conclusion that this aspect was solved in a final manner (§14 of the judgment).

• Information is awaited on the case-law of domestic courts in actions for eviction orders lodged by the owners after 08/04/2004 and on the publication and dissemination of the European Court’s judgments.

35482/06           Silviu Marin, judgment of 02/06/2009, final on 02/09/2009

The case concerns a breach of the applicant’s right to the peaceful enjoyment of his possessions due to the annulment by a court, in 2006, of the administrative decisions which granted him a plot of land more than thirteen years before (violation of Article 1 of Protocol No. 1).

The European Court considered that it was the authorities’ duty to verify the compliance with the law before the adoption of the decisions recognising the applicant’s property right and that he could not reasonably have expected that these decisions would be declared null and void more than thirteen years after their delivery and this, in application of a new law establishing such a sanction. For these reasons, the Court found that the annulment of these decisions could not be considered as foreseeable for the applicant, and therefore, the interference in this property right was not “provided for by law” within the meaning of Article 1 of Protocol No. 1.

• To date the authorities have provided no information.

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.

On 11/02/2008 and 21/02/2008, the authorities submitted additional information regarding this aspect.

• 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.

- 10 cases mainly concerning the length of criminal proceedings and the lack of an effective remedy

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

5512/02            Crăciun, judgment of 30/09/2008, final on 26/01/2009

29301/03           Drăgănescu, judgment of 30/09/2008, final on 06/04/2009

6373/03            Dumitrescu Gheorghe and Maria Mihaela, judgment of 29/07/2008, final on 26/01/2009

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

72439/01           Soare, judgment of 16/06/2009, final on 16/09/2009

36293/02           Temeşan, judgment of 10/06/2008, final on 01/12/2008

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 or joined by the applicants as civil parties (violations of Article 6§1). The proceedings in the Aliuta, Crăciun and 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)).

The Soare case also concerns the lack of an effective remedy for excessive length of criminal proceedings (violation of Article 13).

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 (Aliuta, Crăciun and Petre cases).

General measures:

1) Excessive length of proceedings and lack of effective remedy: 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 has been 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 intended 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.

During the bilateral consultations held in Bucharest on 8/07/2010, the Romanian authorities presented extensive information, part of which has also been submitted in writing, concerning the reform of criminal proceedings, including preventive measures and an effective remedy for the excessive length of such proceedings.

• Bilateral contacts are under way to assess the information provided by the authorities.

• Information is awaited in writing on the aspects which were only presented orally during the bilateral consultations in July 2010.

2) Impossibility to examine witnesses: 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§3 (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 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.

- 34 cases mainly concerning the length of civil proceedings and lack of an effective remedy

1295/02            Nicolau, judgment of 12/01/2006, final on 03/07/2006

37411/02           Abramiuc, judgment of 24/02/2009, final on 24/05/2009

19895/02           Apahideanu, judgment of 02/12/2008, final on 06/04/2009

15204/02           Atanasiu, judgment of 17/01/2008, final on 17/04/2008

31253/03           Balea, judgment of 22/09/2009, final on 22/12/2009

8870/02            Bercaru, judgment of 16/09/2008, final on 26/01/2009

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

31250/02           Cerăceanu No. 1, judgment of 04/03/2008, final on 29/09/2008

3076/02            Ciovică, judgment of 31/03/2009, final on 14/09/2009

10277/04           Constantinescu Nicolae, judgment of 30/09/2008, final on 30/12/2008

26662/02           Craiu, judgment of 07/10/2008, final on 07/01/2009

19055/05           Deak, judgment of 03/06/2008, final on 01/12/2008[22]

22011/03           Deckany, judgment of 01/04/2008, final on 01/07/2008

29558/02           Duţă, judgment of 30/09/2008, final on 26/01/2009

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

31334/03           Ioan Moldovan, judgment of 13/10/2009, final on 13/01/2010

17782/02           Ionescu Dan Christian, judgment of 14/04/2009, final on 14/07/2009

12534/02           Ionescu Petre, judgment of 02/12/2008, final on 06/04/2009

67710/01           Ispan, judgment of 31/05/2007, final on 31/08/2007

3912/03            Lăzărescu, judgment of 22/09/2009, final on 1/03/2010

34071/06           Marinicǎ Tiţian Popovici, judgment of 27/10/2009, final on 27/01/2010

19567/02           Matica, judgment of 02/11/2006, final on 02/02/2007

34461/02           Mişcarea Producătorilor Agricoli pentru Drepturile Omului, judgment of 22/07/2008, final on 01/12/2008

29700/04           Otopeanu, judgment of 20/10/2009, final on 1/03/2010

65965/01           Paroisse Gréco-Catholique Sfântul Vasile Polonă, judgment of 07/04/2009, final on 07/07/2009

32700/04           Păunoiu, judgment of 16/09/2008, final on 16/12/2008

30043/04           Popovici Laurenciu, judgment of 24/02/2009, final on 24/05/2009

32228/02           S.C. Comprimex S.A., judgment of 30/09/2008, final on 06/04/2009

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

9415/02            Tăşchină, judgment of 01/07/2008, final on 01/10/2008

These cases concern the excessive length of civil proceedings (violations of Article 6§1). The Abramiuc and the Paroisse Gréco-Catholique Sfântul Vasile Polonă cases also concern the lack of an effective remedy for excessive length of civil proceedings (violation of Article 13).

The Dan Cristian Ionescu case also concerns the length of judicial proceedings in which the applicant was awarded an amount of money, which caused the decrease of its value because of inflation (violation of Article 1 of Protocol No. 1). The Abramiuc case also deals with the late enforcement of a final judgment (violation of Article 6§1 and of Article 1 of Protocol No. 1).

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:

            1) Excessive length of proceedings: the proceedings in all these cases, with exception of the Duţă, Mişcarea Producătorilor Agricoli pentru Drepturile Omului, Nicolau, SC Concept Ltd SRL and Manole cases, were closed when the European Court gave its judgments. In the Dan Cristian Ionescu case the European Court considered that the applicant had suffered pecuniary and non-pecuniary damages which could not be sufficiently compensated by the finding of a violation. The Court therefore awarded the applicant just satisfaction in respect of all heads of damage.

• Information is expected on the state of proceedings in the Duţă, Mişcarea Producătorilor Agricoli pentru Drepturile Omului, Nicolau, SC Concept Ltd SRL and Manole cases and, if appropriate, on measures taken to accelerate them.

            2) Late enforcement of a final judgment in the Abramiuc case: the judgment in question was enforced on 7/07/2005 (see §90 of the judgment). The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measure is required. 

            3) Failure to give specific response to applicant's claims 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.

• Assessment: no further individual measure is required. 

            4) Independent and impartial tribunal and lack of access to the prosecution file in the Forum Maritime S.A. case:

• Bilateral contacts are under way to assess the need for individual measures in addition to the payment of the just satisfaction awarded.

General measures:

            1) Excessive length of proceedings and lack of effective remedy:

• Information provided by the Romanian authorities (3/12/2008): In the framework of the draft new code of civil procedure, a special procedure will be created to contest the excessive length of proceedings before the court competent to hear the case, which will pronounce its decision by an interlocutory judgment. It will be possible to appeal such judgment before the hierarchically superior court. Amendments are also proposed concerning appeals on points of law, which will become an extraordinary appeal available only in exceptional cases. Stricter conditions for the exercise of this appeal are being considered. The notion of “deadline in full awareness” will be given a broader sense, so that it includes all situations in which it may be presumed that the party received the notification and is aware of the deadline. Thus it will no longer be possible to adjourn hearings because of failure to carry out the formal requirements of notifying the parties, if it becomes clear that the parties were already fully aware, as a result of their presence at earlier hearings, of the dates in question. This measure should contribute to shortening proceedings. Legislative amendments are also envisaged in the field of forced execution, including the possibility to order certain measures by the enforcement body by final and binding interlocutory judgments.

During the bilateral consultations held in Bucharest on 8/07/2010, the Romanian authorities presented extensive information, part of which has also been submitted in writing, concerning the reform of civil proceedings, including preventive measures and an effective remedy for the excessive length of such proceedings,.   

• Bilateral contacts are under way to assess the information provided by the authorities.

• Information is awaited in writing on the aspects which have been presented only orally during the bilateral consultations in July 2010.  

It should be noted that 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) Late enforcement of a final judgment: The Abramiuc case presents similarities to Săcăleanu group (73970/01, 1100th meeting, December 2010).

3) Failure to give specific response to applicant's claims: 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 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 Gheorghe 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.

4) Independent and impartial tribunal: The Forum Maritime S.A. case presents similarities to that of Grecu (75101/01, 1100th meeting, December 2010).

5) 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.

- 15 cases against the Russian Federation / 15 affaires contre la Fédération de Russie

1062/03            Golubeva, judgment of 17/12/2009, final on 17/03/2010

The case concerns the killing of the applicant’s partner in the course of an arrest operation not organised so as to minimise to the greatest extent possible recourse to lethal force and any risk to his life (substantive violation of Article 2).

The European Court concluded that the use of force by a police officer was justified. However, it found that the arrest operation was conducted in an uncontrolled manner and that the measures taken by the police lacked the degree of caution to be expected from law-enforcement personnel in a democratic society, even when dealing with dangerous, armed suspects. The Court also noted that the operation stood in marked contrast to the standard of care reflected in the instructions governing the organisation of the police operations which existed at the time.

• Preliminary information (payment of the just satisfaction and dissemination of the judgment to the relevant authorities) was provided by the authorities at the 1086th meeting (June 2010).

32704/04           Vasilyev Denis, judgment of 17/12/2009, final on 17/03/2010

The case concerns the authorities’ failure to take measures needed to protect the applicant’s life after he had been assaulted by persons unknown (violation of Article 3).

The European Court noted that, undeniably, the police had been aware that the applicant was in a vulnerable and life-threatening position, having found him unconscious. Under Russian law, the police had a duty to assist all persons and especially victims of attacks; this duty was codified in detail in the relevant laws. The Convention also imposed the obligation on the state to protect the physical well-being of those who find themselves in a vulnerable position by virtue of being within the control of the authorities. The two officers who had found the applicant, however, had not examined him, had not called an ambulance, but instead had dragged him by the armpits although that had been contrary both to the law and to the most basic requirements of first-aid. As regards the police officers’ precipitate departure from the scene, the fact that there had existed an arrangement under which orders of private security co-ordinators took precedence over the orders of the duty officers at the police station, was found by the Court to be a flagrant perversion of priorities, as it had the effect of putting the protection of private property before that of the applicant’s life.

The case also concerns the lack of medical care provided to the applicant after his transfer to the Moscow City Hospital (violation of Article 3). The Court noted in this respect that the applicant had been left lying undressed and unconscious in a hospital corridor for almost two days without medical attention, the hospital having failed to carry out the most basic procedures provided for a new patient. The Court gave greater credence to the findings of the first medical study, as it had been conducted using the original medical file and by a medical panel working for the Ministry of Defence which, unlike the second panel affiliated to the Moscow authorities, had been an institution unrelated to both the hospital and the investigative authority. The case finally concerns the lack of effective investigation into the applicant’s assault (procedural violation of Article 3). The Court noted that local residents had informed the police immediately of the brutal attack on the applicant. Despite that, the police officers who had arrived at the scene had not drawn up any report or opened an inquiry into the circumstances in the days that followed. Furthermore, although criminal proceedings were ultimately brought, the prosecution authorities had themselves acknowledged that a number of major investigative steps had not been taken, such as reporting on the crime scene and interviewing neighbourhood residents. The responsibility for the investigation was transferred to a different police or prosecution authority at least three times and within five years no less than twelve decisions to discontinue criminal proceedings were issued, only to be subsequently set aside by supervising prosecutors. The Court also concluded that there had been no effective investigation of the actions of the police or the medical negligence of hospital staff (two violations of Article 3). In particular, the Court held that the authorities had been somewhat late in opening criminal investigations of the applicant’s complaints, as these had been brought respectively six months and almost two years after the events. In addition, the investigation concerning the actions of the police had been incomplete and the prosecution had failed to collect the necessary evidence which had led to the collapse of the case against the police officers in court. As regards the investigation of medical negligence, the investigative authorities had demonstrated determination to get rid of the case in a hasty manner; as a result, several investigators had been reprimanded or disciplined.

In addition a crucial piece of evidence, the original medical record, had been lost making it impossible to determine whether the allegedly inadequate medical assistance had led to damage to his health.

The Court finally concluded that there was no effective remedy on account of a structural problem in the Russian legal system whereby a civil claim for damages has limited chances for success where criminal proceedings against state officials have been discontinued or ended in an acquittal (violation of Article 13).

• To date, the authorities have provided no information.

24325/03           Generalov, judgment of 09/07/2009, final on 09/10/2009

The case mainly concerns the poor conditions of the applicant’s detention in a correctional facility between 24/08/2001 and 27/12/2002 (violation of Article 3). It further concerns the failure to carry out an effective investigation into the applicant’s complaint about ill-treatment by the prison warders (procedural violation of Article 3). It also concerns the judicial authorities’ refusal to accept the applicant’s claim for examination on grounds not provided by the Code of Civil Procedure (violation of Article 6).

• To date, the authorities have provided no information.

34393/03           Pitalev, judgment of 30/07/2009, final on 30/10/2009

The case concerns the poor conditions in which applicant was detained in a prison hospital where he was kept from 4/07/2003 to 12/09/2003, from 22/06/2004 to 9/07/2004 and from 19/11/2004 to 10/12/2004.

At the 1078th meeting (March 2010), the Russian authorities provided preliminary information on the payment of just satisfaction and on the dissemination of the judgment.

• An action plan/action report is awaited.

67336/01          Danilenkov and others, judgment of 30/07/2009, final on 10/12/2009, rectified on 23/04/2010

The case concerns the state's failure in its positive obligation to afford effective and clear judicial protection of the applicants against discrimination by their employer on the ground of belonging to a trade union. The company used various means to persuade employees to relinquish their union membership, including re-assigning to special work teams with limited opportunities, dismissals subsequently found unlawful by the courts, wage reductions, disciplinary sanctions, and refusal to reinstate trade-union members following court judgments in their favour. Although the applicants were entitled to have their discrimination complaints examined by a court by virtue of the general rules of the Russian Civil Code and the lex specialis contained in the Trade Union Act, these provisions remained ineffective, as the domestic judicial authorities refused to entertain the applicants’ discrimination complaints on the grounds that discrimination could only be established in criminal proceedings.

The European Court considered that the criminal remedy could not have provided adequate and practicable redress in respect of the alleged anti-union discrimination as, being based on the principle of personal liability, the criminal remedy required proof “beyond reasonable doubt” of direct intent by the company’s key managers to discriminate against trade-union members (violation of Article 14 taken together with Article 11).

• At the 1078th meeting (March 2010), the Russian authorities provided preliminary information on the payment of the just satisfaction and on the dissemination of the judgment.

7025/04            Pishchalnikov, judgment of 24/09/2009, final on 24/12/2009

The case concerns the violation of the applicant’s right to legal assistance at the initial stage of police questioning.

The European Court first noted that, as soon as arrested, the applicant had asked sufficiently clearly for a specific lawyer to represent him. The authorities had not contacted that lawyer, nor had they offered free legal assistance to the applicant. Instead they had interrogated him intensely in the first few days after his arrest, in the absence of a lawyer, in an effort to produce evidence helpful to the prosecution case. Subsequently, the confessions he had made were decisive for his conviction.

In addition, the Court was not convinced that the applicant had fully realised the consequences of subsequently waiving his right to be legally represented. While the evidence collected suggested that he had systematically refused counsel, it had been unexplainable that during purely formal, procedural investigative steps the applicant had always been assisted by legal aid counsel, while he had usually refused legal assistance when he had to answer the investigators’ questions. Furthermore, after the applicant had been assisted by legal aid counsel on a mandatory basis and had been interrogated in counsel’s presence, he had denied his confession statements made to the investigators during the first two days after his arrest.

Consequently, the Court found that the lack of legal assistance to the applicant at the initial stages of police questioning had irreversibly affected his defence rights and undermined the possibility of a fair trial (violation of Article 6§3 (c) in conjunction with Article 6§1).

The case also concerns the excessive length of the criminal proceedings against the applicant. The European Court observed that the proceedings had lasted approximately four years and eight months for two levels of jurisdiction and that there had been substantial periods of inactivity attributable to the domestic authorities and for which the government had not submitted any satisfactory explanation (violation of Article 6§1).

Individual measures: The Court reiterated that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested. The Court noted, in this connection, that Article 413 of the Russian Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court finds a violation of the Convention.

• Information is awaited on whether the applicant requested the reopening of proceedings.

General measures: At the 1086th meeting (June 2010), the Russian authorities provided preliminary information on the dissemination of the judgment to courts, prosecutors, investigators, prosecutors and relevant departments of the Ministry of the Interior.

42454/02           Menchinskaya, judgment of 15/01/2009, final on 15/04/2009

The case concerns the violation of the principle of equality of arms due to an intervention by the prosecutor, unjustified by any special circumstance, under the former Code of Civil Procedure, in appeal proceedings between the applicant and a state body concerning the delayed payment of unemployment benefits to the applicant (violation of Article 6§1).

Individual measures:

• Information submitted by the Russian authorities at the 1065thmeeting (September 2009): The applicant has so far lodged no application to reopen proceedings with the domestic courts.

Information is awaited as to whether such an application has subsequently been lodged by the applicant.

General measures: The judgment of the European Court has been sent out to the Prosecutor General’s Office, to the Supreme Court of the Russian Federation, to the Krasnoyarsk Regional Court, to the Constitutional Court of the Russian Federation, to the Supreme Arbitration Court and to the Representative of the President of the Russian Federation in the Siberian federal district.

By letter of 21/07/2009 of the Vice-President of the Supreme Court of the Russian Federation, the judgment was send to all Presidents of Regional Courts. On 17/08/2009, the judgment was discussed at the meeting of the judicial board of the Krasnoyarsk Regional Court.

Information about the judgment was published in the Bulletin of the European Court (Russian version).

• Preliminary information was provided by the authorities on 22/09/2009. Bilateral discussions are currently under way aimed at securing the additional information necessary to present an action plan/action report to the Committee.

35989/02           Novikov, judgment of 18/06/2009, final on 06/11/2009[23]

- 2 cases concerning the search carried out in the home of the applicants in the framework of criminal proceedings opened against their clients and the illegal seizure and retention of property

71362/01           Smirnov, judgment of 07/06/2007, final on 12/11/2007

19856/04           Kolesnichenko, judgment of 09/04/2009, final on 09/07/2009

These cases concern violations of the rights of the applicants, both advocates, due to searches of their homes and the seizure of possessions by the investigating authorities in criminal proceedings against their clients.

The European Court found that the searches had been carried out without sufficient and relevant grounds or safeguards against interference with professional secrecy, the excessively broad terms of the warrants giving the police total freedom to determine what was seized. The authorities’ interference with the applicants’ right to respect for their private and family life was therefore not “necessary in a democratic society” (violation of Article 8).

In the Smirnov case, the European Court also observed that the central unit of the applicant’s computer was still retained by the authorities, more than six years after the event. It further noted that retaining the computer not only caused personal inconvenience to the applicant but also hindered his professional activities and even had repercussions for the administration of justice. The Court therefore found that Russian authorities failed to strike a “fair balance” between the demands of general interest and the requirement to protect the applicant’s peaceful enjoyment of his possessions (violation of Article 1 of Protocol No. 1). The Court further found that the applicant did not have an effective remedy to challenge the retention of his possessions (violation of Article 13 taken together with Article 1 of Protocol No. 1).

Individual measures:

1) Kolesnichenko case: The European court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicant in relation to the violations found.

            2) Smirnov case: The European Court granted no just satisfaction to the applicant as he failed to submit a claim in this respect within the specified time-limit.

• Information provided by the Russian authorities: The Russian authorities indicated that according to the information submitted by the Supreme Court of the Russian Federation, no claim has been lodged by the applicant with the domestic courts after the judgment of the European Court.

• Assessment: It would appear that when the European Court delivered its judgment, the applicant’s computer was still retained by the domestic authorities (§58 of the judgment). It would also appear that the applicant’s civil claim for damages had been pending before the domestic courts (§25 of the judgment).

• Information is thus awaited on the fate of the applicant’s computer which contained the data subject to professional secrecy, and especially on whether these data have been returned to him or destroyed Information is also awaited on the outcome of compensation proceedings which were pending when the European Court delivered its judgment.

General measures:

1) Violations of Article 8 and of Article 1 of Protocol No. 1:

• Information provided by the Russian authorities: The new Code of Criminal Procedure (CPP) entered into force in 2002, i.e. after the events described in the judgment. The new Code does not however contain any specific provisions concerning searches in lawyers’ premises. This issue is dealt with by the Advocates Act No. 63 of 31/05/2002. Its section 8§3 provides that residential and professional premises of an advocate may only be searched on the basis of a judicial decision. The information, objects and documents obtained during the search may be used in evidence only if they are not covered by the attorney-client privilege in a given criminal case.

Subsequently the Constitutional Court (Ruling No 439-O of 8/11/2005) specified that such judicial order shall mention the concrete object of the search and reasons for authorising this course of action in order to avoid that a search leads to the disclosure of documents concerning other clients.

• Assessment:

            a) scope and motivation of the search warrant: Although search and seizure in lawyers’ premises is now possible only on the basis of a prior judicial authorisation, it would appear that this measure does not entirely remedy the shortcomings identified by the Court. In its Aleksanyan judgment (of 22/12/2008, final on 5/06/2009, Section 2.1), the Court found a similar violation in respect of the judicial search warrant issued in April 2006 particularly due to its vagueness, as it did not specify what items and documents were expected to be found in the applicant’s office or how they would be relevant to the investigation.

• Information is thus awaited on the measures taken or planned to ensure domestic courts’ practice compliance with the Convention’s requirements.

            b) safeguards against interference with professional secrecy: As to the manner in which the search was conducted, the European Court found that “there was no safeguard in place against interference with the professional secrecy, such as for example, a prohibition on removing documents covered by lawyer-client privilege or supervision of the search by an independent observer capable of identifying, independently from the investigation team, which documents were covered by legal professional privilege” (Smirnov judgment, §48). As to the quality of this observer, the Court noted that “the presence of two attesting witnesses obviously could not be considered a sufficient safeguard, given that they were laymen who had no legal qualification and were unable to detect privileged materials” (Koleshnichenko).

• Information is thus awaited on the measures taken or envisaged to ensure that Russian law governing search and seizure conducted in respect of lawyers meets the Convention’s requirements.

2) Violation of Article 13:

• Information provided by the Russian authorities: The Russian authorities indicated that pending the investigation, the decision to retain the seized objects may be subject to judicial review according to Article 125 of CCP. If the case was transmitted to the trial court, the decision to retain the seized objects may be challenged together with the decision delivered on the merits.

• More details would be useful on the powers of the court examining decisions on retention of seized objects. Relevant examples of the domestic courts’ case-law would be particularly welcomed.

3) Publication and dissemination: The Smirnov judgment of the European Court was sent to the President of the Supreme Court, to the General Prosecutor's office, to the Constitutional Court and to the Representative of the President of the Russian Federation in the Severo-Zapadniy federal district. On 25/03/2008, the judgment was sent to all judges, including those of the Saint-Petersburg City Court, together with a circular letter from the Deputy of the President of the Supreme Court of the Russian Federation. It was also discussed during a working meeting with the judges of the Civil, Criminal and Military Chambers of the Supreme Court.

The judgment was translated into Russian and published on the web-site of the Ministry of Justice www.minjust.ru.

The Kolesnichenko judgment was sent to the President of the Supreme Court of the Russian Federation, to the Prosecutor General of the Russian Federation, to the Head of the Investigating Committee with the Prokuratura of the Russian Federation, to the Investigating Committee of the Ministry of the Interior and to the President of the Constitutional Court.

On 5/03/2010 the judgment was sent to all regional courts together with a circular letter of the Deputy President of the Supreme Court of the Russian Federation.

On 15/03/2010 the judgment was sent to all prosecutors together with a letter of the Deputy Prosecutor General.

On 16/03/2010 the judgment was disseminated to all investigators by a letter of the Deputy Head of the Investigating Committee with the Prokuratura of the Russian Federation.

                        - 3 cases concerning confiscatory measures taken without precise legal justification[24]

30352/03           İsmayılov, judgment of 06/11/2008, final on 06/04/2009

23202/05           Adzhigovich, judgment of 08/10/2009, final on 08/01/2010

31004/02           Sun, judgment of 05/02/2009, final on 14/09/2009

- 2 cases concerning failure by domestic authorities to assist in enforcing final judicial decisions placing obligations on private third parties

23554/03           Makarova, judgment of 01/10/2009, final on 01/01/2010

36337/03           Kunashko, judgment of 17/12/2009, final on 17/03/2010

These cases concern the state's failure to assist the applicants in securing enforcement of judgments delivered in their favour in proceedings they initiated against private companies (violations of Article 6§1).

The Makarova case also concerns excessive length of civil proceedings (violation of Article 6§1).

At the 1086th meeting (June 2010), the Russian authorities provided preliminary information on the payment of just satisfaction and dissemination of the judgment in the Makarova case.

• An action plan/action report is awaited.

- 84 cases against the Slovak Republic / 84 affaires contre la République slovaque

30754/04           Dvořáček et Dvořáčková, arrêt du 28/07/2009, définitif le 28/10/2009

Cette affaire concerne le manquement des juridictions nationales à leur obligation de diligence et de célérité raisonnables dans la conduite de l’enquête effective sur la mort de la fille des requérants (violation procédurale de l’article 2).

En 1987, les requérants ont engagé une action civile sur le fondement des déficiences du traitement post-natal de leur fille qui ont gravement et irrémédiablement endommagé sa santé, et finalement ont conduit à son décès en 2004.

Cette affaire concerne également la durée excessive de cette procédure (violation de l’article 6§1).

Mesures de caractère individuel : Lorsque la Cour européenne a rendu son arrêt, la procédure interne était toujours pendante.

• Des informations sont attendues sur l'état actuel de la procédure interne et le cas échéant sur son accélération.

Mesures de caractère général :

          1) Violation de l'article 6§1 : Voir le groupe d'affaires Jakub (2015/02, rubrique 4.2).

          2) Violation de l'article 2 : Par une lettre du 19/05/2010, l’Agent de la République slovaque devant la Cour européenne a porté l’arrêt de la Cour à l’attention du président du tribunal de district de Bratislava et du juge chargé du dossier. Les autorités slovaques considèrent qu’il s’agit d’un fait isolé résultant de la pratique du tribunal concerné.

• Des informations sont attendues sur la publication et la diffusion de l’arrêt.

8227/04            E.S. and others, judgment of 15/09/2009, final on 15/12/2009

This case concerns the authorities’ failure in their obligation to take appropriate measures in 2001 to protect the applicants, a mother and her children, from ill-treatment (physical and sexual abuse) inflicted by their husband and father, as well as their failure to meet their positive obligation to respect the applicants’ family and private life (violation of Articles 3 and 8).

The European Court noted that, until the relevant law was amended in January 2003, the first applicant had been unable to seek an injunction forbidding her husband from entering the apartment. Nor had she been in a position to apply to sever the tenancy until after her divorce was finalised in May 2002. The Court was not persuaded that the alternate interim measure proposed by the Regional Court, ordering the husband to abstain from inappropriate behaviour or threats, would have provided adequate protection. The Court held that given the nature and severity of the allegations, the applicants required protection immediately, and no effective remedy was available to them in this respect.

32881/04           K.H. and others, judgment of 28/04/2009, final on 06/11/2009

This case concerns the violation of the right to private and family life of the applicants, eight Slovakian women of Roma ethnic origin, due to the authorities’ refusal in 2002 to allow them to photocopy their own medical records in the context of a suspicion that their infertility might have resulted from a sterilisation procedure performed in hospitals during caesarean deliveries. The case also concerns the resulting violation of their right of access to a court (violations of Articles 8 and 6§1).

Section 16 of the Health Care Act 1994, which granted patients or their legal representative the right to receive only excerpts from medical records, was repealed on 01/01/2005 by the Health Care Act 2004. Section 25 of the 2004 Act expressly empowers patients or those authorised by them to make copies of medical records. Consequently, seven of the applicants were able make photocopies of their files. In relation to the second applicant, who was informed that her medical record was lost, the European Court considered that she should seek redress before the domestic courts as regards any alleged negligent handling of her medical records.

The European Court held that the need to protect the relevant information from abuse was not sufficiently compelling to outweigh the applicants’ right to obtain copies of their data files, which was essential for an assessment of their position from the perspective of seeking redress. The risk of such abuse could be prevented by providing appropriate safeguards in domestic law, limiting the circumstances under which such data may be disclosed and the scope of persons entitled to accede to the files. The Court held that section 25 of the 2004 Act is in line with this approach. The Court held that section 16(6) of the 1994 Act had imposed a disproportionate limitation on the applicants’ rights.

54252/07+         Lawyer Partners, a.s., judgment of 16/06/2009, final on 06/11/2009

This case concerns a violation of the applicant company’s right of access to a court due to domestic courts’ refusal in 2006 to register legal actions filed by the company in electronic form (violation of Article 6§1).

Provision for electronic filing has been included in the Code of Civil Procedure since 2002, and the European Court held that the applicant company could not be reproached for having availed itself of that facility, which was entirely in keeping with the volume of cases pursued – over 70 000 actions. The Court held that the refusal imposed a disproportionate limitation on the applicant’s right to use efficient means to present its cases to a court.

The Constitutional Court rejected the applicant’s complaint as having been lodged outside the statutory two-month time-limit, as the applicant had earlier learned that the district courts lacked the necessary equipment and had failed to file a complaint at that time. Since 2008 the Constitutional Court has systematically approached similar cases in the manner prescribed by the Court, namely that the statutory time-limit for lodging a complaint commences from the date of notification of the court’s refusal to register the specific submission. In those cases the Constitutional Court found a violation of Article 6§1 of the Convention and ordered the ordinary courts concerned to process the actions.

Individual measures: The Court considered that the most appropriate form of redress in such cases, in which the applicant has been denied access to a tribunal because of an unjustified refusal to register its actions, would be to register the original submissions as if they had been filed on the date when the applicant company first submitted them and to deal with them in keeping with all the requirements of a fair trial (§62 of the judgment). The Court awarded the applicant just satisfaction in respect of pecuniary damage for loss of real opportunities, as well as in respect of non-pecuniary damage.

The authorities provided information on 08/04/2010 and on 18/06/2010.

• Assessment: The information provided by the authorities cannot be considered as an action plan or action report. An action plan/action report is still awaited from the authorities.

General measures: An action plan/action report is still awaited from the authorities.

- 4 cases concerning the compulsory letting of the applicants’ land and the subsequent transfer of ownership to their tenants

74258/01          Urbárska Obec Trenčianske Biskupice, judgment of 27/11/2007, final on 02/06/2008 and of 27/01/2009, final on 27/04/2009

58764/00           Jenisová, judgment of 03/11/2009, final on 03/02/2010

28697/03           Salus, judgment of 03/11/2009, final on 03/02/2010

6284/02            Šefčíková, judgment of 03/11/2009, final on 03/02/2010

The case of Urbárska Obec Trenčianske Biskupice 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 No. 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.

The Jenisová, Salus and Šefčíková cases also concern violations of the right to the peaceful enjoyment of possessions of the applicants due to the compulsory letting of their land and scheduled or envisaged transfer to tenants (violations of Article 1 of Protocol No. 1).

Individual measures: On 27/01/2009, the European Court delivered its judgment on just satisfaction in the case of Urbárska Obec Trenčianske Biskupice, awarding just satisfaction in respect of pecuniary and non-pecuniary damage. In the cases of Jenisová, Salus and Šefčíková the European Court also awarded just satisfaction in respect of both pecuniary and non-pecuniary damage.

• Assessment: no further individual measures appear necessary.

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.

• Information provided by the Slovakian authorities: The steps to execute the judgment taken to date are mainly contained in two draft legislative amendments, which are currently the subject of inter-ministerial consultation:

-           In February 2010, the Ministry of Agriculture proposed amendments to Act No. 64/1997 on the use of plots of land in allotment gardens and arrangements of their ownership.

-           In March 2010, the Ministry of Justice proposed amendments to its Decree No. 492/2004 on determining the general value of property.

According to these amendments, the rent for the compulsory lease of land, as well as the compensation for the transfer of land, would be determined on the basis of the market value of the property (“general value” according to the domestic terminology). In cases of transfer of land, owners would be also entitled either to financial compensation or compensatory land corresponding to the original land with regard to category, size, quality, location and economic condition, and located, where possible, in the same municipality.

The Ministry of Justice also proposed the following amendment to the Act no. 64/1997:

“1.        The party to the proceedings on land arrangements, whose rights were determined by a final decision approving the project on land arrangements according to the existing legislation, is entitled to compensation for the land according to this Act and the amount of such compensation shall represent the difference between the compensation pursuant to this Act and the compensation awarded to the party in accordance with the existing legislation, provided the party files a claim for such compensation with the District Land Office, which approved the project on land arrangements.

2.         The provisions of this Act also govern proceedings in which the project on land arrangements had not been approved and which had not been concluded by a final decision before this Act came into effect.”

• Information is awaited on the progress of the legislative amendments. Information is also awaited on retroactive measures to compensate the low level of rent where land was compulsorily let.

• Bilateral consultations are under way to clarify the purpose and scope of the draft amendments.

                       - 76 cases of length of civil proceedings and lack of an effective remedy[25]

                       (See Appendix for the list of cases in the Jakub group)

- 1 case against Slovenia / 1 affaire contre la Slovénie

21055/03           Gaspari, judgment of 21/07/2009, final on 10/12/2009

This case concerns the violation of the applicant’s right to a fair hearing in that the Constitutional Court did not disclose to her the constitutional appeals lodged by the adverse party in 2001 and 2002 (violation of Article 6§1). These constitutional appeals challenged the decisions of domestic courts in civil proceedings, instituted by the applicant.

The European Court considered that the applicant had a legitimate interest in receiving copies of the appeals so as to be able to reply to them (§52). However, it noted that the non-disclosure of the constitutional appeals in this case occurred as a result of the Constitutional Court’s “wrong address” serving process (§55). Lastly, the European Court noted with satisfaction that the relevant section 56 of the Constitutional Court Act was amended in 2007 to require disclosure of constitutional appeals to persons affected by the challenged decision (§54).

Individual measures: The European Court noted that the most appropriate form of redress to restore the applicant to her rights would be the reopening of the proceedings at issue and to conduct new proceedings in conformity with the right to a fair trial.

• Information is awaited in this respect.

General measures:

An action plan / action report is awaited.

- 13 cases against Spain / 13 affaires contre l'Espagne

1425/06            C.C., judgment of 06/10/2009, final on 06/01/2010

This case concerns the violation of the applicant’s right to his private and family life due to the disclosure of his identity and the fact that he is HIV-positive in a judgment delivered in civil proceedings he had brought against his insurance company (violation of Article 8).

The applicant sued the insurance company before the first-instance judge No. 4 of Salamanca for refusing to pay him compensation due in respect of his total, permanent disability. Despite his explicit request for confidentiality, his identity and state of health were divulged in the judgment of 24/12/2003.

The European Court considered that the disclosure in the judgment of such personal data concerning health was not justified by any reason of public interest (§ 40 of the judgment).

• Preliminary information was provided by the authorities in 2009 and in 2010 on publication and dissemination of the judgment. Bilateral discussions are currently under way to secure additional information necessary to present an action plan/action report to the Committee.

36777/03           Iribarren Pinillos, judgment of 08/01/2009, final on 08/04/2009

The case concerns the lack of appropriate redress for the injuries sustained by the applicant in 1991, when a smoke-bomb was fired by the police during a demonstration, and in particular the fact that the remedy for compensation of damages was not effective in practice (violation of Article 3). The case also concerns the excessive length of the proceedings (violation of Article 6§1).

The European Court noted that the liability of the state for the damages caused to the applicant had been established: in fact, although the investigation had not identified the officer who had fired the smoke-bomb, in the criminal proceedings in 1995 the Audiencia Provincial had ruled that the police had committed the offence of assault occasioning bodily harm (§§16, 51). However, although the applicant’s subsequent claim for damages was partially granted in 1997 by the Audiencia Provincial, in the appeal proceedings in 2003 the Supreme Court rejected it on the grounds that the police reaction had not been disproportionate, the harm suffered had been random and that accordingly the applicant should bear the consequences (§ 29). In this respect, the Court noted that “the Supreme Court had not taken into account the liability of the administrative authorities for the events as established by the criminal courts. Nor had it correctly examined the question whether the applicant had suffered actual, monetarily quantifiable damage or the causal link between the offence and the damage suffered, while neither investigation nor any justification to explain the gap with the finding of that [criminal] jurisdiction was provided” (§ 57). 

• Preliminary information was provided by the authorities in 2009 on publication and dissemination of the judgment.

• Bilateral discussions are currently under way to secure additional information necessary to present an action plan/action report to the Committee.

25242/06           Juez Albizu, arrêt du 10/11/2009, définitif le 10/02/2010

This case concerns the violation of the applicant’s right to a fair trial due to the lack of reasoning in a court decision dismissing the appeal he had brought in civil proceedings against a property development company for failure to honour its contractual obligations concerning the building of a villa (violation of Article 6§1).

In his judgment of 10/10/2002 the first-instance judge assessed the contract at issue and, relying on its content, held that it was a deposit contract instead of a contract of sale (as argued by the applicant), dismissing his requests. In the appeal proceedings, on 07/02/2003, the Audiencia Provincial dismissed the applicant’s appeal, stating that it could not decide on the merits of his claims, as the contract of sale on which the appeal was grounded was not filed in the dossier of the proceedings. However, in its subsequent decision of 15/09/2003 following the nullity action filed by the applicant, the same Audiencia Provincial claimed that, despite the wording of its decision of 07/02/2003 in the appeal proceedings, it actually examined the deposit contract filed before the first instance judge. Finally, in its judgment of 12/11/2005, the Constitutional Tribunal held that the Audiencia Provincial had given reasons for the judgments it delivered.

The European Court considered that the Audiencia Provincial did not duly motivate the rejection of the applicant’s appeal, observing that the rejection by the Audiencia Provincial was not based on the grounds of the first-instance judgment but that it declined to pronounce on the merits because it considered that the contract at issue was not in the case-file. In the context of a new nullity action filed before it, it seems that the Audiencia Provincial wished to correct this error, but without indicating the reasons for the inconsistency.

