Ministers’ Deputies

Agenda

CM/Del/OJ/DH(2009)1059 Section 4.2 PUBLIC 19 June 2009

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1059th meeting (DH), 2-4 and 5 (morning) June 2009

- Annotated Agenda[1]

- Decisions

Section 4.2

Public information version

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

Action

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

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

- 8 cases against Albania

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

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

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

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

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

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

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

• Information provided by the Albanian authorities: The European Court's judgment was translated into Albanian and published in the Official Gazette, No. Extra July 2007. The authorities of the Bailiff’s Office have been requested to treat 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).

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

The Deputies decided to resume consideration of this item at the latest at their their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.

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

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

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

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

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

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

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

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

The authorities also stated that they had officially requested the People’s Advocate (an independent ombudsman) to investigate the applicant’s situation in the light of the comments made by the applicant’s representative.

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).

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

The Deputies decided to resume consideration of this case at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.

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

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

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

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

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

General measures:

1) Violation of Article 6§1(non execution of final judicial decisions): this case presents similarities to that of Qufaj (54268/00, Section 4.2).

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

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

• Measures taken and/or under way: As regards the violation of Article 1 Protocol 1 and 6§1, this case presents similarities to the case of Ramadhi and 5 others (38222/02, Section 4.2) and Driza (33771/02, Section 4.2) in which the Albanian authorities have recently provided information on measures taken and/or envisaged.

3) Publication and dissemination of the judgment: the European Court's judgment was published in the OJ, no. extra, July 2007 and disseminated to the competent authorities.

The Deputies,

1. recalled the systemic nature of the non-enforcement of domestic judgments and administrative decisions concerning restitution and/or compensation to former owners in Albania;

2. welcomed the general measures taken so far, in particular the establishment of the private bailiff service, the adoption of maps for property evaluation, the establishment of a central compensation fund and a fund for compensation in kind of former owners;

3. invited in this context the authorities to ensure to the extent possible the allocation of adequate resources to the central compensation fund;

4. encouraged the authorities to continue their efforts, in consultation with the Secretariat, to resolve the remaining problems and in particular those related to the right to compensation (e.g. the right to default interest) in case of absence of execution or delayed execution and to the effectiveness of domestic remedies;

5. invited the authorities to take the further necessary measures to remedy the lack of legal certainty resulting from contradictory decisions in parallel proceedings and the lack of impartiality of the Supreme Court in the circumstances of the Driza case;

6. concerning the individual measures, invited the authorities to take the necessary measures to refund to all applicants, without further delay, the tax of 10% levied on the sums awarded in respect of just satisfaction and to finalise the negotiations with the applicants in the Ramadhi case;

7. decided to resume consideration of these items at the latest at their 1072nd meeting (December 2009) (DH), in the light of the further information to be provided on general and individual measures.

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

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

The European Court found that there had been a breach of the right to a fair trial due to the lack of legal certainty. It concluded that by granting the review of a final judgment and by allowing the introduction of parallel sets of proceedings, the Supreme Court had set at naught an entire judicial process which had ended in final and enforceable decisions (violation of Article 6§1).

The case also concerns the lack of impartiality of the Supreme Court. The Supreme Court lacked subjective impartiality, as its President who instigated the supervisory review proceedings, had already ruled against the applicant in 07/12/00, and also objective impartiality because of a number of judges who were on the review panel adopted the judgments of 17/12/1998 and 07/12/2000 (violation of Article 6§1).

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

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

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

• Information provided by the Albanian authorities: The Property Agency confirmed that the 1650 m² plot of land (i.e. the land at issue) had been registered in the name of the applicant, Ramazan Driza.

General measures:

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

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

• Information provided by the Albanian authorities: With a view to finding a solution to the problem of parallel proceedings for the same case in the same court, a civil case management system has been in operation for a year. This system enables all courts to be connected in a network, provides them with their own website, providing individuals with access to any information they need on the dates of trials, decisions which become final, the status of decisions, etc.

• Information is awaited on measures taken or envisaged to avoid similar violations, in particular on the implementation of the civil case management system.

2) Violation of Article 6§1 (lack of impartiality of the Supreme Court): The supervisory procedure is no longer available (see above). The violation resulted from the composition of the Supreme Court deciding on the applicant’s case.

• Information is awaited on measures taken/envisaged to avoid similar violations, and in particular on the transmission of the European Court’s judgment to the Supreme Court (the judgment has been published in the Official Journal extra, 32/2008).

3) Violations of Article 1 of Protocol No. 1, Article 13 alone or taken in conjunction with Article 1 of Protocol No. 1 and Article 6§1 (non-enforcement of domestic judgments): Under Article 46, the European Court noted that the violations in this case arose from shortcomings in the Albanian legal order, as a consequence of which an entire category of individuals have been and are still being deprived of their right to the peaceful enjoyment of their possessions due to the failure to enforce court judgments awarding compensation under the relevant Albanian law (the Property Act). There are currently dozens of similar cases pending.

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

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

• Measures taken or under way: As regards the violations of Article 1 of Protocol No.1 and Article 6§1, this case presents similarities to the case of Ramadhi and 5 others (38222/02) and Beshiri (7352/03) (Section 4.2) in which the Albanian authorities have recently provided information on measures taken and/or envisaged.

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

The Deputies,

1. recalled the systemic nature of the non-enforcement of domestic judgments and administrative decisions concerning restitution and/or compensation to former owners in Albania;

3. invited in this context the authorities to ensure to the extent possible the allocation of adequate resources to the central compensation fund;

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

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

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

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

Finally, in relation to all of the applicants, the European Court found there had been unjustified interference with the applicants’ right to peaceful enjoyment of property on account of a failure to pay compensation in respect of the first plot of land and to restore the second plot of land, which left the applicants in a state of uncertainty with regard to the realisation of their property rights (violation of Article 1 of Protocol No.1).

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

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

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

General measures: As regards the violations of Article 6§1, Article 1 of Protocol No.1, and Article 13 due to the failure to enforce the restitution and/or payment decisions at issue, this case presents similarities to those of Beshiri (7352/03, judgment of 22/08/2006, final on 12/02/2007) and Driza (33771/02, judgment of 13/11/2007, final on 02/06/2008).

The European Court identified that the violations of Article 1 of Protocol No. 1, Article 6§1 and 13 resulted from a widespread problem affecting a large number of people who were unable to exercise the peaceful enjoyment of their possessions following failure to enforce the Commission’s decisions awarding them compensation under the Property Act. Under Article 46 of the Convention, the European Court stated that a domestic remedy should be introduced which secures genuinely effective redress for the violations identified in this judgment and all similar applications pending.

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

1) Violation of Article 6§1(non-execution of final judicial decisions): this case presents certain similarities to the Qufaj case (54268/00, Section 4.2).

• Information provided by the Albanian authorities:

A) Reform of the bailiff system and other legislative reforms: Albania has adopted two substantial laws relating to the execution of judicial decisions and the acceleration of proceedings:

a) Law No. 10031, dated 11/12/2008 “On a private bailiff service” establishing a new liberal profession (entered into force on 15/01/2009).The system of bailiffs in Albania is henceforth a two track system, exercised by two parallel executive systems: a public and a private one. Social issues especially relating to custody rights will remain under the competence of state bailiff service, while the category of executive titles concerning private contractual rights will be under the competence of the private system. This law regulates their fees, responsibilities, and disciplinary measures. In compliance with this law, the regulatory framework for the organisation, procedures for qualifying bailiffs and the bailiffs’ ethical code had been drawn up.

The status of bailiffs, criteria for licensing, modalities of organisation, and the duties of the private bailiffs’ service are now being drawn up in detail.

b) Law No. 10052, dated 29/12/2008 “On some amendments to Law No. 8116, dated 29/03/1996 ‘the Code of Civil Procedure’” provides deadlines for the execution of executable titles, provides that seizure may apply to working means as well as a debtor’s salary, and defines the Council of Ministers as the competent authority to give instructions on execution of financial obligations of state institutions, thus removing barriers encountered by the state treasury.

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

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

Consequently, the Constitutional court is empowered to examine requests concerning non-enforcement of domestic judicial decisions. However, its decisions are declarative in the sense that they merely find or establish that there is a violation of the right to due process without conferring any obligation or requiring any specific action from the relevant state authorities. Consequently, there is no effective remedy in cases of non-execution of final decisions in the Albanian legal system (see Gjonbocari case, 10508/02, Section 4.2).

2) Violation of Article 13 in conjunction with the Article 6§1:The European Court concluded that by failing to take the necessary measures to provide means to enforce the Commission’s decisions, the applicants were deprived of their right to an effective remedy enabling them to secure the enforcement of their civil right to compensation.

• Information is awaited on measures taken or envisaged to resolve this systemic problem.

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

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

• Information provided by the Albanian authorities:

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

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

A new amendment has been approved by Law No. 10 095, dated 12/03/2009 “On changes to the law on Property Restitution and Compensation” concerning sale of public properties that are in use or rented by private companies. The revenues collected form such sales will be transferred to the compensation fund.

In addition, the Council of Ministers has adopted a number of decisions to implement the Property Act. These include criteria and procedures for restitution (decision No.257 of 11/04/2004); model decisions to be issued by the Agency for Property Restitution (AKKP) set up under Law No. 9583 of 17/07/2006) (decision No.51 of 07/02/2007); procedures for the administration of claims for compensation and their determination (decision No. 747 of 09/11/2006) and procedures for communication between The National Agency for Restitution and Compensation of Property and other state organs (decision No. 52 of 07/02/2007); Criteria and Procedures for Defining Properties, part of the Immovable Property Fund for Physical Compensation” (Decision no. 567, dated 5/09/2007); criteria for evaluation of state property under privatisation or transformation in compliance with auction procedures (Decision No. 1638, of 17/12/2008.); criteria for auction procedures of land and enterprises or other state property, divided or privatised (Decision no. 98, dated 27/01/2009).

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

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

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

- to complete property registration by 2012

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

- to implement a coherent methodology for the valuation of property

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

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

- to modernise the Property Office (by 2013)

- to improve the regulatory framework (by 2013)

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

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

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

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

- Since 2005, the Agency for restitution and compensation of property (AKKP) has distributed the financial fund of 15 500 000 Euros to applicants claiming financial compensation based on the criteria provided by legal acts. At present, ARCP is verifying the fund for physical compensation of former owners. This fund contains 17 335 ha of agricultural land, 71 6993 ha forests and pastures and 29 buildings.

- Concerning the registration process, immovable property is to be registered in two phases; first urban and peri-urban zones up to 2010, while forest and pasture land will be recorded in the system by 2010-2013. The LAMP (land administration and management project) will financially support the registration process with 15 000 000 USD.According to LAMP, referring to the present figures on registration of properties in Albania, registration of 3 500 000 properties out of 4 500 000 plots of existing land in the whole country has been completed.

4) Publication and dissemination of the judgment: The European court’s judgment has been published in the Official Journal extra 32,2008, and sent out to competent authorities.

• Information is awaited on:

- implementation of the law “On liberalisation of the bailiffs’ service” and the amendments to the Code of Civil Procedure;

- the content and impact of the amendments to the Property Act and any follow up to them;

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

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

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

The Deputies,

1. recalled the systemic nature of the non-enforcement of domestic judgments and administrative decisions concerning restitution and/or compensation to former owners in Albania;

3. invited in this context the authorities to ensure to the extent possible the allocation of adequate resources to the central compensation fund;

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

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

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

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

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

• Evaluation: no additional measure seems to be required.

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

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

• Information provided by the Albanian authorities:

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

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

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

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

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

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

• Assessment: Nevertheless, there is no information on the existence of a mechanism rapidly providing supplementary funds in case of an overspend.

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

• Information provided by the Albanian authorities: Albania has adopted two substantial laws relating to the execution of judicial decisions and the acceleration of proceedings:

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

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

• Assessment: Consequently, there is no effective remedy in cases of non-execution of final decisions in the Albanian legal system (See Gjonbocari case, 10508/02, section 4.2)).

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

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

• Information is awaited on the follow-up given to the reforms announced by the authorities, in particular on the implementation of the law on the private bailiffs’ service and on the establishment of a mechanism rapidly providing supplementary funds in case of overspend.

The Deputies decided to resume consideration of this item at the latest at their their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.

3738/02 Marini, judgment of 18/12/2007, final on 07/07/2008

This case concerns a violation of the applicant’s right of access to a court, the Constitutional Court having failed to pronounce on the applicant’s appeal and having, on 27/04/2005, effectively declined to take a decision (violation of Article 6(1)).

The European Court noted that the Constitutional Court had declared that it could not adopt a decision on the applicant’s appeal because the vote had been tied, even though the panel consisted of seven judges, none of whom could abstain. As the Constitutional Court failed to give any reason for this outcome, the European Court concluded that the Constitutional Court could not reach a majority on any of the proposals submitted.

The case also concerns the failure to enforce a final decision of the Plenary State Arbitration Commission given on 07/07/1993, ordering the state to respect its partnership commitments in a joint venture company set up with the applicant in 1991. This judgment remained unexecuted for ten years until the joint venture was wound up in 2003 (violation of Article 6(1)).

The case also concerns the excessive length of two sets of civil proceedings (running unspecified dates in 1993 to 20/11/2003 and in January 1997 to 13/04/2006) (violation of Article 6§1). In this context the Court found that there was no remedy available to the applicant in respect of this delay (violation of Article 13).

Finally the state’s refusal to honour the company’s obligations; its failure to enforce decisions made by the courts in the applicant’s favour and the length of the proceedings rendered the applicant’s shareholding invalid and the applicant unable to receive the expected profits. This in conjunction with the manner in which the proceedings were conducted and the resulting uncertainty of the applicant’s position in relation to his ownership of the company upset the “fair balance” between the public interest and the applicant’s right to peaceful enjoyment of his possessions (violation of Article 1 of Protocol No. 1).

Individual measures: The European court award just satisfaction in respect of pecuniary and non-pecuniary damages.

• Assessment: No further individual measures appear necessary. The national proceedings have completed and the joint venture company ceased to exist in 2003.

General measures:

1) Violation of Article 6§1 – lack of access to a court: Under section 74 of the Constitutional Court Organisation Act, the Constitutional Court must dismiss individual appeals where the vote is tied or where a proposal fails to attract a majority of votes. In such circumstances, no reasons are given for dismissing an appeal except that the vote was tied. In its judgment the European Court noted that this provision differs significantly from those adopted in the legal systems of the other contracting parties; does not serve the interests of legal certainty and can deprive an applicant of their effective legal right to have a constitutional appeal finally determined.

• Information is awaited on any measures taken or envisaged, particularly in relation to the practice of the Constitutional Court and the provisions of section 74 of the Constitutional Court Organisation Act.

2) Violations of Article 6§1 - excessive length of proceedings and Article 13 – right to an effective remedy: This case presents similarities to that of Gjonbocari (10508/02, section 4.2).

3) Violation of Article 6§1 - non-enforcement of final domestic decisions: This violation resulted from the inaction of the bailiffs and the administrative authorities, who took no effective measure to comply with the relevant decisions.

A similar problem is being examined in the context of the case of Qufaj (54268/00, Section 4.2).

• Information is awaited on the availability of the European Court’s judgment and its publication and dissemination to bailiffs and other competent administrative authorities.

4) Violation of Article 1 Protocol 1 – right to peaceful enjoyment of possessions: This violation resulted from the reluctance of the administrative authorities and the bailiffs to honour the obligations entered into when the company was founded.

• Information is awaited on any measures taken or envisaged.

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

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

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

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

The Supreme Court’s judgment of 06/03/2003 has been executed. As required by the judgment, the Land Commission considered the applicants’ claims in relation to the property and declared them inadmissible on 31/07/07. According to the applicants the property in question has been seized by a third party.

The authorities stressed that following the Supreme Court’s judgment, the Land Commission was required to come to a decision in relation to the applicants’ claim but that such a decision would not necessarily grant the applicants rights over the property.

• Assessment: As the Supreme Court’s judgment of 06/03/2003 has been enforced, no further measures appear necessary.

• However, confirmation of whether the decision has become final, would be welcome (a translation of the regional office for restitution and compensation of property decision, offered by the authorities, is awaited).

General measures:

1) Violation of Article 6§1 – non-enforcement of domestic final decisions: This issue is considered in the case of Beshiri and others in which the Albanian authorities have recently provided information on measures taken and/or envisaged (7352/03, section 4.2).

2) Violations of Article 6§1 (excessive length of proceedings) and of Article 13 (lack of effective remedy in this respect): The European Court noted that the judicial system failed to manage properly the multiplication of proceedings on the same issue where it could have combined all the proceedings. Concerning the lack of effective remedy, this violation arose from the lack of any provision in national law which the applicant’s could have used to obtain redress for the excessive length of the proceedings.

• Information provided by the Albanian authorities (09/04/2009): The Code of Civil Procedure has been amended by the adoption of Law No. 10052 of 29/12/2008, which lays down new procedures for summonsing parties when absent, strengthens courts’ role at preparatory hearings and sets tighter time limits for the trial of certain kinds of cases.

• Information is awaited on further measures envisaged to accelerate domestic civil proceedings and provide an effective remedy against their excessive length.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of information to be provided on the individual and general measures.

- 6 cases against Armenia

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

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

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

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

The applicant was found guilty of premeditated murder and sentenced to ten years’ imprisonment (final decision of the Court of Cassation of 8/05/2003) and was detained from 17/04/1999 to 22/12/2003 when he was released on parole (see §44 of the judgment).

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

• Letter from the applicant’s lawyer, 20/11/2008: On 25/12/2007, the applicant lodged a request for reopening with the Court of Cassation on the basis of Article 410.1 of the Code of Criminal Procedure (CCP) in force at that time, which provided that applications for reopening of proceedings had to be lodged with the Court of Cassation on grounds of “new circumstances”. According to the new provisions of the CCP which entered into force on 27/12/2007, requests for reopening have to be lodged with the first-instance court which examined the case. The applicant therefore also lodged a request for reopening on 25/12/2007, with the First-instance Court of Syunik Marz.

This request was rejected on the ground that, according to Article 410.1 of the CCP, the court which gave the final decision was competent to decide on the reopening request. In addition, on 21/01/2008 the Court of Cassation referred the applicant’s case to the Southern Criminal Court. The applicant’s lawyer further mentions that during the hearing which was held on 14/03/2008, the presiding judge stated that the previous decisions of the Court of Appeal and the Court of Cassation remained in force. The applicant’s lawyer doubts that the Southern Criminal Court is competent to quash decisions of the Court of Appeal and the Court of Cassation.

• Letter from the applicant’s lawyer (16/03/2009): The applicant has applied to the Constitutional Court challenging the constitutionality of Article 426.1 of the Code of Criminal Procedure. By decision of 21/10/2008, the Constitutional Court found that Article 426.1 of the CCP was unconstitutional and void. On 21/01/2009, the applicant’s lawyer applied to the Court of Cassation, asking for the revision of its decision of 21/01/2008. On 9/03/2009, the Court of Cassation returned the application together with a decision of 25/02/2009 by which they rejected the application on the grounds that there was no new circumstance and that the applicant had sent an English version of the European Court’s judgment. The applicant’s lawyer underlines that an Armenian translation of the European Court’s judgment can be found on the Ministry of Justice website and that he had sent, as a new circumstance, the decision of the Constitutional Court of 21/10/2008.

The two letters from the applicant’s lawyer have been forwarded to the Armenian authorities.

• Information has been awaited since the first examination of the case, in December 2007, on the possibilities, both in law and in practice, to reopen criminal proceedings following a judgment of the European Court finding a violation of the right to a fair trial. Moreover, information is awaited on the possibilities that remain open to the applicant to obtain the reopening of the criminal proceedings in this case. In this context, comments of the authorities on the information transmitted by the applicant’s lawyer would be welcome.

General measures:

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

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

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

The Deputies

1. noted with satisfaction that Armenian law provides for the reopening of criminal proceedings;

2. took note with satisfaction that domestic courts are currently reviewing the case of the applicant and, in the light of the European Court of Human Rights' conclusion that “the applicant’s trial was unfair as a whole”, stressed the need for a new trial respecting the requirements of Article 6 of the Convention; invited the Armenian authorities to keep the Committee of Ministers informed of the development of the proceedings;

3. recalled that general measures are also awaited in this case;

4. decided to resume consideration of this item at the latest at their 1072nd meeting (December 2009) (DH), in the light of further information to be provided on individual and general measures.

- Cases concerning the right of freedom of assembly

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

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

These cases concern a breach of the applicants’ right of freedom of assembly due to their arrest and sentencing to three days’ detention (case of Galstyan) five days’ detention (case of Ashughyan) for participating in rallies in April 2003 following the presidential elections (violations of Article 11).

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

The case also concerns an infringement of the applicant’s right to adequate time and facilities for the preparation of his defence (violation of Article 6§3b combined with of Article 6§1).

Lastly, the case concerns a breach of the right of appeal in criminal matters (violation of Article 2 of Protocol No. 7).

Individual measures: The European Court awarded just satisfaction to Mr Galstyan in respect of non-pecuniary damage. Mrs Ashughyan did not submit any claim for just satisfaction and accordingly the Court did not award her any sum. The applicants are no longer detained.

• Information is awaited on any possible record of the applicants' condemnation and on measures taken or envisaged in their favour.

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

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

No information has been received since that meeting.

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

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

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

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

• Information provided by the Armenian authorities (6/06/2008): The legislation of the Republic of Armenia allows for reopening of civil proceedings and the applicants are free to use it.

• Information is awaited on the following points:

- whether it is possible in practice to obtain the reopening of civil proceedings ;

- whether it is possible to obtain compensation at domestic level should reopening prove impossible or be refused for reasons of legal certainty.

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

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

38978/03 Sharukhanyan, judgment of 27/05/2008, final on 27/08/2008

The case concerns a breach of the right to free elections on account of the refusal by the authorities, upheld by the Shengavit district court of Yerevan, to register the applicant as a candidate in legislative elections on the grounds that he had falsified his declaration of property when registering as a candidate (violation of Article 3 of Protocol No. 1).