The Court also noticed that further issues raised by the applicant were not addressed by the Audiencia Provincial, in particular whether the defendant had complied or not with the obligations deriving from the contract regarding the characteristics of the villa.

• Preliminary information was provided by the authorities in 2010 on publication and dissemination of the judgment.

• Bilateral discussions are currently under way to secure additional information necessary to present an action plan/action report to the Committee.

26178/04          Moreno Carmona, judgment of 09/06/2009, final on 09/09/2009

28142/04          Bendayan Azcantot and Benalal Bendayan, judgment of 09/06/2009, final on 09/09/2009

The cases concern the violation of the applicants' right to a fair hearing within a reasonable time (violations of Article 6§1).

In the first case, the criminal proceedings against the applicant remained at the investigation stage for approximately 13½ years, having been stayed in 1998. The second case concerns enforcement proceedings in respect of a criminal judgment obliging a private individual to pay damages to the applicants; these lasted 7 years and almost 10 months in 1997 - 2005.

• Preliminary information was provided by the authorities on 20/10/2009 and 24/03/2010. Bilateral discussions are currently under way to secure the additional information necessary to present an action plan/action report to the Committee.

                        8 cases concerning the right of access to a court

55524/00          Stone Court Shipping Company S.A., judgment of 28/10/03, final on 28/01/04

34506/02          Barrenechea Atucha, judgment of 22/07/2008, final on 22/10/2008

3321/04            De La Fuente Ariza, judgment of 08/11/2007, final on 08/02/2008

39590/05           Ferré Gisbert, judgment of 13/10/2009, final on 13/01/2010

1518/04            Golf de Extremadura S.A., judgment of 08/01/2009, final on 08/04/2009

21937/06           Llavador Carretero, judgment of 15/12/2009, final on 15/03/2010

77837/01          Saez Maeso, judgment of 09/11/2004, final on 09/02/2005

25779/03          Salt Hiper, S.A., judgment of 07/06/2007, final on 12/11/2007

These cases concern a breach of the applicants’ right of access to a court on account of the inconsistent or particularly strict interpretation by the court of rules of procedure (violations of Article 6§1).

In the Stone Court Shipping Company S.A. case, the applicant company’s right of access to a court had been infringed on account of the Supreme Court’s particularly strict interpretation of its own rules of procedure resulting in 1997 in the rejection – confirmed by the Constitutional Court in 1998 – of the applicant company’s appeal on a point of law as having been submitted out of time. Whilst the appeal had been lodged with the “on-duty” court the day before the date-limit expired, it was not communicated to the Registry of the Supreme Court until afterwards. The Supreme Court relied in its decision on provisions of domestic law to the effect that appeals could only be lodged with an “on-duty” judge if the time-limit for appeal was due to expire the same day and the court with which the appeal had to be lodged was closed for business.

In the cases of Barrenechea Atucha and Golf de Extremadura S.A the Supreme Court rejected the applicant’s appeal on points of law as inadmissible in 2001 and 2002 even though it had found it to be admissible almost six and three years earlier, respectively. The Constitutional Court confirmed the decision later. In the European Court’s view, if the Supreme Court had had reasons for finding the appeal admissible, it could not find to the contrary six and three years later without explaining the change in case-law or without inviting the applicant to submitany observations in case of possible grounds for inadmissibility.

In the Saez Maeso case, the applicant’s appeal against a decision of the University of Valencia not to grant him a diploma was dismissed by the High Court of Justice, after which the applicant took his case to the Supreme Court. On 10/06/1993 the Supreme Court declared his case admissible. On 26/06/2000 (seven years after the admissibility decision) the Supreme Court dismissed his appeal on a point of law on the ground of formal shortcomings at the admissibility stage, without inviting the applicant to submit observations within a definite time-limit. In April 2001 the Constitutional Court confirmed this decision. In the European Court’s view, the Supreme Court’s interpretation was excessively rigorous given that the new Law No. 29/1998 of 13 July 1998 provides that parties should be informed of possible grounds for inadmissibility.

In the case of Salt Hiper S.A., the Supreme Court rejected the applicant company’s appeal on points of law as inadmissible in 2001 even though it had found it to be admissible five years earlier. The Constitutional Court confirmed the decision in February 2003. In the European Court’s view, if the Supreme Court had had reasons for finding the appeal admissible, it could not find to the contrary five years later without explaining the change in case-law or going through some kind of rectification procedure.

In the case of De la Fuente Ariza, a criminal judge, in proceedings against the applicant for alleged offences against the public treasury, decided to accept only some of the evidence adduced by the applicant. This decision of 7/04/2000 specified that it could not be appealed. The applicant nonetheless appealed to the Constitutional Court. The application was dismissed initially in 2000 on the ground that the criminal proceedings had not been completed and once again in June 2003 because he had not exhausted the remedies available against the decision in question. The European Court considered that to dismiss an appeal as premature and then subsequently on grounds of non-exhaustion, alleging that the applicant had not appealed against a decision explicitly stating that no appeal was possible, must at the very least be considered as a lack of legal security for the applicant.

In the Ferré Gisbert case, the applicant claimed the nullity of fast-track proceedings filed against him, due to failure to respect formalities in the service of process. By an order of 01/10/2001 the judge in charge of the fast-track proceedings declared the action inadmissible and stated that the appropriate remedy to claim nullity would be an ordinary declarative action, specifying that his order could not be appealed. The subsequent declarative nullity action was declared admissible by the competent judge but it was rejected on the merits. An appeal before the Audiencia Provincial was also dismissed on 19/11/2003. The applicant then filed an amparo appeal: in 2005 the Constitutional Court declared it inadmissible as out of time. The European Court found that the lack of legal security derives from the Constitutional Court’s consideration that the amparo appeal should have been filed against the order of 01/10/2001 and not, as the applicant did, against the decision of the Audiencia Provincial adopted in the framework of the declarative action, even though the latter had been considered an appropriate remedy by the judge of the fast-track proceedings, the first-instance judge and the Audiencia Provincial, both of whom assessed the claims on the merits.

In the Llavador Carretero case, the Supreme Court declared the applicant’s appeal admissible in 1999, while in 2002 it rejected it on formal grounds (lack of minimum formalities required for a deed of appeal, such as failure by the applicant to indicate his locus standi). The applicant was given the possibility neither to remedy to the errors of form, nor to present his observations on the issues.

Individual measures: The European Court awarded the applicants just satisfaction for the non-pecuniary damages except in the cases De la Fuente Ariza and Llavador Carretero, in which the applicants submitted no claim. It would be useful if the government were to provide an assessment of the applicants’ individual situations so that the Committee of Ministers might assess the need for further possible individual measures.

• Information is awaited on the assessment of the situation of the applicants.

General measures:

• Information provided by the Spanish authorities (letter of 18/09/2009): The letter contains examples of changes in the case-law of the Supreme Court or the Constitutional Court in response to the judgments of the European Court. The domestic case-law quoted enacts the principle established by the European Court according to which, although formalities and time-limits to file an appeal are intended to ensure the good administration of justice and respect of the principle of certainty of the law, such formalities cannot apply to the extent of limiting in its substance the right of the individual to access the court and are compatible with the European Convention if they have a legitimate purpose and are proportional to the goal they aim to achieve (see the Stone Court Shipping judgment, §§ 34-35). In the light of the direct effect of the Convention and of the provisions of Law No. 29/1998 of 13/07/1998 (pursuant to which a court, before deciding on the admissibility of an application, has to inform the parties in the proceedings and let them file their observations), the Constitutional Court established the criteria it will use to evaluate whether a declaration of non-admissibility of an application (issued by a lower court) constitutes a violation of the effective right to access the court. In particular, the Constitutional Court takes into consideration whether an inadmissibility decision is sufficiently grounded, whether it is arbitrary, or the result of an evident error or of an excessive strict interpretation of procedural rules: in this respect, the authorities make reference ex multis to the decisions of the Constitutional Court Nos. 271/2009 of 26/01/2009, 182/2008 of 22/12/2008, 100/2008 of 22/09/2008, 33/2008 of 25/02/2008.

Furthermore, the Constitutional Court also indicated that there are exceptional circumstances in which the failure to respect procedural provisions does not necessarily imply the declaration of inadmissibility of an application. It stated that several elements should be taken into consideration in this respect, such as the distance between the place where a certain document has to be filed and the domicile of the applicant, the diligence of the party, the relation between the complexity of the case on the merits and the deadline to file the appeal, whether the applicant acted with the assistance of a lawyer (see, ex multis, the judgments of the Constitutional Court Nos. 248/2005 of 10/10/2005 and 16/2007 of 12/02/2007 which make express reference to the case Saez Maeso; see also judgments Nos. 283/2005 of 7/11/2005 and 429/2004 of 12/12/2004 which make express reference to the Stone Court Shipping case). The Supreme Court referred to and followed the case-law of the European Court on these issues, (Salt Hyper and Saez Maeso cases): see, ex multis, judgments Nos. 4011/2009 of 9/06/2009, 3339/2009 of 2/06/2009, 3324/2009 and 3312/2009 of 26/05/2009, 3086/2009 of 18/05/2009, 3185/2009 of 31/03/2009, 120/2009 of 27/01/2009, 64/2009 of 20/01/2009, 6503/2008 of 20/11/2008; 6742/2008 of 5/11/2008; 5858/2008 of 22/10/2008; 5646/2008 of 21/10/2008 and 4991/2008 of 25/09/2008. According to the authorities, this information clearly shows that the decisions of the European Court have been implemented in the case-law of the Constitutional Court and of the Supreme Court, allowing the establishment of criteria to assess the admissibility of an application which does not fulfil all requirements provided for by the Spanish codes of procedure. 

• Assessment: the establishment of these criteria by the Constitutional Court, together with the indication of exceptional circumstance to be considered in assessing the admissibility of an application in order to face the issue of inconsistent or particularly strict interpretation by the courts of rules of procedure at the origin of the violations in these cases, are welcomed. It is also worth noting that the case-law quoted above of both the Constitutional Court and the Supreme Court represents a good example of the direct effect of the European Convention. In these circumstances, no further general measures appear necessary.

The European Court’s judgments have been published in Spanish 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.

- 2 cases against Switzerland / 2 affaires contre la Suisse

13444/04           Glor, arrêt du 30/04/2009, définitif le 6/11/2009

L'affaire concerne une discrimination subie par le requérant en raison de son handicap dans la mesure où il a été contraint de payer une taxe d'exemption du service militaire dont il a été dispensé pour raisons médicales, alors qu'il souhaitait effectuer son service militaire (violation de l’article 14, combiné avec l’article 8).

La Cour européenne a noté que le droit suisse ne prévoyait pas d'exemption de la taxe litigieuse pour les personnes qui, comme le requérant, se trouvent sous le seuil d’un handicap de 40 % et qui ont des revenus modestes. La législation suisse ne prévoyait non plus des formes appropriées de service militaire ou civil pour ceux qui se trouvent dans une situation semblable à celle du requérant.

12675/05           Gsell, arrêt du 8/10/2009, définitif le 8/01/2010

Cette affaire concerne une atteinte injustifiée au droit du requérant à la liberté d’expression en ce que l’article 36, alinéa 1er, de la Constitution fédérale qui a constitué l’unique base juridique de la restriction imposée au requérant, à savoir l’interdiction de se rendre à Davos afin de participer à une conférence internationale organisée par les altermondialistes, ne satisfaisait pas à l’exigence de prévisibilité au sens de l’article 10§2 de la Convention.

La Cour européenne, après avoir souligné le principe selon lequel la responsabilité d’un Etat peut être engagée s’il n’a pas respecté son obligation d’édicter une législation interne, a estimé que les autorités nationales auraient dû appuyer la mesure litigieuse sur une base légale plus précise que l’article 36 alinéa 1er de la Constitution fédérale (violation de l’article 10).

Mesures de caractère individuel : la Cour européenne a accordé une satisfaction équitable au titre du dommage matériel.

• Évaluation : Aucune autre mesure ne semble nécessaire.

Mesures de caractère général :

• Informations fournies par les autorités suisses le 07/04/2010) : Le parlement du canton des Grisons a adopté le 28/11/2001 un nouvel article 8a à l’ordonnance sur la police cantonale. Cette ordonnance qui est entrée en vigueur le 01/01/2002, est libellée comme suit : « La police cantonale a la compétence d’ordonner, dans une situation donnée, les mesures nécessaires pour sauvegarder la sécurité et l’ordre publics et pour prévenir les menaces. Elle peut, en particulier, a) enjoindre à des personnes de quitter un lieu ou un périmètre ; b) interdire l’accès à des objets, des biens-fonds ou des périmètres ; c) interdire de séjourner dans des objets, des biens-fonds ou des périmètres ; (…)  En cas de non-respect d’un tel ordre, elle peut en imposer l’exécution par les moyens nécessaires et appropriés ». Cette disposition a été ultérieurement reprise dans l’article 12 de la nouvelle loi du 20/10/2004 sur la police du canton des Grisons, en vigueur depuis le 01/07/2005.

Le Tribunal fédéral et les autres autorités directement concernées ont été informés de l’arrêt et de son contenu. Par ailleurs, l’arrêt de la Cour a été publié dans le Rapport trimestriel sur la jurisprudence de la Cour européenne et son résumé diffusé auprès de tous les cantons et autorités fédérales.

• Évaluation : Le nouvel article 8a de l’ordonnance sur la police cantonale adopté par le parlement du canton des Grisons, et qui a été ultérieurement reprise dans l’article 12 de la nouvelle loi sur la police du canton des Grisons, détermine de manière précise les mesures que la police cantonale est habilitée à prendre pour sauvegarder l’ordre et la sécurité publics dans une situation donnée. Il s’ensuit que les autorités du canton des Grisons, dans une situation telle qu’en l’espèce, disposent désormais d’une base juridique plus précise que la clause générale de police de la Constitution fédérale (article 36§1), pour appuyer une mesure nécessaire pour sauvegarder la sécurité et l’ordre publics. Cependant, les dispositions juridiques précitées – l’ordonnance sur la police cantonale et la loi sur la police du canton des Grisons-  trouvent à s’appliquer au niveau cantonal.

• Des informations sont attendues en conséquence sur les dispositions en vigueur dans les autres cantons de la Suisse ou au niveau fédéral, sur lesquelles les autorités peuvent légitimement appuyer une mesure comme dans la présente affaire et qui satisfont à l’exigence de prévisibilité telle que consacrée par l’article 10 de la Convention.

- 41 cases against “the former Yugoslav Republic of Macedonia" /

41 affaires contre « l'ex-République yougoslave de Macédoine »

4922/04            Lazoroski, judgment of 08/10/2009, final on 08/01/2010

This case concerns the unlawful detention of the applicant in police custody in 2003, in that the detention was not founded on a reasonable suspicion of his having committed an offence (violation of Article 5§1 (c)).

The European Court noted that the judicial authorities had provided no information about an alleged offence in this case, nor any evidence in support of the applicant’s involvement in such an offence (§47). There was thus nothing to suggest that the applicant was involved in the offence (§48).

The case also concerns the violation of the applicant’s right to liberty in that the authorities did not inform him of the reasons for his arrest (violation of Article 5§2).

Lastly, the case concerns the violation of the applicant’s right to a fair trial in that he was prevented from participating effectively in the criminal proceedings against him (violation of Article 6§1).

The European Court noted that the written evidence presented by the Ministry of the Interior to the investigating judge who decided on the lawfulness of detention had not been disclosed to the applicant. The applicant had furthermore not been summonsed by the investigating judge to attend the decisive hearing and to present arguments in his favour. His complaints in this respect had been likewise left unanswered on appeal.

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

• Information is awaited on the possibility to reopen the proceedings at issue.

General measures: The authorities have submitted no action plan / action report in respect of this case.

• Information provided by the authorities (30/06/2010): The European Court's judgment has been translated into the local language and published on the web page of the Ministry of Justice (www.pravda.gov.mk). The judgment has been sent out together with an explanatory note to the relevant authorities.

• Information is awaited in the form of an action plan / action report on the measures planned or taken to eliminate similar violations.

27736/03           Petkoski and others, judgment of 08/01/2009, final on 05/06/2009

The case concerns the violation of the applicants' right of access to a court in that in 1999 the Bitola Court of Appeal rejected the claim they lodged in 1989 for annulment of the decision by an agricultural co-operative to restructure itself as a state enterprise. The Court of Appeal relied in this regard on the provisions of the 1995 Courts Act, which excluded disputes in respect of any co-operative property from court’s jurisdiction. The Supreme Court confirmed this position and dismissed the applicants’ appeal in 2002 (violation of Article 6§1).

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

• Information provided by the authorities of the respondent state (30/06/2010): Under Article 400 of the Code of Civil Procedure, it is possible to reopen the proceedings at issue, but the authorities could not confirm whether the applicants had asked for reopening.

• Information is awaited as to whether the applicants have requested such reopening.

General measures:

• Information provided by the authorities of the respondent state (04/01/2010 and 30/06/2010):

Publication and dissemination: The European Court’s judgment has been translated and published on the internet site of the Ministry of Justice (www.pravda.gov.mk). The authorities are currently studying the scope of the problem and the Supreme Court is expected to provide its opinion on it.

• Information is awaited in form of an action plan or an action report on the measures planned or taken to eliminate similar violations in the future.

10649/03           Fetaovski, judgment of 19/06/2008, final on 19/09/2008

The case concerns the violation of the applicant's right of access to a court in that his appeal was declared inadmissible because the domestic courts wrongly held that he had failed to submit his appeal within the time-limit, which expired on 17/03/2001. In fact, the applicant produced before the domestic courts a copy of his appeal, which had been date-stamped as having been received by the first instance court on 15/03/2001. However, the court's register of incoming applications and the copy of the appeal indicated 23/03/2001 as the relevant date (violation of Article 6§1).

The European Court noted that the failure by the domestic courts to accept the appeal of 15/03/2001 or, in the alternative, to provide a tenable reason for not accepting it, amounted to a violation of the applicant’s right of access to a court (§41).

The case also concerns the excessive length of proceedings before civil courts, which lasted for ten years (violation of Article 6§1). In this connection, the European Court noted that the case was reconsidered on three occasions (§56).

Individual measures: The European Court awarded no just satisfaction as the applicant failed to submit his claims in due time (§63). Reopening of proceedings may be requested in accordance with Article 400 of the Civil Procedure Law. The authorities informed that the applicant requested the reopening of the proceedings in his case.

·Assessment: No individual measure appears necessary.

General measures:

1) Access to a court: The European Court’s judgment has been translated and published on the web site of the Ministry of Justice (www.pravda.gov.mk). On 05/08/2008, the Government Agent forwarded the judgment with a special note to the first-instance court involved in the present case, all courts of appeal, the Supreme Court, Kumanovo Office of the Public Prosecutor and the Prosecutor General. The judgment has been studied in depth as a part of training for judges and public prosecutors organised by the Academy for the Training of Judges and Public Prosecutors. This academy also distributed an electronic version of the judgment to judges attending various trainings there.

• Assessment: No other general measure appears necessary.

2) Excessive length of civil proceedings: See Atanasović group of cases (1092nd meeting, (September 2010).

14438/03           Nesevski, judgment of 24/04/2008, final on 24/07/2008

The case concerns the violation of the applicant's right to a fair trial on the account of the failure to enforce a Supreme Court decision of 28/02/2001 in the applicant’s favour confirming the annulment by a lower court of the appointment by a school of a certain Ms V.M. because she did not meet the advertised requirements of the post, to which the applicant was also candidate. The latter decision also ordered the school to make a fresh appointment from amongst the qualified candidates (violation of Article 6§1). Despite the Supreme Court’s decision, the school reappointed Ms V.M to the vacant post in April 2001. Subsequent court decisions declared this appointment valid.

The case also concerns the violation of the applicant's right to an effective remedy in respect of the non-enforcement of the Supreme Court's decision (violation of Article 13 in conjunction with Article 6§1).

According to the European Court, the decision of the Supreme Court still remains unenforced.

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

• Information provided by authorities of “the Former Yugoslav Republic of Macedonia” (letters of 15/10/2008, 09/04/2009 and 02/10/2009): Following to the European Court’s judgment, the applicant requested the reopening of the proceedings before domestic courts in compliance with Article 400 of the Code of Civil Procedure. The proceedings are currently pending before the Skopje Court of Appeal.

• Information is awaited on the developments in the domestic proceedings and the full execution of the Supreme Court’s decision of 28/02/2001.

General measures:

            1) Excessive length of enforcement proceedings: See Jankulovski group of cases (6906/03, Section 4.2)

            2) Lack of an effective remedy: Idem

            3) Publication and dissemination: The European Court’s judgment has been published on the website of the Ministry of Justice. The government and all courts in the country have been informed about the judgment and courts instructed to avoid similar violations in the future.

- 6 cases mainly concerning non-enforcement of final judicial decisions

6906/03            Jankulovski, judgment of 03/07/2008, final on 03/10/2008

27865/02           Bočvarska, judgment of 17/09/2009, final on 01/03/2010

34151/03           Kamilova, judgment of 08/10/2009, final on 08/01/2010

13904/02           Nikolov Krsto, judgment of 23/10/2008, final on 23/01/2009

21839/03           Pecevi, judgment of 06/11/2008, rectified on 16/12/2008, final on 16/03/2009

12582/03           Savov and others, judgment of 25/09/2008, final on 06/04/2009

These cases concern violations of the applicants’ right to a fair trial as a result of the authorities’ failure to carry out effective enforcement proceedings pending from as early as 1989 (violations of Article 6§1).

The cases of Jankulovski and Bočvarska also concern the violation of the applicants’ right to the peaceful enjoyment of their possessions (violations of Article 1 of Protocol No. 1).

The case of Krsto Nikolov also concerns the lack of an efficient remedy in respect of excessive length of enforcement proceedings (violation of Article 13).

The European Court also noted that the significant delays in enforcement proceedings resulted primarily from the long intervals between the scheduled hearings (§25 in Krsto Nikolov), repetitive remittal orders (§71 in Bočvarska), long expert examinations and lack of requisite vigilance when conducting enforcement proceedings (§49 and §53 in Savov) and long delays in serving a court decision on the debtor (§22 in Kamilova).

Individual measures: The enforcement proceedings have been closed in the cases of Bočvarska (§66), Kamilova (§21), Pecevi (§28) and Krsto Nikolov (information provided by the authorities of 09/04/2009). The enforcement proceedings in the cases of Jankulovski and Savov are still pending.

• Information provided by the authorities of the respondent state (29/06/2009 and 30/06/2010): The law on the transfer of competence for enforcement to private bailiffs has been adopted. Applicants may now request the transfer of their enforcement cases from ordinary courts to private bailiffs from 01/07/2011 to 31/12/2011. Thereafter, applicants must withdraw their enforcement cases from the courts and transfer them to private bailiffs.

• Assessment: Note is taken of this information, but it appears that enforcement proceedings are still pending in the Jankulovski and Savov cases. The legislative change cannot dispense the authorities from the obligation to bring the pending enforcement proceedings to a conclusion as soon as possible. This is particularly important having in mind that those in the Jankulovski case have been pending since 1996 and that the courts will have to continue dealing with this case until the deadline of 01/12/2011. 

• Information is thus awaited on measures taken or envisaged to ensure that enforcement proceedings still pending are effectively brought to an end.

General measures: Some twenty similar cases concerning the excessive length of enforcement proceedings are currently pending in respect of the respondent state before the European Court. Similar violations are also examined in a particular context in the Nesevski case (14438/03, Section 4.2).

            1) Violation of Article 6§1

• Information provided by the authorities of the respondent state (letters of 15/10/2008, 29/06/2009 and 30/06/2010):

a) The Enforcement Act was adopted in 2005 (Official Gazette No. 35/2005, 50/2005) and has been in force since 2006. It provides, inter alia, that:

(i) final court decisions immediately become enforcement orders which the beneficiaries may submit, outside the judicial system, for enforcement by private bailiffs who are, in their turn, obliged to carry out the decision of the court without delay;

(ii) legal challenges by debtors against civil court decisions cannot delay enforcement;

(iii) courts are no longer responsible for the enforcement of their decisions;

(iv) enforceable, final court decisions and notarised enforcement orders become enforcement documents after the expiry of the time-limit for their voluntary enforcement and may be executed by private bailiffs. 

(v) The law also set up the system of private bailiffs, who are not paid by the courts. They are designated to court districts by the Minister of Justice and enforce court orders. Bailiffs may not hold public office or exercise managerial or supervisory functions in commercial companies or state institutions, nor may they engage in business activities, act as notaries or attorneys or serve in religious communities or groups.

(vi) Bailiffs must open special accounts which should be used solely to receive proceeds of enforcement operations and to remit them to the beneficiaries. Payments to beneficiaries must be made immediately: i.e. no later than the next working day following enforcement of an order.

b) Amendments to the Enforcement Act: The amendments to the Enforcement Act have been in force since 01/07/2010, according to which domestic courts will continue to enforce “old” enforcement cases until the end of 2011, but private bailiffs will be exclusively responsible for enforcement as from 01/01/2012. Preparations for the transfer of “old” enforcement cases from domestic courts to private bailiffs are under way (see above under Individual measures).

c) Statistics: Since the private bailiffs have been introduced in the legal system, the percentage of enforced court decisions has doubled. For instance, only 20% of court decisions were enforced before the private bailiff system was introduced. However, 43,4%, 40% and 47% of decisions were enforced in 2006, 2007 and 2008 respectively. This trend also continued in 2009: 54% of court decisions were enforced in that year, while in March 2010 as much as 77% of court decisions were enforced. Average enforcement proceedings now take only a few months.

• Assessment: It appears that the new legislative framework and the introduction of the system of private bailiffs are capable of preventing the excessive length of enforcement proceedings. The statistical data provided by the authorities of the respondent state show a positive trend and significant efforts to accelerate enforcement proceedings. However, it seems necessary further to monitor the envisaged measures concerning the announced transfer of all enforcement cases from the courts to the private bailiffs.

• Information is thus awaited on further developments in respect of the measures envisaged to transfer “old” enforcement cases to private bailiffs and on further statistics concerning the percentage of enforced court decisions in 2010. In addition, information is awaited on the measures taken to

(i) secure police assistance in enforcement proceedings if necessary (see §38 in Jankulovski);

(ii) avoid repetitive remittal orders in enforcement proceedings (§71 in Bočvarska);

(iii) avoid any protraction in the enforcement proceedings resulting from the excessive length of expert examinations and

(iv) avoid long delays in serving court decisions on debtors (§22 in Kamilova).

            2) Violation of Article 1 of Protocol No. 1: The measures above are also relevant to preventing similar violations under this head. 

            3) Violation of Article 13:

• Information in awaited on measures taken or envisaged to provide an effective remedy with respect to the excessive length of enforcement proceedings, in accordance with the Committee of Ministers' practice since the adoption of Recommendation Rec(2004)6 on the improvement of internal remedies.

            4) Publication and dissemination: The European Court's judgments have been translated and published on the website of the Ministry of Justice (www.pravda.gov.mk). They were sent out with a note on the violations found to all relevant courts and authorities, including to all courts of appeal in the country and to the Supreme Court. The Jankulovski judgment was distributed in electronic version by the Academy for Training of Judges and Public Prosecutors to members of the judiciary. It was also studied in depth during training provided for judges and public prosecutors.

- 31 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 22/12/2005, final on 12/04/2006

44208/02           Arsov, judgment of 19/10/2006, final on 19/01/2007

24660/03           Bogdanska Duma, judgment of 07/05/2009, final on 07/08/2009

13270/02           Dika, judgment of 31/05/2007, final on 12/11/2007

16328/03           Dimitrieva, judgment of 06/11//2008, final on 06/04/2009

26602/02           Dimitrievski, judgment of 18/12/2008, final on 06/04/2009

14260/03           Gjozev, judgment of 19/06//2008, final on 19/09/2008

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

34188/03           Ivanovski and others, judgment of 26/11/2009, final on 26/02/2010

37812/04           Josifov, judgment of 25/06/2009, final on 25/09/2009

39151/04           Kamberi, judgment of 22/10/2009, final on 22/01/2010

17010/04           Kangova, judgment of 08/01/2009, final on 06/07/2009

44353/02           Kostovska, judgment of 15/06/2006, 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

22742/02           Manevski, judgment of 19/06/2008, final on 01/12/2008

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 20/07/06

26124/02           MZT Learnica, judgment of 30/11/2006, final on 28/02/2007

14259/03           Parizov, judgment of 07/02/2008, final on 07/05/2008

41228/02           Rizova, judgment of 06/07/2006, 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           Stojković, judgment of 08/11/2007, final on 02/06/2008

17547/04           Stoleski and Siljanoska, judgment of 05/11/2009, final on 05/02/2010

19290/04           Trpeski, judgment of 22/10/2009, final on 22/01/2010

35640/04           Veljanoska, judgment of 23/07/2009, final on 23/10/2009

29029/03           Velova, judgment of 06/11/2008, final on 06/04/2009

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 provided by the authorities of the respondent state (29/06/2009): Proceedings are still pending in the following cases: Atanasovic, Bogdanska Duma and MZT Learnica. The domestic proceedings have been closed in all other cases.

Concerning the enforcement proceedings still pending in the Atanasovic case, the authorities referred to the new law on the transfer of competence for enforcement to private bailiffs. Pursuant to this law, the applicants in the Atanasovic case have the option to request the transfer of their enforcement case from the court to a private bailiff until from 01/07/2011 to 31/12/2011. As from 01/01/2012, the applicants will be under an obligation to withdraw their enforcement case from the court and to transfer it to a private bailiff (see also Jankulovski, Section 4.2).

• Assessment: The legislative change referred to can by no means dispense the authorities from the obligation to bring the pending enforcement proceedings in the Atanasovic case to a conclusion as soon as possible. This is particularly important having in mind that the civil proceedings in the Atanasovic case were instituted in 1989 and that the European Court regarded the enforcement proceedings as the second stage of those civil proceedings (§27).

• Information is still awaited on urgent measures required to accelerate the pending proceedings in the following cases: Atanasovic, Bogdanska Duma and MZT Learnica. In the Atanasovic case, information is also awaited on the proceedings dormant since 1995, when a retrial was ordered by the second-instance court (§38), and on the developments in the case after the applicants had requested the resumption of the enforcement proceedings in 1998 (§17).

General measures: Approximately 200 applications against the respondent state concerning the excessive length of proceedings are currently pending before the European Court.

• Information provided by the authorities of the respondent state (21/12/2006, 15/10/2008, 20/10/2008, 22/10/2008, 28/01/2009, 29/06/2009, 05/01/2010 and 30/06/2010): The following general measures have been implemented with reference to the violations found:

1) Violations of Article 6§1:

• New Law on Civil Procedure: This lawwas 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 Gjozev judgment, 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.

• Statistics: Since the introduction of the new Law on Civil Procedure, the statistics concerning the length of civil proceedings have improved considerably. For instance, fewer than 20% of cases to more than a year to examine, while more than 56% were resolved within six months in 2007. This positive trend persisted in 2008, when 15% took more than a year, while nearly 66% were resolved within six months. However, 56% of all cases were resolved within six months in 2009.

• Reduction of the backlog: In 2009 the Ministry of Justice prepared a report concerning the pending backlog cases. According to this report, the number of such backlog cases has been reduced by 44%. As of 01/09/2008 there were 10 574 backlog cases while in March 2009 the number of such backlog cases decreased to 5 950.

• Introduction of automated case management: The Automated Court Case Management and Information System was introduced in all domestic courts in February 2009. All pending cases had been registered with the new electronic system as of 15/09/2009. As from 01/01/2010 case registration, case tracking and case management are done only through the automated case management system. The system should enable early detection of a backlog case, if any.

• Training: In 2009, four judges attended a seminar in Sarajevo on Article 6 of the Convention, while twelve judges visited the European Court to receive up-to-date information on its case-law concerning the excessive length of proceedings. Three workshops concerning the right to trial within a reasonable time were organised in the respondent state in 2009, attended by around 100 members of the judiciary. Two further workshops attended by 36 members of the judiciary were dedicated to Article 6 of the Convention.

• Assessment: Note has been taken of a number of measures taken by the respondent state to reduce the length of proceedings before civil courts. It appears that the legislative changes together with the automated case management system should contribute to reducing the length of proceedings before labour and civil courts. However, there is a large number of applications concerning the excessive length of proceedings pending before the European Court.

• Information is thus awaited including further statistics concerning the average length of civil proceedings and on the backlog cases in 2010. Information would be also helpful on the first experience with the operation of the automated case management system and on the other possible measures taken or envisaged to reduce the length of proceedings before labour and civil courts. 

2) Violation of Article 13:

• New Law on Courts: It 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 was 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 in Parizov as well as in §§44-46 in Stojković and §§37-38 in Gjozev):

-           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 was the only court competent 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.

• Statistics: Following the amendments introduced in March 2008 (see above), a total of 106 and 312 complaints concerning the excessive length of proceedings has been filed with the Supreme Court in 2008 and 2009 respectively. The Supreme Court has taken decisions in 310 cases (in 2008, 2009 and 2010 in 106, 204 and 141 cases respectively). The Supreme Court found excessive length of proceedings in 18, 37 and 67 cases in 2008, 2009 and 2010 respectively. The Supreme Court also set a time-frame for closing pending proceedings (between 3 and 6 months) in a number of cases. Decisions in respect of the complaints concerning the excessive length of proceedings were taken in most cases within 6 months.

• Assessment: The respondent state introduced both acceleratory and compensatory remedies intended to prevent similar violations. The initial statistics for the period after the adoption of the new Law on Civil Procedure and the 2008 Amendments to the Law on Courts 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 lasting effects in practice remain to be demonstrated, in particular having in mind the large number of applications concerning the excessive length of proceedings pending before the European Court.

• Information is awaited on further statistics on the average length of proceedings on complaints concerning the excessive length of civil proceedings.

3) Translation, publication and dissemination of the European Court’s judgments:The European Court’s judgments have been translated and published on the internet site of the Ministry of Justice (www.pravda.gov.mk) and sent out to the relevant courts and authorities. 

The Academy for Training of Judges and Public Prosecutors distributed some of those judgments in electronic version to members of the judiciary. The Manevski and Gjozev judgments have been studied in depth during training provided to judges and public prosecutors.

- 357 cases against Turkey / 357 affaires contre la Turquie

28290/95           Güngör, judgment of 22/03/2005, final on 22/06/2005

The case concerns the lack of an effective investigation into the circumstances of the murder of the son of the applicant, at the time a Member of Parliament, in an official apartment in the parliamentary quarter of Ankara in 1991. The 21-year-old was found dead in his bed, having received multiple stab wounds and a bullet to the head. Criminal and parliamentary investigations initiated at the time failed to identify the perpetrators. 

The European Court pointed out the following shortcomings in those investigations: first, certain items of evidence – such as objects that were visible on a video recording made just after the crime was committed – had disappeared and were not among the exhibits in the case-file. Secondly, discrepancies between different expert reports demonstrated that the security forces had not done enough to preserve the evidence. Nor had they taken reasonable steps to follow up lines of inquiry suggested to them by different sources regarding the identity of the killers and the circumstances in which the crime had been committed.

The Court further found that although the investigators had considered it necessary to obtain statements from members of parliament living in the parliamentary quarter at the time of the murder and although there was no legal obstacle to prevent their doing so, they had not taken all the necessary statements (violation of Articles 2 and 13).

Individual measures: A commission was established by Parliament in February 2005 to carry out a fresh investigation into the murder of the applicant's son.

• Information provided by the Turkish authorities: In their reply of 22/11/2005 to the Secretariat's initial-phase letter of 13/10/2005, the Turkish authorities confirmed that the Parliamentary Investigation Commission had been set up but gave no information as to what steps it had taken so far. At the 982nd meeting (December 2006) the Turkish authorities indicated that the Commission had carried out a fresh investigation, including hearing witnesses and an on-site examination of the crime scene.

On 9/11/2007, the authorities informed the Secretariat that the parliamentary investigation had been completed. The Commission drafted a 148-page report after examining 124 witnesses including parliamentarians, police officials, former Ministers, friends of the applicant’s family and officials who had participated to the procedure with different titles. 

In its report, concerning the criminal investigation, the Commission stated that its findings must be taken into consideration by the judicial authorities as new evidence, so that certain testimony and evidence could be re-evaluated. The Commission clearly highlighted the contradictions and inconsistencies between the different witness statements and certain evidence collected and added that those responsible for carrying out the initial investigation might have been negligent in carrying out their duties.

A general debate was held on the Commission’s report in Parliament under Article 98 of the Constitution. The President of the Commission sent the report to the Principal Public Prosecutor’s Office and requested that the findings stated in the report should be taken as new evidence to initiate a new prosecution.

• Information is awaited as to whether a new criminal investigation has been initiated by the judicial authorities after receiving the Commission’s report.

General measures: The Court considered that Turkey must act without delay to discharge its obligation to ensure that its legislation is clarified so that parliamentary immunity no longer operates in practice to prevent prosecutions for ordinary criminal offences in cases in which members of parliament or their families are involved as possible witnesses or suspects (see §111 of the judgment).

• Information provided by the Turkish authorities: In their letters of 22/11/2005, and 9/11/2007, the Turkish authorities underlined that the sole purpose of parliamentary immunity is to protect parliamentarians in respect of actions falling within their function. Parliamentary immunity does not prevent the investigatory authorities from carrying out criminal investigations concerning parliamentarians, but only requires the Assembly’s prior consent for their arrest, detention or trial. However, this prerequisite shall not apply in situations of flagrant délit. On the other hand, there is no such a prerequisite for taking testimony of the parliamentarians concerning incidents they witnessed.

In any event, it is clear that immunity does not extend to parliamentarians' families, in respect of whom the authorities are free to take any necessary investigatory measures in the framework of criminal investigations.

According to the Turkish authorities, provisions of the new Code of Criminal Procedure will prevent new, similar violations.

• Assessment: The Secretariat notes that the first part of the submissions by the Turkish authorities had already been refuted by the Court, which explicitly referred to the measures Turkey must take to avoid future violations (§111). On the other hand, it is observed that the provisions of the new Code of Criminal Procedure do not address the particular problem underlined in this judgment.

Therefore, information is awaited as to what further measures the Turkish authorities envisage so that parliamentary immunity no longer operates in practice as an obstacle to carrying out criminal investigations. Information would also be useful as to whether there are examples of court decisions or investigative material demonstrating the positive effect of the dissemination of the judgment to the relevant authorities in their practice in cases in which members of parliament or their families are involved as possible witnesses or suspects.