The European Court held that the requirement that candidates submit truthful information on their property status pursued a legitimate aim: i.e. enabling the electorate to make an informed choice when voting. However, the Court found that the applicant’s disqualification as a candidate in the general elections had been disproportionate to the legitimate aim pursued, in particular because the omission in that declaration had been the result of misleading rules and practices for registering privatised property in Armenia at that time and because it was of minor importance and could not seriously have misled voters.

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

• Information is awaited on the possible consequences of the Electoral Commission’s decision of 03/05/2003 on a possible candidacy to future elections and on the possibility of cancelling that decision.

General measures: It appears from the Court’s judgment that provisions regarding the registration of candidacy for election have change since the facts of the case.

• Information provided by the Armenian authorities (8/01/2008):The judgment has been translated into Armenian and published on the official websites of the Ministry of Justice (www.moj.am), of the Prosecutor’s Office (www.genproc.am), of the Judicial authority of Armenia (www.court.am), as well as on those of the Police of the Republic of Armenia(www.police.am) and the Court of Cassation on 27/11/2008.

• The following information is awaited:

- dissemination of the European Court’s judgment to tribunals in charge of the examination of appeals against Electoral Commissions and in particular to the Shengavit district court of Yerevan;

- copy of texts currently in force regarding the procedure for registration of candidates;

- information on whether or not it is necessary to clarify the rules on registration of property.

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting in 2010, in the light of information to be provided on individual and general measures.

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, 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. The issue of other individual measures to be adopted has been raised.

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.

•The Secretariat is examining this position, as well as possible interim measures, in co-operation with the Armenian authorities.

Moreover, it appears from various press releases that the applicant lodged an application (for reopening?) with the Court of Cassation, after the European Court gave its judgment, but that his application was dismissed.

• It is recalled that detailed information on the appeal lodged by the applicant with the Court of Cassation and a copy of the Court of Cassation’s judgment would be welcomed.

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.

At the 1043rd meeting, the Permanent Representative of Armenia stated that 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.

Moreover, Law on Radio and Television is currently being amended in order to be adapted to the switch to digitalisation and to be brought into conformity with the Convention.

- As regards the National Television and Radio Commission (NTRC): The Television and Radio Broadcasting Act has over the past eight years been subject to various amendments, the most important of which, for the purpose of this case, was the amendment introduced in February 2007 in order for the Act to comply with the amended Constitution of the Republic of Armenia in 2005. As a result, instead of the previous composition of nine members appointed solely by the President of the Republic for a term of six years, the Commission currently comprises eight members appointed half by the President and half by the National Assembly, for a period of six years.

The draft legislative amendments introduce, in particular, a competitive procedure for the nomination of candidates to be appointed by both the National Assembly and the President of Armenia. The requirements of professional competence and the guarantees for independence of the candidates are intended to be enhanced.

- As regards motivation of decisions of the NTRC: The criteria for the selection of broadcasting companies to award a license received further elaboration in the present drafts. At the same time these provisions, as well as those concerning the rejection of a license, continue to be subject to further commentary and improvement.

Information is awaited on the progress of the legislative process.

The Deputies decided to resume consideration of this item at the latest at their 1065th meeting (15-16 September 2009) (DH) in the light of information to be provided on individual and general measures.

- 3 cases against Austria

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

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

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

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

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

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

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

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

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

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

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

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

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

Individual measures: The European Court awarded the applicant just satisfaction in respect of non‑pecuniary damage sustained and reimbursed him costs and expenses incurred in the domestic proceedings and before the Court.

• Information submitted by the applicant’s counsel (letter of 28/11/2008): On 21/08/2008 the Supreme Court rejected the applicant’s request to reopen the proceedings finding that, as a private prosecutor, he had no legal standing for such a request under Article 363a of the Code on Criminal Procedure. Moreover, reopening proceedings against the previously acquitted chief editor would infringe the principle of reformatio in peius applicable in criminal proceedings. Thus, the applicant complained that despite the European Court’s judgment in his favour, Austrian law did offer no restitutio in integrum of his reputation.

•.Bilateral contacts are underway to clarify this issue.

General measures: A similar issue was raised in Wirtschaftstrend No. 2 (Application No. 58547/00, Section 6.2), concerning the conviction of defamation for a publication in a magazine. In this case the European Court noted that the right to freedom of expression had been interpreted too narrowly by the Austrian Courts and found a violation of Article 10. Consequently between 1997 and 2005 the Austrian authorities provided regular training for judges on the Convention and especially the European Court’s case-law relating to Article 10.

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

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

35354/04 Abrahamian, judgment of 10/04/2008, final on 10/07/2008

The case concerns the lack of an oral hearing before the Administrative Court, in February 2004, in proceedings concerning the determination of the applicant’s civil rights and obligations, namely her contributions to the pension and invalidity fund of the Medical Association (violation of Article 6§1).

Individual measures: The European Court held that the finding of a violation constituted in itself sufficient just satisfaction with regard to non-pecuniary damage.

Article 45§1(4) of the Administrative Court Act 1985 provides the possibility of reopening proceedings upon request by one of the parties when the provisions concerning the right to be heard were not complied with and it is to be assumed that the judgment could have been different.

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

General measures: The case presents similarities to the Schelling group of cases (No. 55193/00) (Section 6.2), in which the Austrian government informed the Secretariat of a certain number of measures including the fact that the Administrative Court was to pay any just satisfaction awarded to the applicant out of its own budget. This measure was to prevent new, similar violations. The facts of this case occurred after the measures taken in the case of Schelling.

• Taking into account the circumstances of this case, information is awaited on further measures envisaged or taken. The publication and dissemination of the European Court’s judgment, in particular, to the Administrative Court, would be useful.

- 10 cases against Azerbaijan

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

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

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

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

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

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

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

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

General measures

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

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

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

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

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

• Information is awaited on

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

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

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

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

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

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

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

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

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

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

General measures:

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

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

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

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

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

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

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

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

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

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

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

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

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

• Assessment: 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).

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

The case concerns a violation of the applicant’s right to a fair trial in that he had not been informed about the hearing of his cassation appeal before the Supreme Court and, therefore, could not be present at the hearing (violation of Article 6§1). On 7/12/2004, the Supreme Court heard the applicant’s appeal in his absence and dismissed the appeal as being unsubstantiated.

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

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

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

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

• Information provided by the Azerbaijani authorities (letter of 13/03/2009): On 3/11/2008, the Plenary of the Supreme Court examined the case, quashed the judgment of the Supreme Court of 7/12/2004 and sent the case to the Chamber on criminal matters of the Supreme Court for its reconsideration. The re-examination of the case has been scheduled for 3/05/2009. Information on the results of this examination will be submitted in due course.

A copy and translation of the Supreme Court’s decision of 3/11/2008 were enclosed in this letter.

General measures: The Court reiterated that the concept of a fair trial includes the principle of equality of arms and the fundamental right that criminal proceedings should be adversarial. Moreover, Article 6 of the Convention, taken as a whole, guarantees that a person charged with a criminal offence should, as a general principle, be entitled to be present and participate effectively in the hearing concerning the determination of criminal charges against him. The Court noted that in the present case a public prosecutor was present at the appeal hearing and made oral submissions to the court. These submissions were directed at having the applicant's appeal dismissed and his conviction upheld. In such circumstances and having regard to the fact that the applicant was not legally represented, it was incumbent on the Supreme Court to take measures to ensure the applicant's presence, to maintain the adversarial character of the proceedings.

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

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

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

The case concerns an interference with the applicant’s peaceful enjoyment of her possessions on account of a decision taken by a Court of appeal in which, while recognising that the applicant was the lawful tenant of a flat, it decided, not relying on any domestic legislation, to postpone the execution of an eviction order until the unlawful occupants , who moved into the applicant’s flat in 1997, can go back to their region of origin, Nagorno-Karabakh (violation of Article 1 of Protocol n° 1).

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

General measures:

The European Court judgment was translated and published in the “Bulletin of the European Court Judgment” No 4/2008. The European Court judgment has been disseminated among judges (in particular judges of Courts of Appeal) and other legal professionals, as well as included in the curricula for the training of judges, prosecutors and candidates to judge position.

Information is awaited on further possible measures to be adopted. Moreover, examples of direct application of the case-law of European Court by domestic courts would be very useful.

The Deputies decided to resume consideration of this case at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.

21674/05 Rahimova, judgment of 17/01/2008, final on 07/07/2008

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

The European Court held that significant and unjustified periods of inactivity before the district court of Sabunchu contributed significantly to the prolongation of the proceedings as a whole.

The case also concerns the absence of an effective remedy for an alleged breach of the requirement to have one’s case heard within a reasonable time (violation of Article 13).

Individual measures: The applicant did not submit a claim for just satisfaction in the manner required by Rule 60 of the Rules of Court. Accordingly, the Court did not award her any sum on that account. The civil proceeding was terminated when the Court gave its judgment.

• Assessment: No individual measure seems necessary.

General measures: The Court noted that there is no effective domestic remedy for an alleged breach of the requirement to have one’s case heard within a reasonable time.

• Information is awaited on the volume of pending proceedings at the district court of Sabunchu and whether general measures might possibly be needed to reduce the length of proceedings, as well as on the creation of a remedy which could be used either to expedite proceedings or to provide adequate redress for delays that have already occurred.

The Deputies decided to resume consideration of this case at the latest at their 1st DH meeting in 2010, in the light of further information to be provided on general measures.

- Cases concerning the right of freedom of association

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

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

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

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

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

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

• Information provided by the Azerbaïjani authorities (letter of 15/10/2008): Mr. Ismayilov’s association Humanité et environnement, was finally registered on 3/09/2008 and Mrs Nasibova’s association, TheJournalist’s Enquiry Centre could not be registered because the applicant had lodged no application for state registration with the Ministry of Justice.

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

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

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

New provisions regarding “state registration and state register of legal entities”, and in particular remaining technical issues, mainly regarding calculation of time-limits for registration, are currently being examined by the Secretariat in cooperation with the Azerbaïjani authorities.

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures in the Nasibova case and on general measures.

- 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 not enforced until July 2007, had remained unenforced, 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: In the case of Tarverdiyev, 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 predate the judgment of the European Court of Human Rights; therefore, the adoption of individual measures is still awaited. Bilateral contacts are being held in order to clarify this situation.

In the case of Efendiyeva, the applicant was reinstated in her post on 11/07/2007. On 18/01/2008, the Supreme Court awarded the applicant 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 allow the applicant certain sums for pecuniary damage and non-pecuniary damage.

• Assessment: No further measure seems necessary.

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.

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures in the Traverdiyev case and on general measures in both cases.

- 7 cases against Belgium

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

This case concerns an infringement the right of the applicants, an individual and an association, to a fair trial before the Cour de cassation in that their complementary observations were declared inadmissible because they were handed in late. The applicants’ sentence in 1995 to a deferred fine became final following the proceedings at issue.

In finding the violation, the European Court considered that Article 420 bis of the Code of Criminal Investigation (Code d'instruction criminelle) which applied to the plaintiff at appeal and which required plaintiffs to file pleadings within two months of the registration of the application on the general list of the Cour de cassation, whereas no comparable deadline applied to defendants, breached the principle of equality of arms (violation of Article 6§1).

Individual measures: The European Court concluded that no pecuniary damage had been established and that the non-pecuniary damage was sufficiently compensated by the finding of the violation. According to the Law of 01/04/2008 on the reopening of criminal proceedings following judgments of the European Court of Human Rights, which entered into force on 01/12/2007, the applicant had the possibility to request the reopening of the proceedings at issue (see also the Göktepe case in section 6.1 at the 1028th meeting, June 2008).

• Assessment: no further measure appears necessary.

General measures: As early as April 2003, the Belgian delegation had informed the Committee that the Prosecutor General of the Cour de cassation was considering a solution. At the 922nd meeting (April 2005), it was indicated that the Cour de cassation had issued a note suggesting that the European Court's judgment should be taken into account in law and that a bill amending the Code of Criminal Procedure was being discussed. A bill amending the Code of Criminal Procedure, inter alia to rectify the article at issue in this case had been drafted. However, to date it could not be adopted by Parliament and is at present in abeyance.

It is recalled that the judgment of the European Court was rapidly published on the Internet site of the Ministry of Justice and communicated to the Cour de cassation.

• Information is awaited on measures taken so that this reform is adopted. Information also seems necessary on the interim measures taken pending its adoption.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of further information to be provided on general measures, in particular on the detailed content and the progress of the legislative reform, as well as on possible further interim measures taken pending its adoption.

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

This case concerns the violation of the right to the presumption of innocence (violation of Article 6§2). In 1994, the applicant was placed in pre-trial detention for nearly a month in connection with an arson investigation. As he had been found to have no case to answer at the end of the proceedings, he applied for compensation for the damage sustained as a result of being placed in pre-trial detention. This application was rejected by the Minister of Justice, and then, finally by the appeal board for wrongful pre-trial detention on 01/12/1997, on the ground that he had not provided evidence of his innocence, as required by a law of 13/03/1973.

The European Court concluded that this requirement, although based on a legal provision, left a doubt with regard to the applicant's innocence. It considered that this reversal of the burden of proof, in compensation proceedings following a failure to indict, was incompatible with the presumption of innocence.

Individual measures: By letter of 07/02/2006, the Belgian authorities indicated that the appeal board's decision was final and that a new examination of the application by this board was excluded. The applicant did not submit any claim in respect of just satisfaction before the European Court and he has not submitted any request before the Committee of Ministers.

•Assessment: this being so, no particular individual measure seems necessary

General measures: The appeal board's reasoning criticised by the European Court was based on the Article 28§1b of the law of 1973 which required applicants to “present factual or legal elements proving their innocence”.

Since the European Court's judgment was delivered, the bodies examining requests for compensation for wrongful pre-trial detention (i.e. the Ministry of Justice at first instance, and the appeal board) no longer examinethe requirement of “presenting factual or legal elements proving their innocence” in cases where the suspects were found to have no case to answer at the end of the proceedings. In this respect the authorities provided as examples copies of two decisions of the appeal board of March and May 2005. In these decisions the appeal board did not examine the issue of whether the applicants “presented factual or legal elements providing their innocence” and referred to Article 6§2 of the Convention. It found that in case of conflict between a rule of a treaty which has direct effect in the Belgian domestic legal order and a rule of domestic law less favourable, the treaty rule prevails. This practice is still followed to date, by both the Ministry of Justice and the appeal board.

Furthermore, a draft law abrogating the legal requirement contrary to the Convention is currenlty under examination.

• Further information is awaited with respect to this draft law.

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

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

37330/02 Defalque, judgment of 20/04/2006, final on 13/09/2006

43542/04 De Turck, judgment of 25/09/2007, final on 25/12/2007

12066/06 Mathy, judgment of 24/04/2008, final on 24/07/2008

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

These cases concern the excessive length of proceedings concerning civil rights and obligations before the Conseil d'Etat (violations of Article 6§1). The period covered by the violations extends from 1975 to 2006.

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

Individual measures: None: the proceedings are closed.

General measures: The European Court's judgment in the case of Entreprises Robert Delbrassinne S.A. was notified to the Auditeur général of the Conseil d'Etat and the Minister of the Interior and published on the Internet website of the SPF (Service public fédéral, i.e. Ministry of Justice) in the three national languages.

The authorities also provided information about a proposed reform of the Conseil d'Etat, aiming at reducing its backlog (in particular regarding proceedings concerning the rights of aliens). The structural and organisational measures envisaged included in particular: eliminating the non-judicial functions of the Conseil d'Etat, improving the functioning of sections, in particular in the light of the results of the work of the section president in charge of organisation, giving a clearer definition of the tasks of the registrar, deputy registrar and administrator. The government also foresees the introduction of modern management (including a system of terms of office for certain functions and an evaluation system for magistrates) as well as simplified procedures in some cases. New judges were also to be recruited to deal with the judicial backlog.

The authorities have indicated that the Law reforming the Conseil d’Etat has now been adopted.

 Bilateral contacts are under way concerning the content of this law, with a view to its assessment.

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), following the bilateral contacts under way concerning the assessment of the general measures adopted and in particular the Law adopted.

- 4 cases against Bosnia and Herzegovina

12455/04+ Tokić and others, judgment of 08/07/2008, final on 08/10/2008

The case concerns the unlawfulness of the applicants' detention in Zenica Prison Forensic Psychiatric Annex following the introduction of new legislation in August 2003, under which the competent authorities had until 01/09/2003 to verify the status of all those who, like the applicants in the present case, had been acquitted on the grounds of insanity under the former criminal law. The authorities also had to initiate proceedings so that the competent civil court could decide whether to prolong detention of any such mental health patient (§53). However, no such decision was ever taken in the present case (violation of Article 5§1).

The European Court noted that social care centres took administrative decisions on compulsory confinement with regard to certain applicants, even though they had no jurisdiction to order psychiatric detention under the new law. The European Court also noted that the Constitutional Court had examined similar complaints in a number of psychiatric detainees’ cases (including those of two applicants in the present case) and considered the present situation to be unlawful (§66). In fact, on 21/12/2006, the Constitutional Court ordered the authorities “to undertake such legislative and other measures as might be necessary within three months of the delivery of the decision” (§38). Finally, when reviewing decisions on the compulsory confinement of the two applicants from October 2003 to 2007 the domestic courts referred to the earlier law, which after July 2003 was no longer in force (§§ 35, 45, 48).

Individual measures: The European Court noted that the violation still continued in the case of Mr Marinić, while the other three applicants had been released from Zenica Prison Forensic Psychiatric Annex (§66). Just satisfaction has been awarded to all the applicants.

• Information is awaited on situation of Mr Marinić, who is still held in Zenica Prison Forensic Psychiatric Annex.

In this respect it has to be noted that the European Court decided to strike a similar case, that of Hadžić (Application No. 11123/04, decision of 11/10/2005) out of its list on the basis of the undertaking by the government of Bosnia and Herzegovina, inter alia, to“move all patients held in Zenica Prison Forensic Psychiatric Annex to an adequate facility at latest by 31/12/2005.”

General measures: The new Criminal Code of Bosnia and Herzegovina entered into force on 01/08/2003. As from that date, offenders acquitted on grounds of insanity may be placed in psychiatric detention only by a decision of a competent civil court if this is considered necessary for the protection of the offender and/or the public from serious harm (§52). While a hospitalisation order may still be imposed by criminal courts on those who have been found guilty although suffering from diminished responsibility, it may no longer be imposed against those who have been found not guilty by reason of insanity (§51). The issues concerning Zenica Prison Forensic Psychiatric Annex were also discussed in the CPT reports (see e.g. CPT/Inf(2007) 34, pp. 9-10, 33-35).

On 19/02/2009 the Secretariat addressed an initial-phase letter to the authorities of Bosnia and Herzegovina regarding the general measures taken or envisaged in the context of the present judgment.

• Information provided by the authorities (19/01/2009 and 06/03/2009): By letter of 22/12/2008, the Government Agent invited the Government of the Federation of Bosnia and Herzegovina (“Federation”) and the Federation Ministry of Labour and Social Affairs to start implementing the general measures required in this judgment. On 16/02/2009 the Ministry requested cantonal ministries to ask in their turn social care centres on their territory to verify the status of detainees acquitted on grounds of insanity and, if appropriate, to request the competent court to decide whether to prolong detention of any such mental health patient. Cantonal ministries are under an obligation to submit reports on measures taken in this respect by 30/04/2009.

• Information is thus awaited on the results of the verification of the status of all mental patients in similar situations, including the number of such detainees still unlawfully held in compulsory confinement and the measures taken to remedy their situation

Publication and dissemination: The European Court’s judgment was published in the Official Gazette of Bosnia and Herzegovina (No. 95/08 of 01/12/2008). It was also sent with an explanatory note to all relevant authorities as well as to all courts and social care centres involved in the present case, while all social care centres in the Federation took note on the violation found in the present judgment.

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

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

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

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

The European Court noted that even though the disparity between pension amounts in each Entity may have subsequently become smaller, this is of no relevance to the respondent state’s obligation to enforce decisions of its courts (§24 of the judgment).

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

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

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

General measures:

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

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

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

2) Measures taken and under way: The Bosnian authorities provided information on 06/06/2008, 28/07/2008, 15/10/2008 and 09/04/2009.

A. Action plan: The authorities reported that on 16/07/2008 the Federation government adopted an action plan to deal with cases similar. The Action Plan sets out certain measures concerning enforcement of domestic court decisions in other similar existing cases. It also envisages certain measures concerning the collection and analysis of data on the number of pensioners, who earned their pension before 30/04/1992 and have since returned to the Federation, as well as on the amount of their pensions. Based on this analysis, the Federation government amended the action plan on 10/12/2008.In particular, the amended Action Plan provides that the Federation Ministry of Labour and Social Policy will initiate appropriate amendments to the Pension and Disability Insurance Act. These amendments were drafted in February 2009 and provide for the payment of the difference in pension received from the RS Fund by the returnees from the RS to the Federation and the pension that would have been payable from the Federation Fund, provided that the latter is greater.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Assessment: No further individual measure appears necessary.

General measures:

1) Background information: About 1 100 cases are currently pending before the European Court (submitted on behalf of around 11 000 applicants) concerning “old savings”. In 10 of these cases applicants have obtained a final and enforceable judgment ordering the release of their savings (see §43 of the Jeličić judgment). The Constitutional Court of Bosnia and Herzegovina and its Human Rights Commission have determined more than 1 000 such cases and enforceable judgments have been made in only five of these (see §43 of the Jeličić judgment). In the context of the Pejaković judgment, the government of Bosnia and Herzegovina submitted to the Court that “following the Court's judgment in Jeličić, it had been realised that the number of judgments ordering the release of “old” foreign-currency savings could amount to 200 and not, as earlier believed, 10 to 20 judgments. The public debt arising from those judgments exceeded BAM 100 000 000, the government claimed” (see §26 of the Pejaković judgment). Nonetheless, those figures have not been confirmed subsequently (see below Recording of the non-executed final judgments in respect of “old savings”).

The European Court found similar violations in the cases of Kudić (28971/05, Section 2.2) and Pralica (judgment of 27/01/2009, not final).

2) Measures adopted and under way:

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

B. Action plan: The authorities informed the Secretariat that on 20/09/2007 the government set up a task force comprising of the representatives of the Ministry of Finance and Treasury, Ministry of Justice as well as Ministry of Human Rights and Refugees to draft an action plan concerning the problem of non-enforcement of domestic judgments ordering release of “old savings”. Adoption of the action plan was expected by December 2007 but no such plan has been produced.

In relation to that, the authorities stated on 15/10/2008 that the Council of Ministers of Bosnia and Herzegovina had made a decision on 03/07/2008 to appoint a new inter-agency task force in charge of developing an action plan. However, this decision was repealed on 27/11/2008 and the RS was required to adopt the action plan. This decision was based on the information that only one non-executed domestic court decision has been registered in the Federation and in the District of Brčko, while all the others concerned the RS (see below). The Government of the RS adopted the action plan on 03/04/2009.

• Information is awaited on implementation of the action plan adopted in the RS.

C. Recording of the non-executed final judgments in respect of “old savings”: The two entities and one district have been ordered to adopt bylaws detailing the procedure in respect of registration of the relevant final judgments. However, only the RS has adopted a recording regulation on 15/02/2008, while the other entity and the District of Brčko failed to comply.

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

According to the most recent communication from the authorities (letter of 14/04/2009), the number of non-executed judgments previously provided in respect of “old savings” was erroneous. This is in particular true in respect of the Federation of Bosnia and Herzegovina (the “Federation”), where 139 non-enforced “old savings” judgments had been incorrectly reported. Pursuant to the latest verified data, as of September 2008, in the Federation as well as in the District of Brčko there is only one non-executed binding domestic judgment in respect of the “old savings”. Likewise, in the RS there are about 64 such judgments. It is to be noted that the RS action plan envisaged a continuing task of recording of non-executed judgments in respect of “old savings”.

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

• Detailed information is awaited on the final number of judgments concerning “old savings” and aggregate debt represented.

D. Budgetary planning: The 2008 budgets provided under the relevant headings the following funds earmarked for discharging obligations under final judgments: in the RS: 5 million “Convertible Markas” (BAM) in aggregate and in the Federation 2 million BAM. The authorities further stated on 14/04/2008 that the relevant judgments would be enforced within two years. This assessment was based on the then available information that there are 67 non-enforced judgments totalling around 2 million BAM in RS and 6 judgments totalling 1 million BAM in the Federation. Finally, the authorities reported on 15/10/2008 that in 2008 a total of 6 final judgments concerning “old” foreign savings deposits have been enforced, including 3 pursuant to the European Court’s judgment in the case of Pejaković. The 2009 budget earmarked for this purpose the following funds: in the RS 3.6 million BAM to be paid for debts under 22 domestic judgments concerning “old savings” in accordance with the action plan and in the Federation 18 million BAM plus 5 million BAM for interest.

• Detailed information is awaited on further payments made or envisaged with regard to the binding judgments concerning “old savings” and appropriations in the 2010 budgets for that purpose.

E. Enhancing compliance with domestic judgments: According to the 2003 Criminal Code, non-enforcement of a final and enforceable decision of the Constitutional Court, Court of Bosnia and Herzegovina or of the Human Rights Chamber of Bosnia and Herzegovina amounts to a criminal offence (§ 30 of the Jeličić judgment). In the past five years, the State Public Prosecution has had 64 cases concerning violation of this provision of the Criminal Code against unknown perpetrators; eight of them have been closed, while the other cases are pending. There have also been four other cases against identified perpetrators, while an indictment against two individuals resulted in convictions. One conviction has been set aside on appeal, while the appeal for another conviction is still pending. Finally, the Secretariat is organising in co-operation with the Government Agent of Bosnia and Herzegovina a seminar in Sarajevo in June 2009 with particular emphasis on enhancing compliance with domestic judgments.

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

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

The Deputies decided to resume consideration of these cases at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.

- 107 cases against Bulgaria

59548/00 Dodov, judgment of 17/01/2008, final on 17/04/2008[2]

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

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

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

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

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

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

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

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

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

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

Individual measures:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

- Legislative reform:

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

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

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

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

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

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

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

• Bilateral contacts are under way in this issue, in particular, with respect to Article 1§1 (b) of Protocol No. 7,

regarding the possibility given to persons in the position of the first applicant in the C.G. and others case to challenge an expulsion order before its execution.

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

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

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

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

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

• Bilateral contacts are underway on individual and general measures.

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of the bilateral contacts under way and the information awaited on individual and general measures.

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

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

4) Use of force and firearms by the police during arrest (violation of the 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.

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.

• Copies of those instructions are awaited.

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

- Cases mainly concerning the lack of effective investigation into death or alleged ill-treatment inflicted by private individuals

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

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

The Angelova and Iliev case concerns the authorities’ failure in their obligation to conduct an effective investigation into the death of a relative of the applicants following a racially motivated attack by a group of teenagers in April 1996 (violation of Article 2). Although the authorities had identified the assailants almost immediately after the attack, and had determined with some degree of certainty the identity of the person who had stabbed the victim, none was brought to trial for the attack over a period of more than 11 years. As a result, the time limit expired for prosecuting most of the assailants.

The Angelova and Iliev case also concerns the authorities’ failure to make the required distinction between offences that were racially motivated and those that were not, in that they failed to ensure due diligence in the conduct of the criminal proceedings and to prosecute the assailants for racially motivated offences, despite the widespread prejudice and violence against Roma (violation of Article 14 combined with Article 2).

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

Individual measures:

1) Angelova and Iliev case: The European Court awarded the applicants just satisfaction in respect of the non-pecuniary damages suffered. The proceedings against most the attackers had to be dismissed under the statute of limitations. Investigations were still pending against two of the assailants when the European Court delivered its judgment. The applicant’s lawyer submitted that, after the European Court’s judgment became final, the preliminary investigation was concluded in a report, the content of which was unknown to the applicants. The case file has been transmitted to the competent prosecutor, who has never replied to the applicants’ requests to read the file, and is known to have been on sick leave at least between 2/10/2007 and beginning of April 2008. On 14/04/2008 the applicants asked the relevant appellate Prosecutor’s Office to allow them to read the file and to appoint another prosecutor competent to complete the investigation and bring the case to court.

• Information provided by the Bulgarian authorities: On 30/05/2008 the Shumen regional prosecution service lodged an indictment with the competent court against a first suspect for the premeditated murder of the applicants’ relative and against a second person for hooliganism. On 2/06/2008 the case was referred to a judge rapporteur chosen by lot. The first hearing in the case was scheduled for 9/07/2008, but was postponed because the accused was ill. It actually took place on 15/07/2008, when the court heard five witnesses and the conclusions of the medical experts. The next hearing was scheduled for 9/09/2008, but the lawyer of the accused sent a medical certificate establishing that he could not attend due to an illness. The court nevertheless heard the two witnesses, who had appeared for the hearing, in the presence of an ex officio lawyer. The next hearing was scheduled for 15/10/2008.

The judge rapporteur informed the first applicant (the victim’s mother) in writing of the date of the court hearing and of her right to constitute herself as a civil party in the criminal proceedings. The applicant took this opportunity during the first hearing and claimed about 50 000 euros in damages and interest. The applicant’s lawyer took part in the proceedings. All documents included in the file have been submitted to the applicant. On 14/05/2008, in the presence of her lawyer, the applicant got acquainted with the evidence collected during the preliminary stage of the criminal proceedings.

• Information would be appreciated about the state of progress of these proceedings.

2) Dimitrov Nikolay case: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damages suffered.

• Information is urgently expected as to whether the applicant may request the conduct of a new investigation into his allegations of ill-treatment.

General measures:

1) Angelova and Iliev case: As to whether the Bulgarian legal system affords adequate protection against racially-motivated offences, the European Court observed that the authorities had charged the assailants with aggravated offences, which despite not making any direct reference to racist motives nevertheless carried heavier sentences than those envisaged under the domestic racial-hatred legislation. The domestic legislation and lack of increased penalties for racist murder or serious bodily injury had not, therefore, hampered the authorities from conducting an effective investigation.

• Information is awaited on measures envisaged or already taken to prevent similar violations (e.g. training activities for the investigative authorities; specific guidelines for the investigation of racially motivated offences; legislative changes, if appropriate; effective remedies at the disposal of civil parties to accelerate excessively lengthy criminal proceedings, etc). In any event, the publication and dissemination of the European Court’s judgment to all investigation authorities, if appropriate with a circular letter stressing their obligation effectively to investigate racially motivated offences appear to be appropriate measures for the execution of this judgment.

2) Dimitrov Nikolay case: The European Court noted that the ill-treatment of which the applicant complained is identified as a crime under Bulgarian criminal law and that the applicant could request compensation for the damage caused. The Court therefore found that the authorities could not be reproached for not having put an appropriate legal framework in place (§72 of the judgment).

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

- 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

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 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 in 1995 and 1996, in the course of different police operations and during police custody (violations of Article 3).

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

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

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

The Krastanov case also relates to the excessive length of civil proceedings for damages brought by the applicant in 1995. 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 awaited on the situation concerning in particular the newer cases (Iliev Stefan, Rashid, Vasilev Ivan, Krastanov and Boyko Ivanov).

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, 1072nd meeting, December 2009). 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, 1065th meeting, September 2009).

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

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

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

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

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

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

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

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

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

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), to examine all the measures necessary for the implementation of these judgments.

- Cases concerning the poor conditions of the applicants’ detention and / or the lack of an effective investigation in this respect[4]

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

54578/00 Alexov, judgment of 22/05/2008, final on 22/08/2008

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

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

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

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

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

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

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

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

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

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

39084/97 Yankov, judgment of 11/12/03, final on 11/03/04[5]

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

- Case mainly concerning the length of detention on remand[6]

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

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

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

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

16085/02 Georgieva, judgment of 03/07/2008, final on 03/10/2008

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

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

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

74792/01 Rashid No. 2, judgment of 05/06/2008, final on 05/09/2008, rectified on 30/09/2008

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

55861/00 Svetloslav Dimitrov, judgment of 07/02/2008, final on 07/05/2008[7]

46343/99 Riener, judgment of 23/05/2006, final on 23/08/2006[8]

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

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

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

CM/Inf/DH(2007)8

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

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

Individual measures:

1) Re-registration of the political party:

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

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

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

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

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

- Developments (2007-2008): The Committee took note of the issues still raised by the individual measures and invited the Bulgarian authorities to examine possible solutions to these issues in co-operation with the Secretariat (see decisions adopted at the 1007th and 1028th meetings, October 2007 and June 2008). Several training activities have already been organised in this field between October 2007 and October 2008, with the participation in particular of judges from the Supreme Court of Cassation, from the Sofia City Court and of representatives of the prosecution office (see general measures). In the meantime, in May 2008, the applicants complained of new actions of the police towards their members (see DD(2008)312).

The Bulgarian authorities indicated that these actions concerned examination of witnesses in the framework of criminal proceedings opened in 2008 on indications of forgery of documents regarding the registration of this party in 2006 (for further details see DD(2008)347). Moreover, it should be noted that the first two refusals to re-register mentioned above are the subject of two new applications before the European Court (see DD(2008)553).

- Third application for re-registration (2008-2009): In October 2008, the applicants lodged a new application for the registration of their party with the competent court. The application was based on the transitional provisions of the Law on Political Parties of 2005 according to which the parties registered at the time of the entry into force of the law (01/04/2005) must put their statutes in conformity with the provisions of the law by 30/04/2006. The applicants applied for the registration of certain amendments in the statutes of the party pointing out that the party should be considered as an existing one. They also asked for an extension of the time-limit provided by the transitional provisions. The applicants motivated their application inter alia on the obligation for restitutio in integrum following from the European Court’s judgment in this case. In their memorandum, the applicants also indicated that had the party not been dissolved in violation of the Convention, it would not have to comply with the procedure for foundation of a new party.

The Sofia City Court dismissed the application by a decision of 19/12/2008. The court indicated that UMO Ilinden – PIRIN was not a registered party at the time of the entry into force of the 2005 Law and that, consequently, the applicants could not base their application on the transitional provisions of that law. The court also found that, assuming that the application was aimed at a new registration of the party, the legal requirements concerning the foundation of a political party were not fulfilled. Moreover, the Sofia City Court found that the judgment of the European Court in the present case was not applicable to the registration proceedings since in these proceedings the Bulgarian court was expected to evaluate the conformity of the evidence presented by the applicants with the requirements of the Law on Political Parties which are equally applicable to all citizens. The issue of the imposition on the applicant party of stricter registration requirements provided for by the 2005 Law, which would not be applied to the party had the violation of the Convention not occurred, was not examined by the first-instance court. The applicants appealed against this decision before the Supreme Court of Cassation. The high court has not yet delivered its judgment.

- Recent amendment to the Law on Political Parties: In the meantime, in January 2009, the Law on Political Parties was amended. According to the amendments introduced, the number of members required at present for the foundation of a political party dropped from 5 000 to 2 500.

- Assessment: It was noted that the last decision of the Sofia City Court, while refusing the registration of the applicant party, did not further reiterate the grounds for unconstitutionality rejected by the European Court. On the other hand, it could be noted that this decision, while referring to the judgment of the European Court, found that this judgment was not relevant for the registration procedure and that the task of the domestic judge consisted only in the verification of the conformity of the presented documents with the domestic law. The issue of the maintenance in the new registration proceedings of the stricter membership requirements of the new law on political parties – requirements which would not have applied to the party had it not been unjustifiably dissolved – is also outstanding.

• Information would be appreciated on the outcome of the appeal before the Supreme Court of Cassation. Certain clarifications related to the amendments recently introduced in the Law on Political Parties would also be appreciated, in particular whether all existing parties would have to fulfil the requirements of this law.

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

General measures:

1) Dissolution of political parties: It was noted that the Constitutional Court’s decision challenged in the judgment was inspired by the Convention and by the European Court’s case-law existing at that time. It was also noted that 3 out of 12 judges voted against the dissolution on the basis of grounds similar to those of the European Court’s judgment. In this situation, and in view of the direct effect of the European Court’s case-law granted in Bulgarian law, the government considered it sufficient to send the European Court’s judgment United Macedonian Organisation Ilinden - PIRIN and others to the Constitutional Court and to the courts competent for the registration of political parties in order to ensure that domestic law is interpreted in conformity with the Convention and thus to prevent new violations, similar to that found by the European Court.

This dissemination was done by a circular letter drawing these courts’ attention to the fact that this communication is made within the framework of the adoption of the general measures for the execution of the European Court’s judgment. In addition, with a view to raising the awareness of the competent authorities, a CD manual, elaborated by the National Institute of Justice, was sent to 153 courts, the same number of prosecutor’s offices and to 29 investigation offices. The manual contains examples of case-law of the European Court in the field of the freedom of association and freedom of assembly, as well as articles, studies and other material relating to these areas. It may be downloaded from Internet, at www.blhr.org/bibl.htm

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

A seminar for judges and prosecutors on freedom of association and assembly with the participation of the Council of Europe was organised by the National Institute of Justice in October 2007. Another seminar on this subject, for judges, prosecutors, representatives of the Ombudsman’s Office, lawyers and NGOs was organised in December 2007 by the Ministry of Justice and the Department for execution of judgments. Yet another training activity for mayors and police chiefs took place in May 2008. Another seminar for judges and prosecutors was organised by the National Institute of Justice in June 2008. In October 2008 a group of judges from the Supreme Court of Cassation, of prosecutors and of representatives of the Government Agent’s Office paid a study visit to the Council of Europe during which they participated in a working seminar.

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

2) Registration of associations: the judgment in United Macedonian Organisation Ilinden and others was sent to the Court of the City of Sofia and to the Supreme Court of Cassation with a letter drawing their attention to their obligations under the Convention. Both judgments were sent to the Regional Court of Blagoevgrad and to the Sofia Court of Appeal (competent for the registration of associations in the region concerned), together with a letter indicating that this communication is made within the framework of the adoption of the general measures for the execution of the European Court’s judgments. The training and awareness-raising measures mentioned above are also relevant for the issue concerning the registration of associations. The Bulgarian Helsinki Committee submitted information, on 16/03/09, within the framework of the case of UMO Ilinden and others. According to the Rule 9.3 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements, this information was brought to the attention of the Committee of Ministers, together with the observations submitted by the Bulgarian authorities.

• Development: The Bulgarian Helsinki Committee submitted information relating to the refusals of the Blagoevgrad regional court, in December 2008 and in January 2009, of the registration of two associations – “Macedonian cultural and educational association” and “Union for the repressed Macedonians in Bulgaria”. The Bulgarian authorities stated that this information could not be taken into consideration for the examination of these cases, in particular due to the fact that only awareness-raising measures were required for the execution of the UMO Ilinden and others judgment (DD(2009)135 of 25/03/09).

• Assessment: The information provided by the Bulgarian Helsinki Committee deserves to the examined as far as it relates to the question of the efficacy of the awareness-raising measures adopted so far in order to prevent violations similar to that found by the European Court. It should be noted in this respect that certain grounds put forward to refuse the registration of one of the associations in question have already been rejected by the European Court, not least in the judgment UMO Ilinden – PIRIN and others.

3) Publication: The judgments of the European Court were published on the website of the Ministry of Justice www.mjeli.government.bg, to draw the public’ attention, as well as that of other authorities which may be brought to act in this area, to the requirements of the Convention in this field.

The judgments were also published in the new quarterly journal European Law and Integration, which is published by the Ministry of Justice in 1000 copies and distributed to magistrates and academics (No. 2/2006), together with an article analysing the European Court’s conclusions in these cases, as well as the Court’s case-law in this field.

The Deputies,

As regards the case of United Macedonian Organisation Ilinden - PIRIN and others

1. recalled in respect of individual measures that the obligation of the respondent state in accordance with Article 46 of the Convention implies allowing the applicant to seek a new registration of their political party in proceedings which are in conformity with the requirements of the Convention and in particular with Article 11;

2. noted that the applicants’ third request for registration was rejected by final decision of the Supreme Court of Cassation of 19 May 2009 on grounds of non-conformity with the registration requirements and that in this situation the courts found that they could not examine all the consequences of the European Court’s judgment;

3. noted with interest that the decisions relating to this third request for registration do not rely on grounds incriminated by the European Court;

4. took note with satisfaction of the declaration of the Bulgarian authorities according to which the government “sees no obstacle to the applicants’ obtaining the registration of their organisation as a political party on the condition that the requirements of the Constitution of the State and the formal requirements of the Political Parties Act are met, without any grounds such as those incriminated by the European Court being opposed to the applicants”;

5. underlined in this context that the Political Party Act, as modified last January, decreased the number of members required to form a political party from 5000 to 2500;

6. noted with interest regarding general measures the efforts already made by the Bulgarian authorities through organising awareness-raising and training activities for judges and prosecutors on the requirements of Article 11 in cooperation with the Council of Europe, and their intention to pursue these activities;

7. decided to resume consideration of this item at their 1065th meeting (September 2009) (DH) with a view to closing its examination;

Concerning the case of the United Macedonian Organisation Ilinden and others

8. decided to resume consideration of this item at the latest at their 1072nd meeting (December 2009) (DH) for examination of general measures.

14134/02 Glas Nadejda EOOD and Elenkov, judgment of 11/10/2007, final on 11/01/2008[9]

63778/00 Zeleni Balkani, judgment of 12/04/2007, final on 12/07/2007[10]

53321/99 Karamitrov and others, judgment of 10/01/2008, final on 10/04/2008[11]

57045/00 Zhechev, judgment of 21/06/2007, final on 21/09/2007[12]

64209/01 Peev, judgment of 26/07/2007, final on 26/10/2007[13]

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

47579/99 Raichinov, judgment of 20/04/2006, final on 20/07/2006[14]

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

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

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

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

48191/99 Kushoglu, judgment of 10/05/2007, final on 10/08/2007 and of 03/07/2008, final on 01/12/2008[19]

61951/00 Debelianovi, judgment of 29/03/2007, final on 29/06/2007 and of 27/11/2008, final on 27/02/2009[20]

60018/00 Bonev, judgment of 08/06/2006, final on 08/09/2006[21]

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)[22]

67719/01 Mihalkov, judgment of 10/04/2008, final on 10/07/2008[23]

- Cases concerning the violation of the right to access to a court due to excessive amount of court fees imposed in civil proceedings for damages[24]

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

20594/02 Tzvyatkov, judgment of 12/06/2008, final on 12/09/2008

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

CM/Inf/DH(2007)33

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

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

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

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

These cases concern the impossibility for the applicants to obtain execution, between 1996 and 1998, between 1996 and 2000, between 2001 and 2003 and between 1999 and 2003 respectively, of final judgments ordering state institutions to pay them compensation for losses they had sustained as a result of an illegal conviction, an industrial accident, the late examination of a request for release and an unlawful detention (violations of Article 1 of Protocol No. 1 in all cases and also of Article 6§1 in the Mancheva, Rahbar-Pagard and Sirmanov cases).

In the Angelov case the European Court noted that the delay in the payment, added to the lack of any clear response to the numerous steps taken by the applicant, had had the effect of putting him in a position of uncertainty. Moreover, owing to high inflation and to the depreciation in the national currency during that period, the value of the applicant's debt had decreased without any default interest to offset the loss. Thus the depreciation of the debt had been exacerbated by the delay in enforcing it.

In the Mancheva case the Court found that the problems encountered by the applicant were exacerbated by the absence in Bulgaria of any clearly regulated complaints procedure before an independent body with power to issue binding orders in cases where state institutions fail to execute judgments against them (§60 of the judgment). It should be noted in this respect that, at the material time compulsory execution of debts against state institutions was not possible under domestic law (§38 of the judgment).

The Rahbar-Pagard case also concerns different violations related to the detention of the first applicant (violations of Article 5§3 and 4).

Individual measures: The competent state institutions enforced the decisions given in the applicants' favour in the cases of Angelov, Mancheva and Sirmanov between 1998 and 2003. The applicant detained in the Rahbar-Pagard case died in 2003. The European Court awarded just satisfaction in respect of non-pecuniary damage.

General measures:

1) Non-execution of final judgments (Article 1 of Protocol No. 1 and Article 6§1):

• Information has been requested concerning:

1) The relevant regulations and the practice followed by the competent courts when they have to execute judgments ordering them to pay compensation for illegal actions;

2) The introduction into domestic law of an internal national mechanism for the execution of domestic judicial decisions by state institutions, as well as of an effective remedy against the excessive length of enforcement proceedings against state institutions;

3) The publication and the dissemination of the judgments of the European Court to the domestic courts;

4) In the Mancheva case, additional information is sought in particular on measures envisaged or already adopted to introduce in domestic law of an efficient mechanism for execution of judicial decisions against state institutions. The authorities' attention was drawn to the experience of other member states in this area (see in particular the final resolution adopted in the case of Hornsby against Greece, ResDH(2004)81).