33401/02           Opuz, judgment of 09/06/2009, final on 09/09/2009

The case relates to the authorities’ failure to protect the applicant and her mother from domestic violence. The European Court found that the authorities had failed to protect the right to life of the applicant’s mother who was killed by the applicant’s ex-husband even though the authorities had been repeatedly alerted about his violent behaviour (violation of Article 2).

The case also concerns the authorities’ failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her ex-husband’s violent and abusive behaviour (violation of Article 3).

Lastly, the case concerns the discrimination suffered in conjunction with Articles 2 and 3 in that the violence suffered by the applicant and her mother was gender-based, which amounted to a form of discrimination against women, particularly considering that, in cases of domestic violence in Turkey, the general passivity of the judicial system and impunity enjoyed by aggressors mainly affected women (violation of Article 14).

Individual and general measures: The European Court, ruling on an equitable basis, awarded the applicant just satisfaction in respect of the damage sustained by her as a result of violations of Articles 2, 3 and 14 of the Convention.

• Action plans provided by the Turkish authorities on 17/05/2010 and 29/06/2010 are being assessed.

38595/97           Kakoulli, judgment of 22/11/05, final on 22/02/06

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 (violations 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” (§120) and concluded a violation of the substantive aspect of Article 2.

The Court further found that the investigation conducted by the authorities immediately following Mr Kakoulli’s death “was neither effective nor impartial” (§128) and found a violation of the procedural aspect of Article 2.

Individual measures: The main outstanding matters are set out below (for more detail on the examination of this issue see the public notes for the 1078th meeting, March 2010).

Following the European Court's judgment, the question of a potential reopening of the investigation was examined promptly by the Turkish authorities. 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, the Turkish authorities indicated that no period of limitations exists in the relevant legislation of the “TRNC” concerning the incriminated facts; certainly, a person convicted or previously acquitted cannot be judged twice for the same facts, but proceedings which ended with a decision not to bring charges, as in the present case, might be reopened if new facts were brought to the attention of the authorities.

At its last consideration of this case (1078th meeting, March 2010) the Committee of Ministers recalled that the Cypriot authorities had indicated that it would be possible to carry out a further forensic examination of Mr Kakoulli's body. The Committee consequently found that the other grounds indicated in support of the decision of 28/03/2007 (difficulty of locating witnesses and time elapsed) did not seem sufficient to justify the absence of a new investigation and considered that, in these circumstances, it was for the competent Turkish authorities to reassess the possibility of carrying out a new investigation into the death of Mr Kakoulli and invited them to submit information in this respect.

On 26/03/2010 the Turkish authorities provided information on the re-assessment by the Prosecutor General of the possibility of carrying out a further investigation into Mr Kakoulli’s death.

• This information is currently being assessed.

General measures:

1) Excessive use of force and firearms: At the 1078th meeting (March 2010), the Committee of Ministers noted that it was not clear from the information provided that the regulatory framework governing the use of firearms by the security forces requires that the use of force must be “absolutely necessary”, that is to say strictly proportionate to the circumstances, and invited the Turkish authorities to provide clarifications in this respect.

• Bilateral contacts are under way concerning the questions identified by the Committee.

2) Lack of effective investigation into killings by and/or with the tacit agreement of state forces: This issue is being examined in the framework of the Isaak group of cases (44587/98, Section 4.2).

In the context of the execution of the Kakoulli judgment, the Turkish authorities have explained that military or civilian persons may complain to superiors or the military prosecutor general of any offence they consider to have been 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.

            3) Publication and dissemination:An article on the judgment was published in the Turkish Cypriot Bar Association Review and the judgment sent out to all relevant authorities, including to the security forces and the “President of the TRNC”.

- 6 cases mainly concerning the excessive use of force by state agents

44587/98           Isaak, judgment of 24/06/2008, final on 24/09/2008

36832/97           Solomou and others, judgment of 24/06/2008, final on 24/09/2008

45653/99           Andreou, judgment of 27/10/2009, final on 27/01/2010

16085/90           Christodoulidou, judgment of 22/09/2009, final on 01/03/2010

45388/99           Panayi Kallis and Androulla, judgment of 27/10/2009, final on 27/01/2010

16082/90           Strati, judgment of 22/09/2009, final on 01/03/2010

These cases concern unjustified killings by state agents in 1996, in the context of Greek-Cypriot demonstrations in the area of the UN buffer zone in Cyprus (Isaak, Solomou, Andreou) or entry into the UN buffer zone (Panayi), and the lack of an effective investigation into those killings (violations of Article 2).

The cases of Strati and Christodoulidou concern inhuman and degrading treatment by state agents in 1989, in the context of Greek-Cypriot demonstrations in the area of the UN buffer zone in Cyprus (violations of Article 3).

The cases of Strati and Christodoulidou also concern a violation of the right to respect for home due to continuous denial of access to property in the northern part of Cyprus (violations of Article 8) and consequent loss of control, use and enjoyment thereof, without any compensation for the interference (violations of Article 8 and Article 1 of Protocol No. 1).

Individual measures:

• Information is awaited as to whether, following the judgment of the European Court, investigations into the killings have been opened, and if so of their results, as well as to keep the Committee of Ministers regularly abreast of subsequent progress.

As regards the denial of access to property in northern Cyprus, the Court reserved the application of Article 41. Measures other than payment of the just satisfaction to remedy the consequences of the continuing violations are linked to the general measures.

General measures:

• An action plan/action report in respect of all cases in the group is awaited.

At the 1078th meeting (March 2010), the Committee of Ministers noted in the context of the case of Kakoulli (38595/97, Section 4.2) that it was not clear from the information provided that the regulatory framework governing the use of firearms by the security forces requires that the use of force must be “absolutely necessary”, that is to say strictly proportionate to the circumstances, and invited the Turkish authorities to provide clarification in this respect.

The Committee also recalled that information is also awaited in the Isaak and Solomou cases, in particular on the regulatory framework governing the use of force and firearms by the police and on measures taken to ensure that effective investigations are carried out into the killings of civilians in the northern part of Cyprus.

Background: the judgments highlight a number of aspects which led to the finding of violations in these cases:

-               Excessive use of force and fire-arms (violation of Article 2): the issue of the regulatory framework governing the use of force and firearms by the security forces of the “TRNC” is examined within the framework of the Kakoulli case;

-               Hampering humanitarian intervention (violation of Article 2 in the Panayi case);

-               Lack of measures to protect persons from violent counter-demonstrations (violation of Article 2 in Isaak case);

-               Lack of effective investigation into killings by and/or with the tacit agreement of state forces (violation of Article 2);

-               Inhuman and degrading treatment by state forces against demonstrators (violation of Article 3);

Access to property in northern Cyprus: the issue of access to property in northern Cyprus (Article 8 and Article 1 of Protocol No. 1) is examined within the framework of the Xenides-Arestis case (46347/99, Section 4.3).

48939/99           Öneryıldız, judgment of 30/11/2004 - Grand Chamber

The case concerns a methane explosion which occurred in April 1993 in Ümraniye, Istanbul at a rubbish tip, causing a landslide and killing 9 close relatives of the applicant and destroying his house and movable property.

The applicant's house was situated in a slum quarter where dwellings had been built without authorisation on land surrounding the rubbish tip which had been used jointly by four district councils under the authority and responsibility of Istanbul City Council. An expert report drawn up in May 1991 drew the authorities' attention to, among other things, the fact that no measures had been taken at the tip in question to prevent an explosion of the methane generated by the decomposing refuse. However, no measures had been taken by the authorities.

After the explosion, criminal and administrative investigations had been carried out into the case and the mayors of Ümraniye and Istanbul were brought before the courts with the authorisation of the Administrative Council to prosecute. In April 1996 both mayors were convicted of "negligence in the performance of their duties" under Article 230 of the Criminal Code and were fined and sentenced to the minimum three-month term of imprisonment. Their sentences were subsequently commuted to fines, the enforcement of which was suspended. The applicant subsequently brought compensation proceedings, holding the authorities liable for the death of his relatives and the destruction of his property. In November 1995 the authorities were ordered to pay the applicant the equivalent at the material time of 2 077 euros and 208 euros for non-pecuniary and pecuniary damages. Those amounts have not been paid to the applicant.

As to the responsibility borne by the state for the deaths, the European Court found that the Turkish authorities knew or ought to have known that there was a real and immediate risk, at least after the notification of the report of May 1991, to a number of persons living near the Ümraniye municipal rubbish tip and that they had failed to take necessary and sufficient measures to protect the lives of those individuals (violation of Article 2).

As to the responsibility borne by the state as regards the nature of the investigation, the Court found that the national courts had failed to carry out an adequate investigation into the death of the applicant's close relatives capable of securing the full accountability of the authorities or the effective implementation of provisions of domestic law guaranteeing respect for the right to life, in particular the deterrent function of criminal law. In this respect, the Court criticised the fact that the Administrative Council dropped the charges against the Ministry of the Environment and the Government authorities and sought to limit the charge to "negligence" under Article 230 of the Criminal Code, which did not relate to life-endangering acts or to the protection of the right to life (violation of Article 2).

Having regard to the above reasons, the Court also found that the Turkish authorities had failed in their positive obligation to take the necessary steps to avoid the destruction of the applicant's house (violation of Article 1 of Protocol No. 1).

Lastly, the Court found that the administrative proceedings had not provided the applicant with an effective remedy either in respect of the state's failure to protect the lives of his relatives or the destruction of his household goods, since the amounts awarded by domestic courts had never been paid (violation of Article 13).

Individual measures: The damage caused by the violations, including the unpaid sums awarded by domestic courts, has been covered by the just satisfaction awarded by the European Court.

General measures: The Turkish authorities submitted the following information on 10/06/2005 and 08/04/08 in reply to the Secretariat's letter of 01/03/2005 requesting a plan of action for the execution of this judgment:

1. Following the explosion, the Ümraniye tip has been covered with earth by decision of the local council which has also installed air ducts on it. Furthermore, a rehabilitation project has been put into force by the Istanbul Metropolitan Municipality, which has planted trees on the area of the former site of the tip and has had a sport grounds laid down.

2. The new Criminal Code, which came into force on 01/06/2005, sanctions both intentional and unintentional disposal of hazardous substances in a way that might cause damage to the environment. Any person disposing such hazardous substances shall be liable to terms of imprisonment ranging from two months to two years. The Code also provides that the terms of imprisonment shall be increased if the disposal of hazardous substance leaves permanent damage to human health and to the environment.

3. Article 257 of the new Code provides that any public official acting contrary to the requirements of public duty in a way that might constitute damage to the public or cause damage to individuals shall be liable to a term of imprisonment from one year to three years'. If the public official neglects his or her duty or carries it out with delay, he or she shall be liable to a term of imprisonment from six months to two years.

4. The full text of the Regulation on Solid Waste of 1991 with subsequent amendments has been submitted to the Secretariat by the Turkish authorities.

5. A strategic plan for solid waste management in Istanbul, guided by the environmental regulations of the European Union, was prepared and put into practice.

6. With respect to the prevention of slums, Articles 154 and 184 of the new Penal Code which came into force on 1/06/2005 provides criminal penalties against those who occupy, use, alter, construct unauthorised buildings on, change the boundaries of, or prevent the use of places belonging to the public. Any person who encourages these activities by providing utilities to such illegal occupations shall also be criminally liable.

7. The judgment of the European Court was published and distributed. It is available on the websites of the Ministry of Justice and the Court of Cassation.

Regarding the violation of Article 13, the measures taken to ensure the executive’s respect for domestic court decisions are being examined within the Kılıç Ahmet group of cases (38473/02, 1086th meeting, June 2010).

• Information awaited: Having regard to the Court's finding concerning the ineffectiveness of the investigation carried out at the domestic level following the explosion, the Turkish authorities are expected to clarify as to what measures they have taken or envisage taking so that a system of effective investigation capable of securing full accountability of state agents could be provided (including the issue of ensuring prosecutions even where administrative authorisations are required to prosecute).

30471/08           Abdolkhani and Karimnia, judgment of 22/09/2009, final on 01/03/2010

The case concerns the risk that the applicants might be subject to treatment contrary to Article 3 of the Convention if they were to be removed to Iran or Iraq.

The case also concerns the lack of an effective and accessible remedy in relation to the applicants’ complaints under Article 3 of the Convention, as their contention that their removal to Iran or Iraq would have consequences contrary to this provision was never examined by the national authorities (violation of Article 13). 

The European Court noted that the lack of any response by the national authorities regarding the applicants’ allegations amounted to a lack of the “rigorous scrutiny” that is required by Article 13 of the Convention and that by failing to consider the applicants’ requests for temporary asylum, to notify them of the reasons for not taking their asylum requests into consideration and to authorise their access to legal assistance while in police headquarters, the national authorities prevented applicants from raising their allegations under Article 3 in the framework of the temporary asylum procedure provided by the 1994 Regulation and Circular No. 57. The Court also stated that the applicants could not apply to the administrative or judicial authorities for annulment of the decision to deport them to Iraq or Iran as they were never served with the deportation orders made in their respect. The Court considered that the judicial review in deportation cases in Turkey cannot be regarded as an effective remedy since an application for annulment of a deportation order does not have suspensive effect unless the administrative court specifically orders a stay of execution of that order.

Lastly, the case concerns the unlawfulness of the applicants’ detention due to the absence of clear legal provisions establishing the procedure for ordering and extending detention pending deportation and setting time-limits for such detention (violation of Article 5§1); the violation of their right to be informed of the reasons for their continued detention (violation of Article 5§2) and the absence of a remedy whereby the applicants could obtain judicial review of their detention (violation of Article 5§4).

Individual measures:

• Information provided by the Turkish authorities on 03/11/2009 and action plan dated 30/06/2010): The Ministry of the Interior granted the applicants temporary, 5-month residence permits on 21/10/2009, allowing them to reside in Kırklareli province after 29/10/2009. Following the acceptance of the applicants’ asylum request by Sweden, the General Directorate of Security ordered the competent administrative authorities to allow the applicants to leave Turkey on 18/01/2010 for humanitarian reasons and requested the authorities to facilitate the preparation of their applicants’ travel documents.

According to a letter from the applicants’ representative dated 22/04/2010, Mr. Abdolkhani was still residing in Turkey.

• Information is awaited on the applicants’ whereabouts, namely whether they are still in Turkey or have left for Sweden.

General measures: (information provided at a bilateral meeting on 15/03/2010 or in the action plan dated 30/06/2010):

            1) Specialised migration and asylum affairs office: In the framework of the preparation for Turkey’s accession to the EU and the adoption of the EU acquis in the country’s legal system, a specialised Migration and Asylum Affairs office has been set up in the Ministry of the Interior. The mandate of this office is to co-ordinate the preparation of a draft Aliens Law and Asylum Law. The draft Aliens Law aims to consolidate legal provisions concerning aliens currently set out in various legal texts and to establish a legal basis for lawful migration in a specific law. The draft Asylum Law will, with the contribution of the UNHCR, codify legislation concerning asylum regulated in the 1994 Regulation and circulars, in accordance with international standards. The Aliens Law and Asylum Law will harmonise Turkish legislation with international conventions and the acquis of the European Union. The authorities also state that, to ensure co-ordination between the relevant state authorities, the specialised Migration and Asylum Affairs office had established a Task Force on Asylum and Migration, which meets every two months, with the participation of representatives of the competent authorities, of the IOM, UNHCR and an EU delegation with observer status. A Co-ordination Group for the prevention of irregular migration has also been established within Migration and Asylum Affairs office to identify measures against irregular migration.

            2) Publication and dissemination of the judgment - influence on the preparation of the new legislation: The translation of the judgment has been distributed to the all relevant authorities. To assess the requirements arising from the judgment and revise the legislation, two co-ordination meetings were first organised by the specialised on Migration and Asylum Affairs office on 14 and 18/10/2009 with the participation of representatives from the Ministry of the Interior, Ministry of Justice, Ministry of Foreign Affairs, General Secretariat for the EU Affairs, General Directorate for Security, General Command of Gendarmerie, Turkish Coast Guard Command. On 4/11/2009, the judgment and the legislative changes planned in consequence were presented to the representatives of all relevant state authorities and the EU, UNHCR, IOM by the Office on Migration and Asylum at a meeting of the Task Force on Asylum and Migration.

The new legislation is still being drafted. Updated versions of the draft law have been examined at meetings of the Task Force. On 15-16/03/2010, officials from the Ministry of the Interior held consultation meetings with the officials from the relevant Council of Europe bodies on the revision of Turkish legislation on aliens and asylum.

            3) Draft legislative measures: Part 8 of the draft Aliens Law concerning “expulsion”, and the draft Asylum Law are highly important for the prevention of similar violations in the future.

-           Prevention of new violations of Article 3: According to the draft Aliens Law, an alien may not be expelled if there is a real risk of his or her facing capital punishment, torture, or inhuman or ill-treatment in the destination country, even if the alien concerned falls within the category of those whose expulsion should be ordered by law. For its part, the draft Asylum Law is being prepared in accordance with the principles laid down in the judgments of the European Court, European Court of Justice and EU acquis as well as the principle of “non-refoulement” established in the 1951 Convention relating to the Status of Refugees.

-           Prevention of new violations of Article 13: It is planned that the Ministry of the Interior should have authority to grant refugee status as well as providing secondary protection to non-refugees who cannot be deported because of the state’s obligations under Article 3 of the Convention. The UNHCR should be actively involved in this decision-making process. The draft Aliens Law, provides that an alien or his/her legal representative may lodge objection against an expulsion decision before the administrative court. Such objections have an automatic suspensive effect with respect to the expulsion procedure.

-           Prevention of new violations of Article 5 §1: It is planned, in order to comply with the judgment, that the draft Aliens Law will ensure that the detention of asylum and temporary asylum seekers has a strictly defined statutory basis in domestic law, establishing procedures for ordering and extending detention in view of deportation and setting time-limits for such detention. According to the draft text, aliens subject to a final deportation order would be free to leave Turkey within 7 to 30 days. However, in exceptional cases, Governor’s offices may decide to place them in administrative detention (idari gözetim) until their deportation. The maximum duration for such detention would be up to 6 months, extensible in particular circumstances for a further maximum of 6 months.

-           Prevention of new violations of Article 5§§2, 4: According to the text of the draft Aliens Law, an alien or his or her legal representative would be informed promptly of the reasons for ordering administrative detention (idari gözetim kararı) in a language which he/she understands. To provide effective judicial review of such detention orders, it is planned that the alien concerned would be formally notified of his/her right to lodge objection against this order, and of how to use this right their other rights an obligations concerning the process. To this end, aliens would have access to a notary, lawyer or other legal representative, as well as to consular representatives of their country, UNHCR officials, or the representatives of concerned NGOs concerned and relatives. They would be entitled to bring proceedings before the Magistrate Courts against the administrative detention orders.

• The information provided is being assessed.

• Information is awaited on progress in adopting these draft laws.

70337/01           Güveç, judgment of 20/01/2009, final on 20/04/2009

The case concerns inhuman and degrading treatment inflicted on the applicant, aged 15, by putting him for five years in a prison for adults, where he made several suicide attempts, as well as the authorities’ failure in their obligation to provide appropriate medical care given his psychological condition and, finally, their failure to take steps with a view to preventing his repeated suicide attempts (violation of Article 3 in its substantial aspect).

The case also concerns the excessive length of his detention on remand (violation of Article 5§3), and the fact that he had no real opportunity to challenge the lawfulness of this detention (violation of Article 5§4). 

The case lastly concerns the lack of legal assistance for most of the proceedings (a lawyer assigned by the trial court of its own motion did not appear at most of the hearings) so that the applicant was unable to participate effectively in the trial (violation of Article 6§1 in conjunction with Article 6§3 c).

• Neither an action plan nor an action report has yet been provided by the authorities.

- 57 affaires concernant le défaut d’enquête effective au titre des actions des forces de sécurité turques

                        (Voir Annexe pour la liste des affaires dans le groupe d’affaires Batı)

Ces affaires concernent les lacunes des procédures nationales (dont certaines sont encore pendantes) concernant des enquêtes conduites sur les abus commis par des membres des forces de sécurité, en particulier les mauvais traitements infligés aux requérants ou le décès de leurs proches dans des circonstances engageant la responsabilité de l'Etat.

Dans ces affaires, les déficiences procédurales constatées par la Cour européenne, dans la conduite des enquêtes, lesquelles ont eu pour conséquence d'accorder une quasi-impunité aux agents de sécurité mis en cause, sont les suivantes :

- la durée excessive de l'enquête menée à l'encontre des agents d'Etat impliqués,

- le défaut d'indépendance des autorités ayant mené l'enquête,

- l'impossibilité pour les requérants d'avoir accès au dossier de l'enquête,

- l'impossibilité pour les requérants d'interroger les témoins et les agents accusés,

- l'impunité résultant de l'application des règles de prescription,

- des décisions de sursis au jugement ou de sursis à l'exécution des peines rendues à l'encontre des agents accusés,

- le défaut de suspension des agents d'Etat de leurs fonctions malgré l'existence de poursuites à leur encontre pour mauvais traitement,

- l'insuffisance des rapports médicaux préparés par les experts,

- la clémence des peines d'emprisonnement infligées aux agents de police impliqués,

- la relaxe conditionnelle qui a été appliquée aux agents condamnés pour mauvais traitements.

Mesures de caractère individuel :

            1) Affaire Demir Ceyhan et autres : Le 2/08/2006, les autorités turques ont indiqué au Secrétariatque la Cour d'assises de Diyarbakır avait décidé le 27/02/2006 d'abandonner les poursuites pénales à l'encontre du médecin de la prison qui avait autorisé le transfert du proche des requérants, ceci en raison de la prescription. Cette décision peut faire l'objet d'un appel.

En outre, le 12/04/2006, la Cour d'assises de Diyarbakır a décidé d'acquitter les gendarmes responsables du transfert du proche des requérants. La Cour d'assises a pris bonne note de l'arrêt de la Cour européenne établissant que les autorités turques portaient la responsabilité du décès du proche des requérants mais a estimé que les gendarmes (des conscrits au moment des faits) avaient agi sur ordre légal de leur supérieur et sur la base d'un rapport médical établissant que le proche des requérants était apte à être transféré dans une autre prison. Elle a estimé qu'aucun autre élément dans le dossier ne permettait d'établir que les gendarmes mis en accusation étaient responsables du décès du proche des requérants. Cette décision peut également faire l'objet d'un appel.

• Des informations sont attendues sur l'issue des procédures en appel.

            2) Affaire Sunal : le 31/10/2005, les autorités turques ont informé le Secrétariat de ce que le Procureur général d'Izmir avait décidé le 26/09/2005 d'abandonner les poursuites à l'encontre des policiers accusés, pour cause de prescription.

            3) Affaires Karabulut Mustafa, Yılmaz Hürriyet¸ Ağdaş, .Y. et Hü.Y., Şahin Zülcihan et autres, şimşek et autres et Yaman Abdülsamet :

• Des informations sont attendues sur les possibilités de réouverture des procédures nationales contre les membres des forces de sécurités mis en cause ou sur toutes autres mesures ad hoc prises ou envisagées à la suite des arrêts de la Cour européenne.

            4) a) Affaires Sunal, Yeşil et Sevim, Tamer Fazıl Ahmet et autres, Öktem et Türkmen (violations des articles 3 et/ou 13) :

• Etant donné que l'action pénale est prescrite dans ces affaires, des informations sont attendues sur les mesures envisagées, y compris la possibilité de sanctions disciplinaires contre les agents de police.

            5) Affaire Türkmen (violation de l'article 6§1) : Cette affaire est à rapprocher du groupe Gençel (voir rubrique 4.1). La Cour européenne a rappelé sa jurisprudence selon laquelle lorsqu'un particulier a été condamné par un tribunal qui ne remplissait pas les conditions d'indépendance et d'impartialité exigées par l'article 6§1, un nouveau procès ou une réouverture de la procédure, à la demande de l'intéressé, représente en principe un moyen approprié de redresser la violation constatée.

Les requérants ne peuvent cependant pas obtenir la réouverture en raison de l'inapplicabilité de la loi dans leur affaire. Les requérants ont cependant été libérés en 2002 et 2003 suite à une grâce présidentielle, et vivent actuellement en Allemagne où ils ont obtenu l'asile politique. En juillet 2006, leur affaire a été rouverte en vertu des dispositions du nouveau Code de procédure pénale. En février 2007, la Cour d'assises d'Istanbul a réajusté les condamnations précédentes des requérants en application du nouveau Code et a réduit leur peine à 6 ans et 3 mois d'emprisonnement.

• Evaluation : Ces développements sont positifs. Cependant, il semble que la Cour d'assises se soit limitée à réévaluer la peine encourue en vertu du nouveau Code pénal et ne se soit pas penchée sur le fond de l'affaire.

• Des informations sont par conséquent attendues sur les mesures envisagées pour assurer une réparation appropriée.

6) Autres affaires : Conformément à la pratique bien établie du Comité des Ministres, il est rappelé que l'État défendeur a l'obligation continue de conduire des enquêtes effectives, a fortiori dans une affaire emportant violation de l'article 2 (voir en particulier la Résolution intérimaire ResDH(2005)20 dans l'affaire McKerr et autres contre le Royaume-Uni, l'affaire Scavuzzo-Hager et autres contre la Suisse, les affaires concernant l'action des forces de sécurité en Fédération de Russie).

• Des informations sont attendues sur les mesures prises ou envisagées par les autorités turques pour octroyer une réparation adéquate aux requérants.

Mesures de caractère général :

            1) Règles de prescription introduites avec l'entrée en vigueur du nouveau Code pénal :

• Informations fournies par les autorités turques :

- Le nouveau Code pénal prévoit des périodes de prescription plus longues que celles prévues par l'ancien code. En cas de torture, la prescription est de 15 ans dans la mesure où l'article 94 du nouveau code sanctionne la torture d'une peine d'emprisonnement de 3 à 12 ans. La même prescription s'applique lorsque ce crime est commis sur un enfant, une personne handicapée, une femme enceinte, un juriste ou un policier dans l'exercice de ses fonctions. Si le crime est commis dans le cadre d'un harcèlement sexuel, cette règle de prescription s'applique également.

- En cas de torture aggravée (article 95§1 du Code), la prescription est de 20 ans.

- Si les actes de torture commis à l'encontre d'une personne ont eu pour effet d'entraîner une maladie incurable, des dysfonctionnements des organes ou de la perception, une perte de l'usage de la parole, la stérilité ou une fausse-couche (article 95§2 du Code) la prescription est également de 20 ans.

- Si la personne décède des suites des actes de torture infligés (article 95§4), la prescription est de 30 ans.

• Des informations sont attendues sur les règles de prescription en cas de décès dans des circonstances engageant la responsabilité des forces de sécurité, ainsi qu'en cas de décès lorsque la victime est tuée par une personne non identifiée.

            2) Sécurité des détenus durant leurs transferts d'une prison à un autre établissement pénitentiaire :

• Informations fournies par les autorités turques :

- Le Ministère de la Justice a émis une circulaire le 27/06/2005 afin que toutes les précautions nécessaires soient prises par les autorités lors de transferts de prisonniers. Il y est indiqué que tous les prisonniers doivent faire l'objet d'un examen médical avant leur transfert et que les prisonniers qui ne sont pas jugés aptes à voyager, doivent être immédiatement transférés dans un hôpital ou un établissement médical.

- Les arrêts de la Cour européenne ont été publiés et diffusés à toutes les autorités concernées dans les affaires Demir Ceyan et autres (cet arrêt figure également sur le site Internet de la Cour de cassation (www.yargitay.gov.tr) et Abdülsamet Yaman (Bulletin du Ministère de la Justice du 19/04/2005, n° 273).

• Des informations sont attendues sur la publication et la diffusion des arrêts de la Cour européenne en particulier aux forces de police, aux procureurs, aux cours d'assises et à la Cour de cassation.

- 3 cases concerning the independence and impartiality of military disciplinary courts

39429/98           Bayrak, judgment of 03/05/2007, final on 24/09/2007

30200/02           İrkin, judgment of 23/09/2008, final on 23/12/2008

27341/02           Veyisoğlu, judgment of 26/06/2007, final on 26/09/2007

These cases concern the lack of independence and impartiality of military disciplinary courts in proceedings against the applicants under Articles 56, 38 (in the Bayrak and Veyisoğlu cases), 55, 49 and 53 (in the İrkin case) of Law No. 477 (violations of Article 6§1). The applicants were sentenced to 75, 40 and 30 days' imprisonment respectively.

The European Court found that the members of the military disciplinary court were under the orders of the military hierarchy and their term of office was limited to 1 year. Furthermore the European Court noted in İrfan Bayrak judgment that the superior (appeal) court offered no appropriate guarantees to remedy these deficiencies.

Individual measures: The applicants are no longer detained.

General measures: On 13/02/2008, the Turkish authorities indicated that preparatory work was under way for the necessary measures to be adopted.

• Information is awaited on measures taken to prevent new, similar violations.

42981/04           Övüş, arrêt du 13/10/2009, définitif le 13/01/2010

Cette affaire concerne essentiellement une violation du droit de la requérante au respect de sa vie familiale

En janvier 1999, la requérante, résidente en Allemagne, avait introduit une action en divorce à l’encontre de son époux devant le tribunal de Heidelberg. Le tribunal a prononcé la divorce et a attribué le droit de garde des enfants à la requérante. Ce jugement a reçu l’exequatur en Turquie par un jugement rendu par le tribunal de grande instance d’Adana en juin 2001.

Entretemps, en mars 2000, l’époux de la requérante avait également introduit une action en divorce devant le tribunal de grande instance d’Adana qui, par un jugement rendu en octobre 2000, a prononcé la divorce et a attribué le droit de garde des enfants à l’époux de la requérante. Or, ce jugement n’a pas été dûment notifié à la requérante.

Lorsqu’en juin 2001, la requérante s’est rendue en Turquie accompagnée de ses enfants, son ex-époux, s’appuyant sur le jugement rendu en octobre 2000, a obligé la requérante à rentrer en Allemagne sans les enfants.

La Cour européenne a estimé d’une part qu’en l’absence de notification adéquate, la requérante avait été privé de la possibilité de participer à la procédure de divorce introduite par son mari devant le tribunal de grande instance bien que l’issue de cette procédure ait eu des répercussions importante sur sa vie familiale (violation de l’article 6§1). La Cour a également constaté que les autorités nationales avaient omis de déployer des efforts adéquats et suffisant pour faire respecter au moins le droit de visite de la requérante de manière à lui permettre de rétablir le contact avec ses enfants.

A cet égard, la Cour européenne a estimé, compte tenu de l’âge des enfants, que l’Etat défendeur devait prendre toutes les mesures nécessaires pour soutenir les efforts de la requérante dans le but de rétablir progressivement le lien maternel entre la requérante et ses enfants (§71).

4914/03            Turnalı, arrêt du 07/04/2009, définitif le 06/11/2009

L’affaire concerne la violation du droit à la vie privée de la requérante en raison du rejet par les juridictions internes de sa demande tendant à l’établissement de sa filiation paternelle (violation de l’article 8).

En février 2001, la requérante, née en 1954, a engagé une action en constatation de paternité devant le tribunal de grande instance d’İzmir et a demandé l’établissement de sa filiation avec un certain H.Y. Or, le 3/07/2001, le tribunal a débouté la requérante de sa demande pour non-respect du délai de prescription d’un an qui commençait à courir à compter de la date de naissance, en vertu de l’article 296 de l’ancien Code civil.

La Cour européenne a constaté que même si l’article 303 du nouveau Code civil avait créé une exception à la règle de prescription en la matière permettant aux justiciables d’exciper de l’existence de circonstances pouvant justifier le retard, l’amendement législatif n’avait aucunement profité à l’intéressée et celle-ci n’avait jamais eu la possibilité de faire valoir ses arguments pouvant justifier son retard et de faire examiner le bien-fondé de sa demande (violation de l’article 8).

Mesures de caractère individuel : La Cour européenne a estimé que le redressement le plus approprié en l’espèce serait de faire bénéficier la requérante de la possibilité d’un examen au fond de sa requête.

Mesures de caractère général

• Un plan d’action / bilan d’action est attendu.

12863/02          Işıldak, judgment of 30/09/2008, final on 30/12/2008

The case concerns the unjustified interference with the applicant's right to respect of his home as a result of the search carried out in his workshop, which was a part of his home, by police officers without a search warrant. The search in question was carried out in 2000 in accordance with Article 97 of the former Code of Criminal Procedure which allowed the police to conduct searches without prior authorisation and had given them unfettered discretion to decide whether a search should be carried out and how extensive it should be.

The European Court found, without prejudice to the recently adopted legislation, that there was no reason to justify the lack of prior judicial review for a search to be carried out without a warrant. It also observed that at the material time the applicant did not have an effective remedy whereby he could obtain judicial review of the lawfulness and necessity of the search (violation of Article 8).

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

• Assessment: No other individual measure appears necessary in the particular circumstances of the case.

General measures: The Code of Criminal Procedure was replaced with a new Code on 1/06/2005 and therefore Article 97 of the former Code of Criminal Procedure which is at the origin of the violation in this case is no longer in force.

According to Article 119 of the new Code (Law No. 5271), law enforcement officials may conduct searches in private dwellings, workplaces or properties that are not open to the public, upon a judge’s decision or, in cases where delay would be detrimental, upon the written order of the public prosecutor. The search warrant or order shall clearly specify the reasons for the search as well as the name and address of the person or the item to be searched for and the time-limit of validity of the warrant or order. If private dwellings, workplaces or properties are to be searched without the public prosecutor’s presence, two members of the community council in that district or two neighbours are required to be present during the search.

• Assessment: It is observed that the new legislation requires prior judicial authorisation for searching private dwellings, workplaces or properties that are not open to the public. This is a welcome development.

• However, considering the European Court’s finding that at the material time the applicant did not have an effective remedy whereby he could obtain judicial review of the lawfulness and necessity of the search, further information is awaited on measures taken or envisaged to prevent similar violations in this respect.

37483/02           Erdagöz Güzel, judgment of 21/10/2008, final on 06/04/2009

The case concerns an infringement of the applicant’s right to respect of her private life due to the refusal by a domestic court by a judgment which was not based on any clearly established legislation or any sufficient and relevant reasoning, of an action for rectification of her name (violation of Article 8). The applicant brought an action for rectification of the spelling of her forename, asserting that she was called “Gözel”, not “Güzel”. The courts refused her application on the ground that the spelling which the applicant wished to use was based on the regional pronunciation of the word chosen as the name did not appear in the dictionary of the Turkish language.

The Court noted that, the domestic court mentioned neither a legal provision nor a conflict of public or private interest with the “legitimate interest” alleged by the applicant.

In the Court's opinion, Turkish law did not indicate with sufficient clarity the scope and manner of the discretionary power of authorities with respect to the restrictions on the rectification of names. Furthermore the legislation concerned did not offer adequate safeguards to prevent possible abuses in the exercise of such restrictions.

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

• Information is awaited on measures taken or envisaged to allow the applicant to rectify her name as she wishes unless there are sufficient and relevant reasons for not doing so.

General measures:

• Information is awaited:

- on the legislative framework applicable to the change of name, particularly the scope of the discretionary power of the authorities, and measures envisaged to be taken to prevent new, similar violations;

- on the publication of the judgment of the European Court and its wide dissemination to all competent authorities.

23815/04           Uslu No. 2, judgment of 20/01/2009, final on 20/04/2009, rectified on 15/07/2009

The case concerns a violation of the right to respect for the private life of the applicant, who was a detainee at the material time, due the authorities’ refusal to provide him with a copy of the doctor's report issued after his medical examination at the prison. This refusal was based on a practice – with reference to a Ministry of Justice circular dated 5/12/1990 – according to which no copies of official prison documents were to be given to detainees on grounds of security and public order (violation of Article 8).

• To date, the authorities have provided no information.

                       - 4 cases concerning failure to enforce court decisions in cases concerning environmental protection

46117/99           Taşkın and others, judgment of 10/11/2004, final on 30/03/2005, rectified on 01/02/2005

46771/99           Öçkan and others, judgment of 28/03/2006, final on 13/09/2006

17381/02           Lemke, judgment of 05/06/2007, final on 05/09/2007

36220/97          Okyay Ahmet and others, judgment of 12/07/2005, final on 12/10/2005 - Interim Resolution CM/ResDH(2007)4

(1), (2) and (3) Taşkın and others, Öçkan and others, and Lemke cases: These cases concern violations of the applicants' right to their private and family life and right to a fair trial due to decisions by the executive authorities to allow continuation of a gold-mining operation in Bergama using a sodium cyanide leaching process, in contravention of a Supreme Administrative Court decision of 13/05/1997 annulling the operation permit on account of the risk to the local ecosystem and to human health and safety posed by the chemicals.

In 1994 the Ministry of the Environment authorised the exploitation of the mine and granted permission for the use of sodium cyanide leaching after a preliminary public consultation and on the basis of an impact study, as required by the Environment Act.

Following the decision of the Supreme Administrative Court of May 1997, a report drawn up at the Prime Minister's request concluded that the threats to the ecosystem listed in the Supreme Administrative Court's decision had been reduced to a level below the threshold of acceptability. On the basis of that report, the authorities granted permission to continue operations using cyanide leaching at the mine, on a provisional basis. However, the courts overturned the report and imposed stays of execution on administrative decisions based on its conclusions.

In a “decision of principle” which was not made public, the Council of Ministers decided that the gold-mine could continue its activities. In March 2004 the Supreme Administrative Court ordered a stay of execution of that decision on the grounds that it had neither been published in the Official Gazette nor made public. An application for judicial review of the Council of Minister's decision is pending before the Supreme Administrative Court.

The European Court found that the government had failed in its obligation to guarantee the applicants' right to respect for their family life and right to a fair trial by annulling any useful effect of the procedural guarantees afforded to them by the applicable law and the judicial decisions taken. In so declaring, the Court based itself in particular on the fact that the administrative authorities had not ordered the closure of the mine immediately upon the Supreme Administrative Court's decision, but had on the contrary continued to issue operating permits despite the judicial decisions and the applicable law, most recently with the decision of the Council of Ministers (violation of Article 8).