It should be noted that Article 519 of the new Code of Civil Procedure, in force as of 1/038/2008, expressly prohibits the forced execution of debts against state institutions. Nor is compulsory execution allowed on funds placed in the bank accounts of municipalities and other organisations as a result of state subsidies (Article 520).

• Information provided by the Bulgarian authorities:The authorities indicated in December 2005 that a proposal had been made to the Council of Legislation of the Ministry of Justice to modify the provisions concerning execution of judicial decisions by state institutions. In January 2008, the Legal Committee of the Parliament concluded that the question of creating an internal national mechanism for the execution of domestic judicial decisions by state institutions was within the remit of the Ministry of Finance, and rejected the possibility of introducing a mechanism for the execution of judicial decisions against state institutions, with the argument that such a scheme did not exist in any other European legal system.

The European Court's judgment in the Angelov case has been published on the website of the Ministry of Justice www.mjeli.government.bg and has been sent to the Supreme Court of Cassation. The judgments in the Mancheva and Rahbar-Pagard cases were also published on the same website.

Moreover, 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).

On 21 and 22/06/2007 a high level Round Table (organised by the Department for the Execution of Judgments of the European Court of Human Rights) between representatives of the Council of Europe and the authorities of different states was held to discuss solutions to the structural problems of non-enforcement of domestic court decisions (see the conclusions CM/Inf/DH(2007)33). In this context the representatives of the Bulgarian authorities exchanged their experiences on the measures taken or under way to prevent similar violations and examined possible further reforms to be adopted.

• Bilateral contacts are under way on these issues

2) Violations related to detention pending trial (Article 5§§3 and 4): The Rahbar-Pagard case presents similarities to those of Assenov (judgment of 28/10/1998) and Nikolova (judgment of 25/03/1999) closed by Resolutions ResDH(2000)109 and ResDH(2000)110, following a legislative reform of criminal procedure which took effect from 01/01/2000 and to that of Kolev (50326/99, Kitov group, 1072nd meeting, December 2009).

The Deputies decided to resume consideration of these cases at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of additional information to be provided on general measures.

47797/99+ Kehaya and others, judgment of 12/01/2006, final on 12/04/2006 and of 14/06/2007, final on 14/09/2007 (Article 41)[25]

- Cases concerning the failure to deliver real properties as compensation for expropriated properties[26]

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

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

- Cases concerning the violation of the applicants' right to the peaceful enjoyment of their possessions due to the annulment of their title to property acquired under the communist regime[27]

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

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

- Cases of length of civil proceedings and lack of an effective remedy[28]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

- 8 cases against Croatia

35030/04 Karadžić, judgment of 15/12/2005, final on 15/03/2006[29]

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

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

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

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

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

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

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

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

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

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

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

Individual measures:

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

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

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

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

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

General measures:

1) Violation of Article 3:

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

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

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

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

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

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

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

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

The Deputies decided to resume consideration of these items at the latest at their 1st DH meeting in 2010 in the light of the assessment of the general measures.

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

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

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

• Assessment: No further measure appears to be necessary.

General measures:

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

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

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

• Transfer of registry data: The transfer of all registry data into electronic form is in its final stage (in May 2007, 99,17% of the data had been transferred into electronic form). It should be also noted that all application forms for initiation of registry proceedings are available in electronic form on Internet.

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

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

• Assessment: No further measure appears to be necessary.

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

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting in 2010, in the light of the assessment of general measures.

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

The case concerns a violation of the applicants’ right to the peaceful enjoyment of their property due to the authorities’ failure, when assessing the compensation payable on the expropriation of part of their farm, to establish all the relevant factors, including the reduction of the value of the remaining land (violation of Article 1 of Protocol No. 1).

In April 2003, part of the applicants’ property was expropriated with a view to building a motorway, the applicants retaining ownership of the house and a surrounding courtyard. The European Court noted that the domestic authorities could only fix adequate compensation in the expropriation proceedings once they had verified all relevant factors concerning the effects of the motorway construction on the applicants’ remaining property, such as the decrease in the value of their estate, the possibility of selling it and the applicants’ interest in further use of the remaining estate (§43 of the judgment).

Individual measures: The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage. It also noted that the applicant might request re-opening of the proceedings in accordance with section 428(a) of the Civil Procedure Act, which would allow a fresh examination of their claims concerning the expropriation of their property (§58 of the judgment).

In this context it should be noted that the proceedings questioned in the judgment of the European Court were reopened in 2008. By a new judgment the decision of the State Administration Office in the Varaždin County was quashed and the case was remitted to the same Office for re-examination.

• Information would be useful with respect to the follow-up to this decision.

General measures: It seems that the existing legal framework provides sufficient safeguards in similar situations and the violation was of an isolated character resulting from a wrongful application of the law. Thus, the expropriation proceedings and the right to compensation are regulated by the 1994 Expropriation Act (Official Gazette Nos. 9/94, 35/94, 112/00, 114/01 and 79/06). Among its relevant provisions, Article 7 entitles the owner of an estate subject to partial expropriation to request its total expropriation if he or she has no interest in using the remaining part. Further, Articles 8 and 33 require that compensation for expropriated property equals the market value of that property on the date on which the first-instance decision in expropriation proceedings is adopted.

Consequently, in view of the direct effect of the European Convention in Croatia, publication of the judgment of the European Court of Human Rights and its dissemination to all relevant courts should be sufficient to avoid similar violations. In this context it should be noted that the judgment of the European Court has been translated and sent out to the Constitutional Court, the Supreme Court and the court dealing with the case. The translation is also available at the internet site of the Ministry of Justice (www.pravosudje.hr) and will be published in a periodical publication on case-law of the European Court.

• Assessment: No further measure appears necessary.

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting in 2010 in the light of information to be provided on individual measures.

30431/03 Vajagić, judgment of 20/07/2006, final on 11/12/2006 and of 16/10/2008, final on 16/01/2009[30]

- 75 cases against the Czech Republic

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

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

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

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

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

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

These cases concern the domestic courts' failure to exercise special diligence in proceedings concerning parental rights and to enforce the applicants' visiting rights (violation of Article 8).

In the Reslová case, the European Court noted that the interim measure ordering the father to bring the children back to the applicant had not been enforced and had even been declared unenforceable by the District Court, as there had been no indication as to whom custody had been granted. In those circumstances the applicant would not have been successful in applying for visiting rights, as there had been no decision, not even a provisional one, granting custody of the children to one of the parents. The Czech courts, by leaving open the question of parental rights and obligations, had allowed the dispute to be settled simply by the passage of time, to the detriment of the applicant.

In the Koudelka case, the European Court considered that the failure to enforce the applicant's right of access was mainly attributable to the manifest refusal of the mother, and then to that of the child under her mother's influence. It found, however, that the Czech courts had not taken all the measures that could reasonably have been expected of them to secure the mother's compliance with the applicant's visiting rights, and that their action had not been sufficiently prompt or systematic. The Czech courts had allowed this dispute to be settled by the mere passage of time, so that the resumption of relations between the applicant and his daughter seemed no longer possible.

In the Fiala case, the European Court took the view that the national authorities had fallen well short of what might reasonably be expected of them and had not demonstrated adequate or sufficient efforts to ensure respect for the applicant's visiting rights. In addition, very few practical measures had been taken to encourage the parents to take part in family therapy or to arrange a preparatory contact.

In the Kříž case, the European Court took note of the time elapsed between the application in December 1994 for enforcement of the decision granting the applicant visiting rights, and the first meeting between the applicant and his son which took place in May 2001 when the child was nearly ten years old. In the meantime the activity of the Czech authorities had been limited to unsuccessful attempts to make contact with the mother and fining her, which proved ineffective. The courts had confined themselves to ordering penalties and for many years took no action to create the conditions necessary for the enforcement of the applicant's visiting rights.

In the Mezl case, the European Court noted that the applicant's visiting rights had practically remained undetermined for almost two years, from 1995 to 1997. Subsequently, while the court, in 1998, initiated proceedings proprio motu with a view to changing the custody arrangements, no decision was given in those proceedings until the applicant's daughter reached her majority. The European Court was of the opinion that, while the applicant's inability to exercise his visiting rights could primarily be attributed to a manifest refusal by the mother, and later by the child under the latter’s influence, the authorities should have taken adequate action against the mother for her refusal to cooperate.

In the Zavřel case, the European Court took the view that the applicant’s inability to exercise his visiting rights had been attributable above all to the toleration by the courts of the mother’s consistent refusal to cooperate and to the absence of measures to establish effective contact.

The Reslová, Fiala, Kříž and Mezl cases also concern the excessive length of the civil proceedings (violations of article 6§1).

The Fiala case concerns also the lack of an effective remedy in respect of the length of proceedings (violation of Article 13).

Individual measures:

1) Reslová case:

• Information provided by the Czech authorities: The custody of the children was granted to their father by a decision of 2005; the applicant was in touch with her daughters irregularly and the father was not preventing these contacts. Following the grant of custody to the father, the applicant remained passive concerning the judicial enforcement of her visiting rights to the extent that the District Court initiated ex officio proceedings to arrange the applicant's visiting rights.

On 05/01/2007 the Kutná Hora District Court granted the applicant visiting rights for every second weekend and on 26 December; this decision was confirmed by the Prague Regional Court on 03/05/2007 and became final on 22/06/2007. The arrangement was taken with the agreement of both the father and the children. Since the conclusion of those court proceedings the applicant has remained completely passive: she has lodged no motion with the court nor asked for any assistance. In October 2008, the first of the applicant’s daughters came of age; the applicant’s visiting rights to her second daughter, now 15 years old, are still governed by the 05/01/2007 judgment.

2) Koudelka case:

• Information provided by the Czech authorities: The Prague 1 District Court delivered a judgment on visiting rights on 14/12/2006 which was confirmed by the Prague Municipal Court on 14/11/2007. According to those judgments, the applicant had the right to see his daughter every two months; given the poor health of the applicant and the hostile attitude of the daughter towards him the courts ordered that the meetings should take place in a centre for family therapy in the presence of a therapist. However, the daughter did not appear at the first meeting scheduled for February 2008. Her mother, who had been formally invited to cooperate and ensure her daughter’s attendance at the meeting, was fined 1 000 CZK (around 38 EUR) for her lack of co-operation. Given the unchanged, hostile attitude of the daughter, it remained difficult to set up contacts with the applicant; however, another meeting was scheduled for May 2008. The applicant’s daughter turned 18 in December 2008.

3) Fiala case: By a judgment of 2005, the custody of the children remained with their mother. Any contact between the applicant and the children was forbidden indefinitely. This decision was not challenged by the European Court (see § 105 of the judgment).

4) Kříž case: The proceedings are closed. The applicant's visiting rights were in force (but not enforced) for more than ten years until they were converted in 2004 and 2005 into a right to written contact only. The European Court did not criticise this arrangement. The applicant’s son will be 18 in September 2009.

5) Mezl case: The applicant's daughter came of age in 2004. As a consequence, the national court pronounced extinction of the proceedings concerning custody and visiting rights.

6) Zavřel case:

• Information provided by the Czech authorities: On 25/09/07, the Brno-venkov District Court took a decision on visiting rights, providing for a progressive reestablishment of contacts between the applicant and his child. On 14/05/2008 the Brno Regional Court extended this decision and established regular monthly visits and visiting arrangements for the school holidays. This decision reflected the wishes of the child who had in the meantime met the applicant several times on the basis of an agreement between the parents. The applicant recently confirmed to the child welfare authority that the visits are taking place pursuant to that agreement.

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

General measures:

1) Violations of Article 6§1 and Article 13: The Reslová, Fiala, Kříž and Mezl cases present similarities to the Bořánková group (41486/98, Section 4.2) in which the Czech authorities have already adopted and are currently adopting measures concerning the excessive length of judicial proceedings and the lack of an effective remedy. Some of the legislative changes mentioned below are also aimed at accelerating proceedings concerning children.

2) Violation of Article 8:

• Information provided by the Czech authorities on 05/09/2008 and 09/04/2009:

i) Legislative changes: On 01/10/2008, Act No. 295/2008 amending the Code of Civil Procedure and the Act on Social and Legal Protection of Children entered into force. The changes, concerning in particular child custody proceedings, execution of court decisions concerning minors and co-operation of local authorities in execution proceedings, were adopted with a view to ensuring speedy decision-making in proceedings concerning children, developing the possibility of mediation and peaceful settlement of disputes between parents and underlining courts’ obligation to seek the child’s opinion.

Consequently, in matters concerning minor children (except of cases of domestic violence), courts may now stay proceedings for up to three months and order the parties to take part in out-of-court conciliation or mediation meetings or family therapy. These measures are now being applied and the courts have already delivered judgments endorsing parental agreements concluded in such out-of-court meetings.

By virtue of an interim measure, courts may also order that a child whose life or favourable development are threatened is to be placed, during the necessary period, in a “suitable environment”. Immediate execution of such an interim measure is ensured by the courts in co-operation with other authorities and appeals against interim measures have to be dealt with within 15 days. On 30/09/2008, the Ministry of Justice published an indicative list of institutions for child victims of parental conflicts, together with information on services provided and target groups.

The provisions of the Code of Civil Procedure on the execution of court decisions concerning minor children have been completely rewritten. The former initial phase, consisting in giving advice and requesting voluntary discharge of obligations, has become part of trial proceedings. Repeated fines, which have often proved ineffective in the past, should now be limited to cases in which this approach is useful, courts being required to substantiate it. Courts may also order parents not fulfiling their obligations to participate in out-of-court meetings or therapy or to set out a plan of an “adaptation regime” enabling gradual contacts, which should be accompanied by an expert opinion, in enforcement proceedings. If these measures appear unsuccessful, forced reunion of the parent with the child may be ordered.

Finally, in May 2009 the Ministry of Justice should submit a draft act on mediation in non-criminal matters, aimed at reducing courts’ workload and contributing to speedy out-of-court solution of conflicts involving minor children. According to the draft, mediation services should be provided by “registered mediators” and mediation agreements concluded with the help of such mediators and endorsed by the competent courts will have the status of enforceable verdicts.

• Information is awaited illustrating the concrete effects of these legislative changes, including examples of application of the measures mentioned. Information would be also appreciated on the progress of the draft act on mediation in non-criminal matters.

ii) Dissemination and training: The judgments of the European Court have been translated, published on the website of the Ministry of Justice (http://www.justice.cz/) and sent out to the authorities concerned (courts and child welfare authorities).

Moreover, the Court’s case-law in the field of family life as well as the amended rules of the Code of Civil Procedure are the regular subject of seminars held at the Judicial Academy and regional courts. A seminar for child-care judges was held in autumn 2008, a seminar for judges of district and regional courts on family law was held in January 2009. Another seminar on the amendments of the Code of Civil Procedure was organised for first-instance court judges in March 2009. Six seminars for senior court officers and bailiffs concerning enforcement involving minor children were scheduled for April 2009, and the topic of the execution of decisions adopted by foreign child-care courts should be discussed in September 2009.

• Information would be appreciatedas to whether any specific training of judges on the role of family therapy and mediation is envisaged.

The Deputies decided to resume consideration of these items at the latest at their 1st DH meeting in 2010, in the light of information to be provided on general measures.

57325/00 D.H. and others, judgment of 13/11/2007 - Grand Chamber

The case concerns the discrimination suffered by the applicants in their enjoyment of the right to education due to their assignment to special schools in Ostrava between 1996 and 1999 on account of their Roma origin (violation of Article 14 and Article 2 of Protocol No. 1). The special schools in question were intended for children with “mental deficiencies” that prevented them from attending ordinary or specialised primary schools (see § 30 of the judgment). Under the legislation in force at the time, the decision to place a pupil in a special school was to be taken by the head teacher, on the basis of tests to measure the pupil’s intellectual capacity, provided that the pupil’s legal guardians consented.

The European Court considered that the statistics provided by the applicants indicated a tendency to place children of Roma origin mostly in special schools and very few in ordinary primary schools. The evidence submitted by the applicants thus gave rise to a strong presumption of indirect discrimination. Then the European Court considered that the results of the psychological tests administered by educational psychology centres at the material time were not of a nature to provide objective or reasonable justification for the purposes of Article 14 of the Convention.

Emphasising in this respect that the tests had been conceived for the majority population and had taken no account of Roma specifics, it considered that there was a risk that they could be distorted by prejudice and that the results would not be interpreted with due regard to the particularities and special characteristics of the Roma children who had sat them. The European Court also took the view that the parents of the Roma children were probably not in a position to assess every aspect of the situation and the consequences of their consent, given their membership of a community which was underprivileged and often undereducated.

The European Court concluded that the schooling arrangements for Roma children had not been attended by safeguards that would ensure that the state had taken into account the special needs arising from their disadvantaged position; as a result, the applicants had been placed in schools for children with mental disabilities and had received an education compounding their difficulties. There was thus indirect discrimination in that a neutrally conceived measure providing the possibility to place a child in a special school had a disproportionately prejudicial effect on Roma pupils.

Individual measures: The applicants are today between 18-24 years old and have therefore exceeded the age of primary education. The European Court awarded them just satisfaction in respect of non-pecuniary damage.

• Assessment: no individual measure appears necessary.

General measures: According to the European Court’s judgment, the legislation criticised in this case was repealed on 01/01/2005 (see §208 of the judgment) and the new Schools Act (Law no. 561/2004) provides that children with special educational needs, including socially disadvantaged children, are to be educated within the primary school system and are also entitled to preparatory classes. The existence of special educational needs is to be assessed with the aid of an educational or psychological examination performed by an educational counselling centre (§§31-33 and 38 of the judgment).

• Information provided by the European Roma Rights Centre (on behalf of several NGOs) on 20/08/2008: According to the memorandum, based on the findings of the ERRC’s research conducted during the first half of 2008, the above legislative measures have resulted only in re-labelling schools, as Roma children continue to be over-represented in “practical” primary schools (falling within the broader category of primary schools also encompassing ordinary primary schools) which follow a special curriculum for mentally disabled pupils. The ERRC submitted that there was no evidence that the measures implemented by the Czech government could reverse or even reduce the degree of segregation in education experienced by Roma, given that significant defects persisted in the legal framework of psychological examination of Roma children and in providing information to their parents. There also appeared to be an increasing number of Roma parents requesting, for different reasons, the placement of their children in “practical” schools, even against recommendations of educational psychology centres. The ERRC was thus of the view that binding obligations to take specific actions were needed to achieve real school desegregation.

• Information provided by the Czech authorities on 09/04/2009: The issue of increasing the inclusiveness of education is given great importance and improving Roma children’s academic achievements is perceived as one of the key points in addressing the Roma’s social integration. Measures adopted in the education sphere are therefore carried out in the broader context and their implementation requires interdepartmental co-operation as well as consultations with the non-governmental sector.

- Measures already taken: The curricular reform providing each school with an opportunity to design, on the basis of the Framework Educational Programme, its educational programme according to the needs of its pupils was initiated in 2005. The education of the Roma is the subject of the interdepartmental Concept of the Integration of the Roma Community adopted by the government to support socially disadvantaged Roma children in achieving qualifications. The Analysis of Socially Excluded Roma Communities was carried out in 2006 by the Ministry of Labour and Social Affairs and the government’s Council for Roma Community Affairs, and provides information on places at risk of social exclusion and on specific problems of their inhabitants. In May 2008, the Government adopted an updated version of the Concept for Early Care for children from socio-culturally disadvantaging environments, aimed at compensating for the disadvantages existing in the area of education prior to the beginning of compulsory school attendance. Study and development programmes as well as subsidy schemes are available to support Roma pupils/students and their teachers. Finally, the Czech Republic is involved in the implementation of the Decade of Roma Inclusion (2005-2015).

When the Deputies examined these measures in September 2008, it was noted that the judgment highlighted the need also for a European-level strategy.

- Action plan submitted by the authorities: Future actions should be based on the above measures and on additional information which is being collected with a view to formulating the education policy in respect of Roma children, taking into account the requirements of the Convention.

1. Several surveys were initiated in 2008, the results and initial conclusions of which should be available in April 2009, in time for the 1059th meeting (June 2009). One is based on sociological research aimed at analysing the forms and causes of the segregation of children from socio-culturally disadvantaging environments, and should identify the factors that determine inequalities in the education field. The second survey is an analysis of teachers’ individual approach to pupils with special educational needs. An analysis of the diagnostic tools which are used by educational psychology centres to assess children’s intellectual abilities should also be carried out.

Taking into account the data gathered, preventive measures aimed at providing support to socially disadvantaged Roma children in the area of education will be pursued, including training of teaching staff, increasing the awareness of Roma children’s parents and increasing the permeability of the schools operating under different educational programmes.

2. The results of the surveys should also provide the basis for a better targeting of other measures planned by the Ministry of Education with a view to putting in place a system of inclusive education, among which is the transformation of the counselling system in the Czech Republic into a socio-culturally sensitive counselling capable in particular of identifying special educational needs: a report on the methods used in the counselling centres and on the measures adopted on its basis will be submitted to the Committee of Ministers in October 2009.

3. The National Action Plan of Inclusive Education is to be developed between November 2008 and December 2009, and its main conclusions should be submitted to the Committee of Ministers in February 2010. This plan could include further transformation of the schools operating under educational programmes for children with a slight mental disability; creation of the Early Care Concept for children up to 3 years; continuous development of the Early Care Concept related to the pre-school education of children between 3 and 6 who are at risk of social exclusion; training of the teaching staff; compensatory measures for disadvantaged children; launching Support Centres for Inclusive Education National Project in July 2009, which will provide methodological support to the teaching staff; emphasising the respect for diversity in education; subsidy and grant schemes; creation of a “know-how” platform.

The judgment of the European Court was translated and published on the website of the Ministry of Justice (www.justice.cz <http://www.justice.cz>).