The European Court also found that the administration's refusal to carry out the decision of the Supreme Administrative Court within the deadlines fixed by law and the fact that a further operation permit was issued as a direct result of the Council of Ministers' intervention, which was tantamount to circumventing a judicial decision, had constituted a breach of the applicants' right to effective judicial protection (violation of Article 6§1).

Individual measures: The applicants have informed the Secretariat that the Ministry of the Environment granted a new operating permit to the same private company on 26/08/2004. In the meantime, the applicants in the present cases and more than 1500 others have lodged applications with the European Court alleging violation of their rights under Articles 2, 6 and 13 of the Convention as a result of the resumption of the mining activity in Bergama.

            - Granting of a new operation permit:

• Information submitted by the Turkish authorities (933rd meeting (July 2005) and letter of 11/07/2007): The Turkish authorities informed the Committee that the Ministry of Environment's permission in question was granted on the basis of a fresh environmental impact report in order to eliminate the possible danger of the mining operation.

On 14/09/2005 the Turkish authorities reported that the Izmir Administrative Court had decided on 14/03/2005 to stay the execution of the decision to grant a new operation permit. This decision was annulled by the Izmir Regional Court on 14/04/2005 following an appeal lodged by the mining company.

In the context of these proceedings, an on-site examination was carried out on 27/11/2006 by three experts in the mining area and a technical report was drafted on 26/03/2007 to assess whether or not the mine has been operating in compliance with environmental standards since the new operation permit was obtained following the fresh environmental impact report.

According to the technical report:

- the fresh environmental impact report, which was submitted to the authorities by the mining company in 2004, is sufficiently detailed to cover all the questions related to the potential risks of the mining operation;

- the extraction and tailing procedures are applied in accordance with the most advanced methods recognised by mining technologies;

- the implementation of the project and its surveillance are fully compatible with legal and technical requirements;

- to prevent leakage of hazardous material, the tailing pond is isolated from the soil by a special layer and the underground waters are surveyed.

The three experts also recommended that the strictest checks must be performed on underground waters and that the isolation layer of the tailing pond must be renewed in the future to avoid any leakage.

The Turkish authorities pointed out that the experts' report will play a decisive role in a number of pending proceedings before administrative courts, including those at issue here.

On 13/04/2007 the Ministry of Environment informed the Izmir Administrative Court that the mining company had undertaken to perform the necessary checks in the mining area for a period of ten years. Depending on the assessment to be made by the authorities after ten years, the mining company might be requested to maintain its checks for an unlimited period of time.

On 09/05/2007 the Izmir Administrative Court decided to reject the applicants' request for stay of execution of the decision to grant a new operating permit.

The applicants' representative submitted on 17/03/08 that the Izmir Administrative Court dismissed the applicants' challenge against the new operation permit on 12/12/2007. The court is reported to have ruled on the grounds that a so-called “environmental situation assessment report” and the measures taken had been found adequate by the three experts appointed by the same court. The applicants appealed that decision arguing that the “environmental situation assessment report” which is the basis of the new operation permit, was devoid of legal basis. The applicants submitted that a recent judgment of the 6th Chamber of the Supreme Administrative Court on 31/10/2007 had declared null and void the temporary Article 6 of the Environmental Impact Assessment Regulation, which provided for the situation assessment report. The appeal is pending.

            - Annulment of the urban plan for the mining area

On 21/04/2006 the Izmir Administrative Court annulled the urban plan made on 01/11/2004 for the mining area.

On 20/05/2006 the Office of the Governor of Izmir applied to the Supreme Administrative Court for the annulment of the decision of 21/04/2006 and requested a stay of execution of this decision.

On 08/06/2006 the Office of the Governor of Izmir informed the appropriate authorities (including the Governor of District of Bergama and the mining company) of the decision of the Izmir Administrative Court of 21/04/2006 and requested that the decision of the court be enforced.

On 11/07/2006 the Governor of Izmir requested the rectification of the decision of the Izmir Administrative Court of 21/04/2006 on the grounds that it was not clear whether or not the decision of annulment amounted to an obligation on the part of the administration also to annul the construction permit, the demolition of the mining site and the closure of the mine.

On 14/07/2006 the Izmir Administrative Court decided to reject the request for rectification on the ground that its decision was clear enough to be enforced. 

In July 2006 the Governor of Izmir wrote to the Office of the Prime Minister that a request for clarifications should be made to the Supreme Administrative Court concerning the question as to whether or not the enforcement of the decision of 21/04/2006 comprised annulment of the construction permit, the demolition of the mining buildings and the closure of the mine.

On 23/05/2007 the Supreme Administrative Court decided to uphold the decision of the Izmir Administrative Court of 21/04//2006, which annulled the urban plan for the mining area.

• Information is awaited first on the outcome of the appeal against the Izmir Administrative Court's decision of 12/12/07 dismissing the request for annulment of the new operation permit. Information is also awaited on how the domestic authorities will enforce the decision of the Izmir Administrative Court of 21/04/2006. Lastly, information is awaited concerning the extent to which the applicants or any other persons concerned had been involved in the decision-making process on the environmental impact report as required under the Convention (see §§ 118 and 119 of the judgment of the European Court).

General measures: See below

4) Ahmet Okyay case: This case concerns the national authorities' failure to enforce domestic courts' orders to shut down three thermal power plants which pollute the environment in the province of Muğla, in south-west Turkey. The administrative authorities have neither complied with an interlocutory injunction of June 1996 ordering the suspension of the power plants' operation, nor have they enforced, within the prescribed time-limits, the decisions of the Supreme Administrative Court of December 1996 upholding the first-instance court decisions finding that the power plants were polluting the environment. On the contrary, by a decision of September 1996, the Council of Ministers decided that the three thermal power plants should continue to be operated despite the court decisions.

The European Court found that the national authorities failed to comply in practice and within a reasonable time with the decisions of domestic courts. The Court noted in particular that the decision of the Council of Ministers had no legal basis and was obviously unlawful under domestic law. It was tantamount to circumventing the judicial decisions, a situation which adversely affects the principle of a law-based state, founded on the rule of law and the principle of legal certainty (violation of Article 6§1).

Individual measures: At the 955th meeting (February 2006), as well as in their reply of 09/03/2006 to the Secretariat's initial-phase letter, the Turkish authorities informed the Committee that desulphurisation filter systems were in the process of being installed in the three power plants. The plants are now being operated at minimum capacity in order to maintain the gas emission at the lowest level. The emission levels are checked regularly and the plants will be shut down if the emission of gas exceeds the permissible levels.

On 25/10/2006 the Turkish authorities informed the Secretariat of a number of administrative fines imposed on the Yatağan power plant as a result of the pollution it had caused. Four of these administrative fines were imposed in February, June, July and August 2006 respectively. The Turkish authorities also gave information on the compensation proceedings initiated against the three power plants on grounds of damages suffered as a result of pollution caused by the power plants.

• Interim Resolution CM/ResDH(2007)4: Given the absence of progress in the execution of this judgment, the Committee decided to adopt an interim resolution at its 987th meeting (February 2007) urging the Turkish authorities to enforce the domestic court orders imposing either the closure of the power plants or installation of the necessary filtering equipment without further delay.

• Response to the Interim Resolution: The Turkish authorities submitted at the 1020th meeting (March 2008) that filter mechanisms have already been installed in all three power plants. Until the installation, the power plants had been operating at minimum capacity without causing any danger to the environment.

• Assessment: In light of this information, no other individual measure is necessary in the case of Ahmet Okyay.

General measures (in respect of all four cases)

• Information provided by the Turkish authorities: They drew the Committee's attention to Article 138 of the Constitution and reiterated that the bodies of executive and the authorities must comply with court decisions. Furthermore, Article 28§3 of Law on Administrative Judicial Proceedings provides for the possibility of bringing compensation proceedings before the Supreme Administrative Court against the administration or the civil servant deliberately refusing to comply with court decisions. The Turkish authorities also provided examples of case-law of the Council of State to that effect.

Lastly, the Turkish authorities provided information on the provisions concerning criminal sanctions against public officials who refuse to carry out a public duty or fail to enforce court decisions, as well as supporting examples of decisions of domestic courts where public officials were sanctioned.

In their letter of 11/07/2007 the Turkish authorities drew the Committee's attention to Articles 181 and 182 of the Criminal Code (in force since 01/06/2007) which sanction both intentional and unintentional disposal of hazardous substances in a way that might cause damage to the environment. Any person disposing of such hazardous substances shall be liable to terms of imprisonment ranging from six months to two years. The Code also provides that the terms of imprisonment shall be increased if the disposal of hazardous substances causes permanent damage to human health and to the environment.

The judgments of the European Court in these cases have been translated and disseminated. The judgments are also available at the internet site of the Ministry of Justice at http://www.inhak-bb.adalet.gov.tr/aihm/aihmtkliste.asp

Finally, at the 1020th meeting (March 2008), the Deputies noted the information provided by the Turkish authorities regarding the new provision of the Environmental Law which ensures the involvement of persons, such as inhabitants of relevant areas, civil society institutions etc, in the decision-making process on environmental issues and the recently introduced criminal liability for discharge of hazardous substances. The Deputies also noted that the Turkish authorities would consider in cooperation with the Secretariat the necessity of further general measures.

• Assessment of the information provided by the Turkish authorities: The domestic legal framework (in particular Article 138 of the Constitution and Article 28§3 of the Law on Administrative Judicial Proceedings) as well as examples of judicial sanctions demonstrate a healthy legal environment for ensuring respect for domestic court decisions. In addition, the legislative sanctions recently enacted against environmental polluters are also welcome developments. However, these procedural guarantees may prove ineffective in the face of high‑level political disregard as criticised by the European Court in the present cases.

• In the light of the foregoing, the Turkish authorities may wish to draw the attention of the Council of Ministers and of the Ministry of Environment in particular to their obligations under the Convention to prevent new, similar violations. Information would also be necessary about the reaction of these authorities to the present judgments and possible other measures taken or envisaged.

1448/04            Zengin Hasan and Eylem, judgment of 09/10/2007, final on 09/01/2008

The case concerns the refusal of the authorities to exempt a state school pupil, whose family was of the Alevi faith, from mandatory lessons on religion and morals (violation of Article 2 of Protocol No. 1.

The applicants, Hasan Zengin and his daughter Eylem Zengin are followers of Alevism, a branch of Islam which has deep roots in Turkish society and history. Its religious practices differ from those of the Sunni schools in certain aspects such as prayer, fasting and pilgrimage. At the time the application was lodged, Eylem Zengin was a seventh grade pupil at a state school, and as such, she was obliged to attend classes in religious culture and ethics, which are compulsory subjects for Turkish primary and secondary schools under Article 24 of the Turkish Constitution and Article 12 of National Education Law No. 1739.

In 2001, Mr Zengin submitted requests to the Directorate of National Education and before the administrative courts for his daughter to be exempted from these lessons, pointing out in particular that no teaching was provided in those classes on his daughter’s faith. The requests for exemption were dismissed, most recently on appeal before the Supreme Administrative Court in April 2003.

In the course of the proceedings, the European Court examined the Ministry of Education’s guidelines for lessons in religious culture and ethics and the relevant school textbooks. This examination revealed that the syllabus in primary schools and the first cycle of secondary school as well as textbooks gave greater priority to knowledge of Islam than to that of other religions and philosophies. Although the Court explained that this in itself could not be viewed as indoctrination, it was appropriate to examine whether the information or knowledge was disseminated in an objective, critical and pluralist manner, given that attendance at these classes was likely to influence the minds of young children. The Court established that the Alevi faith had features distinct from the Sunni understanding of Islam which was taught in schools. In the “religious culture and morals” lessons, the religious diversity which prevailed in Turkish society was not taken into account. In particular, pupils received no teaching on the confessional or ritual specificities of the Alevi faith, although the proportion of the Turkish population belonging to it was very large. Certain information about the Alevis was taught in the 9th grade, but, in the absence of instruction in the basic elements of this faith in primary and secondary school, this was insufficient to compensate for the shortcomings in the teaching.

Accordingly, the instruction provided in these classes could not be considered to meet the criteria of objectivity and pluralism, enabling pupils to develop a critical mind with regard to religious matters, nor to respect the religious and philosophical convictions of the parent of a pupil who belonged to the Alevi faith, on the subject of which the syllabus was clearly lacking.

The Court further examined whether appropriate means existed in the Turkish education system to ensure respect for parents’ convictions. The class in question was a compulsory subject, but a possibility for exemption had existed since 1990 for children of Turkish nationality whose parents belonged to the Christian or Jewish religion, provided they affirmed their adherence to one of those religions. According to the government, this possibility for exemption could be extended to other convictions if such a request was submitted. Nonetheless, whatever the scope of this exemption, the fact that parents were obliged to inform the school authorities of their religious or philosophical convictions made this an inappropriate means of ensuring respect for their freedom of conviction. In the absence of any clear text, the school authorities always had the option of refusing such requests. In consequence, the exemption procedure was not an appropriate method and did not provide sufficient protection to those parents who could legitimately consider that the subject taught was likely to give rise in their children to a conflict of allegiance between the school and their own values. No possibility for an appropriate choice had been envisaged for the children of parents who had a religious or philosophical conviction other than that of Sunni Islam, where the procedure for exemption was likely to subject those parents to a heavy burden and to the necessity of disclosing their religious or philosophical convictions.

Individual measures: Ms Zengin is now of college age and no longer attends a state secondary school.

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

General measures: The Court concluded that, with regard to religious instruction, by failing to meet the requirements of objectivity and pluralism and to provide an appropriate method for ensuring respect for parents’ convictions, the Turkish educational system was inadequate. The violation found originated in a problem related to implementation of the syllabus for religious instruction in Turkey and the absence of appropriate methods for ensuring respect for parents’ convictions. In consequence, the Court considered that bringing the Turkish educational system and domestic legislation into conformity with Article 2 of Protocol No. 1 would represent an appropriate form of compensation.

• The Turkish authorities are invited to present an action plan for the execution of this judgment, taking into account the European Court’s specific indication of an appropriate general measure. However, neither an action plan nor an action report has yet been provided by the authorities.

• Publication and dissemination of the European Court’s judgment to the relevant authorities are also expected, so as to draw their attention to their Convention requirements as they arise from the judgment.

36458/02           Temel İrfan et autres, arrêt du 03/03/2009, définitif le 03/06/2009.

Cette affaire concerne la violation du droit des requérants à l’instruction en raison d’une sanction disciplinaire infligée aux requérants, étudiants universitaires dans diverses facultés à l’époque des faits, pour avoir adressé aux autorités universitaires des pétitions pour que des cours optionnels de langue kurde soient assurés par l’université.

La Cour européenne a considéré que même si la sanction disciplinaire de suspendre leur l’inscription à l’université pendant un ou deux semestres avait été annulée par les juridictions administratives, elle ne pouvait passer pour raisonnable, ni proportionnée. Elle a estimé que les opinions exprimées dans les pétitions en question ne pouvaient s’analyser en une activité pouvant conduire à une radicalisation sur la base d’une distinction fondée sur la langue, la race ou la religion (violation de l’article 2 du Protocole n° 1).

22766/04           Kara, judgment of 30/06/2009, final on 30/09/2009

This case concerns an unjustified interference with the freedom of expression of the applicant, the president of the Anatolian Solidarity Association for Prisoners’ Families, in that he was convicted under Article 37 § 1 of the former Law on Associations (Law No. 2908) for organising a hunger-strike and distributing leaflets in protest against F-type prisons (violation of Article 10).

The European Court considered that the applicant had been seeking to raise public awareness of issues that had already been brought to public attention by the mass media, namely hunger-strikes in prisons and detention conditions in F-type prisons, in which, under the new prison regime, dormitories had been replaced by living units for one to three prisoners. His actions – distributing leaflets and the hunger-strike – had not incited the public to go on hunger-strike or use violence but had been carried out to show solidarity with prisoners, among them a close relative of his, on a matter of topical interest in Turkish society. His criminal conviction had therefore been disproportionate to the aim pursued and had not been necessary in a democratic society, in breach of Article 10.

• To date, the authorities have provided no information.

56566/00          Kaplan Yaşar, judgment of 24/01/2006, final on 24/04/2006

This case concerns an unjustified interference with the freedom of expression of the applicant, a journalist, in that charges were brought against him in 1998, under Article 95 of the Military Criminal Code, for having published articles which were considered by the military court to undermine soldiers’ trust in their hierarchy.

Given the high level of protection to be given to political expressions and the fact that the applicant’s articles did not insult or criticise any specific person, the Court concluded that the criminal action against the applicant had been a disproportionate interference with his right to freedom of expression, the more so since he was also subjected to 42 days’ pre-trial detention (violation of Article 10).

Individual measures: By virtue of Law No. 4454 on the suspension of procedures and execution of sentences related to crimes committed through the press, which entered into force on 3/09/99, the applicant’s conviction was set aside on 31/12/2003. Any other consequence of the violation is covered by the just satisfaction awarded by the European Court.

General measures: The case presents some similarity with other cases against Turkey concerning violations of freedom of expression (see the Inçal group of cases, 22678/93, 1086th meeting, June 2010). It is, however, the first case dealing with the interpretation of the Military Criminal Code.

            1) Legislative measures: The Turkish authorities have indicated that following the European Court’s judgment extensive amendments adopted on 5/07/2006 to the Code on the Establishment and Criminal Procedure of the Military courts. Article 4 of the amendments provides that most offences committed by civilians in time of peace – including that at the origin of the Yasar Kaplan case – shall be tried by civil courts. Furthermore, Article 53 of the amendments provides a right to a retrial in cases where the European Court finds that decisions of military courts violate the Convention.

• Assessment: The measures taken so far are welcome. However, given the fact that the European Court concluded that the criminal action against the applicant, and his 42 days’ pre-trial detention had been a disproportionate interference with his right to freedom of expression, further information is awaited on additional measures envisaged to prevent similar violations in the future.

            2) Publication and dissemination: The judgment of the European Court has been translated into Turkish and circulated to the appropriate authorities, including the Turkish Ministry of Justice and the Turkish General Staff. A Turkish translation of the Court’s judgment was published on the website of the Ministry of Justice at: www.inhak-bb.adalet.gov.tr/aihm/karar/yasarkaplan.doc.

28582/02           Asan, judgment of 27/11/2007, final on 27/02/2008

This case concerns a violation of the applicant’s freedom of expression due to the seizure of his book following an order of the Istanbul State Security Court dated 21/01/2002, on the basis of a number of legal provisions including Additional Article 1§2 of the Law on the Press, No. 5680 (violation of Article 10).

The European Court expressed doubts as to the predictability of the seizure measure, in particular as the Law on the Press as applicable at the material time invoked no less than 40 articles of the Penal Code which meant that the order was far from clear. The Court further noted that the publication in question was a work of historical, cultural, ethnographic and linguistic research with no political intent, and that the seizure measure had been applied to the second edition, the first having been published without interference.

The Court therefore found that the interference was not necessary in a democratic society.

Individual measures: In a judgment dated 12/08/2003, the State Security Court acquitted the applicant on the ground that Article 8 of Law No. 3713, under which he had been judged, had been repealed. The seizure was lifted at the same time.

• Assessment: No further individual measure appears necessary.

General measures: The Law on the Press was amended in June 2004: Article 25 of the new law, No. 5187 on seizures, distribution bans and sale of printed publications provides greater clarity as it now only invokes ten specific Penal Code provisions and provides that such measures can only be applied where an investigation or a prosecution has been opened.

• Information is accordingly awaited as to whether the new provisions are capable of preventing new, similar violations. Information is also awaited on the publication and dissemination of the European Court’s judgment to competent authorities and courts to raise their awareness of the requirements of the Convention as interpreted by this judgment.

34797/03           Ulusoy and others, judgment of 03/05/2007, final on 24/09/2007

This case concerns the refusal by the Prefect of Ankara to authorise the production of a stage play in Kurdish, by a decision based on the provisions of Article 17 of Law No. 2911, Article 8 of Law No. 3713, Article 11 of Law No. 5442 and Article 1 of Law No. 2559.

The European Court considered that such refusal based on these provisions was not “necessary in a democratic society” (violation of Article 10). The European Court noted that Turkish law does not indicate with sufficient clarity the scope of the discretionary power of authorities concerning preliminary restrictions and that the legislation concerned does not offer adequate safeguards to prevent possible abuses in the application of such restrictions.

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

• Assessment: no further individual measure seems necessary.

General measures:

• The authorities’ reply to the initial phase letter of the Secretariat on 12/12/2007 is awaited.

14526/07+         Ürper and others, judgment of 20/10/2009, final on 20/01/2010

The case (nine applications), which was lodged with the European Court by 26 applicants, who were theowners, executive directors, editors-in-chief, news directors and journalists of four daily newspapers, concerns the suspension of the publication and dissemination of these newspapers for periods ranging from 15 days to a month (violation of Article 10).

The European Court observed that the suspension of the publications had not been imposed only on selected reports but on the future publications of entire newspapers whose content had been unknown at the time of the domestic courts’ decisions. It considered that less draconian measures could have been envisaged by the Turkish authorities, such as confiscation of particular issues of the newspapers or restrictions on the publication of specific articles. The European Court held that the practice of banning the future publication of entire periodicals on the basis of Article 6(5) of Anti-Terror Law (Law no. 3713) went beyond any notion of “necessary” restraint in a democratic society, and instead amounted to censorship in violation of Article 10.

The European Court, considering that the violation of Article 10 of the Convention originated in a problem of a systemic nature, arising out of the Turkish legislation, held that the respondent state should revise Article 6(5) of Law No. 3713 to take account of the principles enunciated in paragraphs 35-45 of the judgment with a view to putting an end to the practice of suspending the future publication and distribution of entire periodicals (§52).

• To date, the authorities have provided no information.

- 6 cases mainly concerning freedom of expression - military conviction for incitement to abstain from compulsory military service

47533/99           Ergin No. 6, judgment of 04/05/2006, final on 04/08/2006

37033/03           Doğan Ahmet, judgment of 10/03/2009, final on 06/07/2009

4211/02            Erükcü, judgment of 13/11/2008, final on 13/02/2009

56827/00           Düzgören, judgment of 09/11/2006, final on 09/02/2007

65344/01           Onaran, judgment of 05/06/2007, final on 05/09/2007

70335/01           Yurdatapan, judgment of 08/01/2008, final on 08/04/2008

The Ergin No. 6 case concerns a violation of the right to freedom of expression of the applicant, the editor-in-chief of a newspaper, in that he was fined in 1999, by a military court, under Article 155 of the former Criminal Code for having published statements which were considered to incite to abstention from military service, which is compulsory in Turkey. Similarly, the cases of Düzgören, Erükçü, Onaran and Yurdatapan concern the conviction of the applicants by military courts for distributing leaflets in support of a conscientious objector, except the Erükçü case, in which the applicant was convicted for submitting a false health report in order to be excempted from military service.

The European Court noted, that the actions concerned did not incite to hatred or violence nor aim to provoke immediate desertion and concluded that the convictions were not “necessary in a democratic society” (violations of Article 10).

The European Court also found that the military courts which tried the applicants (civilians) entirely composed of military judges, could not be regarded as independent and impartial jurisdictions (violation of Article 6§1).

Individual measures:

            1) Case of Ergin No 6: Confirmation has been received that the applicant's conviction was erased from his criminal record.

            2) Cases of Erükçü, Doğan Ahmet, Düzgören Onaran, and Yurdatapan:

• Confirmation is expected of the erasure of all consequences of the violation found, namely the removal of the applicants' convictions from their criminal records.

General measures: On 11/10/2006 the Secretariat addressed a letter to the Turkish authorities, inviting them to present an action plan for the execution of the case Ergin no. 6. The authorities submitted an action plan on 12/01/2007.

            1) Violation of Article 10: a new Criminal Code was adopted in June 2005, but does not appear to have decriminalised non-violent expression of opinions on conscientious objection. Article 318 of the new Criminal Code still makes it a crime to incite to abstain from or discourage performance of military service although it now requires an active element, in that, to be a crime, the incitement or encouragement should be capable of accomplishing its aim. Nevertheless, this provision does not seem to require any of the elements that the European Court has referred to, i.e, “incitement to hatred or violence” or “aim to provoke immediate desertion”. Furthermore, §34 of the judgment underlined that the article concerned in the case of Ergin No. 6 was published in a newspaper and was intended for the public at large. This, according to the Court, was an indication that the article could not be considered an incitement to immediate desertion. The second paragraph of Article 318, on the contrary, makes it an aggravating factor to incite to abstention through the medium of press or other media.

• Accordingly, information is expected on the legislative changes or other general measures that the authorities have taken or envisage in order to bring the relevant provisions in conformity with the Convention.

The European Court's judgments were translated and sent out with a circular to the judiciary, so that the relevant courts could take into account of the Convention's requirements when applying domestic law on incitement to abstention from military service.

            2) Violation of Article 6: Law No. 4963, which entered into force in July 2003 (i.e. after the facts at the origin of these cases), provides that military courts no longer have jurisdiction over civilians accused under former Article 155 of the Criminal Code. A new Law (No. 5530), which entered into force on 5/07/2006, introduces further limits to the jurisdiction of military courts over civilians. It now appears that the only exception that remains is a “military” crime (one that is described as such under the Military Penal Code as opposed to the general Penal Code) committed by a civilian in conspiracy with a military person (Article 12 of Law No. 353 as amended by Law No. 5530.

• Assessment: With regard to the trial of civilians by military courts, the above measures appear sufficient.

                       - 4 cases concerning freedom of expression – broadcasting legislation

64178/00+         Özgür Radyo-Ses Radyo Televizyon Yayın Yapım Ve Tanıtım A.Ş. No. 1, judgment of 30/03/2006, final on 30/06/2006, rectified on 05/12/2008

6587/03            Nur Radyo Ve Televizyon Yayıncılığı A.Ş., judgment of 27/11/2007, final on 02/06/2008, rectified on 03/03/2008

11369/03          Özgür Radyo-Ses Radyo Televizyon Yayın Yapım Ve Tanıtım A.Ş. No. 2, judgment of 04/12/2007, final on 02/06/2008, rectified on 05/12/2008

10129/04           Özgür Radyo – Ses Radyo-Televizyon Yayın Yapım Ve Tanıtım A.Ş., judgment of 10/03/2009, final on 10/06/2009

These cases concern violations of the freedom of expression of the applicants, broadcasting companies, due to warnings and licence suspensions imposed in 1998, 1999 and 2000 by the Turkish broadcasting regulatory authority (RTÜK) under Articles 4 a), g) and j) of Broadcasting Law No. 3984, concerning defamation and incitement to violence and to separatism. Unlike the RTÜK and the Turkish administrative courts, the European Court considered that the statements at issue did not incite to violence or hate and covered questions of general interest. It furthermore took into account the fact that the applicant companies had quoted the sources of the statements, which had already been published by other media without being prosecuted. Furthermore, the Court considered that the penalties had been disproportionately severe and therefore not necessary in a democratic society (violation of Article 10).

Individual measures: In the Özgür Radyo cases, the Court awarded the applicant company just satisfaction in respect of the non-pecuniary damages sustained but not in respect of pecuniary damage, as the applicant company did not submit elements allowing such damage to be quantified. In the case of Nur Radyo, the Court did not award any damages.

• Assessment: No further individual measure appears to be needed.

General measures: These cases concern the Turkish broadcasting system and the interpretation given by RTÜK and administrative courts to Article 4 of Law 3984.

• In the light of the many significant legislative and other measures taken in the last few years to improve freedom of expression in Turkey (see the Inçal group, 22678/93, 1100th meeting, December 2010), information is needed on the impact, if any, of such measures on the current application of the provisions at the origin of this case.

• Information provided on the amendments to the broadcasting law as well as the provisions concerning sanctions introduced by Law No. 4756 in May 2002: In the light of these amendments, a suspension of licence is considered as a last resort. The first sanction available is a warning or the obligation of the broadcasting company to present apologies. If the broadcasting company continues to violate the provisions of the broadcasting law as stated in Article 4 of Law No. 3984, the programme in question may be suspended. If such violation is repeated, progressive administrative fines may be imposed. However this mechanism of gradually increasing sanctions does not apply if the violation concerns the provisions defined in the items a), b), and c) of the §2 of Article 4. In this case, broadcast is suspended for a month and, if there is a repeated violation, the broadcast shall be suspended for an indefinite period and the broadcasting licence shall be revoked.

• Assessment: The legislative amendments are welcome. However, it is observed that Article 4 (a) of Law No. 3984 is excluded from the progressive sanctions mechanism. Therefore, any sanction to be imposed under Article 4 (a) will have the result of being a disproportionate sanction. In any event, neither the amended Law No. 3984 nor the practice of RTÜK and the case-law of Turkish administrative courts suggests that they employ the criteria of incitement to hatred and violence in the application of these provisions.

The authorities indicated that the judgment of the European Court in the Özgür Radyo case had been translated and published on the internet site of Ministry of Justice.

• Information is still awaited on additional general measures taken or envisaged to prevent similar violations in the future, in particular the introduction of the criteria of incitement to hatred and violence. Information is also awaited on the dissemination of the European Court’s judgments with a circular to administrative courts and the RTÜK.

                        - 4 cases concerning freedom of expression – civil defamation proceedings

48176/99          Turhan, judgment of 19/05/2005, final on 19/08/2005, rectified on 30/03/2006

39656/03           Erdoğan Ayhan, judgment of 13/01/2009, final on 13/04/2009

17095/03           Öztürk Cihan, judgment of 09/06/2009, final on 09/09/2009

17089/03           Sorguç, judgment of 23/06/2009, final on 23/09/2009, rectified on 21/01/2010

These cases concern civil defamation proceedings brought against the applicants, by the then Minister of State who claimed that certain remarks in the applicant’s book constituted an attack on his reputation (in the Turhan case); by an İstanbul district mayor, who claimed that the applicant, a practicing lawyer, referred to him as “cruel and a bigot” in a petition for his client (in the Erdoğan case); by the former Director of the Istanbul Posts and Telecommunications, who claimed that an article written by the applicant was defamatory and constituted an attack on his reputation (in the Öztürk case); and by a university professor who claimed that he had been denigrated in an academic paper prepared and distributed by the applicant, a university professor, during an academic conference (in the Sorguç case).

In the Turhan case the European Court noted that the contested remarks were value judgments on an issue of public interest, that their truthfulness was therefore not susceptible of proof and that they were based on information which was already known to the general public. Accordingly, the European Court found that the domestic courts had not convincingly established any pressing social need to subordinate the applicant’s right to freedom of expression to the protection of a public figure’s reputation. Neither has it appeared that the applicant’s statements had affected the Minister’s political career or his professional or private life (violation of Article 10).

In the Erdoğan case, the European Court noted that the contested remarks were value judgments, made in the context of judicial proceedings by the applicant, acting in his legal capacity as legal representative, and were set against a particular context connected to those proceedings. The Court noted that the limits of acceptable criticism are wider as regards a politician than as regards a private individual, and concluded that the interference with the applicant’s freedom of expression was not based on sufficient reasons to show that the interference complained of was “necessary in a democratic society” (violation of Article 10).

In the Öztürk case, the European Court noted that the contested statements in the article ought to have been seen as value judgments which, as a rule, were not susceptible of proof. In addition, they had been based on facts known to the public at the time, given that the authorities had already brought criminal proceedings against the former director for breach of duty in the context of a building project. Bearing in mind that Mr Öztürk had been ordered to pay a significant amount of monetary compensation to the former director, the Court held that this had been excessive, as it could have deterred others from criticising public officials and thus limited the free flow of information and ideas (violation of Article 10).

In the Sorguç case, the European Court found that the applicant had expressed his opinion on an issue of public importance, namely the question of the system for appointments and promotion in universities. As he had made his statements on the basis of personal experience, and the information he had disclosed was already known in academic circles, his speech had presented value judgments susceptible of proof, at least in part. The Turkish courts, however, had not given him the opportunity to substantiate his statements but had instead concluded that they had constituted an attack on the reputation of an individual. Thus, greater importance had been attached to the protection of an unnamed individual, including through the payment of rather high compensation, than to the freedom of expression that should normally have been enjoyed by an academic in a public debate. The Court underlined the importance of academic freedom, and in particular academics’ freedom to express freely their opinion about the institution or system in which they worked and freedom to distribute knowledge and truth without restriction (violation of Article 10).

Individual measures: In the Turhan, Erdoğan and Sorguç cases, the European Court awarded just satisfaction in respect of non-pecuniary damage and for pecuniary damages in the amount of the damages imposed by the domestic courts. In the Öztürk case, the Court awarded the applicant just satisfaction in respect of non-pecuniary damage but, in the absence of any quantified claim, the Court made no award in respect of pecuniary damages.

• Assessment: no further individual measure seems necessary.

General measures:

• Information is expectedon measures envisaged to remedy the problems highlighted by the European Court (i.e. interpretation of defamation provisions, including the distinction between value judgments and factual statements, in cases involving public figures or politicians or in cases related to academic freedom). In any event the publication and wide dissemination of the judgment of the European Court would appear necessary.

19353/03           Saygılı and others, judgment of 08/01/2008, final on 08/04/2008

The case concerns the unjustified interference with the applicants’ freedom of expression in that they were not able to prove their good faith or invoke public interest in the context of civil proceedings for defamation lodged against them (violation of Article 10).

In September 2001, the applicants published two articles in the daily newspaper Evrensel concerning the case of İrfan Bilgin in which the European Court found a violation of Article 2 of the Convention due to a disappearance during police custody. The articles suggested that the prosecutor in charge of the investigation had falsified the investigation report concerned. The prosecutor instituted civil proceedings for non-pecuniary damages against the applicants alleging that the articles were misleading and defamatory. The domestic courts held that the claimant’s personality rights had been infringed and ordered the defendants to pay compensation under Article 24 of the Civil Code and Article 49 of the Code of Obligations. The courts considered that there was no evidence in the case-file of the European Court that the claimant had failed his duties.

The European Court recalled that persons subject to judicial actions on account of statements made on subject of general interest, like in the present case, should be able to invoke their good faith to exonerate themselves. It recalled in this respect that the law applicable at the time made no specific provision for exceptions on the grounds of truthfulness and public interest. It considered that the impugned articles made allegations based on an analysis of the judgment in the İrfan Bilgin case, the material evidence it had taken into account, the statements made by the prosecutor and the witnesses interviewed by the Commission, and the statements made by the applicant’s lawyer in the case in question, all of which the applicants had been entitled to use, not only in their articles but also to prove their good faith and the truthfulness of their affirmations in the proceedings before the domestic courts. It concluded that there was no reason to doubt that the applicants had acted in good faith.

Individual measures: The European Court awarded just satisfaction for pecuniary and non-pecuniary damages suffered.

• Assessment: No other individual measure seems necessary.

General measures:

• The authorities are invited to provide information on measures taken or envisaged to introduce the exceptions of truthfulness and public interest in Turkish law through legislation and/or case law.

35839/97          Pakdemirli, judgment of 22/02/2005, final on 22/05/2005

The case concerns the disproportionate amount of the damages awarded against the applicant in defamation proceedings against him (violation of Article 10). The proceedings were brought against the applicant in 1995 (at the material time a Member of Parliament and the vice-president of the opposition party) by the President of the Republic on account of a speech he made in which he described the President, among other epithets, as a liar and slanderer. The President sought compensation for defamation and insults to him both in person and in his capacity as President of the Republic under Article 49 of the Code of Obligations. In July 1995 the Ankara Civil Court of First Instance ordered the applicant to pay the equivalent of approximately 55 000 euros in damages. Following the dismissal of his request for leave to appeal, the applicant paid the sums he had been ordered to pay, which corresponded at the time, with interest, to the equivalent of approximately 60 000 euros.

The European Court observed that, in determining the amount of the damages, the Turkish courts had applied the criterion of “the parties’ socio-economic status” laid down in Article 49 of the Code of Obligations in a way which departed from the normal practice and without taking into account the principle of proportionality laid down in Article 4 of the Civil Code, using it not to preserve a balance between the parties’ respective situations, but to fix the amount of damages to be awarded as high as possible. In addition, while fixing the amount of compensation, the domestic courts based themselves on the absence of the criminal proceedings which would have been applicable if the applicant had not been covered by parliamentary immunity and thus turned the damages awarded into a form of civil fine. Furthermore, the assessment of the civil penalty had been made not in the light of the wrong suffered by the claimant but by way of over-protecting the status of President of the Republic.

The European Court therefore concluded that the award that the applicant was ordered to pay could not be regarded as “necessary in a democratic society” and that it was not proportionate to the aim pursued by the national legislation.

Individual measures: The European Court awarded a global sum of 35 000 euros for both pecuniary and non-pecuniary damages, thus compensating the disproportionate nature of the penalties imposed by the domestic courts.

• Assessment: no further measure seems to be necessary.

General measures: The European Court’s judgment has been translated and published on the website of the Ministry of Justice at: www.inhak-bb.adalet.gov.tr/aihm/karar/ekrempakdemirli.doc.

• Information is expected on possible measures that Turkish authorities envisage to ensure that domestic courts strike a fair balance in determining the amounts of compensation in defamation cases where highly political public figures are involved.

6615/03            Karaçay, judgment of 27/03/2007, final on 27/06/2007

The case concerns a breach of the applicant's right to freedom of association due to the disciplinary sanction imposed on him for participating in a protest meeting organised by his trade union. The applicant received a “warning” by virtue of Article 124/A of Law No. 657 as a result of disciplinary proceedings brought against him (violation of Article 11).

The European Court found that the sanction imposed on the applicant could not be considered necessary in a democratic society since it could dissuade trade union members from participating in other legitimate gatherings.

The case also concerns the absence of any effective remedy, as the Court found that is was impossible to submit such sanctions to judicial control, under Article 136 of Law No. 657 (violation of Article 13).

Individual measures: The applicant received the so-called warning in December 2002, and according to Article 133 of Law No. 657, a civil servant is entitled to have a warning to be erased from his or her employment records after 5 years from its issue.

• Assessment: Under the circumstances, no further individual measure seems necessary.

General measures: In response to the Secretariat’s initial-phase letter, the authorities indicated on 29/11/2007 that a Draft Law on Public Employees (Kamu Personeli Kanunu Tasarısı) was being prepared by the relevant legislative bodies. Under Article 95 of the draft law, disciplinary “warnings” will be subject the judicial control.

In addition, the judgment was translated and published on the website of the Ministry of Justice at www.inhak-bb.adalet.gov.tr/aihm/karar/karacay.doc

• The authorities are invited to inform the Secretariat of developments concerning the draft law.

30946/04           Kaya et Seyhan, arrêt du 15/09/2009, définitif le 15/12/2009

Cette affaire concerne l'atteinte injustifiée au droit des requérantes à la liberté d'association en raison d’une sanction disciplinaire qui leur a été infligée pour avoir participé à une journée d’action organisée afin de protester contre le projet de loi relatif  à l’organisation de la fonction publique en discussion au parlement (violation de l'article 11).

La Cour européenne a relevé que la sanction imposée aux requérants ne pouvait pas être considérée comme nécessaire dans une société démocratique puisqu'elle pouvait dissuader les membres de syndicats de participer à d'autres rassemblements légitimes.

L’affaire concerne également l’absence de contrôle juridictionnel d’une sanction disciplinaire en vertu de l’article 129 de la Constitution et de l’article 136 de la loi n° 657 (violation de l’articla 13).

Cette affaire diffère de l’affaire Urcan (23018/04+) (rubrique 4.2) en ce que dans cette dernière affaire, les requérants avaient été condamnés au pénal, en application de l’article 236 de l’ancien code pénal pour des motifs similaires.

- 2 affaires concernant la liberté d'association (condamnation pénale en raison de la participation à une grève)

23018/04+         Urcan et autres, arrêt du 17/07/2008, définitif le 17/10/2008

22943/04           Özcan Saime, arrêt du 15/09/2009, définitif le 15/12/2009

Ces affaires concernent l'atteinte au droit des requérantes à la liberté d'association en raison de leur condamnation pour avoir participé à une grève organisée pour améliorer les conditions de travail des enseignants de la fonction publique. Les requérantes, toutes membres d'un syndicat, ont été condamnées en vertu de l'article 236 du code pénal pour s'être absentées de leur poste de travail à une peine de prison commuée en amende. Elles ont également été temporairement exclues de la fonction publique (violation de l'article 11).

La Cour européenne a relevé que la sanction imposée aux requérantes ne pouvait pas être considérée comme nécessaire dans une société démocratique puisqu'elle pouvait dissuader les membres de syndicats de participer à d'autres rassemblements légitimes.

Mesures de caractère individuel :

• Informations fournies par les autorités turques (lettre du 25/06/2009) : La condamnation incriminée de la requérante Aysun Urcan a été effacée de son casier judiciaire. Une copie de son casier est annexée à la lettre des autorités nationales.

• Des informations sont attendues sur l'effacement des condamnations des casiers judiciaires des autres requérantes concernées dans ces affaires. 

Mesures de caractère général :

• Informations fournies par les autorités turques (lettre du 25/06/2009) : L'article 236 de l'ancien code pénal n'est plus en vigueur et a été remplacé par l'article 260 du nouveau code pénal du 26/09/2004.

Le nouvel article 260§1 érige en infraction pénale le fait d'abandonner ou de ralentir collectivement le travail. L'article 260§2 dispose néanmoins que lorsque l'abandon de travail (…) est effectué par les fonctionnaires publics de façon temporaire et pour une courte période dans l'objectif de protéger leurs droits professionnels ou sociaux et de manière à ne pas porter atteinte au service public, soit aucune peine n'est prononcée, soit la peine prévue dans le premier paragraphe est réduite.

D'autre part, l'exposé des motifs de l'article 260 explique que le juge pénal, dans l'application de cet article, dispose désormais d'une marge d'appréciation quant à la réduction ou à la suppression de la peine prévue par cet article, si les conditions indiquées au second paragraphe sont réunies en l'espèce.

• Evaluation: A la différence de l'article 236 de l'ancien code pénal, le nouvel article 260§2, attribue au juge pénal un pouvoir discrétionnaire afin d'établir un juste équilibre entre les exigences du service public et le droit des fonctionnaires publics à protéger leurs droits sociaux et intérêts professionnels. Autrement dit, le fait d'abandonner ou de ralentir le travail n'est pas automatiquement érigé en infraction pénale, à la différence d'ailleurs de l'ancien article 236, mais le juge est désormais tenu de vérifier si cet abandon ou ralentissement constitue, dans les circonstances de l'espèce, un moyen pour les fonctionnaires de protéger leurs intérêts sociaux. Dans l'affirmative, et à condition que cet abandon n'ait pas mis gravement en cause la continuité du service public, soit aucune peine n'est prononcée, soit elle est réduite.

• Des informations sont attendues sur la publication de l'arrêt de la Cour dans cette affaire et sa distribution aux autorités judiciaires pertinentes.

35832/97           IPSD et autres, arrêt du 25/10/ 2005, définitif le 25/01/2006

La présente affaire concerne la dissolution en 1994, de l’association IPSD (association de lutte contre le chômage et les prix excessifs) au motif que son statut était contraire à l’article 5§§11 et 12 de la loi n° 2908 sur les associations qui interdisait aux associations de mener des activités politiques et de bafouer l’Etat turc.

La Cour européenne a observé que l’association en question avait été dissoute sur la seule base de son statut, avant même d’avoir pu entamer ses activités. En l’absence de projet politique de nature à compromettre le régime démocratique dans le pays et d’une incitation ou d’une justification de recours à la force à des fins politiques, la dissolution de cette association ne pouvait raisonnablement être considérée comme « nécessaire dans une société démocratique » (violation de l’article 11).  

Mesures de caractère individuel :

• Des informations sont attendues sur le point de savoir si les requérants peuvent obtenir l’enregistrement de l’association en question.

Mesures de caractère général :

• Des informations sont attendues sur les mesures prises ou envisagées pour prévenir de nouvelles violations similaires.

68959/01           Enerji Yapı-yol Sen, arrêt du 21/04/2009, définitif le 06/11/2009

Cette affaire concerne la violation du droit d’association du requérant, un syndicat de fonctionnaires œuvrant essentiellement dans le secteur du cadastre et de l’énergie, en ce qu’une circulaire publiée en 1996, interdisait aux fonctionnaires de participer à une journée nationale de grève organisée par la Fédération des syndicats du secteur public pour la reconnaissance du droit à une convention collective.

La Cour européenne, tout en reconnaissant que le droit de grève des fonctionnaires pouvait être soumis à certaines conditions, a estimé qu’une interdiction générale s’étendant à l’ensemble des fonctionnaires, n’était pas compatible avec la liberté syndicale au sens de l’article 11 de la Convention. Les restrictions légales au droit de grève devraient définir aussi clairement que possible les catégories de fonctionnaires concernées (violation de l’article 11).

La présente affaire se diffère de l’affaire Demir Baykara (34503/97) (rubrique 6.2.) en ce que cette dernière affaire concernait le droit des fonctionnaires de former des syndicats et de conclure des conventions collectives avec leur employeur.

16330/02           Gülmez, judgment of 20/05/2008, final on 29/09/2008

The case concerns first, the violation of the applicant’s right to a fair hearing in the context disciplinary proceedings brought against him by the prison authorities while he was detained on remand. The European Court noted that according to Article 6 of Law No. 4675, appeals against disciplinary sanctions were examined in camera on the basis of the case-file and that the applicant had no opportunity to defend himself with the assistance of a lawyer (violation of Article 6§1).

The case also concerns a breach of the applicant’s right to respect for his private life in that visiting rights were restricted for a year. The European Court noted that the legislation at the material time did not indicate in precise terms the punishable acts and related penalties and left the authorities a wide degree of discretion in determining disciplinary sanctions. This situation did not meet the “quality of law” requirement under the Convention (violation of Article 8).

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

Individual measures are linked to the adoption of general measures (see below).

General measures: Under Article 46 of the Convention, the European Court concluded that the violation in this case stemmed from the Turkish legislation, namely Law No. 4675 on Enforcement Judges. There are a number of similar applications pending before the Court, which is indicative of a systemic problem.

In this respect it took note of the entry into force of the Law on the Enforcement of Sentences and of Preventive Measures in 2005 and of the new provisions on disciplinary questions which clearly specify what are punishable acts and what the penalties are. It noted nonetheless that there had been no change in respect of the legal lacunae concerning the absence of hearings and the ban on defendants’ defending themselves in person or through counsel.

• Information is awaited on measures taken or envisaged with a view to allowing public hearings in disciplinary proceedings in such circumstances, in the light of the European Court’s findings (§§ 60 and 63 of the judgment).

                        - Case of length of detention on remand of minors

20817/04           Nart, judgment of 06/05/2008, final on 06/08/2008

The case concerns the excessive length of pre-trial detention (48 days) of the applicant, who was a minor at the time (violation of Article 5§3), and the lack of an effective remedy with which to challenge the lawfulness of his detention on remand (Violation of Article 5§4). The proceedings were still pending before the domestic courts when the European Court delivered its judgment.

Individual measures: The applicant is still detained on remand but in connection with an offence unrelated to the present case.

• Assessment: no individual measure therefore appears necessary.

General measures:

1) Violation of Article 5§3: The required measures were taken following the Selçuk case (21768/02, Section 6.2.)

2) Violation of Article 5§4:

• Information is awaited on the measures taken or envisaged in this respect.

30326/03           Erkuş, judgment of 29/09/2009, final on 29/12/2009

The case concerns the unlawful privation of liberty of the applicant, a conscript at the material time, between 22/02/2003 and 11/03/2003 before he was brought before a judge after his arrest on suspicion of being an army deserter (violation of Article 5§1).

In the absence of any concrete information or documentation to the contrary, the European Court did not find it convincing that the authorities in İzmir had needed 12 days to organise the applicant’s transfer back to his army base in Kırklareli or to prevent his escape since he was a suspected deserter. Nor did the European Court consider it necessary to detain him for a total of 17 days before bringing him before a judge (§32).

18342/03           Davran, judgment of 03/11/2009, final on 03/02/2010

The case concerns the infringement of the applicant’s right to access to the Court of Cassation, due to the authorities’ failure to notify a first-instance judgment.

The European Court noted that it was not Article 28 of the Notification Act (Law No. 7201) which was applicable in the applicant’s case, providing notification through publication in the Official Gazette when it is not possible to locate the persons concerned, but Article 19 – requiring the notification of a judgment to a prisoner though the prison authorities, and that it would have given him an effective right of access to the Court of Cassation(violation of Article 6§1).

The European Court further noted the shortcomings in the arrangements for publication of the judgment, and pointed out that it was incumbent on the state to put in place an information network between the judicial authorities across the country (§§20, 33, 45, 46).

- 7 cases concerning the violation of the right of access to a court due to the administrative courts' refusal to grant legal aid for court fees

52658/99           Yiğit Mehmet and Suna, judgment of 17/07/2007, final on 17/10/2007

54179/00+         Amaç and Okkan, judgment of 20/11/2007, final on 20/02/2008

50939/99           Bakan, judgment of 12/06/2007, final on 12/09/2007

17582/04           Kaya Eyüp, judgment of 23/09/2008, final on 23/12/2008

33612/03           Öner Ciğerhun, judgment of 20/05/2008, final on 20/08/2008

18404/04           Serin, judgment of 18/11/2008, final on 18/02/2009

20400/03           Tunç, judgment of 21/02/2008, final on 07/07/2008

These cases concern the refusal of administrative courts to grant legal aid to the applicants because either their actions were ill-founded (Bakan, Kaya Eyüp), or they had failed to prove their absence of means as required (Tunç, Öner Ciğerhun, Serin) or because appellants represented by counsel could not be deemed to require legal aid (Bakan, Yiğit Mehmet and Suna, Amaç and Okkan).

The European Court observed that the amount to be paid in court fees represented a considerable sum for the applicants and that the dismissal of their applications for legal aid had totally deprived them of the possibility to have their case heard by a court. This being so, the Court found that the state had not fulfilled its obligation to regulate the right of access to a court in conformity with the Convention (violations of Article 6§1).

Individual measures: The Court awarded the applicants just satisfaction in respect of the damage sustained, except in the Eyüp Kaya and Amaç and Okkan cases.

In addition, in all cases except for that of Eyüp Kaya, the Court considered that the most appropriate form of redress was to reopen the proceedings before the administrative courts in conformity with the requirements of Article 6§1, if the applicants so wished.

• Information is awaited in this respect.

General measures: It is noteworthy that in the Bakan, Yiğit Mehmet and Suna, and Amaç and Okkan cases, the reasoning behind the decisions not to grant legal aid (i.e. those who are represented by counsel are not entitles to legal aid) is based on well-established case-law rather than on procedural law. Thus, in addition to the publication of the European Court's judgment on an official website which is the habitual practice of the Turkish authorities, targeted publication and dissemination of the judgment to higher courts would seem necessary.

In this connection it may be noted that the judgment in Yiğit Mehmet and Suna has been published on the website of the Ministry of Justice: www.inhak-bb.adalet.gov.tr/aihm/karar/mehmetvesunayigit.doc.

• Information is still awaited on targeted dissemination, as well as on recent case-law, if there is any, demonstrating that the European Court's conclusions have been taken into consideration by domestic courts.

35686/02           Ünel, judgment of 27/05/2008, final on 27/08/2008

The case concerns the unfairness of criminal proceedings against the applicant as certain material evidence was not produced or discussed adequately at the hearing in his presence (violation of Article 6§§1 and 3d).

The applicant, who was the director general at a ministry between 1997 and 2000, was arrested while committing an act of corruption in a police operation. He was found guilty of corruption and sentenced to a term of imprisonment of four years and two months and a fine.

The European Court established that the applicant had repeatedly asked for (i) the video recordings of him accepting the bribe to be shown at the hearing, (ii) voice recordings of his telephone conversations about the bribe to be forensically examined, (iii) the complainant who had brought the corruption charges against him to be examined at a hearing, and finally (iv) certain witnesses to be summoned and heard. The domestic courts denied these requests on the grounds that they were irrelevant and that the evidence in the case file was sufficiently clear to establish his guilt.

The European Court found however that the proceedings had not met the requirements of a fair trial as certain material evidence relevant to the establishment of the applicant’s guilt had not been produced or discussed adequately at the hearing in his presence.

Individual measures: The applicant seems to have served the whole of his prison sentence.

• Information provided by the Turkish authorities (28/11/2008): new criminal proceedings were brought against the applicant before the Ankara Assize Court, which pronounced judgment on 8/05/2008; the case is now pending before the Court of Cassation. The authorities accordingly consider that they have fulfilled their obligations with regard to individual measures (reopening) in this case.

• Assessment: The Ankara Assize Court’s decision of 8/05/2008 that proceedings were opened simultaneously with the entry into force of the new Turkish Penal Code (No. 5237) which provides lighter sentences for the offences of which the applicant was charged. It seems that in the new proceedings, the Assize Court did not re-assess the facts and evidence, but simply imposed upon the applicant, on the basis of the facts established in the earlier proceedings, the sentences provided in the new Code. Such proceedings are not of a nature to redress the procedural shortcomings found by the Court and therefore cannot be considered an adequate individual measure.

• Information is therefore awaited on measures to afford the applicant him proper redress, such as a retrial at his request or erasure of all the consequences of the violation found.

General measures:

• Information provided by the Turkish authorities (28/11/2008): The European Court’s judgment in this case had been translated into Turkish and would be published as soon as possible in the Judicial Legislation Bulletin (Yargı Mevzuatı Bűlteni).

• Confirmation is awaited on the translation and distribution of the European Court’s judgment to the relevant judicial authorities.

- 2 cases concerning the unfairness of certain judicial proceedings in which the request for annulment of an administrative act was denied and the administration refused to submit a classified file

70516/01           Dağtekin and others, judgment of 13/12/2007, final on 13/03/2008, rectified on 21/05/2008

31881/02           Gencer, judgment of 25/11/2008, final on 25/02/2009

These cases concern the unfairness of civil proceedings brought by the applicants to complain of the fact that the Ministry of Agriculture (in the Dağtekin case) or by the Directorate General for Agricultural Reform) (in the Gencer case) had revoked the applicants' leasehold on agricultural land situated in the South-East following a security enquiry. The courts rejected the applicants' appeal even though the Ministry and the Directorate General refused to disclose the documents on the basis of which the lease had been revoked.

The European Court held that the conclusions of the security investigation were not revealed to the applicants or the courts, and that the applicants had been deprived of sufficient safeguards against any arbitrary action on the part of the authorities thus infringing the applicants' right to a fair hearing (violations of Article 6§1).

Individual measures:

• Information is awaited on possible individual measures envisaged or taken to remedy the violation found.

General measures: Under the last sentence of Article 22§3 of Law no 2577 on administrative procedure, no defence submission by the administration is taken into account by the courts if it is based on information or documents withheld on grounds of national security or vital interests of the state.

• Assessment: This provision appears to be in line with the Convention's requirements as it excludes this type of defence from administrative proceedings.

• Information is awaited on the publication and dissemination of the European Court's judgments o the judicial authorities.

- 7 cases mainly concerning the failure to communicate the Public Prosecutor's opinion before the Council of State

33446/02           Meral, judgment of 27/11/2007, final on 02/06/2008

19728/02           Akgül, judgment of 17/7/2008, final on 17/10/2008

9907/02            Araç, judgment of 23/09/2008, final on 23/12/2008

2841/05+          Ekmekçi and others, judgment of 26/05/2009, final on 26/08/2009
38012/03           Hasırcı, judgment of 24/03/2009, final on 06/07/2009
41296/04           Karaduman and Tandoğan, judgment of 03/06/2008, final on 17/09/2008

37829/05          Yılmaz Melek Sima, judgment of 30/09/2008, final on 06/04/2009

These cases concern violations of the applicants’ right to a fair trial due to the failure to provide them with a copy of the written opinion of Public Prosecutor before the Council of State on the merits of the appeals they had lodged (violations of Article 6§1). It may be noted that the European Court had previously found similar violations with regard to the non-communication of the written opinion of the Public Prosecutor before the Court of Cassation (see the case of Göç, 36590/97, in Section 6.2).

The Ekmekçi case also presents similarities to the Ormancı group (43647/98) (Section 4.2).

Individual measures: The European Court considered that the finding of a violation in respect of the failure to disclose the public Prosecutor’s opinion constituted sufficient just satisfaction for the damages suffered.

It awarded just satisfaction in respect of the length of the proceedings in the case of Ekmekçi and others. In addition, the domestic proceedings are closed in this case.

• Assessment: No individual measures seem necessary.

General measures:

• Information is awaited on measures taken or envisaged to prevent similar violations in the future, and on the publication and dissemination of the European Court’s judgments.

- 7 cases mainly concerning failure to communicate the written opinion of the Public Prosecutor before the Supreme Military Administrative Court

43980/04           Miran, judgment of 21/04/2009, final on 21/07/2009

44292/04           Cihangül, judgment of 29/09/2009, final on 29/12/2009

8543/05            Dikel, judgment of 29/09/2009, final on 29/12/2009

43696/04           Erdoğan Okan, judgment of 29/09/2009, final on 29/12/2009

45874/05           Karayiğit Yavuz Selim, judgment of 27/10/2009, final on 27/01/2010

38287/04+         Tamay and others, judgment of 29/09/2009, final on 01/03/2010

2843/05            Okur Tevfik, judgment of 29/09/2009, final on 29/12/2009

The cases concern the violation of the applicants’ right to a fair trial due to the failure to provide them with a copy of the written opinion of the Public Prosecutor before the Supreme Military Administrative Court, and the fact that they had been denied access to “classified” documents in the proceedings (violation of Article 6§1).

The cases present similarities to the cases concerning non-communication of the written opinion of the Public Prosecutor before the Court of Cassation and the Council of State (see, the Göç group (36590/97, Section 6.2) and the Meral group (33446/02, 1092nd meeting, September 2010), but this is the first case related to the Public Prosecutor before the Supreme Military Administrative Court.

The cases (except Dikel and Karayiğit) also present similarities to the Çorum group of cases (59739/00, Section 5.1) regarding the failure to communicate classified documents in the case-file.

• To date, the authorities have provided no information.

6045/03            Miçooğulları Davut, judgment of 24/05/2007, revised on 16/12/2008, rectified on 02/02/2009 final on 14/09/2009

The case concerns a violation of the applicant’s right to peaceful enjoyment of his possessions due to the failure to compensate him for the transfer his property to the Treasury as a result of proceedings brought to annul his title (violation of Article 1 of Protocol No. 1).

The European Court was not satisfied by the government’s arguments, in particular to the effect that the previous owner of the property, not being Turkish citizen could not have been the rightful owner. The Court noted that the applicant purchased the land in question pursuant to a title granted by the competent national authorities, and that he had been able to enjoy the property, paying the various taxes due in respect of his assets, until the date of the annulment of the title. The Court noted that the government did not rely on any exceptional circumstances to justify the total absence of compensation (§54-§56).

The case also concerns the excessive length of the annulment proceedings (violation of Article 6§1).

• To date, the authorities have provided no information.

44088/04           Menemen Minibűsçűler Odası, arrêt du 9/12/2008, définitif le 9/03/2009

La présente affaire concerne une atteinte injustifiée au droit d’accès de la requérante à un tribunal, cette dernière étant une chambre de commerce exerçant une activité privée de transport en commun. A cet égard, la requérante n’a pas été informée de l’introduction de recours par une coopérative concurrente à l’encontre d’actes administratifs qui affectaient son activité de transport en commun, malgré le libellé de l’article 31 du Code de procédure administrative. L’article 31 prévoit en substance que le juge doit « d’office » procéder à la notification de l’introduction des recours administratifs aux individus pour lesquels le dossier en litige semble présenter un intérêt.

La Cour européenne a estimé que l’inobservation de l’article en question, avait empêché la requérante de se faire entendre dans un litige concernant ses droits et obligations (violation de l’article 6§1).

Mesures de caractère individuel : La Cour européenne a rejeté la demande de satisfaction équitable au titre du préjudice matériel, estimant qu’elle ne pouvait spéculer sur ce qu’aurait été l’issue des procédures litigieuses en l’absence de la violation constatée. La requérante n’a soumis aucune demande au titre du préjudice moral.

• Des informations sont attendues sur la question de savoir s’il est possible de rouvrir la procédure litigieuse devant le tribunal administratif d’İzmir, si la partie requérante formule une demande allant dans ce sens.

Mesures de caractère général :

• Des informations sont attendues sur les mesures envisagées ou prises en vue de prévenir des violations similaires ainsi que sur la diffusion de l’arrêt de la Cour européenne auprès des tribunaux administratifs et du Conseil d’Etat.

- 5 affaires concernant l'annulation des droits de propriétés sur des biens appartenant à des fondations de minorités religieuses, plus de trente ans après leur acquisition légale

34478/97           Fener Rum Erkek Lisesi Vakfi, arrêt du 09/01/2007, définitif le 09/04/2007, rectifié le 22/05/2007

37646/03 +        Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi Vakfi n° 2, arrêt du 06/10/2009, définitif le 06/01/2010, réctifié le 02/10/2009

37639/03+        Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi Vakfı, arrêt du 03/03/2009, définitif le 03/06/2009, rectifié le 02/10/2009

1480/03            Samatya Surp Kevork Ermeni Kilisesi, Mektebi Ve Mezarlığı Vakfı Yönetim Kurulu, arrêt du 16/12/2008, définitif le 16/03/2009

36165/02          Yekidule Surp Pırgiç Ermeni Hastanesi Vakfı, arrêt du 16/12/2008, définitif le 16/03/2009

Ces affaires concernent la violation du droit au respect des biens des requérantes, des fondations de droit turc créées sous l'Empire ottoman (violations de l'article 1 du Protocole n° 1).

Leurs statuts sont en conformité avec les dispositions du traité de Lausanne de 1923 concernant la protection des anciennes fondations assurant des services publics pour les minorités religieuses.

Dans ces affaires les violations constatées par la Cour européenne reposent sur les observations suivantes :

La loi n° 2762 sur les fondations [vakıf], promulguée en juin 1935, tout en reconnaissant la personnalité morale des fondations minoritaires créées sous l'Empire, a imposé à celles-ci l'obligation d'inscrire leurs biens immobiliers au registre foncier et les a invité à présenter une déclaration [beyanname] indiquant les biens immobiliers en leur possession et la nature et les sources de leurs revenus et dépenses.

A partir de 1936, les fondations en question ont continué à acquérir des biens immobiliers à titre onéreux, par donation, par succession, par échange ou par achat et ce, jusqu'en 1974.

Par un arrêt du 8/05/1974, la Cour de cassation turque a estimé que les déclarations faites en 1936 devaient être considérées comme les actes de fondation des vakıfs en question, précisant leur statut. Elle a considéré qu'en l'absence de clause explicite dans les déclarations, ces fondations ne pouvaient acquérir d'autres biens immobiliers que ceux figurant sur ce document.

C'est en s'appuyant sur cette jurisprudence de mai 1974 de la Cour de cassation, que le Trésor public a commencé à introduire des recours devant des instances judiciaires nationales à l'encontre de ces fondations afin d'annulation de leurs titres de propriété sur les biens immobiliers acquis après 1936.

Ainsi, dans l'affaire Fener Rum Erkek Lisesi vakfı (34478/97) la propriété d'un immeuble que la fondation requérante avait acquis par donation en octobre 1952, a été inscrite au registre foncier au nom du trésor public, par décision d'un tribunal de grande instance.  Les faits sont largement similaires dans les affaires Yedikule Surp Pirgiç Ermeni Hastanesi Vakfı (36165/02) et Samatya Surp Kevork Ermeni Kilisesi (1480/03).

Dans ces affaires, la Cour européenne, après avoir constaté qu'aucune disposition de la loi n° 2762 n'interdisait aux fondations en cause l'acquisition de biens outre que ceux figurant dans la déclaration de 1936 et que c'était une interprétation jurisprudentielle des dispositions de cette loi par la Cour de cassation en 1974 qui avait donné naissance à cette restriction, a considéré que l'atteinte portée au droit à la propriété des requérantes n'avait pas satisfait à l'exigence de prévisibilité.

Dans l'affaire Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi vakfı (37639/03), la fondation requérante avait demandé auprès du tribunal cadastral l'enregistrement en son nom d'un immeuble dont elle aurait acquis la propriété par le jeu de la prescription acquisitive, en ce que l'immeuble en question était en sa possession depuis longtemps. Mais le tribunal cadastral a débouté la fondation de sa demande, en considérant qu'en l'absence de clause explicite dans sa déclaration faite en 1936, cette fondation ne pouvait non plus acquérir la propriété de cet immeuble par prescription acquisitive (violation de l'article 1 du protocole n° 1).

Mesures de caractère individuel : La Cour européenne a dit que l'Etat défendeur devait procéder à la réinscription des biens litigieux au nom des fondations requérantes dans un délai de trois à compter de la date à laquelle l'arrêt de la Cour européenne sera devenu définitif. A défaut, l'Etat devra verser une somme au titre du préjudice matériel.

• Dans ces affaires, les autorités turques ont soit payé la somme accordée par la Cour européenne au titre de satisfaction équitable, soit restitué à la fondation concernée le bien immobilier en question.

• Evaluation : aucune autre mesure individuelle ne semble nécessaire.

Mesures de caractère général :

La législation régissant le statut des fondations (la loi n° 2762) a subi une première modification en 2002 et une seconde modification en 2003, par la loi n° 4778 du 2/01/2003. L'article 3 de cette loi prévoyait que les fondations des minorités religieuses pouvaient acquérir des biens immobiliers et en disposer et ce, qu'elles soient ou non dotées de statuts (acte de fondation).

Dans un arrêt du 15/11/2005, le Conseil d'Etat a cependant limité la portée de ces amendements législatifs, en considérant que les amendements ne concernaient que les biens en possessions des fondations et ne régissaientt pas le statut des biens inscrits au registre foncier au nom de tierces personnes. En conséquence, la Cour européenne a estimé dans son arrêt Yedikule Surp Pirgiç Ermeni Hastanesi Vakfı(36165/02), que les amendements législatifs adoptés en 2002 et 2003 n'avaient permis à la requérante de demander la restitution de son bien ou une indemnisation à défaut d'une telle restitution. Par ailleurs, dans le cadre de l'affaire Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi vakfı (37639/03), les tribunaux nationaux avaient considéré que les amendements intervenus n'étaient pas applicables aux procédures en cours. Sur la base de cette jurisprudence, la Cour européenne a estimé qu'un recours dans le cadre des amendements précités, n'était pas une voie de recours à épuiser au sens de l'article 35 de la Convention.

Enfin, une nouvelle loi (n° 5737) portant sur les fondations a été adoptée en février 2008. Les dispositions pertinentes de cette loi sont les suivantes : Article 12« Les fondations peuvent acquérir ou posséder des biens immeubles, (...) ». Article 7 (provisoire) b) les biens immeubles acquis à titre onéreux par donation ou par succession, après le dépôt des déclarations de 1936 des fondations des minorités religieuses, et dont les titres sont toujours inscrits au nom du Trésor ou de la Direction [des fondations] ou bien du de cujus ou des donateurs au motif que ces fondations n'ont pas la capacité d'acquérir des biens, sont inscrits, avec les droits et obligations qui s'y rattachent et après avis favorable de l'assemblée [des fondations], à leur nom si celles-ci en font la demande au bureau cadastral concerné dans les dix-huit mois à compter de l'entrée en vigueur de la présente loi (...) »

Dans son arrêt Samatya Surp Kevork Ermeni Kilisesi (1480/03), la Cour européenne a estimé qu'elle était prête à reconnaître que la loi n° 5737 était susceptible de permettre aux fondations requérantes de faire redresser leurs griefs avec une perspective raisonnable de succès, en vertu notamment de son article 7. Elle a par ailleurs considéré que les fondations requérantes devaient en principe saisir le bureau du cadastre compétent afin de demander l'inscription des biens en question en leurs noms, pour épuiser les voies de recours internes au sens de l'article 35§1 (§24 de l'arrêt).

Toutefois, la Cour européenne a également observé que le Gouvernement n'avait produit aucun exemple propre à démontrer qu'un recours dans le cadre de la nouvelle loi n° 5737, avait été tenté avec succès par les fondations minoritaires et elle a en conséquence rejeté l'exception du non-épuisement des voies de recours internes avancée par le Gouvernement.

• Des informations sont attendues sur la mise en œuvre de la nouvelle loi n° 5737, notamment des exemples propres à démontrer qu'un recours dans le cadre de l'article 7 provisoire de cette loi a été tenté avec succès par des fondations minoritaires.

• Des informations sont également attendues sur la question de savoir s'il existe des voies de recours en indemnités pour les cas non couverts par la loi n° 5737, notamment lorsque les biens immobiliers ont été vendus dans l'intervalle à des tiers.

- 39 cases concerning the failure or substantial delay by the administration in abiding by final domestic judgments

38473/02           Kılıç Ahmet, judgment of 25/07/2006, final on 25/10/2006

27150/02           Ak, judgment of 31/07/2007, final on 31/10/2007

6982/04            Akdüz and others, judgment of 22/09/2009, final on 22/12/2009

12146/02           Akıncı, judgment of 08/04/2008, final on 08/07/2008

42894/04+         Arat and others, judgment of 13/01/2009, final on 13/04/2009 rectified on 29/06/2009

35528/03           Arıcı and others, judgment of 28/04/2009, final on 28/07/2009

28270/02           Ateş Hüseyin and Ateş Mehmet, judgment of 13/10/2009, final on 13/01/2010

5325/02+          Aygün and others, judgment of 20/11/2007, final on 20/02/2008

35075/97           Baba, judgment of 24/10/2006, final on 24/01/2007

14558/03           Buyruk, judgment of 08/04/2008, final on 08/07/2008

74069/01+        Çiçek and Öztemel and 6 other cases, judgment of 03/05/2007, final on 03/08/2007, rectified on 23/10/2007

2620/05            Çoban and others, judgment of 24/01/2008, final on 24/04/2008

28152/02           Demirhan, Görsav and Çelik, judgment of 05/06/2007, final on 05/09/2007

77361/01           Dildar, judgment of 12/12/2006, final on 12/03/2007

22261/03           Durmaz M. Ali, judgment of 08/01/2009, final on 08/04/2009

28877/03           Ekici and others, judgment of 23/09/2008, final on 23/12/2008

17597/03           Fırat and others, judgment of 06/10/2009, final on 06/01/2010

38323/04           Kaçar and others, judgment of 22/07/2008, final on 22/10/2008

3224/05            Kaplan Mehmet Ali and others, judgment of 16/12/2008, final on 16/03/2009, rectified on 09/06/2009

29016/04           Kaplan Mehmet, judgment of 09/12/2008, final on 09/03/2009

36424/06           Kılıç Kemal, judgment of 13/01/2009, final on 13/04/2009

31277/03           Kranta, judgment of 16/01/2007, final on 16/04/2007

27817/04           Kuş, judgment of 08/07/2008, final on 01/12/2008

13062/03           Kuzu, judgment of 17/01/2006, final on 17/04/2006

45559/04           Şahin Abidin, judgment of 18/12/2007, final on 18/03/2008

6124/02            Şahin Mehmet Emin, judgment of 24/03/2009, final on 24/06/2009

11912/04           Sakarya, judgment of 20/05/2008, final on 01/12/2008

11098/04           Sarıkaya Yavuz, judgment of 13/01/2009, final on 13/04/2009

13090/04           Selçuk Mehmet, judgment of 10/06/2008, final on 10/09/2008

27402/03           Sevgili, judgment of 18/12/2007, final on 18/03/2008

37054/03+         Tok and others, judgment of 20/11/2007, final on 20/02/2008

74405/01          Tütüncü and others, judgment of 18/10/2005, final on 18/01/2006

41246/98          Ünal Akpinar İnşaat İmalat Sanayi Ve Ticaret S.A. and Akpinar Yapi Sanaysi S.A., judgment of 26/05/2009, final on 06/11/2009

26664/05           Uygurer İnşaat San. Tic. Ltd Şti, judgment of 06/10/2009, final on 06/01/2010

9923/05+          Yavuz and others, judgment of 05/05/2009, final on 05/08/2009

14710/03           Yerebasmaz, judgment of 10/10/2006, final on 10/01/2007

10985/02+         Yerlikaya, judgment of 08/04/2008, final on 08/07/2008

13721/04           Yıldız Vaide and others, judgment of 20/10/2009, final on 20/01/2010

39994/04           Yılmaz M., judgment of 27/10/2009, final on 27/01/2010

These cases concern the violation of the applicants' right to a fair trial, and/or the right to the peaceful enjoyment of their possessions in certain cases, on account of the failure by administrative bodies to enforce judicial decisions awarding them compensation and other pecuniary awards (violations of Article 6§1 and/or Article 1 of Protocol No. 1).

The Kılıç Ahmet case also concerns the excessive length of the proceedings before administrative courts (violation of Article 6§1).

Individual measures:

1) Non-enforcement of domestic judgments: In the case of Kılıç Ahmet, the government provided a copy of a declaration signed by the applicant indicating that on 06/11/2006 he had received the full amount of compensation awarded by the domestic court, including interest. In the case of Yerebasmaz, the domestic judgment has been enforced: the relevant administration issued an order of payment and the full amount was made available to the applicant. Similarly, in the case of Çiçek and Öztemel and 6 other cases, confirmation was received on 11/02/2008 in the Çoban case, on 03/09/2008 in the Ak and Buyruk cases, that the sums owed in respect of domestic judgments have either been paid to the applicants' representatives or deposited on escrow accounts in the applicants' names. In the cases of Tok, Baba, Dildar, Kranta, Yerebasmaz, Kaplan Mehmet, Sakarya, Şahin and Sevgili the just satisfaction awarded by the European Court in respect of pecuniary damages were paid to the applicants. In the cases of Selçuk Mehmet and Kaplan Mehmet Ali, the domestic judgments have been implemented. The sums awarded by the European Court in respect of non-pecuniary damage were paid. In the Unal Akpinar case, the Court declared that the application of Article 41 was not ready for decision.

• Information is awaited on the enforcement of the domestic judgments in the cases of Aygün and others, Demirhan, Görsav and Çelik, Şahin Abidin, Akıncı, Kuş, Yerlikaya, Arat, Durmaz, Ekici, Kılıç Kemal, Sahin Mehmet Emin, Sarıkaya Yavuz, Arıcı (only for Kansu, Cingöz, Gülbahar and Ağca), Yavuz Bekir and others (only for the application nos. 14704/05 and 14650/05), Kuzu, Tütüncü and others, and Yılmaz M. (39994/04).

2) Length of administrative proceedings (case of Kılıç Ahmet): No individual measure is required as the proceedings are closed.

General measures:

1) Non-enforcement of judgments: The applicants were unable to secure the enforcement of the domestic judgment given in their favour due to the obstacles existing in the current Turkish legislation. In this respect, an individual or a private entity cannot legally seize the property of a municipality allocated to a public service, with a view to obtaining satisfaction of a judgment.

• Information is therefore awaited concerning the measures taken or envisaged to prevent similar violations, in particular ensuring the effective and timely enforcement of domestic court decisions.

• Information provided by the Turkish authorities (08/04/08): Since the European Court's judgment in this case, the new Penal Code came into force. Article 257 of the Code makes it a crime for public officials to fail to discharge their duties, by omission or delay.

• Assessment: While this provision is welcome, it is unlikely to prevent new, similar violations since the root cause of the violations established in these cases was not the public officials' failure to discharge their duties but the lack of sufficient public funds and the immunity of administrative bodies' property from enforcement proceedings (attachment, foreclosure etc).

• Information is accordingly awaited on general measures capable of allowing future creditors of administrative bodies to obtain judgment debts granted in their favour. In this regard, the Turkish authorities may wish to take into account the examples of other countries confronted with similar problems in the past in planning and adopting general measures (see, for example, the cases of Hornsby against Greece or Heirs of Dierckx against Belgium). 

2) Length of administrative proceedings (in the case of Kılıç Ahmet): General measures are being examined within the context of the Ormancı group (43647/98, Section 4.2).

33663/02           Mörel, judgment of 14/06/2007, final on 14/09/2007

The case concerns a violation of the applicant’s right to the peaceful enjoyment of his possessions due to the courts’ dismissal of the applicant’s application for additional compensation for expropriation on the ground that it was filed out of time, although the expropriation was not properly notified.

In 1988, the authorities decided to expropriate the applicant’s property. However, they failed to identify its owner as the property tax declarations could not be located and that the title deed office records indicated its original owner and was thus outdated. As direct notification was not possible, the expropriation was announced in local newspapers as well as over loudspeakers throughout the town, pursuant to Article 10 of Law on Expropriation No. 2942. In 1996, when he became aware of the expropriation, the applicant lodged an additional compensation claim. He relied on a principle of Turkish law that a prescription period would not run in the absence of proper notification. However the courts held that the manner in which the expropriation was notified was justifiable and thus the prescription period had elapsed.