• Information is awaited on the findings of the announced surveys and on further implementation of the action plan, having regard to relevant sources of the Council of Europe, in particular Recommendation Rec(2000)4 of the Committee of Ministers to member states on the education of Roma/Gypsy children in Europe. Notwithstanding the action plan, information is still expected on the impact of the new Schools Act in practice (statistical data). Information would also be useful on awareness-raising of all actors concerned and on how the European Court's judgment has been disseminated to the competent authorities.

The Deputies,

1. took note with interest of the action plan provided by the Czech authorities concerning the general measures aimed at inclusion of Roma children in the education system, in a non-discriminatory way;

2. invited the Czech authorities to provide in due time further reports on the implementation of the action plan, and to keep the Committee of Ministers informed of progress in taking the measures envisaged;

3. decided to resume consideration of this item at the latest at their 2nd DH meeting of 2010, in the light of further information to be provided on general measures.

- 68 cases of length of judicial proceedings

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

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

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

Individual measures: In all the pending cases, the domestic courts concerned were informed about the violations found by the European Court. However, urgent individual measures were expected in Paterová, Patera, Jahnová, Thon, Cambal and Pedovič cases, due to the requirement of special diligence.

On several occasions and most recently in September 2008, the Czech authorities stated that the length of proceedings (part concerning alimony) in the Paterová and Patera cases was mainly due to the actions of the latter (the child's father) despite the fact that the courts were doing their best; the applicants’ son came of age in February 2007. The Jahnová case was closed in December 2005 and the Thon case in February 2007. In the Cambal case a judgment of the first-instance court was delivered in June 2008 but was not yet final in September 2008.

Information was also provided on the state of the proceedings in Schmidtová (the applicant passed away in February 2008; inheritance proceedings are pending), Havelka, Centrum stavebního inženýrství A.S., Herbst and others, Slezák and others, Nemeth, Havlíčková, Bačák, Klepetář, Metzová, Rázlová, Heská and Kořínek. All these proceedings are still pending.

• Further information is awaited on the current state of all the pending proceedings and, if need be, on their acceleration.

General measures:

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

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

• Further information awaited: statistics illustrating current trends (courts’ workload, average length of proceedings) and the effects of the above amendments made to the Code of Civil Procedure.

2) Effective domestic remedies against the excessive length of proceedings: Law No. 192/2003 introduced a new Article 174a to Law No. 6/2002 on tribunals and judges (which entered into force on 01/07/2004). According to this new provision, a party which considers that proceedings have lasted too long may ask for a deadline for taking a procedural action. This deadline is set within 20 working days by the next-higher court if it finds the request justified. The court in question is bound by this deadline and there is no possibility to appeal a decision setting/refusing to set the deadline.

Moreover, an amendment to Law No. 82/1998 on State Responsibility for Damages entered into force on 27/04/2006, providing compensation for pecuniary and non-pecuniary damages caused to applicants who have suffered from excessive length of proceedings. Applicants may address their applications to the Ministry of Justice and if they are not satisfied with the result of this preliminary examination they may appeal to the courts.

Between 27/04/2006 and 31/01/2007, the Ministry of Justice considered 226 applications. It found that there had been excessive length of proceedings in 64 cases: in 51 of them, the applicants were granted compensation ranging from 12 000 CZK (450 euros) to 255 000 CZK (9 600 euros); in the remaining cases, finding of a violation was considered sufficient.

In its final decision in the case of Vokurka against the Czech Republic (No. 40552/02, 16/10/2007), the European Court found that the compensatory remedy provided in Law No. 82/1998 could be considered as being effective and accessible with regard to complaints of unreasonable length of proceedings. Since then numerous similar applications have been declared inadmissible by the European Court for non-exhaustion of domestic remedies or because the applicants had lost their victim status. It also follows from the European Court’s decisions on inadmissibility of the cases Uher (No. 45566/04) and Najvar (No. 8302/06) that in cases where the Ministry of Justice does not award sufficient compensation (or no compensation at all), the applicants may obtain redress before the courts of first and second instance.

Concerning the preventive remedy provided in Article 174a of Law No. 6/2002, the European Court considered in the Vokurka decision that this avenue was only a continuation of the hierarchical remedy which it had already found ineffective, and could not as such be regarded as a remedy to be exhausted for the purposes of Article 35§1 of the Convention (see §57 of the Vokurka decision).

• Information is awaited on any measures taken to speed up judicial proceedings.

3) The special diligence requirement in family cases: See also the Reslová group (7550/04, Section 4.2): On 01/10/2008, the Code of Civil Procedure was amended with a view to ensuring speedy decision-making in proceedings concerning children and developing the possibility of mediation and peaceful settlement of disputes between parents.

• Information would be useful on the impact of these changes on average length of this sort of proceedings and on any other measures taken or envisaged to ensure special diligence in family cases.

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

The Deputies decided to resume consideration these items at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual and general measures.

- 2 cases against Finland

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

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

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

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

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

• Bilateral contacts are under way concerning this issue.

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

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

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

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH) in the light of information to be provided on general measures as well as on possible individual measures.

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

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

Criminal proceedings against the applicant began in October 1995 and ended in December 2001 (more than 6 years for 3 levels of jurisdiction) (violation of Article 6§1).

As regards the unfairness of the proceedings, the child was 11 years old at the time of pre-trial investigation and 14 at the time of the District Court hearing. She was never questioned during the criminal proceedings.

The European Court found, in particular, that neither the applicant nor his counsel had been given the opportunity to question the child, who was minor, and the applicant had thus been convicted on the sole basis of the child’s statement to the psychologist in 1991 (violation of Article 6§1 together with Article 6§3 (d)).

Individual measures: The criminal proceedings are closed. The applicant may apply for re-opening of domestic proceedings (Chapter 31, Article 2, of the Code of Judicial Procedure). The European Court awarded him just satisfaction in respect of non-pecuniary damage.

• Assessment: no individual measure appears necessary.

General measures:

1) Fairness of the criminal proceedings: The case presents similarities to the W. case (No. 14151/02, Section 6.2) but certain differences need to be clarified, in particular following the 2003 reform of the Code of Judicial Procedure (according to Chapter 17, Article 11(2), the testimony of a person under 15, or of a mentally disturbed person recorded on audio or video during pre-trial investigation may be used as evidence on condition that the accused may have questions put to the witness).

The judgment of the European Court has been published in the legal database Finlex (www.finlex.fi) and 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, Ministry of Justice, Ministry of Social Affairs and Health as well as Ministry of the Interior, the Office of the Prosecutor General, the National Supervisory Authority for Welfare and Health and the courts concerned.

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

2) Length of the proceedings: This case presents similarities with the Kangasluoma group (48339/99, Section 5.1).

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH) in the light of further information to be provided on general measures.

- 21 cases against France

71611/01 Wisse, judgment of 20/12/2005, final on 20/03/2006

This case concerns a breach of the applicants' right to respect for their private and family life in that from November 1998 to February 1999, while they were in detention on remand their conversations with their relatives in prison visiting rooms were recorded (violation of Article 8).

According to the European Court, the systematic recording of conversations in a visiting room for purposes other than prison security is a denial of the sole purpose of such facilities, namely to allow detainees to maintain some degree of “private life”, including the privacy of conversations with their families. In this respect the Court considered that French law did not indicate with sufficient clarity how and to what extent the authorities could interfere with detainees' private lives, or the scope and manner of exercise of their powers of discretion in that sphere.

The proceedings resulted, in 2002, in the applicants being sentenced respectively to 25 and 20 years imprisonment by the Ille-et-Vilaine Assize Court (first degree of jurisdiction). They did not appeal this decision

Individual measures: It may be noted that in its (partial) decision on the admissibility of this application, the European Court rejected the applicants' complaint that the criminal proceedings had been unfair on account of the use of the recordings as evidence against them (complaint under Article 6§1) for non exhaustion of internal remedies. Information was requested on the fate of the recordings. The authorities provided information by letter of 19/01/2009.

• This information is currently being dealt with.

General measures: After the events a law was passed containing provisions relating to the recording of conversations in the context of proceedings concerning facts of organised crime (law No.2004-204 of 09/03/204, “adapting justice to the evolutions of crime”). On 14/06/2006, the Secretariat wrote to the French authorities requesting information concerning the exact scope of the new provisions, in order to assess the need to adopt further measures. Information was requested in particular as to whether and to what extent Law (No. 2004-204 of 9/04/2004) may be applied to facts similar to those of the Wisse case or, if not, on alternative measures.

The authorities presented information by letter of 19/01/2009, explaining why in their view them the Law of 2004, reinforced by judicial review is enough to avoid new, similar violations.

• This information is currently being dealt with.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light the information provided on individual and general measures.

59842/00 Vetter, judgment of 31/05/2005, final on 31/08/2005

This case concerns an interference in the applicant's right to respect for his private life. The applicant was suspected of intentional murder and the police, acting on the instructions of the examining magistrate, had bugged the apartment of a third person regularly visited by the applicant.

The European Court found in particular that as French law with regard to the planting of listening devices did not set out clearly enough the extent of the authorities' discretion or how this discretion should be exercised, the audio surveillance at issue was not “in accordance with the law” (violation of Article 8).

The case also concerns the unfairness of the proceedings before the criminal chamber of the Cour de cassation, due to the failure to communicate the report of the reporting judge to the applicant or to his lawyer, whereas this report had been submitted to the advocate-general (violation of Article 6§1).

The proceedings resulted in 2000 in a final judgment sentencing the applicant to 20 years' imprisonment.

Individual measures: The applicant may apply for the re-opening of his appeal on the basis of Articles L 626-1 ff of the Code of Criminal Procedure. Information was requested on the fate of the recordings. The authorities provided information by letters of 19/01/2009 and 03/02/2009.

• This information is currently being dealt with.

General measures:

1) Violation of Article 8: On 19/12/2005, the Secretariat wrote to the French authorities drawing their attention to the conclusions of the European Court in this judgment (inter alia § 26) and inviting them to draw up a plan of action for its execution. Since this letter was sent, the Committee of Ministers has examined the case of Wisse against France (Section 4.2) in which judgment the Court mentions the Vetter judgment and the entry into force, subsequent to that judgment, of Law No. 2004-204 of 9/04/2004, the intention of which is to adapt the justice system to certain developments in crime. This Act contains provisions concerning the use of sound recordings in proceedings to establish facts relating to organised crime (Article 706-9 of the Coe of Criminal Procedure).

Information was requested in particular as to whether and to what extent Law (No. 2004-204 of 9/04/2004) may apply to facts similar to those of the Vetter case and, if not,on alternative measures. The authorities presented information by letter of 19/01/2009, explaining the reasons why according to them the Law of 2004, reinforced by judicial review, is enough to avoid new, similar violations.

• This information is currently being dealt with.

2) Violation of Article 6: This case presents similarities to those of Reinhardt and Slimane-Kaïd (22921/93, Resolution DH(98)306) and Slimane-Kaïd No. 2 (Resolution CM/ResDH(2008)13).

65399/01+ Clinique des Acacias and others, judgment of 13/10/2005, final on 13/01/2006

This case concerns the failure to respect the right of the applicants (clinics) to an adversarial trial in that their appeals were dismissed in 2000 on a ground considered to be mandatory by the Cour de cassation, which had not informed the parties beforehand of its intention to do so (violation of Article 6§1).

The European Court held that the applicants had accordingly been caught off their guard and could not reply before the Cour de cassation reached its decision, being thus deprived of a fair trial with regard to their claims relating to the reimbursement of certain sums by health insurance offices.

Individual measures: The applicants' claims concerned several hundred thousand euros. In view of the violation found, the European Court held that it could not speculate as to the outcome of the proceedings if Article 6§1 had not been breached. The French authorities have indicated that from their point of view, no individual measure was necessary.

• The examination of this information is under way.

General measures: A summary of this judgment has been published in La Cour européenne des droits de l'Homme - 2006 - Arrêts concernant la France et leurs commentaires - a publication of the European Law Observatory (Observatoire de Droit Européen) available on the Internet site of the Court of Cassation : http://www.courdecassation.fr/jurisprudence_publications_documentation_2/du_droit_2185/publications_2007_2333/).

• The French authorities have provided information which is being examined.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of the information provided on individual and general measures.

- Cases concerning freedom of expression

12697/03 Mamère, judgment of 07/11/2006, final on 07/02/2007

20893/03 July and S.A.R.L. Libération, judgment of 14/02/2008, final on 14/05/2008

These cases concern breaches of the applicants' right to freedom of expression due to findings against them in proceedings for defamation, by judgments which became final in 2002 and 2003, under the terms of Article 29 to 32 of the Law of 29/07/1881 on the freedom of the press (violations of Article 10).

In the Mamère case the applicant, a politician, was convicted for a statement he made on a television programme. The European Court considered that the utterances in question were as much value judgments as they were statements of fact and accordingly the applicant should have been able to exonerate his responsibility by establishing the good faith of the former and the factual truth of the latter, but this had not been the case. First of all, the grounds relied on by the domestic judge in establishing the absence of good faith demonstrated a “signal rigidity” in his reading of the applicant's words, whilst secondly, Article 35 of the 1881 Act prevented the applicant from claiming an exceptio veritatis, the events in question being more than ten years before the material time.

In the case of July and S.A.R.L. Libération, the applicants, a newspaper publishing company and its director, were subject to both a criminal conviction (the director was fined) and a civil finding of libel for an article published in 2000. The European Court took the view that, as a matter of general interest was concerned, the applicants should have been able to exonerate their responsibility by proving their good faith. The domestic courts had denied this means of defence despite, among other things, the stylistic care used by the journalist and the fact that the article criticised the action of a civil servant in the exercise of his official duties.

Individual measures: The applicants were ordered in criminal judgments to pay fines and damages. In the case of July and S.A.R.L. Libération, the European Court awarded just satisfaction covering the sums they were required to pay as a result of the proceedings at issue. In the Mamère case, the applicant submitted no claim in respect of just satisfaction.

As regards other possible negative consequences of the violations, in particular the inclusion of convictions in the applicant's criminal records, as this was a result of judicial decisions, the principle of the parallelism of forms requires that their removal can only be brought about by another judicial decision. With this in mind it may be noted that, following the European court's judgments, the applicants may apply for re-examination of the relevant domestic decisions by virtue of Article L 626 et seq of the Code of Criminal Procedure.

In addition to the re-examination of criminal proceedings, there are two further means of changing their criminal records if the applicants so wish. These procedures concern only part of the criminal record (Part 2, which is accessible to a certain number of public administrations specified in the Code of Criminal Procedure), but even if this is done, Part 1 is still visible to judges. This forms part of the process of rehabilitation which is an entitlement in certain cases (depending on time-limits which vary with the seriousness of the offence) and may be applied for before a court (Article 782 et seq of the Code of Criminal Procedure). The other means is a request to be dispensed from having an inscription in one's criminal record, which enables convicted persons to ask the court which convicted them not to include the offence in Part 2 of the record.

The competent courts apply the Convention directly and are aware of the present case-law of the European Court (see general measures). The principles developed by the Court in these cases could not be disregarded by these courts when examining complaints applicants might possibly submit to them.

• Assessment: this being the case, no further individual measure appears necessary.

General measures:

1) In both cases and except point 2 below, it is the grounds relied upon by the domestic courts in finding against the applicants (i.e. their application of the relevant texts) which the European Court has called into question. The legislative provisions are not called into question. This is why measures have been taken to ensure broad publicity for these judgments of the European Court and other similar judgments, so that the competent courts, applying the Convention directly, may take them into account in practice. For the detail of the measures taken see the Paturel case in section 6.1, with which the present cases present similarities.

2) Mamère case - Impossibility of establishing the truth of matters dating back more that ten years: The law itself provides that “the truthfulness of defamatory facts may be always be proved unless […] (b) the utterance refers to matters which occurred more than ten years before”.

In the authorities' view, the Mamère judgment does not constitute a fundamental or express attack on the validity of Article 35 of the 1881 Act on the freedom of the press. In particular the European Court specified that it was in the case of an utterance “on a matter of general interest” that defendants must be able to exonerate thelselves by proving the truthfulness of the facts alleged. The authorities accordingly deduce that, in other circumstances (such as facts concerning private life) it would be admissible to prohibit the adduction of evidence. In addition they consider that the Court seems, from a general point of view, to recognise a restriction on the exceptio veritatis based on the passage of time, inasmuch as “the longer ago the alleged circumstances occurred, the harder it is to assess their truthfulness”. The Court considers, however, that “as far as historic events or scientific matters are concerned, it may on the contrary seem that with the passage of time, the debate is enriched by new data which may promote a better understanding of reality”, as was the case here.

This being the case, the authorities indicate, national judges have a margin of appreciation in interpreting the legal norms, not least in the light of Article 10 of the Convention. They quote in this connection an appeal judgment from 1997 and conclude that the prerogative of the judge is sufficient ,on a case-by-case basis, to ensure that the requirements of the law are reconciled with those of the Convention and the case-law of the European Court.

• Assessment: The Secretariat notes that the legal privision at issue provides purely and simply a prohibition to prove the truthfulness of defamatory utterances in cases similar to the Mamère case. Bilateral contacts are under way.

The Deputies decided to resume consideration of:

1 the July and S.A.R.L. Libération case after payment of the just satisfaction, in the light of a draft final resolution, to be drafted by the Secretariat;

2. the Mamère case at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of the bilateral contacts under way concerning general measures.

62740/00 Matheus, judgment of 31/03/2005, final on 01/07/2005

This case concerns the fact that the applicant, following a judicial decision in his favour delivered in 1988, could not obtain police assistance to evict the unlawful occupiers of a plot of land he owned in Guadeloupe and which he finally sold in 2004, having lost all hope of recovering possession. The European Court found that the excessively sustained failure to execute the judicial decision in the absence of any exceptional circumstance to justify it, and the resultant uncertainty for the applicant as to the fate of his property, undermined his right to effective judicial protection (violation of Article 6§1). The Court also considered that the refusal in this case to provide police assistance in the absence of any public-interest justification had resulted in a form of private expropriation from which the unlawful occupant had benefited (violation of Article 1 of Protocol No. 1).

Individual measures: It is recalled first that the land at issue is no longer the applicant's property and secondly that the applicant received various sums to compensate both for the loss of its use and also for the serious offence (faute lourde) committed by the state in refusing to take part in the execution of the judicial decision at issue. What is more, the European Court granted the applicant just satisfaction in respect of the non-pecuniary damage he suffered.

• Assessment: No further individual measure seems necessary.

General measures: The European Court held, in particular, that the refusal to grant police assistance originated in “an omission by the bailiffs (huissiers) and the Prefect rather than a deliberate refusal, in the particular local circumstances, to assist with eviction proceedings for the last 16 years” (§68).

The national courts held that such refusal was illegal in the present case (see the case-law of the Conseil d'Etat mentioned in the European Court's judgment: if refusal by the police to execute a judicial decision is not justified on serious grounds of law and order - as in this case - it is illegal, and the state is liable for a serious offence (faute lourde)); the damages granted to the applicant were, however, not sufficient to compensate for the inaction of the competent authorities (§ 58 and 71). Finally, the violation does not have its origin in the law itself but in its implementation in the specific circumstances of the case by the relevant authorities: the bailiffs and especially the Prefect (§60 and 68). The violation appears to be an isolated one.

In order to avoid new, similar violations, the judgment was brought to the competent authorities’ attention, with a view to facilitating its implementation in practice. Besides the (systematic) dissemination of the judgment to the authorities concerned in the Matheus case, the judgment has also been permanently published since October 2008 on the Ministry of Interior’s Intranet site, where it is visible for all Ministry officials and those of its external offices, and also in Prefectures. More generally, the competent authorities, in particular the Bailiffs, have access to this judgment via several publications. In this respect, several publications of the Cour de cassation may be mentioned: Cour de cassation Information Bulletin No. 619 of 15/05/2005; Annual report 2008, section “studies”; Cour européenne des droits de l'homme 2002-2006 - arrêts concernant la France et leurs commentaires (published by the Cour de cassation European Law Observatory). Finally, it may be noted that the judgment was presented in several broadly disseminated legal publications, either general or specialising in property law.

The Deputies decided to resume consideration of this item once the payment of just satisfaction has been confirmed, with a view to examining the possibility of closing it.

- Cases mainly concerning the right of access to a court to challenge search and seizure measures undertaken by the tax authorities

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

18603/03 André and others, judgment of 24/07/2008, final on 24/10/2008

18659/05 Kandler and others, judgment of 18/09/2008, final on 18/12/2008

These cases concern searches and seizures carried out between 2000 and 2003, at the request of the tax administration, in the professional and/or private premises of the applicants.

The European Court found that the applicants did not have access to a court to contest the lawfulness of these searches and seizures (violations of Article 6§1). The European Court noted that the only avenue of appeal available to the applicants was under Article L.16B of the Code of Tax Procedure. Such an appeal was on points of law only. It did not permit an examination of the facts in question and did not provide sufficient guarantees of the right to a fair hearing (see §29 of the judgment). The fact that search and seizure can only be undertaken following a judge's order is not sufficient to overcome this gap. Furthermore, the fact that article L.16B of the Code of Tax Procedure provides that such operations must take place under the supervision of the judge who has ordered them does not provide any independent control of the authorisation itself, and in any case the access to this judge appears theoretical rather than real. Moreover, it is not possible to have access to the judge who authorised the search proceedings once the searches have been completed. Allegations of irregularities affecting the proceedings still could be heard by the courts possibly ruling upon the merits of tax proceedings relying on the documents taken during the searches, but this can only be the case where proceedings are indeed brought against the persons concerned, which did not happen in the applicants’ cases.

In the André case, the European Court also held that these searches and seizures were “in accordance with the law” and had a “legitimate aim”, but were disproportionate to the aim pursued (violation of Article 8). The search had been subject to a special safeguard since the Chairman of the Marseilles Bar Association had been present. On the other hand, apart from the fact that the judge who had authorised the search was not present, the presence of the Chairman of the Bar and his protests were not enough to prevent the effective disclosure of all the documents at the practice or their seizure. In addition, the tax inspectors and the senior police officer had been given extensive powers by virtue of the broad terms of the search warrant. Lastly, the Court noted that in the context of a tax inspection of the affairs of one of the applicants' client companies, the tax inspectorate had targeted the applicants for the sole reason that it was finding it difficult to carry out the necessary checks and to find documents capable of confirming the suspicion that the company was guilty of tax evasion, although at no time had the applicants been accused or suspected of committing an offence or participating in a fraud committed by their client.

Individual measures:

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

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

2) Case of André and others: Sixty-six documents were seized, including personal documents from the first applicant (the lawyer). The European Court granted just satisfaction in respect of non-pecuniary damage. The tax proceedings were not aimed at the applicants and no proceedings have been brought against them.

• Assessment: In view of the fact that these seizures infringed the applicants' right to respect for private life (Article 8), information would be useful on the fate of the documents seized. But no negative consequence appears to remain from the lack of access to a court (Article 6§1) and thus no measure appears necessary in this respect.

3) Case of Kandler and others: The operations led to the seizure of several documents. The applicants indicated that, following these seizures, no proceedings were brought. They also indicated to the European Court that the finding of the violation they suffered from would constitute just satisfaction. The Court reached the same conclusion.

• Assessment: No negative consequence appears to remain from the lack of access to a court (Article 6§1) and thus no measure appears necessary.

General measures:

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

Shortly after the European Court’s judgment, Article L. 16 B of the Code of Tax Procedure was modified by Article 164 of Law No. 2008-776 of 4/08/2008 (loi de modernisation de l’économie), in order to take into account the requirement of access to a court in this kind of proceedings. The modified Article L. 16 B now provides first, that it is possible to lodge an appeal against an order authorising searches, before the court of appeal’s first president (the order itself mentions the time-limit and specifies which appeal can be lodged). The Article provides secondly that the court of appeal’s first president is also competent for appeals lodged in respect of the progress of the search and seizure operations (the minutes and the inventory drafted following the searches and seizures mention the time-limit and specifies which appeal can be lodged). The decisions of the court of appeal’s first president can themselves be subject to appeal on points of law before the Court of cassation.

• The detailed examination of the new provisions is under way.

It may also be noted that with a view to avoiding similar violations in the context of other kinds of search and seizures procedures, in particular those foreseen in Articles L. 38 of the tax code and 64 of the customs code, similar appeals were instituted for the said procedures. Finally, the Law of 4/08/2008 authorises the government to modify in the same sense, by orders, all the other kinds of procedures in which the administrative authorities have a similar power to carry out searches and seizures.

2) Violations of Article 8: The André judgment has been published on the Intranet site of the Ministry of Justice (“Europe-International” page of the Secretariat General, section “Europe, comments on the ECtHR judgments”). Il was also sent out to the Court of Cassation, which published a summary of the judgment in the Court of Cassation information bulletin, No. 690, of 01/11/2008, and in the quarterly European law bulletin of the Court of cassation library (June-July-August 2008), which may be consulted on the Internet site of the Court of cassation, section “Observatory of European law”).

• These measures appear sufficient to ensure the dissemination of the André judgment to all judges competent to authorise searches (juges de la liberté et de la détention). Further information would appear necessary on wheher additional measures have been adopted, and that is the case which measures, in particular to the police and tax authorities’ attention on the André judgment.

The Deputies decided to resume consideration of these items at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of the information provided and further information to be provided on the individual and general measures.

4 groups of cases concerning the retroactive application of new legislation

to pending judicial proceedings:

60796/00 Cabourdin, judgment of 11/04/2006, final on 11/07/2006

16043/03 Achache, judgment of 03/10/2006, final on 03/01/2007

15589/05 De Franchis, judgment of 06/12/2007, final on 06/03/2008

40191/02 Ducret, judgment of 12/06/2007, final on 12/09/2007

67847/01 Lecarpentier and other, judgment of 14/02/2006, final on 14/05/2006

72038/01 Saint-Adam and Millot, judgments of 02/05/2006, final on 02/08/2006 and of 26/04/2007, final on 26/07/2007 (Article 41)

66018/01 Vezon, judgment of 18/04/2006, final on 13/09/2006

These cases concern the retroactive application of new legislation during pending judicial proceedings. Each of the applicants, having contracted bank loans between 1987 and 1989 and finding themselves subsequently in financial difficulty, sought annulment of their loan agreements on the ground that a formal requirement (inclusion of an amortisation schedule in the initial loan proposal) had not been respected by their respective banks. The annulment sought would have led to the reimbursement of sums already paid in execution of the contract. The applicants' claims were rejected because of the courts' retroactive application of Law No. 96-314 which provides that, except for decisions which have already become final, loan proposals made before 31/12/1994 without amortisation schedules are valid, provided that certain other conditions are respected.

In the cases of Cabourdin, Saint-Adam and Millot, Vezon and Ducret, the European Court found that the proceedings had been unfair, because Law No. 96-314, which provides for final and retroactive settlement of disputes between private individuals before the national courts, had not been justified by compelling grounds of the general interest (violations of Article 6§1).

In the Lecarpentier, Achache and de Franchis cases, the European Court found that the law had placed an "abnormal and excessive burden" on the applicants and had interfered disproportionately with their right to the peaceful enjoyment of their possessions (violation of Article 1 of Protocol No. 1).

Individual measures:

1) In the Cabourdin, Lecarpentier, Vezon, Achache, Ducret and de Franchis cases: The European Court held that it could not speculate as to whether the outcome of the proceedings would have been different had the violation of the Convention not taken place. However, it also said, in the Cabourdin, Vezon and Ducret cases, that it did not consider it unreasonable to think that the applicant had suffered a genuine opportunity loss and, in the case of Lecarpentier, Achache and De Franchis that the applicants has suffered a breach of their right to the peaceful enjoyment of their property. In these circumstances and deciding on the applicants' requests for both non-pecuniary and pecuniary damages, the Court granted them just satisfaction in respect of all heads of damage taken together (for non-pecuniary and pecuniary damages).

2) In the Saint-Adam and Millot case: The European Court found that the question of the application of Article 41 is not ready for decision (pecuniary damage) and reserved it. The Court delivered its judgment under Article 41 on 26/04/2007. The Court said that the respondent state was to pay the applicants 60 000 euros in respect of pecuniary damage, plus any amount that could be chargeable in respect of taxes.

General measures:

• Information provided by the French authorities (letters of 25/06/2007, 21/02/2008 and 07/07/2008): The French authorities, in particular the Ministry of Economy and Finance, first indicated that they were holding exchanges of views on the use of laws designed to “validate” existing practices (“validation laws”, lois de validation) and on measures necessary to avoid new violations. The government declared that it was very concerned by the case-law of the European Court in these cases and pursued its reflexion as to the incidence of this case-law on practice of using such laws.

At the same time, in particular in its letter dated 07/07/2008, the French delegation drew the Committee of Ministers’ attention to the fact that national judges’ case-law is progressively integrating the criteria used in the case-law of the European Court in this field, and and is converging with it. In this respect, the delegation provided information on the case-law of following courts:

- Conseil constitutionnel: in particular, it checks whether “validation” laws are based on “sufficient grounds of general interest” (in the Lecarp judgment, the European Court has noted that in this respect, “the Conseil constitutionnel is basing its approach on the European Court’s case-law”, §46). When this criterion is not met, it annuls the “validation” measures.

- Court of Cassation: it adopted the same criterion in 2001. Furthermore, in three judgments of 24/01/2006, it immediately drew the consequences of the European Court’s judgments of 16/10/2006 in Draon and Maurice, and did not apply the law under consideration because it was contrary to the Convention.

- Conseil d’Etat: since 2004, it requires evidence of “pressing grounds of general interest” (i.e. no longer only of “sufficient general interest”). Like the Court of cassation, on 24/02/2006 it drew the consequences of the Draon and Maurice judgments, refraining from applying the law at issue. More recently, by decision of 25/04/2007, the Conseil d’Etat ruled that the provisions of Article 127 of the budgetary law of 25/04/2005 did not comply with the requirements of Article 6§1 of the Convention, because the grounds justifying the retroactivity of these provisions were not “pressing grounds of general interest”, and because the aim of the law was to influence the outcome of pending judicial proceedings.

In this context, it is recalled that the European Court's judgment in the Vezon case was sent without delay to the Principal Public Prosecutor of the Cour de cassation as well as to the Principal Public Prosecutor of the Court of Appeal. It is also recalled that judgments are systematically sent out to Courts and offices of the Ministry of Justice concerned.

• Information was awaited on the progress in the reflexion of the authorities and on the measures envisaged to avoid further violations, as from the stage of the adoption of laws. On 09/04/2009, the authorities indicated that on 09/03/2009, the Director of Legal Affairs from the Ministry of Foreign and European Affairs sent out a note to all ministries’ legal directorates, as well as to the Conseil d’Etat and the Government Secretariat General, which plays a role of co-ordination between the various ministries. The authorities add that that this detailed note takes stock of the European Court’s judgments on “validation laws”, in order to raise the concerned administrations’ awareness on the criteria used by the Court in this field. According to the authorities, this dissemination should be sufficient to close the cases.

• The examination of this information is ongoing. In any case, it would appear useful to get a copy of this note.

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in particular in the light of the information provided.

20127/03+ Arnolin and others and 24 other cases, judgment of 09/01/2007, final on 09/04/2007

31501/03+ Aubert and others and 8 other cases, judgment of 09/01/2007, final on 23/05/2007

These cases concern violations of the applicants' right to a fair trial (violation of Article 6§1 in the case of Arnolin and others) and, in the case of Aubert and others, a violation of the applicants' right to the peaceful enjoyment of their possessions (violation of Article 1 of Protocol No. 1) on account of the enactment and the application of a law aiming at solving proceedings that were pending. The applicants, all care staff, brought action before the French labour courts against their employers, specialised institutions run by associations under the aegis of the state, regarding the rate of pay for night duty. While most of their cases were still pending, Law No. 2000-37 of 19/01/2000 entered into force. It was applicable to the pending cases and overruled the Court of Cassation's case-law which was more favourable to them.

Individual measures: The Court awarded the applicants just satisfaction in respect of pecuniary and non-pecuniary damage (1 508 000 euro in total in the case of Arnolin and others, 961 000 euro in the case of Aubert and others). The applicants do not seem to suffer any consequences of the violation not covered by the just satisfaction awarded.

• Assessment: no further measure thus seems necessary.

General measures: Information on the measures relating to this kind of cases (concerning "validation laws") is presented under the Cabourdin case, above.

The Deputies decide to resume consideration of these cases at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of the general measures under consideration in the Cabourdin case.

954/05 Chiesi S.A., judgment of 16/01/2007, final on 16/04/2007

The case concerns a violation of the right to a fair trial (violation of Article 6§1) resulting from the enactment of a law intended to resolve pending disputes and the application of this law to a dispute between the applicant company and public authorities. The applicant company had brought administrative proceedings following a decision by the Minister of Health to reduce the rate of reimbursement in respect of certain pharmaceutical products - in particular a medicament manufactured by the applicant - from 65% to 35%. While the proceedings were in progress, Law No. 2003-1199 on social-security funding for 2004 entered into force. This Law contained a provision applicable to proceedings in progress and opposed the previous case‑law of the Conseil d'Etat, which had benefited those in the applicant company's situation.

The Court also found that the public authorities would not have been prevented from achieving the aim pursued in this case if pending proceedings had been excluded from the scope of the Law, but the equality of arms in proceedings in progress would have been respected.

Individual measures: The Court dismissed the applicant's request for pecuniary damage, seeing no link between the violation found and the pecuniary damage claimed, but awarded just satisfaction in respect of non-pecuniary damage.

• Assessment: bilateral contacts are under way to determine whether further measures are required.

General measures: Information on the measures relating to this kind of cases (concerning "validation laws") is presented under the Cabourdin case, above.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light the general measures under consideration in the Cabourdin case, and of further information to be provided on possible individual measures.

12106/03 SCM Scanner de l’Ouest Lyonnais and others, judgment of 21/06/2007, final on 21/09/2007

The case concerns a violation of the right to a fair trial (violation of Article 6§1) due to the adoption of legislation intended to resolve pending disputes, and its application in proceedings between the applicant company and the Ministry of Social Affairs and Integration concerning the reduction of the rate of public contribution to the cost of scanning. During the pre-trial phase, which was obligatory in the case at issue, an Act on social security funding (Law No. 97-1164 of 19/12/1997) entered into force, with the effect of prejudging the outcome of the proceedings.

The European court noted in particular that the public authorities could still have achieved their aim - and at the same time ensured respect for the equality of arms in pending cases - if such pending proceedings had been excluded from the field of application of the new law.

Individual measures: The European Court observed that the only possible basis for granting just satisfaction in this case was the fact that the applicant party had not benefited from the guarantees of Article 6§1. The Court recalled in this context that it could not speculate on what the outcome might otherwise have been, a fortiori as the applicants had obtained no domestic decision in their favour. Added to that, there had been non-pecuniary damage such that the mere finding of a violation could not remedy. In a spirit of fairness therefore, it granted a sum to all the applicants jointly, in respect of all heads of prejudice.

• Assessment: no further measure seems necessary.

General measures: Information on the measures relating to this kind of cases (concerning "validation laws") is presented under the Cabourdin case, above.

The Deputies decide to resume consideration of this case at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of the general measures under consideration in the Cabourdin case.

59423/00 SARL Aborcas, judgment of 30/05/2006, final on 30/08/2006[31]

- 10 cases against Georgia

74644/01 Donadze, judgment of 07/03/2006, final on 07/06/2006

The case concerns a violation of the applicant's right to a fair trial due to the absence of an effective examination of his arguments by Georgian civil courts seized of his case in 2000. His claims against the repeated failure between 1991 and 2000 of his employer, a public administration, to provide him with the office facilities he needed for his work and to pay him the salary supplements he was entitled to, were rejected.

The European Court stressed that the Georgian courts had rejected the applicant's claims on the only basis of the arguments of the defendant administration, without any serious or in-depth examination of the applicant's arguments and evidence, thus placing him at a disadvantage as compared with the defendant administration (violation of Article 6§1).

Individual measures: The European Court awarded the applicant just satisfaction covering, on an equitable basis, the global damages sustained and the applicant has expressed no further request for specific individual measures before the Committee of Ministers.

General measures: Since the facts at the origin of this case, the judicial system has changed and a comprehensive reform is under way, in co-operation with the Council of Europe, to bring the Georgian judicial system fully in conformity with the requirements of the European Convention. In particular, measures have been taken to increase the professionalism of judges: access to the profession has been modified and special training programmes have been established.

• Information of the Georgian authorities (letter of 5/12/2007):the European Court judgment was translated into Georgian and published in the Official Gazette of Georgia n°28 dated 29/05/07.

• Information is awaited about the possible provisions under the new system to guarantee the fairness of civil proceedings, specially those involving administrative entities, and concerning, in particular, the assessment of arguments of the parties by courts and the reasoning accompanying decisions. This request was recalled by letter of 17/04/2007.

• Case law of the Supreme Court regarding the obligation to include reasoning in decisions would also be very useful. In addition, cconfirmation of the dissemination of the judgment of the European Court to all relevant civil courts is also awaited.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH) in the light of information to be provided on general measures.

71156/01 97 members of the Gldani Congregation of the Jehova’s witnesses and 4 others, judgment of 03/05/2007, final on 03/08/2007

The case concerns the inhuman and/or degrading treatments inflicted, in October 1999, on the applicants, a number of members of the Gldani Congregation of Jehovah’s Witnesses, by a group of extremist Orthodox believers, led by Vassil Mkalavishvili (known as “Father Basil”), without being able to obtain the protection of the state and an effective investigation into the events at issue (violations of Article 3).

The case also concerns the inactivity of the Georgian authorities, who failed in their obligation to take steps to ensure that the group of Orthodox extremists lead by Father Basil should tolerate the existence of the applicants’ religious community and allow them to enjoy the free exercise of their right to religious freedom (Violation of Article 9).

Lastly, the case concerns the fact that certain comments and attitudes of officials involved in the matter – comments and attitudes which cannot be considered compatible with the principle of equality of everyone before the law – gave the appearance of the authorities’ unofficial support for the activities of “Father Basil”, allowing him to continue to incite hatred through the media and pursue acts of religiously motivated violence (violation of Article 14 taken together with Articles 3 and 9).

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

• Information is awaited on measures taken or envisaged by the authorities to comply with this obligation.

General measures: It appears from the Court judgment that there has been no further violence against Jehovah’s Witnesses since 2004.

On 5/1/2007, the Secretariat received a copy of the Georgian Official Gazette No. 50 dated 24/10/2007 in which the European Court’s judgment, translated into Georgian, was published. The translated judgment was distributed to various state bodies. It is also available on the website of the Ministry of Justice: www.justice.gov.ge/gldani.pdf .

• Confirmation of the dissemination of the European Court’s judgment to the police and to all criminal courts, to draw their attention to the requirements of the Convention is awaited.

The Deputies decided to resume consideration of this item at the latest at their 1072 meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual and general measures.

38736/04 FC Mretebi, judgment of 31/07/2007, final on 30/01/2008, rectified on 24/01/2008

The case concerns an infringement of the right of access to a court, and thus to a fair hearing, in that the applicant, the Football Club Mretebi, could not continue proceedings for damages following the refusal by the Supreme Court to grant its request for exemption from court fees (violation of Article 6§1).

The European Court observed in particular that the Supreme Court failed, in its decision of 5/01/2004, to secure a proper balance between the interest of the state in securing reasonable court fees on the one hand that of the applicant in vindicating its claim through the courts on the other.

Individual measures: The applicant did not request just satisfaction for non-pecuniary damage. The Court rejected the applicant’s claim for pecuniary damage on the ground that it could not speculate about the outcome of the domestic proceedings had they been in conformity with Article 6§1. The Court stated that, having regard to its finding in this case, and without prejudice to other possible measures remedying the unjustified denial of the applicant's right of access to the court of cassation, it considered that the most appropriate form of redress would be to have the applicant's points-of-law appeal of 5/01/2004 examined by the Supreme Court, in accordance with the requirements of Article 6§1, should the applicant so request.

• Letter from the applicant’s representatives (6/03/2009) sent to the European Court and to the Committee of Ministers: On 14/03/2008 the applicant’s representatives filed a request with the Supreme Court to review the applicant's cassation appeal of 5/01/2004. By a decision of 28/03/2008, the Supreme Court found the applicant's request admissible and stated that, because there was no special provision governing the present situation, the court should apply certain Articles of the Code of Civil Procedure by analogy. However, on 21/07/2008, the Supreme Court, sitting in camera, dismissed the applicant's cassation appeal of 5/01/2004 without examining the merits.

The applicant’s representatives consider that the Supreme Court's refusal to examine the applicant's cassation appeal of 5/01/2004 on its merits is a refusal to execute the European Court's judgment.

Finally, the applicant’s representatives inform the Committee of Ministers that because the Supreme Court’s decision of 21/07/2008 is a decision of final instance in Georgia and there is no domestic remedy available to contest it, they filed a new application with the European Court of Human Rights (…).”

• Information is awaited on alternative individual measures envisaged to implement the European Court’s judgment.

General measures: It appears from the Court’s judgment that provisions concerning exemption of court fees have changed.

• Information provided by the Georgian authorities (3/03/2009): Regarding the provisions concerning exemption of court’s fees currently in force:

According to Article 37 of the Code of Civil Procedure, court fees are composed of the state fee and the costs incurred for purposes of the proceedings.

Article 39 which sets the amount of the state fee has been modified and these amounts have been increased. Article 47 deals with “Exemption of payment of court fees by the Judge” and provides in particular that “With due regard to the financial situation of the party concerned, the judge may exempt that party in whole or in part from court fees to be paid to the state budget, if that party can prove its inability the to pay the court fees and if it provides relevant evidence. The judge shall give a reasoned decision. Lastly, Article 48 provides that “with due regard to the financial situation of the party concerned, and if the party provides relevant evidence, the judge may extend the time-limit for payment or reduce the amount of court fees to be paid to the state budget.”

• Information is awaited concerning the confirmation of translation and publication of the judgment of the European Court and of its dissemination to the Supreme Court. Examples of application of provisions currently in force are also awaited.

71678/01 Gurguenidze, judgment of 17/10/2006, final on 17/01/2007

The case concerns the failure by the Georgian Courts adequately to protect the applicant's private life following the publication in a newspaper of his photograph and a series of insulting interviews. The courts rejected the applicant's request for compensation for non-pecuniary damage.

The European Court considered that the wrong done to him and the absence of sufficient protection by the domestic courts would have caused the applicant to experience disadvantage in his private and professional life as well as a strong feeling of shame preventing him from facing others (violation of Article 8).

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

• Publication and dissemination of the Court's judgment (see below) will constitute an additional measure in order to erase the consequences of the violation found.

General measures: On 5/12/2007, the Secretariat received a copy of the Official gazette of Georgia, No. 55 dated 26/11/07, in which the European Court judgment, translated into Georgian, was published. The judgment translated was distributed to various state bodies. It is also available on the website of the Ministry of Justice of Georgia: www.justice.gov.ge/gurgenidze.pdf.

• Confirmation is awaited of the dissemination of the Court's judgment, to Georgian districts and regional courts, with a circular drawing their attention to their obligations under the Convention, as interpreted by the present judgment.

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

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

11830/03 Gharibashvili, judgment of 29/07/2008, final on 29/10/2008

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

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

The Gharibashvili case concerns the absence of an effective investigation on the applicant’s allegations of ill-treatment inflicted to him during his detention at Rustavi Police Station on 23-25 May 2001 (violation of Article 3 under its procedural limb).

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

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

In the Davtian case:

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

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

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

in the Danelia case:

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

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

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

In the Gharibashvili case:

The Court distinguished two periods: the first one, before the communication of the application lodged with the European Court of Human Rights by Mr. Gharibashvili to the government and the second one, after the communication of the application to the Government on 5th December 2005.