The European Court concluded that the authorities did not show due diligence in notifying the applicant of the expropriation of the land and that the courts should have entertained the exception that he invoked. The Court therefore held that the applicant had been deprived of his property without adequate compensation (violation of Article 1 of Protocol No. 1).

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

• Assessment: Under these circumstances, no other individual measure seems required.

General measures:

• Information is awaited on measures taken or envisaged by the authorities, in particular publication and dissemination of the Court’s judgment to the relevant authorities, to prevent similar, future violations.

40998/98           Islamic Republic of Iran Shipping Lines, judgment of 13/12/2007, final on 13/03/2008

The case concerns the seizure in October 1991 of a ship flying the Cypriot flag as well as its cargo on suspicion of arms smuggling. The ship was chartered by the applicant, an Iranian shipping company.

The European Court noted that in December 1991, following an investigation into the matter, the Turkish Ministry of Foreign Affairs confirmed that in fact the cargo transported by the applicant belonged to Iran and that its seizure could not be justified by national security concerns. The Court therefore considered that it had been unjustified to impound the vessel until December 1992, when ship and cargo were restored. It also took the view that the refusal of national courts to compensate the applicant company for the damage sustained imposed a disproportionate burden upon it (violation of Article 1 of Protocol No. 1).

Individual measures: The vessel and its cargo were released and the European Court noted that the applicant received pecuniary damages in subsequent arbitration proceedings (§ 115 of the judgment).

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

General measures:

• Information is awaited on measures taken or envisaged by the authorities, in particular the publication and dissemination of the judgment to judicial authorities.

39515/03           Okçu, judgment of 21/07/2009, final on 21/10/2009, rectified on 24/08/2009

The case concerns the excessive length of certain proceedings: more than 15 years before administrative courts, and the lack in Turkish law of an effective remedy in this respect (violations of Articles 6§1 and 13).

The case also concerns the violation of the applicant’s right to the peaceful enjoyment of his possessions due to the considerable loss in value of the compensation awarded after fifteen years and four months of proceedings and the lack of effective remedy in this respect (violations of Article 1 of Protocol No. 1 and of Article 13).

The European Court, with reference to the jurisprudence of the Turkish Constitutional Court and Council of State, noted that Turkish administrative law provides no possibility to a litigant party to ask for re-evaluation of the initial amount of compensation at the subsequent stages of proceedings. The Court therefore concluded that Turkish administrative law failed to secure sufficient redress for the applicants’ loss in value of the compensation resulting from the slowness of the proceedings in an administrative case engaging the state’s responsibility. In this respect, the Court concluded under Article 46 that to provide within the domestic judicial system the possibility to request re-evaluation of the initial compensation amount during the continuation of proceedings could be an appropriate form of redress, making it possible to put an end to the violations of Article 13 in combination with Article 1 of Protocol No. 1.

• To date, the authorities have provided no information.

4889/05+          Karataş and Yıldız and others, judgment of 16/07/2009, final on 16/10/2009

The case (ten applications) concerns the excessive length of civil proceedings which had variously lasted between 15 and 17 years because first-instance judgments were not notified to the Treasury (for failure to pay costs) for 11 to 13 years before the appellate stage and thus could not become final (violation of Article 6§1).

The European Court observed that it is not clear from the case file whether, and if so when and by which party, the fees for service were paid following the delivery of the first-instance judgments. It is also unclear whether the Treasury, being a state enterprise and thus exempt in principle from all fees and charges, was also exempt from the payment of fees for service in the present cases. The European Court pointed out that in five of the applications (Nos. 42996/06, 43031/06, 43019/06, 43038/06 and 43054/06), although the first-instance judgments of 20/12/1990 were served on the applicants on 3/08/1992, they were not served on the Treasury until 6/05/2002, some eleven years later. This indicates that at least the applicants’ share of the fees for service in those cases was paid in due time and that, despite that payment, a lengthy delay in service on the Treasury had still taken place. The European Court stated that, even assuming that the Treasury was not exempt from the fees, it cannot be expected of the applicants that they take additional steps, such as the payment of the fees for service on behalf of the Treasury, in an attempt to make the judgments final, as this would have imposed an excessive burden on them.

• To date, the authorities have provided no information.

                        - 168 cases of excessive length of judicial proceedings

                        (See Appendix for the list of cases in the Ormancı group)

A. CASES BEFORE ADMINISTRATIVE COURTS

These cases concern the excessive length of compensation proceedings before administrative courts.

Some of these cases particularly concern loss sustained as a result of the death of applicants' relatives during clashes involving the security forces (violations of Article 6§1).

The cases of Ayık, Koşal, Olcarand Şenol Uluslararası Nakliyat concern the absence of any remedy in Turkish law by which the applicants might have complained of the length of proceedings (violations of Article 13).

The Baş case also concerns a breach of the applicant's right to the peaceful enjoyment of her (violation of Article 1 of Protocol No. 1).

Individual measures: It is observed that in seven cases, proceedings are still pending before domestic courts (see appendix).

• Information is awaited as to whether these proceedings are still pending and on their acceleration if need be.

General measures: In reply to the Secretariat's initial-phase letter of 02/06/2005 the Turkish authorities gave information on 18/07/2005, 01/08/2005 and 29/09/2005 on measures envisaged to prevent lengthy proceedings before administrative courts.

- A new Code of Administrative Procedure is being drafted with a view to decreasing the workload of administrative courts. It also lays down procedures for resolving disputes before the trial stage and for friendly settlements and envisages a number of amendments with the aim of reducing the length of proceedings before administrative courts. These amendments were submitted to the office of the Prime Minister on 23/05/2005.

- Preparations are under way for the adoption of a draft law on the establishment of the Council of Scrutiny of Public Works (Kamu Denetciliği Kurumu Kanunu), which will provide that all disputes between the administration and citizens regarding public works will first be examined by an Ombudsman before being brought before the administrative authorities or the administrative courts.

On 13/03/08, the authorities further indicated that the draft had been passed into law on 28/09/06. However, a challenge was made before the Constitutional Court, which suspended application of the law on 27/06/06, pending its examination.

- The Law on the Council of State (Law No: 2575) was amended by Law No. 5183 of 02/06/2004 whereby a new Chamber (the 13th Chamber) was established and the functions and jurisdictions of the other Chambers were revised with the aim of reducing the length of proceedings before the Council of State.

- The judgment in the case of Ormancı and others was published in the Bulletin of the Ministry of Justice (No.74).

• Information is awaited on the adoption of these draft laws and their texts, as well as the outcome of the challenge before the Constitutional Court.

B. CASES BEFORE CIVIL COURTS

These cases concern the excessive length of civil proceedings (violations of Article 6§1). The case of Çolak also concerns a violation of the applicants' right to respect for their private life due to the courts' inability to decide the paternity question promptly or to oblige the alleged father to take a DNA test (violation of Article 8).

Lastly, the cases of Bahçekaya, Çolak, Şener, Tamar; Başaran, Daneshpayeh and Yıldız and others concern the absence of any remedy in Turkish law by which the applicants might have complained of the length of proceedings (violation of Article 13).

In particular, in the Daneshpayeh case the Court, pointing out that the violation of Article 13 had occurred because there was no national court before which the applicant could complain about the length of judicial proceedings, held that the most appropriate means of putting an end to the violation found would be to bring the domestic law into line with Article 13 of the Convention. It also referred to its case-law and drew the government's attention to the relevant texts adopted by the Committee of Ministers (Res(2004)3 and Rec(2004)6), in particular regarding judgments revealing an underlying systemic problem and regarding the improvement of domestic remedies.

Individual measures: It is observed that in seven cases the proceedings are still pending before domestic courts (see appendix).

• Information is awaited as to whether these proceedings are still pending and on their acceleration if need be.

General measures: In reply to the Secretariat's initial-phase letter of 02/06/2005 the Turkish authorities submitted the following information on 15/09/2005:

- According to the statistics provided by the Ministry of Justice, the average length of civil proceedings in Turkey is 177 days before first-instance courts and 86 days before the Civil Chambers of the Court of Cassation.

- The competence and jurisdiction of Civil and Criminal Courts of First Instance were reorganised and Regional Courts were established with the coming into force of Law No. 5235 of 26/09/2004.

- A number of new courts have recently been established in Turkey, namely 823 Civil Peace Courts, 960 Civil Courts of First Instance, 704 Cadastral Courts, 174 Enforcement Courts, 98 Labour Courts, 149 Family Courts, 54 Commercial Courts, 20 Consumer Rights Courts, 4 Intellectual Property Rights Courts, 19 Juvenile Courts and 1 Maritime Court.

- A new Law amending the Code of Civil Procedure is being drafted in order to prevent lengthy proceedings before civil courts. On 13/03/08, the authorities indicated that the preparatory work on this new law continued.

• Information is awaited on the adoption of this draft law as well as on publication and dissemination of the judgment of the European Court, in particular to family courts and the Court of Cassation.

C. CASE BEFORE LABOUR COURTS

This case concerns the excessive length of proceedings concerning civil rights and obligations before the Istanbul Labour Law Court (the proceedings began in January 1994 and ended in June 1999) (violation of Article 6§1). Şirin case also concerns the absence of any remedy in Turkish law by which the applicant might have complained of the length of proceedings (violation of Article 13).

Individual measures: No proceedings are pending, except in the case of Karyağdı.

• Information is awaited on the acceleration of these proceedings if they are still pending.

General measures: The Secretariat wrote to the Turkish authorities on 03/04/2006 requesting information on the measures taken or envisaged. On 13/03/08, the authorities indicated that procedure before labour courts was governed by the Code of Civil Procedure. Hence, the planned changes in the draft Code of Civil Procedure, once put into place, should reduce the length of proceedings before these courts.

• Information is awaited on the adoption of these draft laws and their texts, as well as on publication and dissemination of the judgment of the European Court, in particular to labour courts and the Court of Cassation.

D. CASES BEFORE CRIMINAL COURTS

These cases concern excessive length of proceedings before criminal courts (violations of Article 6§1). The case of Kahraman Yılmaz and others presents similarities to the Şahiner group of cases, except the compensation proceedings regarding the applicant Ahmet Cihan.

The case İletmiş also concerns the unjustified interference with the applicant's right to respect for his private and family life as a result of the confiscation of his passport while the lengthy criminal proceedings were pending against him (violation of Article 8). (For the measures taken in the case of İletmis concerning the violation of Article 8 of the Convention, see the Annotated Agenda at the982nd meeting (December 2006, section 4.2)).

The cases of Vurankaya, Samsa, Başaran, Şahin Fedai, Şahin Volkan, Özcan and Özcan concern the absence of any remedy in Turkish law by which the applicants might have complained of the length of proceedings (violation of Article 13).

Individual measures: It is observed that in fifteen cases the proceedings are still pending before domestic courts (see appendix).

• Information is awaited as to whether these proceedings are still pending and on their acceleration if need be.

General measures:

• Information provided by the Turkish authorities (13/03/2008): The authorities pointed to the new Code of Criminal Procedure which introduced new mechanisms to accelerate proceedings. The principal changes in this regard include:

(i) notifications are now made directly by the courts. The trial judge shall directly notify the parties to a case as well as third parties;

(ii) the new Code addresses summonsing of witnesses to bring it in line with the Convention's requirements. To speed up the hearing of witnesses, summonses may now be issued by telephone, telegram, fax or e-mail;

(iii) jurisdictional decisions of criminal courts may now be appealed before regional courts;

(iv) a maximum period is introduced for detention pending trial, to encourage judges to move towards a verdict more speedily;

(v) grounds for cassation applications are set down in more detail and in a more restrictive manner.

These measures are currently being assessed by the Secretariat. For the measures taken in the case of İletmis concerning the violation of Article 8, see the Annotated Agenda at the 982nd meeting (December 2006, section 4.2).

E. CASES BEFORE COMMERCIAL AND CONSUMERS' COURTS

Individual measures: No proceedings are pending, except in the Erhun and Seval Tekstil cases.

• Information is awaited on the acceleration of these proceedings if they are still pending.

General measures: On 13/03/08, the authorities indicated that procedure before commercial and consumers' courts was governed by the Code of Civil Procedure. Hence, the planned changes in the draft Code of Civil Procedure, once put into place, should reduce the length of proceedings before these courts.

• Information is awaited on the adoption of these draft laws and their texts, as well as on publication and dissemination of the judgment of the European Court, in particular to commercial and consumer courts and the Court of Cassation.

F. CASES BEFORE LAND REGISTRY COURTS

Individual measures: It is observed that in ten cases the proceedings are still pending before domestic courts (see appendix).

• Information is awaited as to whether these proceedings are still pending and on their acceleration if need be.

General measures: On 13/03/08, the authorities indicated that procedure before cadastre courts was governed by the Code of Civil Procedure. Hence, the planned changes in the draft Code of Civil Procedure, once put into place, should reduce the length of proceedings before these courts.

• Information is awaited on the adoption of these draft laws and their texts, as well as on publication and dissemination of the judgment of the European Court, in particular to cadastre courts and the Court of Cassation.

G. CASES BEFORE MILITARY COURTS

Individual measures: The proceedings are still pending in the case of Özel and others.

• Information is awaited on the acceleration of the proceedings if they are still pending.

General measures: None, there does not seem to be a systemic problem of excessive length of proceedings before Military Courts in Turkey.

Assessment: Further to the general measures mentioned above, in context of all types of proceedings in this group of cases, the attention of the authorities should be drawn to the fact that Turkish law still provides no effective remedy in respect of excessive length of proceedings. Measures in this respect should be taken. It is important to note that in a number of cases the European Court observed that Turkish legal system does not provide any remedies to accelerate the proceedings or to provide litigants with adequate redress, i.e., to obtain any compensation for the delays in the proceedings and that the applicants did not have personal rights to compel any other authority to exercise its supervisory jurisdiction over the trial court to expedite the proceedings (see, for example, Bahçekaya, §28, Tendik, §36, Olcar §27, Mete §§18-19, Sencan, §24, Pekinel §43, Daneshpayeh §51).

• Information is awaited on measures taken or envisaged to introduce an effective acceleratory remedy in respect of the excessive length of proceedings, and/or adequate redress for the delays already occurred, in particular considering the Court’s findings under Article 46 of the Convention in the Daneshpayeh judgment (§51).

75569/01           Çetinkaya, arrêt du 27/06/2006, définitif le 27/09/2006

L’affaire concerne une violation du droit du requérant à la liberté d’association, en raison de sa condamnation pénale en 2000 (en vertu de l’ancien article 37 de la loi n° 2908 du 6/10/03) pour avoir été présent, en sa qualité de dirigeant d’une association de droits de l’homme, à une conférence de presse qui s’est transformée, de fait, en un rassemblement qualifié d’illégal par les autorités, indépendamment d’une quelconque appréciation quant aux modalités pacifiques ou non de son déroulement ou du comportement du requérant.

La Cour européenne a noté que le cadre juridique ayant servi de base à la condamnation du requérant s’analysait en une mesure générale d’interdiction, cantonnant l’exercice de la liberté de réunion pacifique dans des limites incertaines, dépendantes de l’appréciation opérée à cet égard par les autorités nationales quant aux buts et statuts des associations.

La Cour a par conséquent conclu que de telles mesures affectaient indéniablement à la fois la liberté d’association et l’état de la démocratie et n’étaient par conséquent pas « nécessaires dans une société démocratique » (violation de l’article 11).

Mesures de caractère individuel : La condamnation du requérant au paiement d’une amende a été assortie d’un sursis en vertu de la loi n° 647. En outre, sa condamnation a été effacée de son casier judiciaire.

• Evaluation : aucune autre mesure individuelle ne semble nécessaire.

Mesures de caractère général : La loi n° 2908 à l’origine de la violation constatée dans cette affaire a été abrogée et remplacée par une nouvelle loi sur les associations (n° 5253 du 4/11/04), entrée en vigueur le 23/11/04.

Cependant, la nouvelle loi sur les associations (n° 5253 du 4/11/04) contient toujours une interdiction similaire à son article 30a) qui dispose que les associations ne peuvent mener d’activités qui ne correspondent pas aux buts et formes d’activités définies dans leurs statuts. Par ailleurs, l’article 32o) de cette loi prévoit une peine d’amende pour les dirigeants d’associations qui auraient transgressé l’interdiction prévue par l’article 30a) précité.

• Des informations sont donc attendues sur les mesures prises ou envisagées afin de prévenir de nouvelles violations similaires.

Les Délégués décident de reprendre l'examen de ce point lors de leur 1100e réunion (décembre 2010) (DH), à la lumière d'informations à fournir sur les mesures générales. / The Deputies decided to resume consideration of this item at their 1100th meeting (December 2010) (DH), in the light of information to be provided on general measures.

- 45 cases against Ukraine / 45 affaires contre l'Ukraine

32478/02          Shevchenko, judgment of 04/04/2006, final on 04/07/2006

The case concerns the failure to conduct an effective and independent investigation into the death in October 2000 of the applicant's son (A.S.) while he was posted as a guard in a military unit (procedural violation of Article 2).

The European Court noted certain important inconsistencies and deficiencies in the investigation. The Court also observed that the investigation did not ensure sufficient public accountability or scrutiny and safeguard the interests of the next-of-kin since the applicant, contrary to the usual practice under national law, was excluded from the proceedings by the refusal to grant him victim status. Finally, the inquiry had not satisfied the minimum requirements of independence since first, the investigating body represented the authority involved and, secondly, the investigators from the Military Prosecutor's Office, although not part of the authority involved, were nevertheless servicemen, subject to military discipline.

Individual measures: The Court awarded the applicant just satisfaction in respect of non-pecuniary damage (€ 20 000).

On 15/11/2006, following the European Court’s judgement, the Prosecutor General quashed a final report of the investigation into the death of the applicant's son of 29/04/02 - which was based mainly on a suicide theory - and ordered further investigation in the case. According to the Ukrainian authorities, in the course of the re-opened investigation a number of investigative actions was taken, including those mentioned by the Court, and all versions as to the reasons and circumstances of the A.S.'s death were considered. It was concluded that the A.S.’s death had resulted from suicide and not from premeditated murder.

On 29/12/2006 the criminal case on the A.S.’s death was closed in accordance with Article 6§1 of the Code of Criminal Procedure, no crime having been occurred. The lawfulness of the resolution on closure of the criminal case was verified by the Western Region Military Prosecutors’ Office and was found to be founded. The same opinion was also given by the Prosecutor General’s Office. It established that the investigation was complete, objective and comprehensive and that there were no grounds to quash the resolution. According to the Ukrainian authorities, the parents of A.S. were informed that the case had been closed in due time and received a copy of the resolution - they have not appealed against it.

• Information is still awaited as to whether the applicant was given victim status and might participate in the new investigation. More detailed information would also be welcome as to how all versions as to the reasons and circumstances of A.S’ death were considered.

General measures: The problem of the failure to conduct an effective investigation has already been raised before the Committee of Ministers in the context of the procedural violations of Article 2 (see Gongadze, 34056/02, Section 4.2) and Article 3 (see e.g. Afanasyev, 38722/02, Section 4.2).

The Shevchenko case raises new issue relating to the ineffectiveness and lack of independency of the investigation conducted by the military officers (structures) into the death of a military serviceman while on duty.

• Information is still awaited on the action plan for the execution of this judgment and, in particular, on measures taken or envisaged to remedy the shortcomings identified by the European Court, relating to the independence of the investigation, exemplary diligence and promptness and public scrutiny in the army. Such measures may require changes in the legal and regulatory framework governing this kind of investigation. Appropriate training and awareness-raising measures would also appear necessary.

• The publication and dissemination of the Court's judgment among the relevant authorities and domestic courts are also expected, possibly together with circulars or explanatory notes stressing the problems identified by the European Court.

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

                       Interim Resolution CM/ResDH(2008)35, Interim Resolution CM/ResDH(2009)74

The case concerns the disappearance and murder of the applicant's husband, the journalist G. Gongadze, in September 2000.

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

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

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

Individual measures: The investigation into the death of G. Gongadze was pending when the European Court delivered its judgment.  

On 15/03/2008 the Kyiv City Court of Appeal delivered a verdict against three former officers of the Ministry of Internal Affairs charged with premeditated murder of G.Gongadze, finding the accused guilty as charged and sentencing two of them to 12 years' and the third to 13 years' imprisonment. This judgment was upheld by the Supreme Court of Ukraine on 8/07/2008.

On 21/07/2009 O. Pukach, the immediate superior of the three convicted police officers and allegedly the main perpetrator of the murder, was apprehended in the course of a special

operation. He indicated where Mr Gongadze’s head had been buried. Bones and parts of a human skull were found there which, following forensic tests including a DNA test, were identified as belonging to the victim.

“Melnychenko recordings”: In the course of the investigation, the authorities tested certain audio recordings allegedly secretly made by M. Melnychenko in the office of the President of Ukraine, implicating President Kuchma and other high-level state officials in the disappearance of G. Gongadze. In 2005 M. Melnychenko expressed his readiness to hand over the original tape recordings and recording devices to investigative authorities for examination, if foreign experts were involved in their examination. In the meantime, the Prosecutor General's Office decided not to institute criminal proceedings against the key Ukrainian officials whose voices were allegedly to be heard on the tapes, since the original tape-recordings made by M. Melnychenko had never been seized. In 2008 a group of international experts was set up to determine the authenticity of the recordings. Expert examination of the tape recordings was completed on 14/06/2010, concluding that part of the recording was copied and not original. Following further questioning of M. Melnychenko, the original recordings are to be obtained and examined by the experts.

Pre-trial investigations are still pending in the criminal case against O. Pukach, as well as other unidentified alleged instigators and organisers of the kidnapping and murder of G. Gongadze.

• First 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.

Second Interim Resolution adopted by the Deputies at their 1065th meeting (September 2009):

The Committee of Ministers:

-           strongly encouraged the Ukrainian authorities, in the light of the recent developments, to enhance their efforts with a view to bringing to an end the ongoing investigation while bearing in mind the findings of the Court in this case;

-           invited the respondent state to continue keeping the Committee regularly informed of the measures taken, and the results achieved, to ensure full execution of the judgment.

• Information is awaited on measures taken with a view to concluding the investigation, bearing in mind the findings of the Court in this case.

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 the investigation: Since 2006, the Ukrainian authorities have informed the Committee of a number of legislative initiatives aimed at reforming the prosecution system in Ukraine. In particular, information on the “Concept of Compressive Reform of Criminal Justice System” to be adopted by the President of Ukraine and on several drafts laws on the Office of Public Prosecutor was provided. However, no progress has been achieved so far in their adoption.

• Up-to-date information is awaited on measures taken or planned to reform the prosecution system to ensure, inter alia, independence of investigations in criminal cases. 

            2) Remedies against the excessive length of investigations: The establishment of a domestic remedy for complaints against excessive length of criminal proceedings is being examined by the Committee in the context of the Merit group of cases (66561/01, 1100th meeting, December 2010).

3) Publication and dissemination: The judgment of the European Court has been translated and published.

• Information is awaited on the dissemination of the judgment.

29971/04           Kats and others, judgment of 18/12/2008, final on 18/03/2009, rectified on 06/05/2009

The case concerns the authorities’ failure in their obligation to protect the life of Olga Biliak (a relative of the applicants) who was HIV-positive and died in a pre-trial detention centre due to inadequate medical care (substantive violation of Article 2). It also concerns the failure to conduct an effective and independent investigation into the circumstances of Ms Biliak’s death due to the lack of exemplary diligence and public scrutiny (procedural violation of Article 2).

The case further concerns the unlawfulness of the detention of Ms Biliak from 29/01 to 1/02/2004 as she was not freed as soon as her discharge was received (violation of Article 5§1).

The police department ordered Ms Biliak’s release in view of her state of health, but the detention centre took several days to carry out the order and in the meantime, she died.

In its judgment, the European Court noted in particular that although the authorities were aware of Ms Bilak’s HIV status and her vulnerability to other illnesses, the treatment given to her was very basic. Moreover, she was remanded in a general facility even though the authorities acknowledged that she needed to be admitted to hospital and asked the investigators to authorise her release on medical grounds. Repeated requests submitted by her lawyers for her release on medical grounds were refused by the prosecution authorities without considering her health issues.

The Court further observed serious inconsistencies and deficiencies in the investigation of Olga Biliak’s death. In particular, the detailed instructions by domestic courts, when remitting the case for further investigation, as to what evidence should be obtained and what circumstances should be established concerning her death were not fully complied with by the investigating authorities. Nor have the investigation authorities ever properly addressed the main issue of the applicants’ complaints, namely the quality of the medical treatment provided in view of the medical conditions diagnosed in their relative.

Furthermore, certain aspects of the investigation did not satisfy the minimum requirement of independence: in particular certain testimony, namely the statements of Olga Biliak's cellmates, was obtained by the authority directly involved. No attempt was made by the prosecution to hold fresh interviews with those witnesses or to corroborate their statements by any other means.

Finally, the investigation did not ensure sufficient public accountability or scrutiny and safeguard the interests of the next-of-kin, as throughout the investigation the applicants were to a large extent excluded from the proceedings. Having no formal status in the proceedings, the applicants were denied access to the file and were never informed or consulted about any proposed evidence or witnesses.

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

• Information provided by the Ukrainian authorities (5/05/2010): Following a further investigation of Olga Biliak’s death, criminal proceedings were instituted against the prison doctor whose professional misconduct allegedly led to it. These proceedings are pending.

• Information is awaited on the outcome of the proceedings and in particular on how the shortcomings identified by the Court were remedied.

General measures:

            1) Failure to protect the right to life of persons in detention: Questions regarding the lack of appropriate medical treatment for detainees have already been raised before the Committee of Ministers in the context of Article 3 (see, for instance, the Melnik case, 72286/01, 1092nd meeting, September 2010).

The present case raises the specific issue of medical care of HIV-positive detainees on remand.

The attention of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has already been drawn to the increasing number of HIV-positive prisoners. In its report (CPT/Inf (2004) 34), the CPT noted that Ukrainian Department for the Execution of Sentences had devised a priority strategy for curbing the spread of the virus, based on an awareness and information campaign targeting prisoners and prison staff, the introduction of confidential voluntary screening tests and follow-up after the tests, the provision of means of prevention and disinfection for prisoners and the prohibition of discrimination against HIV-positive prisoners.

• Information would be useful on the results of implementation of the strategy, including whether it also concerns detainees in pre-trial detention facilities. Information is also awaited on other measures taken or planned to safeguard the lives of detainees under the authorities’ control, in particular, those suffering from serious deceases, including AIDS, and on the procedural rules governing release of persons from pre-trial detention for medical reasons. 

            2) Lack of effective and independent investigation: The present case raises the issue of the ineffectiveness and lack of independence of investigations of the deaths of detainees.

• Information is awaited on the measures taken or planned to execute this judgment and particularly to remedy the shortcomings identified by the European Court relating to the independence of investigations and exemplary diligence in the investigation of incidents in detention facilities.

            3) Unlawful detention: It emerges from the judgment that the violation was due to clerical error, in particular mishandling correspondence.

• Information is awaited on measures taken or envisaged to ensure strict compliance with the legislation providing immediate discharge of a detainee upon receipt of the release order.

The European court’s judgment has been translated into Ukrainian and placed on the Ministry of Justice official web-site (www.minjust.gov.ua). The judgment was published in the official government publication, the Official Herald of Ukraine [Ofitsiinyi Visnyk Ukrainy] No. 18 of 22/03/10. A summary was published in the Government’s Currier [Uriadovyi Kurier], No. 71, of 18/04/2009.

It was sent to the State Department for the Execution of Sentences accompanied by an explanatory notes stressing the problems identified by the Court and also sent out to regional prosecutors’ offices and the prosecutors’ office in Kiev and Sevastopol.

The by Academy of Prosecutors has been requested to include the case in its curriculum.

• Information is awaited on possible training for the appropriate authorities to prevent further similar violations.

- 2 cases concerning the failure to conduct an effective investigation into suspicious deaths

39964/02           Khaylo, judgment of 13/11/2008, final on 13/02/2009

249/03              Muravskaya, judgment of 13/11/2008, final on 13/02/2009

Both cases concern ineffective investigation into the death of the applicants’ relatives (procedural violations of Article 2).

In the Khaylo case, on 30/04/2002 the applicants found their relative, A.Kh., who lived in an annex to their house, dead in his bed. The autopsy concluded that it was not possible to establish the cause of death. In May 2002 the police decided not to launch a criminal investigation as they considered that there was no evidence of homicide. The applicants appealed, claiming that there was a strong probability that A.Kh. had been killed, being a key witness in criminal proceedings involving organised crime. They noted in particular that they had found rubber gloves and a hammer on the table in A.Kh.’s room. Moreover his height as indicated in his medical records was not the same as that of the body which was autopsied. The case was subsequently remitted several times for further investigation; the Prosecutor’s Office ultimately discontinued the proceedings in March 2006 on the ground that there was no evidence of a crime.

The Court considered that it had been the Ukrainian authorities’ duty to investigate A.Kh.’s sudden death, given that he had had no record of any illness and had, according to the applicants, been a key witness in criminal proceedings involving organised crime. It noted that a preliminary inspection of the scene of A.Kh.’s death had been immediately carried out by the police and medical experts. However, the body had not been measured, photographs taken could not be developed as the film was defective, and the bedroom door had not been examined properly to determine whether it could have been locked from outside. Objects which could have been used as evidence (such as the gloves and hammer) had not been collected or examined. Nor had the subsequent remittals of the case in the years that followed A.Kh.’s death redressed the deficiencies of that initial inquiry. The Court was particularly struck by the fact that, in the decision of March 2006 to discontinue the proceedings, mention was made of a medical certificate issued the day before A.Kh.’s death which had been submitted by his employer. However, the contents of that certificate had not been used in the analysis of the likely causes of death and A.Kh.’s employer had not been questioned.

In the Muravskaya case, the applicant’s son, who had disappeared in January 1999, was found dead in a lake on 18 March. A forensic medical examination of the corpse was carried out the same day and concluded that the cause of death could not be established. Shortly afterwards, the investigator of the Slavyansk Prosecutors’ Office, basing his decision on that forensic report and the statements of four witnesses who had been with the applicant’s son on the day he died and who testified that they had had a fight with him, refused to bring criminal proceedings. Further forensic examinations concluded that the applicant’s son had died as a result of violence and in particular a serious facial injury which could not have occurred through a fall. On 12/06/2000 the case was reclassified from an investigation of assault of the applicant’s son to one of intentional grievous bodily harm which had caused his death. Several decisions by the investigators to suspend the criminal proceedings were quashed and instructions given to pursue the investigation. In particular it was requested that certain issues were clarified such as: why had the applicant submitted that certain individuals had confessed to her that her son had been murdered; and, why had the police omitted to search the lake where the applicant’s son had been found although neighbouring lakes had been checked? Most recently a decision to suspend the investigation because it was impossible to establish the identities of those responsible was quashed and the case remitted for further investigation. The investigation is currently still pending.

The Court observed that the efficiency of the investigation into the disappearance and death of the applicant’s son had been undermined at the initial stages. First, the law-enforcement bodies had failed to carry out a prompt and comprehensive search for the applicant’s son, so that the deterioration of the corpse had reduced the chances of establishing more precisely the cause of death. Secondly, the initial forensic examination had served as a strong argument not to investigate the claim that the applicant’s son had died a violent death, despite subsequent reports which consistently concluded that he had died as a result of a serious facial injury. It was not until 14 months after the corpse had been found that the case had been reclassified. Furthermore, clear instructions to take further investigative steps had not always been followed.

Individual measures:

            1) Khaylo case: the Court awarded the applicants just satisfaction in respect of non-pecuniary damage.

• Information is awaited on measures taken following the Court’s judgment.

            2) Muravskaya case: the applicant submitted no claim for just satisfaction. The Court therefore made no award. When the Court delivered its judgment the investigation into the disappearance and death of the applicant’s son was still pending.

• Information is awaited on progress of that investigation and, in particular, on measures taken following the Court’s judgment.

General measures:

• Information is awaited on measures taken or planned to comply with the Court’s judgments, including those aimed at improving quality of investigations.

72286/01           Melnik, judgment of 28/03/2006, final on 28/06/2006[26]

18660/03           Malenko, judgment of 19/02/2009, final on 19/05/2009

The case concerns degrading treatment of the applicant in prison due to his subjection to regular strip-searches, in front of other detainees, when entering and leaving the prison factory at Dykanivska prison (violation of Article 3).

The case also concerns the poor conditions under which the applicant was detained between 2000 and the date of the delivery of the Court’s judgment, in Sokirianska prison No.67 and Dykanivska prison No.12, as well as Mariupol Pre-trial Detention Centre (SIZO). The violation resulted from overcrowding, unsatisfactory hygiene and sanitation conditions in these establishments, and clearly insufficient medical care provided to applicant there (violation of Article 3).

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

The applicant was serving his sentence in the Dykanivska prison No.12 when the European Court rendered its judgment.

• Information is awaited on the measures taken/planned following the European Court’s judgment.

General measures: 

            1) Strip Searches: The Court noted that no information had been provided concerning any peculiarity of the industrial process at the prison factory where the applicant worked or any other reason which might justify strip-searches.

• Information is expected on measures taken or planned following the European Court’s judgment, and on. the rules governing strip-searches in prisons.

            2) Detention conditions in prison: The issue of conditions of detention in prison, including the lack of adequate medical assistance for tuberculosis patients, is being examined by the Committee of Ministers in the context of the Melnik case (72286/01, Section 4.2).

            3) Conditions of pre-trial detention: The issue of conditions of detention on remand, including the lack of adequate medical assistance, is being examined by the Committee of Ministers in the context of Nevmerzhitsky group of cases (54825/00, Section 4.2).

            4) Publication and dissemination: The judgment of the European Court has been translated and published. The Department for Execution of Sentences and its territorial divisions have been informed of the judgment in writing. To prevent further violations, the Department included the study of the Convention and the Court’s case-law in professional training for staff of the State Service for Execution of Sentences.

By letters of 04/06/2009 the Government Agent drew attention of the Supreme Court of Ukraine, the Prosecutor General, the Ombudsman and the Ministry of Internal Affairs to the Court's conclusions in this case.

32092/02           Yaremenko, judgment of 12/06/2008, final on 12/09/2008

The case concerns the failure to investigate effectively the applicant’s allegations of ill-treatment in police custody in 2001, in particular due to the lack of independence and objectivity of the investigation (procedural violation of Article 3).

The European Court noted that the applicant had had no timely, specific medical examination, despite an explicit request made by his lawyer the day after the alleged ill-treatment. No investigative action had actually been taken following a complaint by the applicant’s wife, although, had the allegations been taken seriously, her information would have sufficed to enable an independent investigator to identify the alleged perpetrators. The Court further noted that the applicant had allegedly been ill-treated by the same prosecutor who subsequently questioned him and the officers accused of the ill-treatment

The case also concerns a violation of the applicant's right to silence and not to incriminate himself due to the use at trial of a confession obtained illicitly.

The European Court noted that the domestic courts convicted the applicant solely on the basis of his statements, although they had given in the absence of a lawyer and retracted immediately after the applicant had been granted access to the lawyer. There had been no adequate investigation of the applicant allegation that the statements had been obtained by illicit means (violation of Article 6§1).

The case further concerns the authorities’ denial of the applicant’s right to legal assistance due to the way in which the police investigator had exercised his discretionary power concerning the classification of the investigated crime and the way in which and the reasons given for, removing the applicant's lawyer the day the applicant confessed.

In particular, having charged the applicant with an offence in respect of which legal representation was not obligatory, the authorities accepted the applicant’s waiver of his right to a lawyer, obtained confession from him and thereafter immediately reclassified the offence and committed the applicant to a court for a murder – a charge in respect of which legal representation is obligatory. The Court noted that, as a consequence, the applicant did not benefit from obligatory representation, which placed him in a situation in which he, as he alleged, had been coerced into waiving his right to counsel and incriminating himself.

The Court finally considered that removal of the applicant’s lawyer on the ground of a breach of professional ethics by advising his client to assert his innocence and retract part of his previous confession had raised serious questions as to the fairness of the proceedings in their entirety (violation of Article 6§3 (c)).

Individual measures: As the applicant submitted no claim for just satisfaction, the Court made no award. Ukrainian law provides that court proceedings may be reopened if the European Court finds a violation.

• Information provided by the Ukrainian authorities (letter of 16/10/2009): Following the Court’s judgment, the applicant’s lawyer and the Deputy Prosecutor General applied to the Supreme Court of Ukraine ("the SCU") for reopening of the criminal proceedings to review the sentence of 12/11/2001. On 31/07/2009 the SCU, amended the sentence, still finding the applicant guilty as charged.

• Information provided by the applicant (letters of 18/09/2009 and 19/11/2009): The applicant complains of the unfairness of the re-hearing of the case by the SCU. He states in particular that, instead of quashing the sentence and sending the case for a re-trial, the SCU re-assessed the facts and evidence in the case, thus going beyond its jurisdiction under the law. Moreover, in doing so the SCU disregarded the European Court’s findings in the case.  

In this respect, in December 2009, the applicant submitted a second application before the European Court claiming violation of Articles 6§1 and 46 of the Convention on account of the proceedings before the SCU.

• The information provided is being assessed.

General measures:

            1) Lack of an effective investigation into allegations of ill-treatment while in police custody: this issue is being examined by the Committee of Ministers in the Afanasyev group of cases (38722/02, Section 4.2).

            2) Use of evidence allegedly obtained illicitly:

• Information is awaited on measures taken or planned to comply with the judgment, in particular on procedural rules governing court’s action where it is alleged at trial that incriminating statements were made under duress. Information is also expected on the rules governing admissibility at trial of evidence and confessions given at pre-trial stage, in particular, as to whether convictions maybe based solely on confessions by the accused.

            3) Violation of the right to be effectively defended by counsel: The violation of the applicant’s rights in the present case was due to the practice adopted by the investigative authorities, and consisted of two elements:

- the way in which the police investigator exercised his discretionary power concerning the classification of the investigated crime. The Code of Criminal Procedure provides a limited number of situations in which legal representation is obligatory and the waiver of the right to a lawyer is not permissible.

As far as qualification of crimes is concerned, the only relevant ground is the possibility of life imprisonment as a punishment for the alleged offence.

• Information provided by the Ukrainian authorities (26/05/2010): On 30/09/2009 the Constitutional Court gave a decision concerning the right to legal assistance. According to the decision, Article 59 of the Constitution of Ukraine implies that anyone interrogated as a witness by law enforcement authorities or giving explanations to these or other state authorities, has the right to legal assistance by a lawyer of his own choice.