The European Court noted in particular that:

- the preliminary enquiry was entrusted to the same division of the prosecution authority – the Rustavi District Prosecutor’s Office – of which the alleged perpetrator of the ill-treatment was a member, even though the applicant clearly objected to such an obvious conflict of interests;

- the applicant himself was never interviewed during the investigation progress. This shortcoming was also noted by the Supreme Court of Georgia, but it was not rectified afterwards;

- no enquiry was made, and consequently no reply was given, with respect to the allegation of physical abuse by the alleged perpetrator;

- it was only after the communication of the applicant's complaint to the respondent Government, that the General Prosecutor’s Office decided to open a criminal case, on 24 January 2006, that is almost two years after the applicant lodged a request to that end;

- the Tbilisi City Prosecutor’s Office relied heavily on the information provided by the Rustavi District Prosecutor’s Office and Rustavi police officers directly or indirectly implicated in the impugned events, without seeking any information from the applicant's witnesses or confronting the applicant himself with the three persons he had directly incriminated;

- the Tbilisi City Prosecutor’s Office did not consider interviewing the Tbilisi no. 5 Prison doctor who had examined the applicant at the material time and allegedly refused to report the signs of ill-treatment on his body. Lastly, instead of ordering an independent and thorough medical examination of the applicant's state of health, the Tbilisi City Prosecutor’s Office limited the enquiry to reading the prison medical log;

- the termination of the above investigation was upheld by the domestic courts sitting in camera, without holding oral hearings. No transparent and adversarial procedure in writing took place instead. The Court observes in this connection that a public and adversarial judicial review, even if the court in question is not competent to pursue an independent investigation or make any findings of fact, has the benefit of providing a forum guaranteeing the due process of law in contentious proceedings involving an ill-treatment case, to which the applicant and the prosecution authority are both parties.

Individual measures: Mr Davtyan was released in September 2005. The European Court awarded him just satisfaction in respect of the non-pecuniary damages sustained. Mr Danelia is no longer in detention. The European Court awarded him just satisfaction in respect of non-pecuniary damages. Mr Gharibashvili did not submit any claim for just satisfaction and accordingly, the Court did not award him any sum on that account.

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

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

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

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

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

• In April 2009, the Secretariat wrote to the Georgian authorities recalling that information is awaited on how the Georgian authorities intend to comply with their obligation to conduct an investigation and asking the following questions:

- What are the possibilities in Georgian Law to require the reopening or the resumption of an investigation closed by an investigator? For instance, does the prosecutor have such a power?

- What authority is competent to draw the consequences of a European Court judgment holding that there has been a violation of Article 3 in its procedural limb and to decide to reopen or resume an investigation?

Moreover, a copy of the decision of 10/12/1999 (with a translation) by which the prosecutor refused Mr Davtyan's request to open an investigation has been requested again. Copies of the notifications of this decision to the applicant and his lawyer have also been requested.

New information is urgently awaited on individual measures in these cases.

General measures:

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

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

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

These judgments were translated into Georgian, published in the Official Gazette (Matsne No. 55 dated 26/11/2007 and Matsne No. 6 dated 26/01/2009) and the cases of Davtyan and Danelia have been sent out to various state bodies. Georgian translations of the cases are also available on the official web-page of the Ministry of Justice of Georgia.

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

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

Lastly, in its letter of 2/04/2009 (see individual measures), the Secretariat noted that the case of Gharibashvili, which is recent, seems to suggest that procedure for investigating allegations of ill-treatments in police custody are not yet in conformity with the Convention.

Information is awaitedon measures taken or envisaged to remedy to the shortcomings found by the Court, so that the Committee of Ministers can assess whether these measures will serve to avoid similar violations.

The Deputies decided to resume consideration of these items at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on individual and general measures.

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

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

CM/Inf/DH(2009)28

These cases concern violations of the applicant companies' right to a court on account of the administration's failure to enforce final domestic judgments (from May 2001 and December 1999 respectively) ordering the state to pay certain sums to the applicant companies (violations of Article 6§1). They also concern the lack of an effective remedy in this respect (violations of Article 13).

Finally, the cases concern violations of the applicant companies' right to the peaceful enjoyment of their property, as from 7/06/2002 (the date on which Protocol No. 1 entered into force with respect to Georgia) as a result of the failure to enforce the domestic judgments (violations of Article 1 of Protocol No. 1). The European Court noted that the non-enforcement of final judgments by the Georgian state budget institutions, on account of the limited budgetary resources, was a persistent problem, recognised by the domestic authorities.

Individual measures: The just satisfaction awarded by the European Court covers entirely the sums at issue in the unenforced domestic judgments.

General measures:

1) Violation of Article 6 §1 and Article 1 of Protocol No.1: In the framework of the examination of the “Iza” case, the Georgian authorities have been invited, by letter of 3/04/2006, to present an action plan for the execution of the judgment and their attention has been drawn in particular to the examples of other countries confronted with similar problems in the past (see the conclusions of the Round Table held on 21-22 June 2007, CM/Inf/DH(2007)33).

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

2) Violation of Article 13:

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

At the 1051st meeting (March 2009), the Georgian authorities provided information regarding legislative changes and budgetary appropriations adopted with a view to preventing new similar violations of the Convention. This information is set out in document CM/Inf/DH(2009)28.

The Deputies

1. took note with satisfaction that budgetary resources have been allocated to the enforcement of domestic judgments ordering payment of state debts, and that a reform of the system of execution is under way with a view to preventing similar violations of the Convention;

2. invited the Georgian authorities to keep the Committee of Ministers informed of the development of the reform and other relevant measures;

3. recalled that detailed information is in particular awaited on the compulsory enforcement procedure against the state authorities and the possibilities of obtaining compensation as well as more generally on measures aiming at ensuring the effectiveness of domestic remedies ;

4. decided to resume consideration of these items at their 1st DH meeting of 2010, in the light of further information to be provided on general measures and on the basis of the Memorandum revised by the Secretariat.

- Case concerning freedom of expression

12979/04 Gorelishvili, judgment of 05/06/2007, final on 05/09/2007

The case concerns an infringement of the right to freedom of expression of the applicant, a journalist at the material time, on account of her conviction for defamation in September 2003 for having published an article on the financial situation of a political personality in the light of the latter’s declaration of property (violation of Article 10).

The European Court noted in particular that there was no doubt that the applicant's freedom of expression was exercised in the context of a matter of important public interest and that the expressions condemned by the Supreme Court amounted to an opinion, albeit expressed provocatively. The Court concluded that the standards applied by the Supreme Court were not compatible with the principles embodied in Article 10, since it had not adduced relevant and sufficient reasons to justify the interference with the applicant's right to impart information and ideas on matters of public concern. The Court therefore concluded that the interference was not necessary in a democratic society.

Individual measures: No claim for pecuniary damage was made. The European Court considered that the applicant must have suffered some non-pecuniary damage for which the finding of a violation would not constitute sufficient compensation and therefore awarded the applicant a sum under this head.

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

General measures: The European Court stated that it was state of the Georgian law on defamation at the material time which had led to the decision of the Supreme Court. In particular, Article 18 of the Civil Code made no distinction between value-judgments and statements of fact, referring uniformly to “information” (cnobebi), and required the truth of any such “information” to be proved by the respondent party. Such an indiscriminate approach to the assessment of speech is, in the eyes of the Court, per se incompatible with freedom of opinion, a fundamental element of Article 10.

On 5/12/2007, the Secretariat received a copy of the Official Gazette of Georgia No. 54, dated 12/11/07, in which the European Court’s judgment, translated into Georgian, was published. The translated judgment was distributed to various state bodies. It is also available on the website of the Ministry of Justice of Georgia http://www.justice.gov.ge/gorelishvili.pdf.

On 3/03/2009, the Georgian authorities provided a translation of Article 18 of the Civil Code which deals with the right to honour, dignity, privacy, personal security or professional reputation and provides a right of reply in the media as well as the possibility to ask for compensation.

• It is recalled that information is awaited on the provisions currently applicable in matter of defamation.

- 216 cases against Greece

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

39780/06 Kotsaftis, judgment of 12/06/2008, final on 12/09/2008

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

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

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

The Kotsaftis case concerns inhuman treatment undergone by the applicant due to the Greek authorities’ failure in their obligation to ensure that he was given appropriate medical care during his detention from 9/06/2006 to 15/03/2007 (violation of Article 3).

The applicant was convicted in 2003 and sentenced to 13 years’ four months’ imprisonment. He was suffering from cirrhosis of the liver caused by chronic hepatitis B. The European Court considered that between August 2003 and January 2004, and from 15/03/2007 onwards, the applicant had received the appropriate treatment and the medical supervision required by his state of health. However, with regard to the period between the 9/06/2006 and 15/03/2007, the Court found that, contrary to the findings of an exert report drawn up in September 2006, the applicant had been kept in detention without being given special diet or treatment with the appropriate drugs, and had not undergone check-ups in a specialist medical centre. The Court noted in particular that an operation scheduled initially in July 2006, was not performed until a year later. It also deplored the fact that a person suffering from a serious and highly infectious disease had been detained along with ten other prisoners in a cell measuring 24 m².

Finally the Court underlined that, despite the fact that the competent authorities had been informed of his state of health and the need for appropriate treatment, it was not until measures had been indicated by the Court applying Rule 39 of its Rules, that the applicant began to receive regular check-ups.

Individual measures: In these cases, the European Court awarded the applicants just satisfaction in respect of the non-pecuniary damage sustained.

1) Serifis case: The applicant was released and placed under court supervision in February 2005 so that he could receive regular medical care.

• Assessment: No further individual measure seems to be necessary.

2) Kotsaftis case:

• Information provided by the Greek authorities (letter of 07/04/2009): The applicant was release on 09/03/2009 following and order by the Council of the Patras Court. Throughout the period at issue, until his release, the applicant was in hospital.

• Assessment: No further individual measure seems to be necessary.

General measures:

1) Violation of Article 3:

• Information provided by the Greek authorities (letters of 17/12/2007 and 07/04/2009): Dissemination of the European Court’s judgments has been confirmed: the Ministry of Justice has sent a translation of the Serifis judgment to the President and the Prosecutor before the Court of Cassation with a view to ensuring that all prosecutors are adequately informed of how similar cases should be handled. The certified translation of the judgments is also available on the internet site of the State Judicial Council (www.nsk.gr).

• The Secretariat is assessing whether further measures are required.

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

The Deputies decided to resume consideration of these items at the latest at their 1st DH meeting in 2010 for the supervision of general measures

72081/01 Mavroudis, judgment of 22/09/2005, final on 22/12/2005

The case concerns the failure by the authorities of Thessaloniki University to comply with four domestic judgments delivered between 1990 and 1995, and in particular with judgment No. 793/1995 of the Thessaloniki Administrative Appeal Court (upheld by the Supreme Administrative Court in 1999) which considered that the University was bound to appoint the applicant to a post of lecturer in Byzantine music (violation of Article 6§1).

The case also concerns the excessive length of proceedings before administrative courts: the proceedings relating to the applicant's appointment began in December 1989 and were still pending when the European Court delivered its judgment; as were two sets of proceedings for damages lodged by the applicant in October 1996 and in December 1998 (violation of Article 6§1).

Individual measures:

• Information provided by the Greek authorities: The European Court's judgment was sent to Thessaloniki University for the adoption of individual measures. The university authorities wished to await the judgment of the Thessaloniki Appeal Court on the applicant's 2002 appeal against the University's “special election body”. In fact, in 2002, the “special election body” had once more refused to appoint the applicant on the post of a lecturer. The hearing before the Administrative Court of Thessaloniki was initially scheduled for 07/12/2006; a hearing took place on 07/12/2007.

Further, on 6/10/2006, during one of the sets of civil proceedings for damages brought by the applicant, the Administrative Court of Appeal of Thessaloniki rejected as unfounded the applicant’s appeal against decision 3510/2003 of the Administrative Court of Thessaloniki. More concretely, the decision of the Administrative Court of Appeal stated that the University was at fault for not having reinstated the applicant in the post of lecturer in Byzantine music only as regards the period between 01/01/1995 and 31/12/1997 and that the applicant had sustained no additional damage after 1997. It should be recalled that in 1997 and 1998 respectively, the Administrative Court awarded compensation for the damage sustained by the applicant through not having been appointed to the post during the three-year period mentioned above.

• Information is still awaited about the outcome of the proceedings concerning the appointment of the applicant, and also about the measures taken or envisaged to accelerate them, given in particular the second violation found by the European Court. Confirmation is awaited that the two sets of compensation proceedings are closed with definitive decisions. A copy of the courts’ decisions adopted in these proceedings will be appreciated.

General measures:

1) First violation of Article 6§1: see Final Resolution ResDH(2004)81 in the Hornsby case and other cases against Greece.

2) Second violation of Article 6§1:

• Measures adopted: Greece has adopted a number of legislative and other measures with a view to accelerating proceedings before administrative courts (see Final Resolution ResDH(2005)65 in the case of Pafitis and others and 14 other cases against Greece, adopted on 18/07/2005). Additional measures to provide an effective domestic remedy for this kind of violations are currently under way (see Interim Resolution CM/ResDH(2007)74 of 06/06/2007).

• Additional measures required: Additional problems in this field have been highlighted in more recent judgments and are being addressed by the Greek authorities under the Committee's supervision (e.g. the Manios case, Section 4.2).

35522/04 Stavropoulos Vassilios, judgment of 27/09/2007, final on 27/12/2007

The case concerns a breach of the principle of the presumption of innocence in that in 2004 the administrative court of appeal and the Council of State had expressed doubts as to the applicant’s innocence in their decisions on the annulment by administrative courts of his right to social housing on the grounds of deception and making a false declaration of his wealth. These doubts were expressed despite the fact that the applicant had been acquitted in criminal proceedings concerning the same matter (violation of Article 6§2).

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

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

General measures:

• The Greek authorities are invited to consider publishing of the European Court’s judgment in this case and to ensure its wide dissemination to the competent authorities to draw their attention to the Convention’s requirements concerning the respect of the principle of the presumption of innocence.

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting in 2010 in the light of information to be provided on possible individual measures and on general measures, namely the publication and dissemination of the judgment of the European Court.

21091/04 Papa, judgment of 06/07/2006, final on 06/10/2006

The case concerns a violation of the applicant's right to a fair trial in that the Athens Assize Court, in December 2003, decided without providing a sufficient reasoning not to award the applicant compensation, following his acquittal, for pre-trial detention lasting 430 days (violation of Article 6§1).

The European court noted that the Assize court’s reasoning failed completely to address the question as to whether the applicant was “voluntarily responsible for his own detention” which, under Article 535 of the Code of Criminal Procedure is the only situation in which a court may refuse compensation to someone who whose remand in custody is followed by acquittal. The Court recalled that it had already criticised this practice of Greek courts (§14 of judgment).

Individual measures: The applicant may request reopening of the proceeding after the European Court's judgment, in accordance with Article 525A of the Code of Criminal Procedure. The European Court has awarded the applicant just satisfaction in respect of pecuniary and non‑pecuniary damage.

• Assessment: in these circumstances, no further individual measures appear necessary.

General measures: The case presents similarities to that of Anastassios Georgiadis, supervision of which by the Committee was concluded following the adoption by Greece (especially in 2001) of a number of legislative and other measures to prevent similar violations (see Final Resolution ResDH(2004)82, adopted on 22/12/04). It is noted that Greek law, especially following the 2001 amendments of the Constitution and of the Code of Criminal Procedure, requires courts to provide detailed reasoning for all their decisions. The Greek authorities considered that these measures would prevent similar violations.

• However, given that that the facts of the present case occurred after these measures had been adopted, information was requested regarding additional measures envisaged or already taken.

• Information provided by the Greek authorities: The European court’s judgment has been translated into Greek and forwarded to the Ministry of Justice for dissemination to the judicial authorities. It is also available on the website of the State Legal Council (www.nsk.gr). It may be noted that judges’ training at the National Judicial School includes course content on human rights, as do practical training activities on international institutions (see Article 3 of Law No. 2236/1994 and Article 19 of the new Law No. 3689/2008.

• Assessment: bilateral contacts are in hand to assess whether further general measures are needed.

The Deputies decided to resume consideration of this item at their 1065th meeting (15‑16 September 2009) (DH), in the light of information to be provided on general measures.

- Cases concerning the dissolution and refusal to register associations established by persons belonging to the Muslim minority of Western Thrace (Greece).

35151/05 Bekir-Ousta and others, judgment of 11/10/2007, final on 11/01/2008

34144/05 Emin and others, judgment of 27/03/2008, final on 01/12/2008

26698/05 Tourkiki Enosi Xanthis and others, judgment of 27/03/2008, final on 29/09/2008

These cases concern the dissolution or refusal to register the applicant associations by the competent courts on the sole basis of a suspicion that the applicants intended to promote the idea that an ethnic minority existed in Greece (violations of Article 11).

The European Court noted that the contested measure rested only on a simple suspicion concerning the true intentions of the founders of the association and concerning the actions that the association might pursue once it began to operate. The European Court also noted that even if the real aim of the associations was to promote the idea that an ethnic minority existed in Greece, this could not in itself constitute a threat to a democratic society.

The European Court found in this connection that nothing in the statute of the associations indicated that its members would or had engaged in violence or non-democratic or anti-constitutional actions. Finally, once the association was founded, the relevant court could order its dissolution if it subsequently pursued an aim different from that stipulated in the statute or if its functioning turned out to be contrary to public order. As a result, the Court concluded that the contested measure was disproportionate to the objectives pursued.

In the case of Tourkiki Enosi Xanthis and others, the European Court noted in particular that before its dissolution, the association had carried on its activities unhindered for half a century without any indication that its members had ever resorted to violence or rejected democratic principles: this formed an essential element of the Court's considerations.

The Tourkiki Enosi Xanthis case also concerns the excessive length of the proceedings to contest the dissolution (violation of Article 6§1).

Individual measures: In all these cases, the Court concluded that the finding of a violation of Article 11 constituted sufficient just satisfaction for the non-pecuniary damage sustained. The first applicant in Tourkiki Enosi Xanthis was awarded just satisfaction in respect of the violation of Article 6§1.

1) Case of Bekir-Ousta and others: The applicant’s lawyer has stated that following the European Court’s judgment, the applicant association again applied for registration in the national courts. This was heard at first instance on 19/02/2009 by the Single Member Court of First Instance of Alexandroupoli. According to the applicant’s lawyer, the Alexandroupoli court rejected the application on the ground that a judgment of the European Court has no effect at the national level and that under national law, a judgment from the European Court does not provide grounds for a case to be retried. The applicant appealed to the Court of Appeal, Thrace. The appeal was heard on 03/04/2009 and the outcome is awaited.

2) Case of Tourkiki Enosi Xanthis and others: The applicant’s lawyer has stated that following the European Court’s judgment, the applicant association again applied for registration in the national courts. The applicant currently has two separate claims pending on this issue, one before the Court of First Instance in Xanthi and one before the Court of Appeal in Thrace. The hearings have taken place in both sets of proceedings and in each case, the judgment it awaited.

The national proceedings for which the excessive length was criticised, ended in 2005

3) Case of Emin and others: The applicants’ lawyer has stated that following the European Court’s judgment, the applicant association again applied for registration in the national courts. A hearing was held at the Court of First Instance, Rodopi on 08/04/2009. The outcome is awaited.

• Information is awaited on the outcome of the national proceedings in all three cases.

General measures: Publication and wide dissemination of the European court’s judgments to all competent courts, accompanied by an explanatory letter emphasising the requirements of the Convention in the field of freedom of association as spelled out in this judgment, appear necessary.

• Information is also awaited on any measures taken or envisaged and in particular, the possible organisation of targeted training activities for judges in this area.

32186/02 Agga No. 3, judgment of 13/07/2006, final on 13/10/2006

33331/02 Agga No. 4, judgment of 13/07/2006, final on 13/10/2006

These cases concern the prosecution, convictions and sentencing to imprisonment (subsequently commuted to fines) under Article 175 of the Criminal Code (1997-2002), for having usurped the functions of a minister of a “known religion”, on the ground that in 1996 and in 1997 he had issued and signed messages in the capacity of the Mufti of Xanthi, following his election by Muslims in that area.

In both cases the European Court found that the applicant's convictions constituted an interference with his right, in community with others and in public, to manifest his religion in worship and teaching, which was not necessary in a democratic society (violations of Article 9).

Individual measures: The applicant is entitled to request the reopening of the criminal proceedings, following the European Court's judgments, under Article 525§1.5 of the Code of Criminal Procedure.

It is noted that the Court did not award any pecuniary damages given that the applicant failed to show that he had paid any amount as a fine (§§35 in both judgments).

General measures: These cases present similarities to those of Serif (judgment of 14/12/99, final on 14/03/00) and of Agga No. 2 (judgment of 17/10/02, final on 17/01/03 - it concerns the same applicant and similar facts) in which supervision by the Committee was concluded by Final Resolution ResDH(2005)88 (adopted on 26/10/05). The Committee took particularly into consideration the change of domestic case-law (especially by decisions and judgments of first-instance and appeal courts delivered in 2001 and 2002) interpreting Article 175 of the Criminal Code in the light of the European Court's case law. The Greek government had considered that the measures taken would prevent similar violations.

These positive developments have nonetheless proved insufficient to prevent new, similar violations in the present cases due to the failure of Greek criminal courts in 2000, and especially of the Court of Cassation in 2002, to give direct effect to the European Court's judgments (Serif and Agga No. 2). Further general measures therefore appear necessary.

• Information provided by the Greek authorities: The judgments were translated and sent out to all the judges in the country between December 2006 and March 2007 together with a letter from the President of the Court of Cassation drawing attention to the reasoning and conclusions of the European Court. They were also sent to the Prosecutor General, who in turn sent them out to all Greek prosecutors.

In conformity with the annual training programmes of the National School for Magistrates, the European Convention on Human Rights has been taught in 2006 and 2007 as part of Constitutional law. More concretely, this training comprised in-depth analysis of the various rights protected by the Convention, as well as the procedures for application before the European Court. The direct effect of the Convention and the Court’s case- law has been a central element of these training programmes. Special emphasis was placed on cases against Greece and the consequences their execution produces on the legal system of the country. Rights related to the criminal-law sphere received particular attention.

Further, a number of ad hoc thematic seminars have been organised with the aim of updating the judges with most relevant and recent information on the Convention.

It should be noted that the domestic courts have often applied the Court’s case law directly in their decision-making; concrete examples have been provided by the authorities.

Copies of the training programmes of the National School for Magistrates for 2006 and 2007 were also provided.

• Assessment: underway.

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), for examination of the general measures adopted and their practical effects.

- Cases mainly concerning freedom of expression

19331/05 Katrami, judgment of 06/12/2007, final on 06/03/2008

28504/05 Kanellopoulou, judgment of 11/10/2007, final on 31/03/2008

The cases concern disproportionate interference with the freedom of expression of the applicants, one of whole was a journalist sentenced in 2004 to a year’s imprisonment suspended for having written an article about a judge using language which was considered abusive, the other being given a suspended sentence of five months on account of two articles in which she expressed herself very frankly concerning a physician at whose hands she had suffered (violations of Article 10).