• Assessment: It remains unclear how the decision of the Constitutional Court will remedy the violation found by the Court. Clarification is expected in this respect.

• Information is also awaited on procedural safeguards in case of reclassification of crimes, in particular as regards the waiver of the right to counsel and on procedural rules governing the grounds for removal of a lawyer from a case.

The judgment was translated into Ukrainian and published in the official government publication, the Official Herald of Ukraine [Ofitsiinyi Visnyk Ukrainy], No.2, 2009 and Herald of the Supreme Court of Ukraine No 3, 2009. A summary of the European Court 's judgment in Ukrainian was also published in the Government’s Currier [Uriadovyi Kurier], No. 186 of 07/10/2008.

By letter of 05/11/2008 the judgment, together with an explanatory note, was sent to the Supreme Court of Ukraine, the Ministry of Internal Affairs, the Prosecutor General’s Office and the Academy of Judges of Ukraine.

According to the Supreme Court of Ukraine, Heads of Courts of Appeal were informed of the European Court’s conclusions in this case in order to prevent further similar violations. The Panel of Judges in Criminal Cases of the SCU decided to prepare a review of the Court’s case-law on assessment of evidences to disseminate it to all courts.

According to the General Prosecutor‘s Office, the relevant instructions regarding general measures to be taken were given to prosecutors at all levels.

                       - 6 cases concerning the poor conditions in which the applicants were held pending execution

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

These cases concern the poor conditions of the applicants' detention between 1996 and 2000 on “death row” in four different prisons in Ukraine, found by the European Court to amount to degrading treatment due in particular to their prolonged confinement in a very restricted living space without natural light and the virtual impossibility of any activity or human contact (violations of Article 3).

The Court also found that the Ukrainian authorities' interferences with the applicants' rights to private and family life (in all these cases), with their correspondence (in the four last cases) and their freedom of thought were not in accordance with the law until July 1999 as their detention was governed principally by an Internal instruction inaccessible by the public (violations of Articles 8 and 9). The Court found no violation of Article 8 after July 1999.

The cases of Kuznetsov and Poltoratskiy also concern the failure to carry out an effective official investigation into allegations of assault by prison authorities (violations of Article 3).

In the Dankevich case the Court also held that the applicant had not had an effective remedy in respect of the conditions on death row and of interference with his correspondence (violation of Article 13).

Individual measures: The applicants’ death sentences were commuted to life imprisonment in June 2000 following the abolition of the death penalty in Ukraine.

1) Poltoratskiy case: By letter of 10/09/2003, the representative of the applicant (his father Mr. Y.N. Poltoratskiy) complained that two of his private letters addressed to the applicant had been confiscated and that prison authorities still applied the unpublished Instruction criticised in the Court's judgments. By a letter of 03/10/2003 the Ukrainian delegation indicated that prisoners' correspondence is regulated only by the Correctional Labour Code (see below) and that disciplinary sanctions were imposed on those officials who were responsible for the breach of the applicant's right to correspondence.

By letters of 22/12/2003 and 16/03/2004 Mr. Poltoratskiy’s representative also stated that the Ukrainian authorities had not carried out an effective investigation into the allegations of ill-treatment of the applicant by prison authorities in September 1998. He also sent the Secretariat copies of decisions of national jurisdictions of 2002, which refer among other things to the provisions of "the Instruction on the organisation of the supervision of correspondence" to conclude that the seizure of the applicant's correspondence with his father was in accordance with law. Information on these issues was requested from the Ukrainian delegation (letters of the Secretariat of the 18/02/2004 and 27/04/2004).

By letter of 04/06/2004 the delegation transmitted to the Secretariat a declaration signed by the applicant on 30/09/2003, in which he states that he is satisfied with the response received from the penitentiary administration concerning the control of his correspondence and asks that his relatives' complaints concerning this issue are not taken into consideration. The applicant's declaration has been sent to his representative.

2) Kuznetsov case: no information has been provided on any individual measure taken following the European Court’s judgment.

• Information is awaited in both cases on measures taken, if any, following the European Court’s judgement, with respect to the applicants’ complaints of ill-treatment.

General measures:

            1) Violations of Article 3:  It emerges from the judgments that the violations found only concerned the conditions of detention of persons awaiting execution of capital sentences. The Court did not criticise the conditions under which the applicants were detained once their sentences had been commuted to life imprisonment, following the abolition of the death sentence, and the consequent change in their detention regime.

• Assessment: accordingly, no measure is necessary. 

2) Absence of an effective investigation of the alleged ill-treatment: (see in particular §160 of the judgment in the Kuznetsov case and §126 of the judgment in the Poltoratskiy case). Following the facts of the present cases, the Ukrainian Department for the Execution of Sentences adopted a number of legal acts to ensure effective investigation of alleged ill-treatment:

a) Instruction No. 117 of 5/05/2000, provides, among other things, the opening of criminal proceedings on the basis of applications from prisoners or detainees on remand concerning physical injuries possibly resulting from illegal acts. Under such circumstances, the head of the prison establishment must open criminal proceedings to conduct a preliminary inquiry and to identify the perpetrators.

b) Instruction No. 12/369/nm of 29/01/2004, provides that physical injuries revealed by the initial medical examination of detainees on their arrival in detention centres should be recorded. Any injuries thus revealed must be notified within 3 days to the body authorised to investigate such complaints and decide on the opening of a criminal case.

c) Order No. 39 of 21/02/2005 provides that medical staff of prisons or detention centres must visits cells daily to see whether any detainee needs medical assistance, consultation or examination. Where physical injuries are discovered, medical staff must provide the necessary treatment, record the injuries and inform the prison administration on its findings with a view to opening a criminal investigation.

• Examples are expected on the application of these provisions.

            3) Violations of Articles 8 and 9: Violations of the applicants’ private and family life, their right to correspondence and freedom of religion concerned solely the period before 11/07/1999. On that date the Internal Instruction of the Department for Execution of Sentences was replaced by public regulations, in particular by Temporary Provisions governing conditions of detention in isolation blocks of persons sentenced to death. The Court found no violations of Article 8 after the temporary provisions came into force (see, for example, Nazarenko, Dankevich, Aliev judgments). It further noted that after 11/07/1999, death-row inmates were allowed to pray, read religious literature and receive visits from a priest.

• Assessment: accordingly, no measure is necessary. 

            4) Violation of Article 13: The Dankevich judgment raises a general issue of lack of an effective remedy for complaints about conditions of detention in prisons. This issue is being considered by the Committee in the context of Melnik case (72286/01, Section 4.2).

            5) Publication and dissemination of the European Court's judgments: All the judgments have been translated into Ukrainian and published on the internet site of the Ministry of Justice. They have been also published in a specialised quarterly journal, Case-Law of the European Court of Human Rights. Judgments. Comments. Apparently, the prison authorities have been informed about the judgments.

The judgments have also been brought to the attention of prosecutor and prison authorities during their regular training.

- 8 cases concerning the inhuman and degrading treatment of the applicants and / or the absence of an effective remedy whereby complaint might be made and lack of procedural safeguards in police custody[27]

38722/02           Afanasyev, judgment of 05/04/2005, final on 05/07/2005

12174/03           Drozd, judgment of 30/07/2009, final on 30/10/2009

17323/04          Ismailov, judgment of 27/11/2008, final on 27/02/2009

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

34331/03           Spinov, judgment of 27/11/2008, final on 06/07/2009

39188/04           Suptel, judgment of 19/02/2009, final on 19/05/2009

19312/06           Vergelskyy, judgment of 12/03/2009, final on 12/06/2009

- 6 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[28]

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

28827/02           Isayev, judgment of 28/05/2009, final on 28/08/2009

65550/01           Koval, judgment of 19/10/2006, final on 12/02/2007

75522/01           Mikhaniv, judgment of 06/11/2008, final on 6/04/2009

30628/02           Ukhan, judgment of 18/12/2008, final on 18/03/2009

4785/02            Mironenko and Martenko, judgment of 10/12/2009, final on 10/03/2010

The case concerns a number of violations of the applicants’ rights while in detention on remand. In particular:

-           the authorities’ failure to bring the applicants promptly before a judge to verify the lawfulness of their arrest: the applicants were not brought before a judge for almost 4 months after their arrest (violation of Article 5§3);

-           the lack of proper and timely judicial review of the applicants’ continuing detention: the consideration of the applicant’s request lasted for more than two months and led to no decision, as the proceedings were discontinued on the basis of a resolution of the Plenary of the Supreme Court which did not have the force of law (violation of Article 5§4);

-           the lack of any remedy at the material time whereby compensation might be granted for the violations found (violation of Article 5§5).

The case further concerns the lack of impartiality of the single-judge trial court, the judge having participated at earlier stages of the criminal proceedings against the applicants and having already expressed an opinion about the applicants’ guilt (violation of Article 6§1).

                        - 4 cases concerning extradition

2440/07            Soldatenko, judgment of 23/10/2008, final on 23/01/2009

33210/07+         Dubovik, judgment of 15/10/2009, final on 15/01/2010

48068/06           Novik, judgment of 18/12/2008, final on 18/03/2009

2929/05            Svetlorusov, judgment of 12/03/2009, final on 12/06/2009

The cases concern violations of the applicants’ rights in extradition proceedings, in particular:

-           unlawful detention pending extradition (violations of Article 5§1);

-           lack of judicial review of the lawfulness of detention pending extradition (violation of article 5§4);

-           impossibility to claim compensation due to deficiencies of Ukrainian law (violations of 5§5);

-           lack of the effective remedies to challenge extradition (violation of Article 13).

In addition, in the Soldatenko case, the Court ruled that the applicant’s extradition to Turkmenistan would be in violation of Article 3.

In all cases the applicants were arrested in Ukraine in accordance with international search warrants issued by the Turkmen and Belarusian authorities, as provided by the 1993 Minsk Convention on Assistance in Criminal Matters. Thereafter, on the basis of general provisions of the Code of Criminal Procedure, Ukrainian courts ordered the applicants’ detention pending extradition.

The Court found that under Ukrainian law there were no specific legal provisions – either in the Code of Criminal Procedure or in any other legislative instrument – that provided, even by reference, a procedure for detention with a view to extradition. It noted in particular, that the provisions of the Code of Criminal Procedure referred to situations of and parties to domestic legal procedures and not specifically to extradition proceedings.

In the Dubovik case the Court further found that even though the applicant had been given refugee status and thus according to domestic law could not be removed from the country, she still remained in detention for a certain period “with the view to extradition”.

Individual measures: All the applicants have been released and the Ukrainian prosecution authorities have informed the requesting states that they would not be extradited: in the Svetlorusov case, the applicant was granted refugee status (§§29, 30); in the Novik case, the authorities refused extradition on the ground that the charges against the applicant did not carry imprisonment in Ukrainian law (§§11,12); in the Dubovik case, release was ordered on the basis of Belorussian authorities’ request not to consider the request for extradition (§§27, 28); in the Soldatenko case, according to the Ukrainian authorities, release was ordered by a domestic court in May 2008.

In the Svetlorusov and Dubovik cases the Court awarded the applicants just satisfaction in respect of non-pecuniary damage sustained. In the Soldatenko and Novik cases the Court awarded no just satisfaction as the applicants failed to submit any claim under this head.

• The need for further individual measures is being assessed.

General measures:

1) Unlawfulness of detention pending extradition and absence of judicial review (Articles 5§§1 and 4):

• Information provided by the Ukrainian authorities (1/07/2010): On 17/06/2010 the Law on amendments to the Code of Criminal Procedure came into force. The new law sets up a special procedure for arrest and detention with a view to extradition.

In particular, it provides rules on apprehension, provisional arrest and arrest with a view to extradition, together with appeal procedures against such apprehension, provisional arrest or arrest and for consideration of such appeals by domestic courts.

• This information is being assessed.

• Information would be appreciated on examples of the application of the new procedures in practice.

            2) Lack of an enforceable right to compensation for persons who had been the victim of unlawful detention in the context of extradition proceedings (Article 5§5):

• Information is awaited on the measures taken or envisaged to comply with the Court’s judgments.

3) Assessment of conditions in the requesting country against the standards of Article 3 of the Convention:

• Information is awaited on measures envisaged to ensure compliance by all relevant authorities, including domestic courts, with the requirements of Articles 3 and 13 in the framework of extradition procedures.

4) Publication and dissemination of the European court’s judgment: All these judgments have translated into Ukrainian and published in the official government publication, the Official Herald of Ukraine [Ofitsiinyi Visnyk Ukrainy]. The attention of all relevant authorities has been drawn to the Court's conclusions in these judgments.

47148/99           Novoseletskiy, judgment of 22/02/2005, final on 22/05/2005

This case concerns the applicant’s eviction from a flat following his temporary departure to Russia in 1995. This flat had been earlier granted to the applicant for unlimited duration by the Melitopol State Teacher Training Institute (“the Institute”) where he had taught. After the applicant’s departure to Russia, the Institute granted a permit in respect of the same apartment to another employee. The applicant’s complaints were examined by the Ukrainian courts, which finally, in 2001, recognised his right to occupy the flat refusing, however, to award him compensation for being deprived of it between 1996 and 2001.

Moreover, the flat had been restored to the applicant in a condition unfit for human habitation, which prevented the applicant from living there with his family.

The European Court found that the state had failed in its positive obligations consisting in restoring and protecting the effective enjoyment by the applicant of his right to respect for his home, his private and family life (violation of Article 8).

The European Court also found a violation of the applicant’s right to property as the state authorities had not made the effort which could normally have been expected to conduct an efficient and impartial investigation into the applicant’s allegations that his belongings had been removed from the flat at issue (violation of Article 1 of Protocol No. 1).

Individual measures:

         1) Violation of Article 8: The European Court noted that, according to the last witnesses’ statements received in 2004, the flat was still in a degraded condition and no action had been taken by the authorities since 28/03/2001 to remedy the situation.

• Information provided by the Ukrainian authorities on 11/04/2007: In April 2004, following an order by the Rector of the Institute, a special commission twice tried to examine the conditions of the applicant’s flat in order to clarify what exactly should be done to make it fit for habitation. However, being informed of the commission’s visits in writing and in advance, the applicant failed to provide access to the flat. According to the authorities, the applicant told them that he had no intention to give access to his flat for any purpose, since he did not trust state officials or representatives of the Institute. The authorities thus remain unable to take any measure with respect to the applicant’s flat in view of his failure to co-operate with the commission.

• The information provided is being assessed by the Secretariat.

            2) Violation of Article 1 of Protocol No. 1: The European Court awarded the applicant just satisfaction in respect of all heads of damage including, apparently, the property which disappeared from the flat.

General measures: The judgment was translated into Ukrainian and placed on the Ministry of Justice’s official website. It was published in the Official Herald of Ukraine, No. 31, 2005 and in the Bulletin of the Supreme Court, No. 8, 2005.

The Government Agent before the European Court drew attention to the present judgment in the course of a number of seminars and trainings for judges.

• Information is still awaited on targeted dissemination of the European Court’s judgment, in particular to the investigative authorities, the Institute, the Ministry of Education and Science, etc. as well as on any other measures taken to prevent similar violations in future.

23543/02          Volokhy, judgment of 02/11/2006, final on 02/02/2007

The case concerns a violation of the applicants' right to respect for their private life following an order for interception and seizure of their postal and telegraphic correspondence issued in 1997. This order was issued in the framework of a criminal investigation into tax evasion opened against a relative of the applicant. The criminal case was ended on 04/05/1998, but the interception order was only cancelled in May 1999, i.e. a year afterwards. The applicants were not informed of the application of the surveillance measures after they were discontinued, but found out about it by chance and were thus not able to question the lawfulness of the decision on interception. The applicants’ claim for compensation for unlawful interference in their rights was rejected by the domestic courts as unsubstantiated.

The European Court found that Ukrainian law did not indicate with sufficient clarity the scope and conditions of exercise of the authorities' discretionary power in the area under consideration and did not provide sufficient safeguards against abuse of that surveillance system (violation of Article 8).

The also case concerns the lack of effective domestic remedies in relation to their complaints under Article 8, as the relevant Ukrainian law and it its interpretation by the domestic courts did not offer sufficient safeguards to persons under surveillance to allow them to challenge the lawfulness of the interference with their rights and seek redress (e.g. the absence of any obligation to inform the subject that he/she was under surveillance) (violation of Article 13).

Individual measures: The interception order was cancelled on 28/05/1999. The European Court awarded just satisfaction in respect of non-pecuniary damage suffered by both applicants.

Following the European Court’s judgment, the second applicant (the first applicant had died) applied to the Supreme Court for review of the domestic courts’ decisions on compensation for the unlawful interference with his rights.

On 25/05/2007 the court partly allowed the applicant’s claim, quashed the decisions at issue and remitted the case for fresh consideration to the court of first instance. On 30/01/2008 the Leninsky District Court of Poltava partly allowed the applicant’s claim and awarded the applicant UAH 3000 to be paid from the State Budget as non-pecuniary damage caused by unlawful interception of his correspondence. This decision has become final. According to the applicant (letter of 9/08/2009), this decision still remains unenforced because of the lack of relevant appropriations in the state budget.

• Information is awaited on measures taken or planned to ensure full redress to the applicant for the violation found, in particular on the enforcement of the decision of the Leninsky District Court of Poltava of 30/01/2008.

General measures:

1) Violation of Article 8: Article 187 of the Code of Criminal Procedure concerning the interception of correspondence was substantially amended in June 2001, i.e. after the events in this case. The new wording determines the grounds, terms and the procedure for ordering interception of correspondence, clarifying the scope and conditions of exercise of the authorities’ power in this respect.

• Information is awaited as to whether and in what form and in which circumstances the authorities are obliged to inform the person concerned about the surveillance measures applied to him/her.

2) Violation of Article 13: The authorities informed the Committee on 31/10/2007, that the Ukrainian Law “on the procedure compensating damage caused to the citizen by the unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts” was amended in December 2005, i.e. after events in this case. Under the new wording, persons other than the accused may initiate proceeding before a court in case of unlawful procedural actions restricting or infringing their rights and freedoms in the context of criminal proceedings against a third person.

• This information is being assessed.

3) Publication and dissemination.  The European Court 's judgment was translated into Ukrainian and placed on the Ministry of Justice's official web-site. It was published in the Official Herald of Ukraine, No. 23 of 10/04/2007. A summary of the Court's judgment in Ukrainian was also published in the Government's Currier, No. 48 of 17/03/2007.

On 28/04/2007 the judgment of the European Court was sent to all authorities concerned, i.e. the Supreme Court of Ukraine, Ministry of Internal Affairs, General Prosecutor's Office, State Security Service and the State Tax Administration with a view to take account of the findings of the European Court in its daily practice. The Supreme Court of Ukraine transmitted these letters to the Heads of Courts of Appeal. According to the General Prosecutor’s Office, it has ordered the Ministry of Internal Affairs to disseminate the judgment among investigators to prevent further similar violations. According to information of the State Tax Administration, local investigation departments of the State Tax Administration have been ordered to hold a training on the Court's conclusions in the above judgment and on the Convention as a whole.

77703/01           Svyato-Mykhaylivska Parafiya, judgment of 14/06/2007, final on 14/09/2007

The case concerns a violation of the applicant association’s right to freedom of religion in that in 2000 the authorities refused to register amendments to its statute. These amendments consisted in the decision of the highest governing body of the applicant association to change its denomination from the Ukrainian Orthodox Church of the Moscow Patriarchate to the Ukrainian Orthodox Church of the Kyiv Patriarchate.

The European Courtstated in particular that the interference with the applicant association’s right to freedom of religion was not justified since the arguments advanced by the registration body and subsequently the domestic courts for refusing to register the amendments were neither “relevant” nor “sufficient”. Furthermore, the Court found a lack of coherence and foreseeability in the relevant legislation, namely the Freedom of Conscience and Religious Organisations Act, and stated that its provisions were not capable of preventing possible abuse by the state registration body, which had unfettered discretionary powers in registration matters (violation of Article 9). The Act did not contain, in particular:

-           provisions listing in detail all possible reasons and grounds for refusing to register changes and amendments introduced to the statutes of religious associations;

-           any indication as to how detailed reasons for refusing to register a religious organisation or its statute should be;

-           clear definitions as to what constitutes a “religious organisation” and what constitutes a “religious group”, “parish”, “group”, “general assembly” and “parishioners’ assembly”.

Individual measures: Ukrainian law provides the possibility to apply for review of proceedings by an administrative body or a court following a judgment of the European Court.

According to information from the Main Department of Nationalities and Religious Affairs of the Kyiv City State Administration, the applicant has not applied to the Kyiv State Administration for registration of the amendments to its statute following the European Court’s judgment. Instead, on 15/09/2007 the applicant’s representative applied to the Supreme Court to obtain restitutio in integrum.

• Information provided by the Ukrainian authorities on 15/05/2010:  On 1/07/2008 the Supreme Court quashed its decisionof 5/07/2000 upholding the refusal by the Kyiv City State Administration to register changes and amendments to the applicant’s statute, and remitted the case for fresh consideration to the District Administrative Court of the Kyiv. The proceedings are still pending. 

• Assessment: in its judgment, the Court noted that the incoherence and unpredictability of the legislation clearly prevented domestic courts, when conducting judicial review of the decisions of the registration body, from reaching a different finding from that reached by the registration body (§ 152).

In these circumstances, it is not clear how new court proceedings can remedy the violation found by the Court, as the individual measures required appear to be closely linked to the adoption of general measures, i.e. amendment of the provisions of the Freedom of Conscience and Religious Organisations Act.

• Information is urgently awaited in this respect.

General measures:

            1) Legislative amendments: A new draft Freedom of Conscience and Religious Organisations Act is being prepared by a working group consisting of representatives of the Ministry of Justice, registered churches and confessions, NGOs and academics.

In 2006, the Venice Commission gave its opinion on the draft (Opinion No. 391/2006). According to the Commission, while in general the draft law meets the requirements of international standards concerning freedom of religion or belief, certain aspects need to be developed further. In particular, registration of religious organisation should be clarified and simplified

• Information provided by the Ukrainian authorities on 15/05/2010: The draft law is being modified by the State Committee on Nationalities and Religions Affairs (“the Committee”). According to the Committee, the provisions of the European Court’s judgment were taken into account in the drafting process. In particular, the draft law sets legal guarantees to protect religious organisations from unjustified state interference in their activities and limits the stateauthorities’ powers to assess the legitimacy of religious beliefs (Articles 14, 15 and 18 of the draft law). The draft law gives a clear definition of a religious organisation and its legal forms (Articles 7 and 8).

• More detailed information is awaited on how the provisions of the new law, if adopted, would rectify the particular shortcomings identified by the Court. A copy of the final version of the draft law is expected.

• Information is also awaited on the interim measures taken to ensure compliance with the European Court’s judgement pending the adoption of the Bill.

            2) Translation, publication and dissemination of the judgment: The judgment was translated into Ukrainian and placed on the Ministry’s of Justice official website. It was published in the Official Herald of Ukraine, No. 81 11/2007 and in the courts’ publication Judicial Practice [Sudova Praktyka], No. 2, 2008. A summary of the judgment was published in the Government’s Currier, No. 190 of 16/10/2007.

The Ukrainian authorities indicated that on 08/10/2007 the judgment of the European Court was sent to all competent authorities together with letters from their hierarchy inviting them to take account of the findings of the European Court in their daily practice, i.e. the Kyiv City State Administration, the Main Department of Nationalities and Religious Affairs.

40269/02           Koretskyy and others, judgment of 03/04/2008, final on 03/07/2008

This case concerns a violation of the applicants’ right to freedom of assembly and association due to the authorities’ unjustified refusal to register the applicants’ association (violation of Article 11).

In July 2000 the applicants submitted to the Kyiv City Department of Justice (City Department) an application for the registration of their association. The City Department refused to register the association on the ground that its Articles had not been drafted in accordance with the Associations of Citizens Act, as follows:

-           the association did not clearly indicate if it had a local or a pan-Ukrainian status;

-           the provision that the association could have branches in other cities and towns did not correspond to the provision that its activities were to be carried out specifically in Kyiv ;

-           the association could carry out publishing or propaganda activities on its own, as well as engage volunteers;

-           the Executive Board of the association was entrusted with financial powers to manage its everyday activities.

Domestic courts at three levels of instance upheld the City Department’s refusal to register the association as well-founded, on the ground that its Articles were contrary to the law.

The European Court noted that the provisions of the Associations of Citizens Act regulating the registration of associations are too vague to be sufficiently “foreseeable” for the persons concerned, and grant an excessively wide margin of discretion to the authorities when deciding whether a particular association may be registered. Furthermore, the European Court stated that it did not see any reason for the existing restrictions on the possibility for associations to publish and distribute propaganda, to involve volunteers as members, or to carry out everyday activities of an economic character through a managing body. Finally, with regard to the territorial limitation of the activities of associations with local status, the European Court considered as burdensome the requirement for associations wishing to have a pan-Ukrainian status, to set up local branches in the majority of the twenty-five regions of Ukraine.

Individual measures: The Court awarded just satisfaction in respect of the pecuniary and non pecuniary damage suffered by the applicant. It transpires from the judgment of the European Court that, following the decisions of the domestic courts, the applicants decided to liquidate their association and discontinued its activities.

By letter of 18/07/2008 the government informed the applicants of the possibility under the legislation in force to apply for review of the decisions at issue, following the European Court’s judgment. 

Information is awaited on whether the applicants have requested such review and on any other measure envisaged to remedy the violation.

General measures: The violation in this case seems to arise from the insufficient precision of the provisions of the Associations of Citizens Act and subsequent administrative practice which run counter to the requirements of Article 11 of the Convention.

• Information is still awaited onmeasures taken  or envisaged to prevent new, similar violations, in particular by bringing the Associations of Citizens Act and the administrative practice on registration of associations in line with the Convention’s requirements.

The judgement was translated into Ukrainian. A summary of the judgment was published in the Government’s Currier [Uriadovyi Kurier], 137 of 29/07/2008.

Information is awaited on further publication of the full text of the judgments and its dissemination to the relevant authorities, in particular registration bodies and all courts.

3236/03            Ponomaryov, judgment of 03/04/2008, final on 29/09/2008

The case concerns a violation of the principle of legal certainty in that a final domestic judgment of 2001, ordering changes to be made in the applicant’s employment record and the payment of compensation was quashed in 2004 following the renewal of the time-limit for lodging an ordinary appeal granted to the opposite party. In doing so, the Ukrainian courts relied on the fact that the defendant had previously been in a situation of economic difficulty which prevented it from paying court fees to lodge the appeal.

The European Court found that the domestic courts, by allowing such an appeal merely for the purpose of a re-hearing and a fresh decision on the case and not for correction of any serious judicial error or miscarriage of justice, had infringed the principle of legal certainty (violations of Article 6§1 and Article 1 of Protocol No. 1).

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

On 1/04/2009 the Supreme Court of Ukraine dismissed the applicant’s request to review the case, stating that the pecuniary award due to the applicant under the judgment of 2001 was covered by just satisfaction granted by the Court.

On 28/08/2009 the applicant complained of this decision, stating inter alia that the Supreme Court had failed to address the part of the 2001 judgment regarding changes to be introduced to his employment record.  

On 4/11/2009 the Secretariat received the government’s response to the applicant’s grievances.

• Bilateral consultations with the Ukrainian authorities are under way to define outstanding issues under the Court’s judgment.

General measures: It would appear that violations in this case were due to the reopening of proceedings after a considerable lapse of time by renewing the time-limit for an ordinary appeal. The European Court noted in this respect that the legal systems of many member states provide the possibility to extend procedural time-limits if there are valid reasons to do so.

The European Court also acknowledged that it was primarily within the domestic courts’ discretion to decide on the renewal of the time-limit for an appeal, but this discretion was not unlimited. The domestic courts should verify whether the reasons for renewal of a time-limit for appeal could justify the interference with the principle of res judicata especially, as in the present case, when the domestic legislation does not limit courts’ discretion either on the time or on the grounds for the renewal of the time-limits.

• Information is thus awaited on measures taken or planned to ensure the interpretation by courts of the relevant provisions in line with the Convention’s requirements and in particular with the principle of legal certainty as set out in the present judgment.

The judgement has been translated into Ukrainian, placed on the official website of the Ministry of Justice (www.minjust.gov.ua) and published in the official government publication, the Official Herald of Ukraine [Ofitsiinyi Visnyk Ukrainy], no.37 of 5/2009. A summary of the judgment was published in the Government’s Currier [Uriadovyi Kurier].

The judgment has been sent out to all domestic courts.

37878/02           Tserkva Sela Sosulivka, judgment of 28/02/2008, final on 28/05/2008

The case concerns a violation of the applicant Church’s right of access to a court on account of the refusal by the domestic courts to recognise their jurisdiction in proceedings initiated by the applicant.

On 26/06/1997, the applicant, the Ukrainian Greek-Catholic Church of the village of Sosulivka, was granted the right to share the Sosulivka Church with the Ukrainian Orthodox Church of the Kyiv Patriarchate by a decision of the Ternopil Regional State Administration. On 10/07/1997, the applicant Church signed an agreement with the Chortkiv District Administration on the use of the village church. However, the Ukrainian Orthodox Church refused to comply with the decision or the agreement. Then, in 2001-2002, the applicant sought judicial protection of its rights but various courts (ordinary or commercial) declined their jurisdiction over the applicant’s case. The European Court found that this situation constituted a denial of justice which had impaired the very essence of the applicant’s right of access to a court (violation of Article 6§1).

Individual measures: The European Court granted just satisfaction in respect of the non-pecuniary damage suffered by the applicant Church.

According to the domestic legislation, the applicant is entitled to apply for review of the proceedings following the judgment of the European Court.

On 27/05/2008, having considered the applicant’s request for review, the Supreme Court quashed the decisions and remitted the case for fresh consideration to the first-instance court.

• Information is awaited on the outcome of these proceedings.

General measures: The judgment has been translated into Ukrainian and published in the official publication, the Official Herald of Ukraine [Ofitsiinyi Visnyk Ukrainy] No. 46 and will be placed on the Ministry of Justice official website. A summary was published in the Government’s Currier [Uriadovyi Kurier], No. 114 of 24/06/2008.

The State Court Administration sent the judgment out to all domestic courts

• Information provided by the Ukrainian authorities (17/05/2010): Since 1/09/2005, when the new Code of Administrative Procedure came into force, decisions/acts/inactivity of state bodies are subject to judicial review by administrative courts.

• This information is being assessed.

34786/03           Balatskyy, judgment of 25/10/2007, final on 25/01/2008

The case concerns a violation of the applicant’s right of access to a court due to the domestic courts’ failure to take a formal, final decision in the proceedings concerning the applicant’s unlawful transfer brought against his employer.

The first-instance court had initially dismissed his appeal on the ground that he had brought an identical action for reinstatement. Despite a finding at appeal that this dismissal was groundless and referring the case back to the first instance, no judgment was rendered. In June 2006 the applicant received an unofficial letter informing him that any further examination of his request would be pointless because it was identical to his application for reinstatement, rejected in 2002.

The European Court accordingly found that the applicant had been deprived of his right of access to a court, since the authorities had advanced no plausible explanation for the domestic courts’ failure to take a formal, final decision in relation to the applicant’s suit (violation of Article 6§1).

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained. It appears from the judgment of the European Court that no formal decision has been taken to date in the applicant’s case.

• Information is awaited on measures taken to erase the consequences of the violation for the applicant.

General measures: The Code of Civil Procedure of Ukraine provides two types of decisions which are to be taken by courts in proceedings: rulings and judgements (Art. 208). Courts deliver rulings when deciding, inter alia, to suspend or to close cases, not to consider a claim, and on other issues dealing with course of proceedings before it. A trial must be concluded by delivery of a judgment.

In the present case the district court, by not rendering a judgment, failed to comply with the national law in force.

• Information provided by the Ukrainian authorities (11/04/2008):The judgment has been translated into Ukrainian and placed on the Ministry of Justice official website (www.minjust.gov.ua). The translation of the judgment was published in the Official Herald of Ukraine (Ofitsiinyi Visnyk Ukrainy), No.11/2008. A summary of the judgment was also published in the Government's Currier (Uriadovyi Kurier).

The Supreme Court’s attention has been drawn to the European Court's conclusions in this case.

• Information is expected on possible training measures to ensure that all judges strictly comply with their obligations resulting from the legislation in force and the Convention, as well as on further additional measures such as the judges’ disciplinary responsibility. Information is also awaited on measures taken or envisaged to prevent new, similar violations, in particular via the wide dissemination of this judgment to domestic courts at all levels, possibly accompanied by an explanatory note.

16404/03          Shabelnik, judgment of 19/02/2009, final on 19/05/2009

The case concerns a violation of the applicant's right to a fair trial due to his conviction for a murder on the basis of confessions obtained at the preliminary investigation stage in violation of his right to remain silent and not to incriminate himself, and in the absence of his lawyer (violation of Article 6§§1 and 3 (c)).

The applicant, detained on remand on suspicion of murder, was interviewed as a witness, without presence of a lawyer, in another murder case. His testimony, which was in fact a confession to that murder, was given on the basis that refusal to testify constituted a criminal offence for which he could be prosecuted. The applicant’s right to remain silent was mentioned in the records by simple reference to the relevant provision of the Constitution. The testimony given was subsequently used as a basis for prosecuting the applicant for the second murder, of which he was convicted even though he withdrew his testimony during the trial, alleging that it had been obtained by coercion.

The European Court noted that it was clear from the first interview that the applicant was treated like a suspect and that therefore the interest of justice required that he should have been assisted by counsel during this interrogation. It further found that the circumstances of the case suggested that applicant’s testimony had been elicited against his will.

In particular, the fact that another person within the same proceedings also confessed to the same murder and retracted his statement, alleging coercion by the same investigator, could raise reasonable doubts as to the practices of the investigator in this case.

In addition, the applicant, informed simultaneously of the criminal consequences of refusal to testify and of his right not to incriminate himself, could have entertained doubts, as he alleged, as to the consequences of refusing to testify, especially in the absence of legal advice during the interview. Finally, although the applicant withdrew his testimony before the court, the authorities nonetheless based his conviction for the murder to a decisive extent, if not solely, on these self-incriminating statements. The statements in fact contained no new information unknown to the investigators and had been elicited in unclear circumstances.

Individual measures: The applicant is currently serving his sentence in prison. The European Court noted that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. It further noted that where an applicant has been convicted in proceedings judged to be unfair, as in this case, a retrial, a reopening or a review of the case, would constitute in principle an appropriate way of redressing the violation found.

Ukrainian law provides that court proceedings may be reopened if the Court has found a violation of the Convention.

On 30/04/2010 the Supreme Court, having considered the applicant’s claim for review of his criminal case, quashed its decision of 11/10/2002 and remitted the case for fresh consideration.

• Information is awaited on the outcome of the new trial.

General measures:

• Preliminary information on general measures was provided by the authorities on 26/05/2010.

Bilateral discussions are currently under way to secure the additional information necessary to present an action plan / action report to the Committee.

30663/04           Lutsenko, judgment of 18/12/2008, final on 18/03/2009

The case concerns a violation of the applicant’s right to a fair trial due to his conviction for a murder solely on the basis of confessions given by a witness during the pre-trial investigation, and then retracted as they had allegedly been made under duress (violation of Article 6§1).

The European Court noted that, unlike suspects or accused who have the right to remain silent according to the applicable law, witnesses are obliged to reveal all information known to them on pain of criminal punishment. Moreover, unlike suspects or accused, witnesses have no statutory right to consult a lawyer before the initial interrogation.

The Court therefore concluded that the applicant’s defence rights had been restricted to the extent that the fairness of the proceedings as a whole had been compromised.

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

The Court further noted that the most appropriate form of redress in the present case would, in principle, be trial de novo, if requested. The Court noted in this connection that Ukrainian law provides that court proceedings may be reopened if the European Court has found a violation.

In April 2009, the applicant requested reopening of the proceedings in his criminal case. The proceedings are still pending before the Supreme Court. The applicant is currently serving his sentence.

• Information is awaited on the outcome of the proceedings.

General measures: This case is closely linked to the Afanasyev group of cases (38722/02, Section 4.2), raising an issue under Article 3 of the Convention on account of ill-treatment by police, inter alia, to obtain confessions.

• Information provided by the Ukrainian authorities (26/05/2010): On 30/09/2009 the Constitutional Court gave a decision on Article 59 of the Constitution of Ukraine (right to legal assistance), according which this Article implies, inter alia, that anyone interrogated as a witness by law enforcement authorities has the right to legal assistance by a lawyer of her or his own choice.

• Information is awaited on action taken following this decision of the Constitutional Court, including possible changes to the laws and secondary legislation. Information is also expected on procedural rules governing courts’ action in case of allegations at trial that incriminating statements were made under duress.

The European Court’s judgment has been translated into Ukrainian. A summary in Ukrainian was published in the Government’s Currier [Uriadovyi Kurier], no. 94 of 29/05/2009. The translation will be placed on the site of the Ministry of Justice and published in the official government publication, the Official Herald of Ukraine [Ofitsiinyi Visnyk Ukrainy].

By letters of 17/04/2009, the government drew the attention of the Supreme Court, the Prosecutor General’s Office and the Ombudsman of Ukraine to the European Court's conclusions.

7577/02            Bochan, judgment of 03/05/2007, final on 03/08/2007

The case concerns a violation, in 2004, of the applicant's right to a fair hearing by an independent and impartial tribunal in a civil dispute regarding the title to part of a house and the accompanying land (violation of Article 6§1).

The European Court found in particular that, having expressly disagreed with the findings of the lower courts as to the facts and having stated its position concerning one of the principle aspects of the case, the Supreme Court repeatedly ordered reassignment of the applicant’s case to courts of different territorial jurisdiction, without giving any procedural decision on the matter and without giving the applicant an opportunity to comment on the reassignment.

The Court further found that the domestic courts gave no reply to the applicant’s key arguments and remained silent as to her request to question witnesses on whose written statements the courts decisions had been based.

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. The applicant is entitled under Ukrainian law to request a re-hearing of her case in the light of the Court's finding that the domestic courts did not comply with Article 6 in her case (§97).

In May 2007 the applicant requested the reopening of the proceedings. On 14/03/2008 the Supreme Court rejected the applicant’s claim, having found no grounds for quashing the decisions.

• This information is being assessed.

General measures:

1) Reassignment of cases by the Supreme Court

• Information provided by the Ukrainian authorities (17/05/2010): Since 2005, following provisions of the new Code of Civil Procedure,the Supreme Court no longer has the power to order reassignment of cases from one court to another.

• Assessment: No further measure seems to be necessary in this respect.

            2) Lack of sufficient reasoning in the domestic courts’ decisions:

• Information is awaited on measures taken or planned to ensure that judges strictly comply with their obligation to give reasons for their decisions.

            3) Publication and dissemination of the European Court's judgment: The judgment has been translated into Ukrainian and placed on the Ministry of Justice official website. It was published in the official publication, the Official Herald of Ukraine [Ofitsiinyi Visnyk Ukrainy] No. 64 (September 2009) and in the courts’ publication, Judicial Practice [Sudova Praktyka] in 2008, No. 1. A summary of the judgment was published in the Government’s Currier [Uriadovyi Kurier], No. 156 of 29/08/2007.

• Information is still awaited on the targeted dissemination of the judgment with an explanatory note from the Government Agent on the courts' obligations under the Convention as interpreted by the judgment to all competent authorities, including those involved in this case, namely the Supreme Court, Khmelnytsk Regional Court, Ternopil Regional Court, Ternopil Town Court and Chemerovetsk Town Court.

33089/02           Romanova, judgment of 13/12/2007, final on 13/03/2008

The case concerns the unfairness of certain proceedings brought by the applicant following her dismissal from a post with a maintenance company of a Ukrainian University (violation of Article 6§1).

Article 21 of the Ukrainian Code of Civil proceedings provides that a judge who has been involved in the first instance examination of the case shall not participate in its rehearing on a remittal from a higher court. The European Court found that a failure to comply with this provision had constituted a violation of the applicant’s right to a fair hearing on account of her case not having been considered by an impartial tribunal.

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

Ukrainian law provides the possibility to apply for review of the contested proceedings following the finding of a violation by the European Court.

• Information is awaited as to whether the applicant has resubmitted her claims to domestic courts.

General measures: It would appear from the judgment that the national law is in compliance with the requirements of the Convention.

The European Court's judgment has been translated into Ukrainian and placed on the Ministry of Justice's official web-site (www.minjust.gov.ua). It has also been published in the Official Herald of Ukraine, No. 127, while a summary was published in the Government's Currier No. 66 of 9/04/2008.

The judgment has been sent out to all domestic courts.

• Information is expected on measures taken to ensure judges’ compliance with their obligations under the Code of Civil Procedure.

4063/04            Marchenko, judgment of 19/02/2009, final on 19/05/2009

The case concerns disproportionate interference with the applicant’s right to freedom of expression, in that in 2003 he received a lengthy suspended prison sentence for defamation (violation of Article 10).

The applicant, a teacher, had made several accusations against the director of his school. Banners displayed during a trade-union picket of the local administration offices, alleged that the director had misappropriated humanitarian aid given to the school and had used school equipment for private purposes. In a private prosecution brought against the applicant by the director, the domestic court found the applicant guilty of defamation, sentenced him to a year’s imprisonment suspended for a year and a fine. The applicant was also ordered to pay compensation to the school director.

The European court, having agreed that the applicant’s statements could reasonably be considered as defamatory and that the applicant’s conviction was therefore justified, noted that one-year suspended prison sentence for these acts, in addition to a fine and compensation, had been an excessive measure, liable to have a dissuasive effect on public debate.

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

• Information is awaited on measures taken or planned, following the judgment of the Court.

General measures: In the light of the Convention's requirement that the authorities should ensure that sanctions imposed in similar circumstances are proportionate to the gravity of impugned acts, it appears appropriate to publish the Court’s judgment and disseminate it widely to all courts and prosecutor's offices.

• Information is awaited in this respect an on other measures to prevent similar violations, such as special training and awareness-raising measures.

- 12 cases against the United Kingdom / 12 affaires contre le Royaume-Uni

                       - 6 cases concerning the action of the security forces in the United Kingdom[29]

28883/95          McKerr, judgment of 04/05/01, final on 04/08/01

37715/97          Shanaghan, judgment of 04/05/01, final on 04/08/01

24746/94          Hugh Jordan, judgment of 04/05/01, final on 04/08/01

30054/96          Kelly and others, judgment of 04/05/01, final on 04/08/01

43290/98          McShane, judgment of 28/05/02, final on 28/08/02

29178/95          Finucane, judgment of 01/07/03, final on 01/10/03

                       Interim Resolutions ResDH(2005)20, CM/ResDH(2007)73 and CM/ResDH(2009)44

                       CM/Inf/DH(2006)4-rev2, CM/Inf/DH(2006)4-addrev3 and CM/Inf/DH(2008)2-rev

30562/04+         S. and Marper, judgment of 04/12/2008 – Grand Chamber

DD(2009)619E; DD(2010)119E; DD(2010)327E

This case concerns a disproportionate interference with the applicants' right to respect for private life, due to the retention from 2001 of their fingerprints and DNA data under section 64 of the Police and Criminal Evidence Act 1984 (PACE), following their arrest on suspicion of having committed criminal offences, for which neither applicant was ultimately convicted (violation of Article 8).

The Court concluded that “the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard” (§125).

A more detailed summary of the European Court’s reasoning is set out in the notes for the 1078th (DH) meeting (March 2010).

Individual measures: The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction.

Following a request from the applicants, the responsible police authority has destroyed the applicants' fingerprints and DNA samples and profiles. On 09/06/2009 the United Kingdom authorities stated that the applicant S. has had further biometric data taken on suspicion of having committed a subsequent criminal offence.

• Assessment: no further individual measure appears necessary. The retention of later data taken from S. is linked to the general measures.

General measures: The NDNAD, in proportional terms, is the largest of its kind in the world, containing data on 7.39 % of the United Kingdom population. Austria's forensic NDA database is the next largest in proportional terms, containing approximately one per cent of the population (House of Lords Constitution Committee, Second Report of Session 2008-2009, Surveillance: Citizens and the State, § 180, HL 18-I, 6 February 2009). As at 24/04/2009, there were some 4.5 million persons on the NDNAD, of whom some 986,000 had no current conviction or caution record held on the Police National Computer (House of Commons Library, Standard Note SN/HA/4049 of 07/12/2009, Retention of fingerprint and DNA data).

The main outstanding matters are set out below (for more detail on the examination of this issue see the public notes for the 1078th meeting, March 2010).

Bilateral consultations were established between the United Kingdom authorities and the Secretariat to review the legislative proposals made by the United Kingdom authorities, following relevant decisions of the Committee of Ministers.

-           the previous government’s submissions as to how the revised legislative framework executed the Court’s judgment are contained in DD(2009)619E and DD(2010)119E.

-           a preliminary and further assessment of the revised powers of retention, presented at the March DH meeting, is contained in DD(2010)119E and DD(2010)327E .

• Information provided by the United Kingdom authorities (30/06/2010): The United Kingdom authorities confirmed that the Crime and Security Act 2010 received Royal Assent on 8/04/2010. The Act is not yet in force.

The issue of DNA and fingerprint retention is being actively considered by the new coalition government. In its Programme for Government of 20/05/2010 the Coalition stated that “We will adopt the protections of the Scottish model for the DNA database”. A more detailed proposal, including whether to bring into force any aspects of the Crime and Security Act as an interim measure is being considered. It is anticipated that the coalition government will submit legislation to Parliament on DNA retention (based on the Scottish model) in Autumn 2010, anticipating that it will be brought into force by Autumn 2011.

            1) Crime and Security Act 2010: The new provisions envisaged the following powers of retention:

-           Cellular samples: samples should not be retained beyond a six-month maximum, which is needed to ensure satisfactory loading of the profile taken from the sample onto the NDNAD (section 64ZA).

-           Adults: six-year retention period for the fingerprints and DNA profiles of adults arrested but not ultimately convicted of an offence, irrespective of the seriousness of the crime for which they were arrested (section 64ZD).

-           Minors:

- 16 and 17 year-olds: six-year retention period for the fingerprints and DNA profiles of minors aged 16 and 17 years arrested but not ultimately convicted of a serious offence (section 64ZG). For other recordable offences (lesser offences) the retention period shall be three years (section 64ZE).

- Under 16 year-olds: three-year retention period for the fingerprints and profiles of minors aged under 16 years arrested but not ultimately convicted of an offence, irrespective of the seriousness of the crime for which they were arrested (section 64ZE and 64ZF). Although not evident in the text of the Act, the United Kingdom authorities have confirmed that steps have been taken to remove the records of children under 10 from the NDNAD, and such material will not be retained in the future

-           Terrorism and national security:  If the responsible Chief Officer determines that fingerprints or DNA profiles are to be retained for national security purposes, they need not be destroyed in accordance with the above retention periods for as long as the determination has effect (section 64ZK, see also clauses 17 and 18 of the Crime and Security Bill amending Schedule 8 of the Terrorism Act 2000). Such a determination has effect for a maximum of two years beginning with the date on which the material would otherwise be required to be destroyed, but may be renewed.

-           Volunteers: Material which has been given voluntarily is to be destroyed as soon as it has fulfilled the purpose for which it was taken, unless, among other reasons, the individual consents to its retention under section 64ZL (section 64ZB). Consent to retention of material under section 64ZL may be withdrawn at any time.

-           Legacy profiles: Section 22 requires the Secretary of State to make provision for the destruction of material taken prior to the commencement of the relevant provisions of the Bill which would have been destroyed had those provisions been in force when the material was obtained.

-           Review procedure: Under section 64ZI(5), material falling within sections 64ZD to 64ZH must be destroyed if it appears to the Chief Officer that (a) the arrest was unlawful; (b) the taking of the fingerprints, impressions of footwear or DNA sample concerned was unlawful; (c) the arrest was based on mistaken identity, or (d) other circumstances relating to the arrest or the alleged offence mean that it is appropriate to destroy the material. Section 23 requires the National DNA Database Strategy Board to issue guidance to chief officers on the early destruction of samples and DNA profiles.

2) Submissions from civil society: A number of submissions have been made by NGOs and human rights institutions under Rule 9. All submissions and the government’s responses have been circulated to the Committee, and are available on its website: http://www.coe.int/t/cm/home_EN.asp.  

3) Joint Committee on Human Rights (JCHR): In a report on the Crime and Security Bill (Twelfth Report of Session 2009-10, published on 02/03/2010) the JCHR welcomed the government’s decision to respond swiftly to the Court’s judgment (§1.27). The JCHR however expressed concern that “the Government’s approach to the assessment of proportionality fails to recognise that it must illustrate why the measures proposed are necessary in order to meet the legitimate aim of the prevention of crime and the protection of the rights of other” (§1.27). It expressed disappointment that “the Government argues it can rely on this evidence [the Home Office research] in order to depart entirely from the guidance of the Court” (§1.36). In this respect the JCHR expressed disappointment that “the Government has chosen not to draw any distinction between arrest in connection with serious violent or sexual offences and less serious offences” (§1.48).

4) Publication and dissemination: The judgment of the European Court has been widely published in the legal press and on the Home Office website. It was reported inter alia in The Times Law Reports on 08/12/2008, Lawtel Ref LTL 4/12/2008 and the British and Irish Legal Information Institute. The judgment was sent out to chief police officers and to chief crown prosecutors.

• Assessment: In relation to the Scottish model the European Court noted that “this position is notably consistent with the Committee of Ministers’ Recommendation R(92)1” (§110). Adoption of the Scottish legislative model for England, Wales and Northern Ireland therefore appears welcome. However, information is awaited on the detail of the new legislation and any interim measures envisaged. Given that the legislation criticised by the Court at the time of the judgment remains in force and the size of the database and number of individuals possibly affected, information on the implementation of interim measures is of particular importance in relation to both the current situation and the treatment of “legacy profiles”.

1820/08            Omojudi, judgment of 24/11/2009, final on 24/02/2010, rectified on 25/03/2010

This case concerns a violation of the applicant’s right to private and family life as his deportation to Nigeria in 2008 was not proportionate to the legitimate aim pursued (violation of Article 8).

The applicant, a Nigerian citizen, was granted two months’ leave to enter the United Kingdom in September 1982, which was later extended to January 1986. In 1983 the applicant was joined by his partner. They married in 1987, and had three children between 1986 and 1992, all of whom are British citizens.

In 2000 the applicant and his wife applied to have their immigration status regularised, and on 18/04/2005 were both granted Indefinite Leave to Remain in the United Kingdom. The applicant was convicted of a number of serious criminal offences on 07/03/1989, and sentenced to a total of nine years’ imprisonment. He was convicted of an unrelated offence, sexual assault, on 19/11/2006, for which he was sentenced to 15 months’ imprisonment.

On 31/03/2007 the Secretary of State for the Home Department, under section 3(5)(a) of the Immigration Act 1971, made a deportation order on the basis that deportation was necessary for the prevention of disorder and crime and the protection of health and morals. The applicant appealed unsuccessfully, and was deported to Nigeria on 27/04/2008, where he currently lives. The applicant’s wife and children remained in the United Kingdom.

The European Court found that the deportation interfered with the applicant’s rights under Article 8 of the Convention, but that it was lawful and served a legitimate aim. It attached “considerable weight” to the fact that the United Kingdom authorities were fully aware of the applicant’s offending history when granting him Indefinite Leave to Remain, and  therefore, in assessing the necessity of the interference, only considered the offence committed after Indefinite Leave to Remain had been granted (§§42-43 of the judgment). In this context, the Court noted that the applicant’s offence was not at the most serious end of the spectrum of sexual offences (§44 of the judgment).

The Court held that “having regard to the circumstances of the case, in particular the strength of the applicant’s family ties to the United Kingdom, his length of residence, and the difficulty that his youngest children would face if they were to relocate to Nigeria”, the applicant’s deportation was not proportionate to the legitimate aim pursued (§48 of the judgment).

Individual measures: In an action plan / action report submitted on 09/04/2010 the United Kingdom authorities stated that by 30/04/2010 the UK Border Agency would have revoked the deportation order made with respect to the applicant. The applicant’s legal representative and the Entry Clearance Officer in Nigeria would be informed that the deportation order had been revoked and that the applicant is able to apply for entry clearance to the United Kingdom. The Entry Clearance Officer in Nigeria will be instructed to refer any United Kingdom visa application by the applicant to the UK Border Agency for consideration.

• Assessment: In order to enjoy his right to private and family life, the applicant must be allowed to re-enter and live in the United Kingdom. The United Kingdom authorities are invited to keep the Committee of Ministers regularly informed of the applicant’s situation regarding his immigration status.

General measures: The judgment of the European Court was published in Lawtel, Butterworths/Lexis Nexis, The Times Law Reports (15.12.2009) and the All England Reporter [2009] All ER (D) 273 (Nov).

• Information is awaited on other measures adopted or envisaged by the United Kingdom authorities.

3455/05 A and others, judgment of 19/02/2009 - Grand Chamber

This case concerns the applicants' certification by the UK authorities as “suspected international terrorists” their detention, and subsequent legal challenges to their certification and detention (violation of Articles 5§1, 5§4 and 5§5).

Background: On 18/12/01 the United Kingdom lodged a derogation pursuant to Article 15 of the European Convention with the Secretary General of the Council of Europe in respect of Part 4 of the Anti-Terrorism Crime and Security Act 2001 (the 2001 Act). The derogation was made on the basis that there was a public emergency in the United Kingdom and stated that the provisions in Part 4 of the 2001 Act may be inconsistent with Article 5§1. In 2001 the applicants were certified by the United Kingdom authorities under Part 4 of the 2001 Act as “suspected international terrorists” and consequently detained. They challenged their certification and detention in the Special Immigration Appeals Commission (SIAC) and on appeal to the House of Lords.  

Derogation from Article 5§1 under Article 15 of the European Convention: The European Court first considered the validity of the United Kingdom's derogation from Article 5§1, under Article 15 of the European Convention. The Court concluded that the derogation was valid, as at the time there was a public emergency threatening the life of the nation (§181).

Violation of Article 5§1: The Court then went on to consider whether the measures made pursuant to that derogation (i.e. Part 4 of the 2001 Act) derogated “only to the extent strictly required by the exigencies of the situation” (§182). The Court found that the measures under which the applicants were detained were “disproportionate in that they discriminated unjustifiably between nationals and non-nationals” (§190).

Violation of Article 5§4: The applicants' certification and detention was considered before the SIAC courts, which use a system of “closed evidence” and “special advocates” to consider evidence related to national security issues (see §§91-93).The European Court found that given the applicants' lengthy and, what appeared at the time, to be indefinite detention, the proceedings before the SIAC needed to include certain guarantees. The Court found that those guarantees were absent in proceedings against four of the applicants where those applicants were unable to respond to allegations against them: such allegations being general assertions or contained entirely in closed evidence unavailable to the applicants or their counsel.

Violation of Article 5§5: Lastly, the European Court stated that the violations found could not give rise to an enforceable claim for compensation before national courts.

Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage to all eleven applicants, save the second and fourth.

• Information provided by the United Kingdom authorities (28/09/2009): Part 4 of the 2001 Act was repealed in 2005. The applicants are no longer detained (see also General Measures below).

• Assessment: No further individual measures appear necessary.

General measures:

1) Derogation under Article 15 of the European Convention: The United Kingdom authorities withdrew the notice of derogation on 16/03/05.

2) Violation of Article 5§1: Part 4 of the 2001 Act was repealed and replaced with a regime of control orders under the Prevention of Terrorism Act 2005 (the 2005 Act), which came into force on 11/03/2005. The control order regime under the 2005 Act operates regardless of nationality (§83).

Sections 1-9 of the 2005 Act which set out the powers relating to the control order regime, remain in force up to one year at a time and are then subject to renewal by Parliament. On 01/03/2010 and 03/03/2010 the House of Commons and the House of Lords voted to renew the powers under the 2005 Act for a further year, from 11/03/2010 – 10/03/2011.

• Assessment: no further general measures appear necessary in respect of this violation.

3) Violation of Article 5§4: The SIAC was set up by the Special Appeals Commission Act 1997. Although Part 4 of the 2001 Act has been repealed, the SIAC continues to deal with cases where the Secretary of State for the Home Department seeks for example to deport individuals from the United Kingdom on national security or other public interest grounds under the Nationality, Immigration and Asylum Act 2002.

i) Control Orders The control order regime which relates to persons reasonably suspected of involvement in terrorism related activity under the 2005 Act also involves the use of “closed material” and the presence of “special advocates”. The procedures under the 2005 Act were modelled on the SIAC procedures but exist under separate legislation.

Judgment of the House of Lords: On 10/06/2009, sitting exceptionally as a nine-judge panel, the House of Lords gave judgment in the case of Secretary of State for the Home Department v AF and another (Appellant) [2009] UKHL 28. The judgment considered the impact of the European Court’s finding of a violation of Article 5§4 on the control order regime set out under the 2005 Act. Noting that the legal framework engaged in this case was different from that before them, the Lords stated that “the clear terms of the judgment in A and others v United Kingdom resolve the issue raised in these appeals” (§64).

They went on to state that “…the essence of the Grand Chamber’s decision lies in paragraph 220 and, in particular, in the last sentence of that paragraph. This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation those allegations. Provided that this requirement is satisfied there can be a fair trial …” (§59). The Lords did not make a Declaration of Incompatibility under the Human Rights Act 1998 in respect of the 2005 Act but stated: “If the Government adjudges that it is necessary to impose serious restrictions upon an individual’s liberty without giving that individual a fair opportunity to challenge the reasons for doing so … then the Government will have to consider whether or not to derogate from Article 6 of the European Convention. Until that time, judges will have to grapple with precisely how much disclosure is necessary to enable the controlled person to mount an effective challenge and the Secretary of State will have to grapple with whether to agree to it. The principles are clear, although by no means easy to apply in particular cases…” (§106).

• Information provided by the United Kingdom authorities (09/03/2010): In control order cases where it appears that there needs to be disclosure of a greater degree of information in order to meet the safeguards identified in the judgment, the question of how much information to disclose is decided in the context of litigation before the domestic courts. The UK authorities present the government’s arguments and special advocates make submissions in the interests of the individual “controlee”. The court then comes to a conclusion on what level of disclosure is appropriate. If the court rules that more information should be disclosed, so that the “controlee” may know the gist of the case against him then the government may either disclose the information or withdraw it from the case. If the government withdraws the information, it can no longer rely on that aspect of the case (which may result in the control order having to be withdrawn).

Since this process has been applied, some control orders have been withdrawn completely and 2 have been replaced with new control orders with less restrictive provisions called “light touch” control orders. The domestic courts have ruled that AF applies to these “light touch” control orders (R (on the application of SSHD) v BC and BB [2009] EWHC 2927 Admin (11 November 2009)) (http://www.bailii.org/ew/cases/EWHC/Admin/2009/2927.html)

Joint Committee on Human Rights: In a number of reports (most recently its 16th report Annual Renewal of Control Orders Legislation (25/03/2010)) the Joint Committee assessed this aspect of the Control Orders legislation and concluded that “the current regime is not capable of ensuring the substantial measure of procedural justice that is required. In short, it cannot be operated fairly without fundamental reforms which have so far been resisted”.

In gathering evidence for its reports the Joint Committee heard from the Special Advocates themselves who made serious criticisms of the system and the possibility for them to advocate successfully for disclosure on behalf of the “controlees” stating that “there are serious limitations on their ability to do this effectively” (§60).

The Joint Committee concludes that “the impact of the decision on improving fairness in practice may have been limited by the Government’s passive and minimalist approach to compliance … We recommend that the Government conduct a more thoroughgoing and proactive review of the material on which it relies  ... rather than leaving that task to the special advocates in ongoing proceedings” (§53).

Review of counter-terrorism and security powers : On 13/07/2010, the United Kingdom government publicly announced to Parliament that they would be conducting a review of counter-terrorism and security powers which would include a review of control orders (see Hansard 13/07/2010: Column 797).

• Assessment: In the light of the criticisms outlined by the Joint Committee on Human Rights, further information is required in relation to any measures envisaged in response to the concerns identified, particularly where the Joint Committee has taken evidence from the special advocates themselves on disclosure and the fairness of the control order proceedings. Information would also be welcome on the progress and conclusions of the review recently announced by the United Kingdom authorities.

ii) Use of Special Advocates and closed hearings in other contexts: In respect of SIAC proceedings under the Nationality, Immigration and Asylum Act 2002 Act, SIAC proceedings of the type concerning the applicants in this case no longer take place, as the relevant legislation has been repealed (see above).

The UK authorities stated that such SIAC continues to hear other deportation proceedings amongst other matters and in accordance with established authorities (Maaouia v France 39652/98) Article 6 does not apply to deportation proceedings. This position has since been endorsed by the UK Supreme Court (RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10 2 WLR 512).

Joint Committee on Human Rights: the Joint Committee on Human Rights considered the use of Special Advocates and closed hearings in other legal contexts (see §60 of their 16th report (cited above)). The appendix to the report states that “there are around 21 contexts where the Government is “aware” of special advocates and closed evidence being used (§58). Of these, the Solicitor General has confirmed that they have been used in 14 of those contexts (HC Deb, 22 February 2010 cols 245W and 382W)”. 

The domestic courts have concluded that the House of Lords’ judgment in AF applies to bail hearings before the SIAC, “light-touch control orders” and proceedings before the Employment Tribunal.

The Special Advocates also submitted evidence to the Joint Committee on the general practice and procedure of the system commenting inter alia on the fact that the closed judgments are not reported. It is therefore impossible for the Special Advocates or judges sitting in closed proceedings to gain awareness of, or refer to precedent cases from other closed proceedings (for more detail see http://www.publications.parliament.uk/pa/jt/jtrights.htm#evid).

• Assessment: Given the relatively widespread use of Special Advocates and their importance as the procedural safeguard in cases where closed evidence is used, information would be welcome on any measures taken or anticipated in the light of the concerns raised by the Special Advocates themselves when giving evidence to the Joint Committee on Human Rights on general practice and procedure in closed proceedings, particularly in relation to law reporting.

            4) Violation of Article 5§5: The violation of Article 5§5 follows the European Court’s finding that the violations found could not give rise to an enforceable claim for compensation before the national courts.

• Information provided by the United Kingdom authorities (28/09/2009): the legal regime which led to this violation (Part 4 of the 2001 Act) is no longer in force.

• Assessment: No further measures appear necessary in respect of this violation.

5) Publication: the judgment was reported in The Times Law Reports on 20/02/2009 and the All England Law Reports at [2009] All ER (D) (203). It was also widely reported on in the British media.

45508/99           H.L., judgment of 05/10/2004, final on 05/01/2005

The case concerns the 1997 detention in a psychiatric institution of the applicant - who was compliant but, suffering from autism, did not have legal capacity to consent to his admission and stay in hospital - as an “informal patient” under s131(1) of the Mental Health Act 1983, itself based on the common law doctrine of necessity.

The Court observed that as a result of the lack of procedural regulation and limits applicable to informal patients, the hospital's health care professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments, completed as and when they considered fit: this left effective and unqualified control in their hands. While the Court did not question the good faith of those professionals or that they acted in what they considered to be the applicant's best interests, it found that the absence of procedural safeguards surrounding the admission and detention of compliant incapacitated persons failed to protect against arbitrary deprivation of liberty on grounds of necessity and, consequently, failed to comply with the essential purpose of Article 5§1 of the Convention (violation of Article 5§1).

The Court further concluded that it had not been demonstrated that the applicant had had available to him at the relevant time a procedure for the review of his continued detention that complied with the requirements of Article 5§4. Judicial review, even based on the expanded (“super-Wednesbury”) principles applicable in human rights cases prior to the entry into force of the Human Rights Act 1998, would not have allowed an adequate examination of the merits of the clinical views as to the persistence of mental illness justifying detention; nor had it been shown that the other possibilities referred to by the Government would have allowed for such an examination (violation of Article 5§4).

Individual measures: The applicant was discharged from hospital on 12/12/1997. The European Court considered that the finding of a violation constituted in itself just satisfaction for non-pecuniary damage.

• Assessment: no further individual measure appears necessary.

General measures:

            1) Legislative change: On 23/03/2005, in response to the judgment of the European Court, the Department of Health published a consultation document, entitled the 'Bournewood Consultation', with a view to bringing forward proposals for appropriate safeguards. The preferred approach in the document was that of “preventive care”, involving a new system of admission/detention procedures for persons who have to be deprived of their liberty so that care and treatment can be provided in their best interests. Under such a system, the power to deprive a person of liberty would be exercisable by specified persons or bodies, in defined circumstances, on the basis of objective medical evidence. It would incorporate guarantees such as requirements to specify the reason for deprivation of liberty, limits on the length of time, involvement of relatives, carers and advocates, provision for regular reviews and access to court for review of the lawfulness of detention

- England and Wales: The Mental Health Act 2007 was adopted by Parliament on 04/07/2007 and received Royal Assent on 19/07/2007. The provisions relevant to this case are the Deprivation of Liberty Safeguards (DOLS) set out in Section 50 and Schedules 7, 8 and 9 to the Mental Health Act 2007. These provisions inserted the DOLS into the Metal Capacity Act 2005, and came into force on 01/04/2009 (SI 1009/139). A DOLS code of practice was published on 28/08/2008, to supplement the main Mental Capacity Act 2005 Code of Practice.

- Scotland: The Scottish Executive has stated that no amendment was required to the Adults with Incapacity (Scotland) Act 2000. The Scottish Executive amended the Social Work (Scotland) Act 1968 in order to clarify the law on provision of community care services to adults with incapacity, through the Adult Support and Protection (Scotland) Act, which received Royal Assent on 21/03/2007. Section 64, which amends section 13 of the 1968 Act, came into force on 22/03/2007.

- Northern Ireland: In October 2002, the Northern Ireland Department of Health, Social Services and Public Safety (DHSSPS(NI)), initiated a review of policy and service provision relating to mental health and learning disability, and of the Mental Health (Northern Ireland) Order 1986.  The review, entitled the Bamford review of mental health and learning disability (Northern Ireland), produced 10 reports between 2005 and 2007.  The report entitled A comprehensive legislative framework provides that the proposed legislative framework makes provisions for the legal protection of those compliant persons with impaired decision-making capacity (“Bournewood” situations) (§ 6.7, see also § 6.24).  The Northern Ireland government produced a response to the Bamford Report, entitled Delivering the Bamford vision (June 2008).  Consultation on the government's response closed on 03/10/2008.

Drawing on the Bamford report A comprehensive legislative framework and the consultation responses to Delivering the Bamford vision, the DHSSPS(NI) issued for consultation a policy document A legislative framework for mental capacity and mental health legislation in Northern Ireland on 02/01/2009. 

The policy document stated that the DHSSPS(NI) will take into account the European Court's judgment in H.L. to ensure that additional safeguards are in place regarding the deprivation of liberty of an individual who lacks capacity.  The consultation of this policy document closed on 31/03/2009. It is anticipated that a final policy memorandum will be presented to the Northern Ireland Executive in Autumn 2010, following which the preparation of draft instructions for a draft bill incorporating mental capacity and mental health legislation will begin. Following consideration of the responses to the policy consultation document, the DHSSPS(NI) will prepare a single piece of legislation incorporating mental capacity and mental health legislation.  The Northern Ireland authorities aim to put draft legislation before the Northern Ireland Assembly in 2011. The earliest legislative reform could be enacted is 2013. At present the common-law doctrine of necessity still applies in Northern Ireland.

            2) Guidance:

- England and Wales: On 10/12/2005, the Department of Health issued advice to local authorities and those responsible for the provision of health care in England and Wales, setting out steps that should be taken in the interim to avoid further breaches of the Convention. The Department of Health continues to provide advice and guidance to support the implementation process. This information can be found on the Department of Health webpage: <http://www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/MentalCapacity/MentalCapacityActDeprivationofLibertySafeguards/index.htm>.

- Scotland: On 30/03/2007, the Scottish Executive issued the document: Guidance for Local Authorities: Provision of Community Care Services to Adults with Incapacity.

- Northern Ireland: The Deprivation of Liberty Safeguards (DOLS) Interim Guidance was issued 1/03/2010 to all health and social care organisations and relevant professional bodies. The guidance highlights the implications for health and social care service providers of the Bournewood judgment and the issues to be considered when decisions are taken about individuals’ care or treatment that may result in the privation of that individual’s liberty.

            3) Publication: The judgment of the European Court was published in the European Human Rights Reports (2005) 40 E.H.R.R. 32; Butterworths Human Rights Cases: 17 B.H.R.C 418; (2005) Lloyd's Rep. Med. 169; Butterworths Medico-legal Reports: (2005) 81 B.M.L.R 131; and in The Times on 19/10/2004.

• Assessment: In England, Scotland and Wales, no further measure appears necessary. The Secretariat is concerned that the main legislative amendments in Northern Ireland will not be enacted until 2013 at the earliest, some 8 years after the European Court’s judgment became final.

• The authorities are invited to keep the Committee of Ministers up to date as to the content and progress of the draft legislation in Northern Ireland incorporating mental capacity and mental health.

26494/95           J.T., judgment of 30/03/00 - Friendly settlement
The applicant, who was admitted as an involuntary patient to a psychiatric institution in 1984 and was detained there until 1996, complained of the legislation (Mental Health Act 1983) under which she was unable to change the person appointed as her “nearest relative” (complaint under Article 8).

Individual measures: The applicant was discharged from the psychiatric institution in 1996. The government paid her compensation together with the reasonable legal costs of her application, as specified in the settlement agreed to by the parties.

General measures: Under the terms of the friendly settlement, the government undertook to amend the relevant legislation, the Mental Health Act 1983, to enable detainees to make an application to a court to have their "nearest relative" replace if they reasonably object to a certain person acting in such a capacity (§12).

1. England and Wales: The Mental Health Bill was adopted by Parliament on 04/07/2007 and received Royal Assent on 19/07/2007. Sections 23 to 26 of the Mental Health Act 2007 amend certain “nearest relative” provisions in the Mental Health Act 1983. In particular, section 24 enables patients to apply to a court to discharge or vary an order appointing a person as “nearest relative”. The court must be of the opinion that the person appointed is a “suitable person”. Sections 23 to 25 came into force on 03/11/2008 (SI 2008/1900) and section 26 came into force on 01/12/2007 (SI 2007/2798).

2. Scotland: Under section 4 of the Adults with Incapacity (Scotland) Act 2000, as amended by the Adult Support and Protection (Scotland) Act 2007, the courts may order that the functions of the “nearest relative” are exercised by someone who is not the nearest relative of the patient but who is, inter alia, in the opinion of the court, a proper person to act in that capacity. Such an order may be made on the application of the patient.

3. Northern Ireland: Under Articles 36-37 of the Mental Health (Northern Ireland) Order 1986, which mirror the wording of sections 29-30 of the Mental Health Act 1983 as in force at the material time, a patient cannot apply to a court to change the person appointed as “nearest relative”

In October 2002, the Northern Ireland Department of Health, Social Services and Public Safety (DHSS(NI)), initiated a review of policy and service provision relating to mental health and learning disability and of the Mental Health (Northern Ireland) Order 1986. The review, entitled the Bamford review of mental health and learning disability (Northern Ireland), produced 10 reports between 2005 and 2007. The report entitled A comprehensive legislative framework states that the proposed legislative framework should include the introduction of a “nominated person” to replace the “nearest relative” (§6.6), and that a person should be capable of refusing the involvement of a previous carer, and that in such situations, the appointment of another “nominated person” should be facilitated (§6.35).

The Northern Ireland government's response to the Bamford Report, entitled Delivering the Bamford vision (June 2008), acknowledged the need to amend provisions relating to the “nearest relative” contained in the Mental Health (Northern Ireland) Order 1986 (page 26). Consultation on the government's response closed on 03/10/2008.

Drawing on the Bamford report A comprehensive legislative framework and the consultation responses to Delivering the Bamford vision, the DHSS(NI) issued for consultation on 02/01/2009 a policy document entitled A legislative framework for mental capacity and mental health legislation in Northern Ireland. The policy document proposed to replace role of “nearest relative” with that of a “nominated person”, chosen by the patient (“service user”) when he or she has capacity to do so. The consultation closed on 31/03/2009. It is anticipated that a final policy memorandum will be presented to the Northern Ireland Executive in Autumn 2010, following which the preparation of draft instructions for a draft bill incorporating mental capacity and mental health legislation will begin. The Northern Ireland authorities aim to put draft legislation before the Northern Ireland Assembly in 2011. The earliest legislative reform could be enacted is 2013.

The United Kingdom authorities recognise the delay in taking measures for Northern Ireland. By way of interim measures, draft amendments to the Mental Health (Northern Ireland) Order 1986 have been prepared which will amend the “nearest relative” provisions to:

(i) add the “patient” to the list of persons with a right to apply for displacement of their “nearest relative” (Article 36 § 2); and

(ii) add a new ground that the relative is “not suitable” to the existing grounds on which an application to displace the existing nearest relative and appoint an acting nearest relative can be made (Article 36, § 3). The amendments are expected to be enacted by Spring 2011.

• Assessment: In England, Scotland and Wales, no further measure appears necessary. The Secretariat is concerned that the main legislative amendments in Northern Ireland will not be enacted until 2013 at the earliest, some 13 years after the friendly settlement.

• The authorities are invited to keep the Committee of Ministers up to date concerning the content and progress of the draft legislation in Northern Ireland incorporating mental capacity and mental health as well as the progress of the proposed amendments to the “nearest relative” provisions of the Mental Health (Northern Ireland) Order 1986.

3383/06            Bullen and Soneji, judgment of 08/01/2009, final on 08/04/2009, rectified on 27/01/2009

This case concerns the excessive length of confiscation proceedings, which began in 2000 following the applicants’ conviction (five years for three degrees of jurisdiction) (violation of Article 6§1).

In 2000 the applicants were convicted of conspiracy to launder the proceeds of crime. Following their conviction, the prosecution began proceedings under the Criminal Justice Act 1988 (CJA) for confiscation orders to recover the proceeds of the applicants' criminal activity. The applicants appealed against the confiscation orders imposed in 2002, on the grounds that the relevant court had not complied with the statutory time-limit of six months under section 72A(3) CJA. Their appeal was ultimately rejected by the House of Lords in July 2005, which held that a failure to comply with the legislative time-limit did not have the effect of invalidating the confiscation order and the prejudice to the applicants was outweighed by the countervailing public interest in not allowing convicted prisoners to escape confiscation for what were no more that bona fide errors in the judicial process.

The European Court found that, although the proceedings were particularly complex, given the high value of the amounts at stake and the possibility of the applicants' being re-imprisoned, there were nonetheless cumulative periods of unreasonable delay attributable to the state.

Individual measures: The applicants submitted no claim for just satisfaction. Following the decision of the House of Lords, the case was returned to the Court of Appeal which re-imposed the confiscation orders against the applicants in October 2005. The proceedings are therefore closed.

• Assessment: no further measure is considered necessary.

General measures: Under section 72A(1) CJA, where a court determines that, following a conviction, further information is required before imposing a confiscation order, it may postpone the making of an order for such period as it may specify. However, section 72A(3) provides that, unless there are exceptional circumstances, such a postponement shall not exceed six months beginning on the date of conviction.

On 29/06/2009 the authorities submitted a report on the action already taken confirming that copies of the judgment and related guidance had been sent out to the Revenue and Customs Prosecutions Office and the Crown Prosecution Service. The National Policing Improvement Agency issued guidance to Accredited Financial Advisers in April 2009, reminding them of the need to proceed with confiscation hearings as soon as possible. Details of the case were published in The Times (02/02/2009) and Lloyd's Law Reports (Rep FC 210). A short summary of the case was included in Public Law 2009, April p.382 headed “Article 6: length of proceedings”. 

In addition to the general measures above, the senior judiciary continue to consider what changes should be made to the administrative arrangements for listing confiscation proceedings. Significant changes have been introduced as to the way in which the Court of Appeal processes such cases. Moreover, Crown Court Judges are to be consulted as to the most efficient way in which confiscation cases can be listed before the Crown Court and the judicial listing guidance will be amended accordingly.

An application to the European Court concerning similar issues to those raised in this judgment was communicated to the United Kingdom authorities on 12/01/2010 (Minshall, No. 7350/06).

• Information is awaited on the content of the changes introduced to the way in which the Court of Appeal processes confiscation proceedings. Information is also awaited on the outcome of consultations concerning changes to the administrative arrangements at other levels of jurisdiction for the listing of such cases.