The European Court stressed in the first case that a prison sentence imposed in the context of a case concerning freedom of expression of journalists is not compatible with the requirements of Article 10, except in exceptional circumstances having a serious effect on the rights of others, such as hate speech or incitement to violence. The Court also noted that in these cases the protection of the reputation of the claimants could have been ensured by the means offered in civil law. Moreover, in the first case the Court indicated that the national courts had not made a distinction between “facts” and “value judgments” and had only looked into whether the words used by the applicant were likely to impinge upon the reputation of the claimant.

The Kanellopoulou case also concerns the excessive length of civil proceedings brought by the applicant for damages against the physician concerned (violation of Article 6§1).

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

• Information is awaited on measures taken to erase the legal consequences of the conviction of the applicants and in the Kanellopoulou case on the outcome of the civil proceedings still pending according to the judgment of the European Court..

General measures:

1) Violation of Article 10: It may be noted that the direct effect of Article 10 in the field of freedom of the press has been expressly recognised in Greek case-law (see Council of State judgment 253/2005, referred to in the framework of the Rizos and Daskas case, Section 6.2). In this context, circulating the European Court’s judgments to courts competent in this field appears a sufficient measure of execution.

• Information provided by the Greek authorities (letter of 12/01/2009): The European Court’s judgments have been translated, published on the website of the State Legal Council (www.nsk.gr) and sent to the Ministry of Justice and the President and the public Prosecutor of the Court of Cassation.

• The Secretariat is considering whether other measures of dissemination are needed.

2) Violation of Article 6§1: The Kanellopoulou case presents similarities to the Konti-Arvaniti case (Manios group, Section 4.2).

The Deputies decided to resume consideration of these items at the latest at their 1st DH meeting in 2010 in the light of information to be provided on individual measures and for the examination of general measures.

11801/04 Tsalkitzis, judgment of 16/11/2006, final on 26/03/2007

The case concerns the violation of the applicant's right of access to court in that Parliament (in 2002) and the Speaker (in 2004) rejected a request by the Prosecutor before the Court of Cassation to lift the parliamentary immunity of a member of parliament, elected in 2000, against whom the applicant, a property developer, had lodged a complaint for blackmail, abuse of office and subornation, offences allegedly committed in 1997 when the parliamentarian had been mayor (violation of Article 6§1).

The European Court noted that in such cases the lack of a clear link with a parliamentary activity calls for a narrow interpretation of the notion of proportionality between the aim pursued and the means employed, especially when the restrictions of the right of access to a court emanate from a decision of a political organ (§49 of judgment). Besides, the Court considered that the suspension of every criminal proceeding against a member of parliament during their parliamentary mandate would result in a substantial amount of time elapsing between the commission of the acts complained of and the opening of criminal proceedings that would render the latter uncertain, particularly regarding evidence (§50 of judgment).

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

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

General measures: It may be noted that according to Article 62§1 of the Constitution, during the parliamentary term, members of parliament may not be prosecuted, arrested, imprisoned or otherwise confined without prior leave granted by Parliament. Pursuant to Article 83 of Parliament's Regulations, requests for leave to prosecute a member of parliament are first examined by the Parliament's professional ethics committee which should take into account, inter alia, whether the act complained of is linked to a political activity of the member of parliament (see §§16-17 of judgment). In this context, it is worth noting that in similar cases against Italy (see Cordova case, judgment of 30/01/03, final on 30/04/03; De Jorio case, judgment of 03/06/04, final on 10/11/04, section 6.2), there has been a change in the case-law of the Italian Constitutional Court, according to which it is no longer possible to extend the scope of parliamentary immunity to acts and statements which are not connected with parliamentary duties.

The Greek authorities have indicated that the European court’s judgment has been notified in Greek translation to the Speaker of Parliament for transmission to parliamentary committees as well as to all members. The judgment has also been sent to the Ministry of Justice and subsequently to the President of the Court of Cassation and the Prosecutor General for dissemination to judicial authorities. The text is also available on the internet site of the State Judicial Council (www.nsk.gr).

• Assessment: It transpires from the European Court’s judgment that the violation found does not originate in the legal texts relating to the immunity of members of Parliament, but rather to the way in which they were applied here. This being the case, and taking account of the direct effect given in Greek law to the judgments of the European Court, publication and dissemination of the judgment in this case should constitute sufficient measures of execution. This said, examples of changed practice of parliamentary bodies in this area would be helpful, given that the European Court’s case-law (judgment in Cordova against Italy, see above) had been unsuccessfully invoked before them (§§12-15 of the judgment).

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting in 2010, in the light of information to be provided on general measures and for examination of individual measures, if necessary.

2898/03 N.T. Giannousis and Kliafas Brothers S.A., judgment of 14/12/2006, final on 23/05/2007[32]

- Cases mainly concerning the failure to implement final judicial decisions

38878/03 Beka-Koulocheri, judgment of 06/07/2006, final on 06/10/2006

38752/04 Georgoulis and others, judgment of 21/06/2007, final on 21/09/2007

11325/06 Kanellopoulos, judgment of 21/02/2008, final on 21/05/2008

32636/05 Moschopoulos-Veïnoglou and others, judgment of 18/10/2007, final on 18/01/2008

41898/04 Milionis and others, judgment of 24/04/2008, final on 29/09/2008

The cases relate to the administrative authorities’ failure to comply with final judgments of administrative tribunals given between 1999 and 2005 concerning the lifting of certain expropriation measures to allow the release of the applicants’ property. The case of Milionis and others concerns the failure to enforce a final court decision recognising the applicants’ right to additional pension payments, plus interest (violation of Article 6§1). It concerns also the excessive length of the proceedings and the absence of a domestic remedy in this respect (violation of Articles 6§1 and 13). The Kanellopoulos case also relates to the absence of a domestic remedy capable of remedying this situation (violation of Article 13).

The European Court noted that the adoption of Law No. 3068/2002 on the execution of judgments by the administration unequivocally demonstrates the state’s serious commitment to complying with judgments, but considered that the mechanism set up was unlikely to offer an effective remedy to the applicant. The Court noted that, after the applicant had appealed before the competent committee of the highest jurisdiction, this committee could only note the administration’s refusal to comply with a judgment and impose the payment of compensation to the applicant, if necessary. Yet, in the Court’s opinion, these measures are not likely to lead to the certain execution of the judgment in question and as a result cannot be considered as sufficient redress. It further noted that disciplinary proceedings against administrative officials responsible for the failure to execute the judgment did not offer sufficient direct redress in the present situation.

Individual measures: The European Court awarded the applicants just satisfaction in respect of non-pecuniary damages. The Court rejected the applicants’ claim for pecuniary damages in respect of their property rights, as they had not exhausted the domestic legal remedies to receive compensation.

In the Georgouillis and others case the domestic judicial decision was enforced in 2004 (see §24 of the judgment) in the Moschopoulos and others case it was enforced in 2005 (see § 29 of the judgment).

In the case of Milionis and others the Court awarded the applicants just satisfaction in respect of pecuniary damage, i.e. interest at 6% per annum on the sums awarded in the 2003 judgment, for the period from 20/06/989 until the date of delivery of the European Court’s judgment, despite the fact that the competent authority paid the applicants the sums due on 21/07/2004. The Court also awarded just satisfaction in respect of non-pecuniary damage.

• Information is awaited on the compliance by the administration with domestic judicial decisions in the Beka-Koulocheri and Kanellopoulos cases.

General measures: It should be recalled that Greece adopted a number of global constitutional, statutory and regulatory reforms, to remedy the structural problem relating to the non-execution of domestic judgments by the administration (see Final Resolution ResDH(2004)81 in Hornsby and other cases against Greece). These measures related in particular to the changes to Article 95§5 of the Constitution in 2001 and later the adoption of Law No. 3068/2002, which set up a new procedure guaranteeing the administration’s compliance with judgments and reinforcing the disciplinary and civil responsibility of civil servants. The law set up committees of three members each, who belong to the highest Greek jurisdictions (the special Supreme court, the Court of Cassation, the State Council and the Court of Audit), which are responsible for ensuring the proper execution of the judgments of their respective jurisdictions by the administration within a 3-month deadline. The committees may in particular nominate a magistrate to assist the administration by suggesting, amongst other things, the appropriate measures necessary to comply with the judgment. If the administration does not comply with the judgment within the deadline specified by the committee, fines will be imposed which may be renewed as long as the administration has not complied with the judgment (Article 3). The European Court’s judgments are available on the Internet site of the Legal Council of the State (www.nsk.gr) and have been sent out to all national jurisdictions.

• The authorities are invited to provide information on the results already obtained from the implementation of the mechanism set up by Law No. 3068/2002 and on the measures possibly needed to guarantee its effectiveness.

- Cases concerning various violations in the context of land expropriation proceedings

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

39725/03 Anastasiadis, judgment of 10/05/2007, final on 10/08/2007

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

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

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

*16163/02 Nastou No. 2, judgments of 15/07/2005, final on 30/11/2005 and of 05/04/2007, final on 05/07/2007

17305/02 Zacharakis, judgment of 13/07/2006, final on 11/12/2006

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

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

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

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

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

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

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

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

2834/05 Sampsonidis, judgment of 06/12/2007, final on 02/06/2008

55828/00 Satka and others, judgments of 27/03/03, final on 27/06/03 and of 02/03/2006, final on 02/06/2006

Most of these cases concern various violations of the applicants' right to the peaceful enjoyment of their possessions in the context of land expropriation proceedings (violations of Article 6§1 and pof Article 1 of Protocol No. 1). Other main issues raised are the following: a) deprivation of land without compensation or with depreciated compensation; b) excessively lengthy proceedings or multiplication of proceedings in order either to obtain full compensation following expropriation or to have the decisions of executive authorities ordering expropriation be annulled; c) lack of a national land registry.

Individual measures:

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

• Information provided by the Greek authorities (on 18/02/2008): In the Tsirikakis case, the state's appeal has been finally rejected by the Court of Cassation and no further proceedings are pending; In the Nastou case the Athens regional court delivered its judgment (n°2797/2007) in April 2007 concerning the property rights on the plot of land at issue. This regional court ordered a new assessment concerning the boundaries of the plot of land.

• Additional information is required: on the outcome of the domestic proceedings in the Nastou case. Additional information is also awaited on the outcome of the proceedings for damages before the Kalamata Court of Appeal in the Anastasiadis case.In the two Nastou cases information is awaited on the outcome of the domestic proceedings.

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

• Information provided by the Greek authorities: The proceedings initiated by some of the applicants in the Azas case against the Thessaloniki Court of Appeal's judgment 362/2004, awarding the appellants the sum of 457 435 euros with interest, have been closed by the Court of Cassation's judgment 54/2006 rejecting the appeal as inadmissible. In the case of Athanasiou and others, the European Court awarded the applicants just satisfaction covering their pecuniary damage. In addition, three of the applicants have been awarded compensation by domestic courts for the fact that they can no longer build on the unexpropriated part of the land following its division. In the Ouzounoglou case, the European Court considered that it was not necessary to award just satisfaction for pecuniary damages as the applicant submitted no claim in her written submission on the merits. In the case of Sampsonidis, the European Court reserved the application of Article 41 as a whole.

• Information is awaited on the outcome of the proceedings in the Sampsonidis case following the Court of Cassation’s judgment No.1014/2004.

General measures:

1) Reform of the law on expropriation: A new Code of Expropriation has been adopted (Law 2882/2001, amended by Law 2985/2002 and by Article 33 of Law No. 2971/2001)), following the facts of these cases, providing strict deadlines in proceedings and the possibility of additional compensation in cases of delay. The new Code of Expropriation also provides that the presumption that owners of properties adjacent to a new road had to contribute to the expropriation costs in relation to roadside properties as they would profit from the building of the road is no longer irrefutable.

Under this law, legal costs incurred in the expropriation proceedings are now the state’s responsibility and no longer part of the compensation for expropriation.

New domestic case-law on land expropriation was adopted by the Court of Cassation (in several judgments in 2004 and 2005) which is in accordance with the European Court’s requirements as regards the need for “global evaluation” in such proceedings. From now on the courts are competent to rule in the same proceedings on:

- the amount of the overall compensation to be awarded (Cassation court, plenary session 10/2004, as well as 1060/2008, 627/2007, 641/2004);

- the award of compensation for the depreciation of the land that was not expropriated and for the work done (Cassation court, plenary session 31/2005, as well as 431/2008, 1054/2008, 2/2007) (Athens Court of Appeal 2472/2005, 1333/2005);

- the status of the owner;

- the amount of damages to be awarded.

It must be noted that the European Court noted the change in the Cassation Court’s case-law in the Athanasiou case (§18).

All the cases before the European Court were dealt with by the domestic courts on the basis of the repealed code of expropriation and prior to this change in the case-law.

• Additional information is awaited on the measures taken or envisaged to prevent new, similar violations (Tsirikakis case and similar).

2) Length of proceedings:Extensive legislative measures to accelerate proceedings in civil courts (mainly concerns the cases of Tsirikakis, Karagiannis and others, Nastou and Anastasiadis) were taken between 2001 and 2005 (see Final Resolution DH(2005)64 on Academy Trading Ltd and others and other cases). Since the entry into force of this new legislation, first-instance proceedings are now concluded within 1½ years maximum, while in the past they lasted up to four years.

Legislation for providing an effective domestic remedy in this context is also currently under preparation (see the Manios group, Section 4.2).

3) Right of access to a court: The Sampsonidis case presents similarities to the case of Efstathiou and others (36998/02, rubrique 6.2).

4) Publication and dissemination: The European Court’s judgments, translated into Greek, have been sent by the Ministry of justice, to the judicial authorities and are available on the internet site of the State Legal Council (www.nsk.gr).

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH) in the light of information to be provided on individual measures and of the assessment of the need for further general measures.

66725/01 Fotopoulou, judgment of 18/11/2004, final on 18/02/2005

52903/99 Dactylidi, judgment of 27/03/03, final on 09/07/03

Both cases concern the lack of an effective remedy whereby the applicants might have compelled the local authorities to comply with decisions taken by administrative organs, in 1990 and 1993, ordering the demolition of illegal constructions built in the vicinity of and adversely affecting the applicants’ houses on the islands of Santorini and Folegandros (violations of Article 13). In the Fotopoulou case, the Court has accordingly found a violation also of the applicant’s right to protection of her property (violation of Article 1 of Protocol No. 1).

The Dactylidi case also concerns the excessive length of two sets of proceedings before the Supreme Administrative Court relating to the applicant’s application for annulment of administrative acts relating to her neighbour’s building permits on the island of Santorini. The first proceedings began in August 1992 and ended in October 1999 (7 years and 2 months) and the second began in April 1995 and ended in October 1999 (4 years and 6½ months) (violation of Article 6§1).

Individual measures:

1) Dactylidi case: The European Court has awarded the applicant just satisfaction covering the non-pecuniary damage sustained. The Greek authorities have informed the Committee that, following a review of their files, the impugned constructions have in the meantime been legalised since they had been completed before the revocation of the building permits which had been granted with no fault of the beneficiaries. The applicant has not made known to the Committee any further claim.

2) Fotopoulou case: The Court awarded the applicant the full amount of pecuniary damage she had incurred prior to the judgment, as well as non-pecuniary damages.

The Greek authorities have indicated that a legislative amendment introduced in 2002 had the effect of exempting from the obligation to demolish where a building had been initially constructed on the basis of a valid permit, subsequently declared illegal.

The applicant’s neighbours applied in 2002 to have their construction legalised in accordance with this new legal provision and in 2004 the administrative authorities declared part of the disputed construction legal. The authorities reserved their decision as regards the remainder of the construction, to be delivered once the coastal planning of the area is finalised. The applicant’s lawyer has complained that the authorities have not yet demolished the construction in question (letters of 01/11/2007, 16/09/2008 and 01/12/2008).

• Information provided by the Greek authorities (letter of 15/12/2008): The Prefect for the Cyclades region in his ruling of 17/08/2009 definitively rejected the request to regularise the remainder of the construction. This decision was sent to the planning agency which is competent as regards the demolition. The applicant reported on 06/03/2009 that the authorities have still not demolished of the illegal construction. This report has been sent to the Greek authorities.

• Further information is urgently awaited in this respect.

General measures:

1) Violations of Article 13 and Article 1 of Protocol No 1:

• Information provided by the Greek authorities:

(a) Law 3242/2004 provides that everyone with a legitimate interest has the right to file an application with the competent administrative organs. Within 50 days thereafter the administration must decide on the applicant’s claim and reply. If the administration does not comply with this deadline, the interested party has a right to compensation covering both pecuniary and non-pecuniary damage.

The inter-ministerial decision of 03/08/2004 (OJ B 1226, 10/08/2004) sets out the modalities of payment of compensation by the administration in cases where it fails to comply with this deadline.

Article 1§4 of this decision provides that the criteria used in awarding such compensation should include in particular: the amount pecuniary and non-pecuniary damage to the applicant caused by the delay, the reasons for the delay and, possibly, any relevant report of the Greek Ombudsman;

(b) In addition, Law 3094/2003 provides that any person affected by acts or omissions by the administration may lodge a complaint with the Ombudsman within a certain deadline. The Ombudsman may carry out an investigation and submit a report to the competent Minister and services. Then he intervenes for the finding of a solution to the problem. The Ombudsman’s findings are not legally binding but he may impose on the administration a deadline by which he must be informed of the measures taken. Public servants are obliged by law to assist the Ombudsman during his investigations. Disciplinary sanctions up to and including dismissal are provided in case of failure to cooperate.

According to information provided by the authorities based on the statistics drawn up by the Department for State/Citizen Relations of the Ministry of the Interior, 246 claims were lodged between 2005-2006, mostly concerning the administration’s failure to rule on requests submitted within the time-limit provided in Law 3242/2004. The same department confirmed that the administration must comply with the Ombudsman’s opinion.

• This information is currently being assessed by the Secretariat.

2) Violation of Article 6§1: This issue is being examined within the framework of the Manios group of cases (see below).

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009)(DH), in the light of information to be provided on the outcome of the proceedings relating to the demolition of the disputed construction in the Fotopoulou case as well as to assess the general measures

46372/99 Papastavrou and others, judgments of 10/04/03, final on 10/07/03 and of 18/11/04, final on 18/02/05

66742/01 Katsoulis and others, judgment of 08/07/2004, définitif le 08/10/2004 and of 24/11/2005, définitif le 24/02/2006

Interim Resolution ResDH(2006)27

These cases concern the violation of the 64 applicants' right to peaceful enjoyment of their possessions. In 1994 the Prefect of Athens ordered the reforestation of a part of this area, including the disputed plots of land. This decision confirmed that taken by the Minister of Agriculture in 1934 covering the same plots of land, and was taken without a fresh assessment of whether the plots in question were forests or not. The Supreme Administrative Court declared the applicants' appeal inadmissible on the ground that the prefect's decision simply confirmed the decision issued in 1934.

The European Court considered that the prefect's failure to reassess the complex situation and the reasoning followed by the Supreme Administrative Court had deprived the applicants of adequate protection, in particular taking into account that there is no possibility of obtaining compensation under Greek law in such cases (where the property rights have not been finally determined by a court) (violations of Article 1 of Protocol No. 1).

The case of Katsoulis and others also concerns the excessive length of proceedings before the Supreme Administrative Court (from November 1994 to June 2000, i.e. more than 5½ years for one level of jurisdiction). The European Court stressed that a chronic backlog of cases in a court's list is not a valid explanation for delays (§40 of the judgment) (violation of Article 6§1).

Individual measures: The European Court awarded the applicants just satisfaction for the pecuniary damages sustained. Possible consequences of the violation still suffered by the applicants should be remedied in the context of the interim and long term general measures (see below). The applicants have not submitted any further claims.

General measures:

1) Measures adopted: The measures adopted by the Greek authorities were summarised in the interim resolution adopted in June 2006 (see ResDH(2006)27). The most important measures are presented here:

a. Interim measures - Direct effect: Both judgments were translated, published and sent to the Ministry of Justice and to the Council of State. The Greek government noted that the Convention and the European Court's case-law enjoy direct effect in Greek law as proved, in particular by a judgment of the Plenary of the Court of Cassation in 2005 recognising and stressing the supra-statutory force of Article 1 of Protocol No.1 to the Convention in cases regarding reafforestation and protection of individual land property rights. The government noted that under Greek law, compensation may always be awarded to individuals after their land of forest ownership has been recognised by courts. This compensation may cover any potential damages that individuals may have suffered during the period during which they have been unable to use their property due to pending proceedings concerning ownership. This position is supported by the jurisprudence of the Supreme Courts (Court of Cassation in plenary 21/2005 and the Supreme Administrative Court 2601/2005, 1422/2006).

b. Long-term general measures under way - progress report on the national land and forest register project

The Greek government stressed that the project of national land and forest register initiated in 1994 and consisting of 4 stages is a priority of national importance. In 2005 the Greek Technical Chamber (TEE) acting as consultant to the Greek state, submitted a study to the Ministry of the environment, Urban Planning and Public works, taking stock of the work accomplished during the first 10 years of the project and making proposals for its conclusion. It is foreseen that the second stage of the project (2005-2008) will cover all urban centres and may materialise without state funding which may instead be used for the third and fourth stages. On 5/05/2006 the Ministry of the Environment, Urban Planning and Public works submitted a new bill to the Greek parliament to accelerate the completion of the national land register, in particular by simplifying land registration procedures.

c.General measures adopted and under way to accelerate proceedings before administrative courts with a view to preventing new, similar violations of Article 6, paragraph 1: See the measures adopted in the framework of the execution of other cases (see Final Resolution ResDH(2005)65 on Pafitis and others and 14 other cases against Greece). Further measures are under way (see Manios group of cases, 70626/01, section 4.2) concerning in particular the provision of an effective domestic remedy in case of excessively lengthy proceedings.

2) Measures remaining to be taken: In its Interim Resolution ResDH(2006)27, the Committee of Ministers encouraged the rapid development of a remedy capable of providing compensation for bona fide persons such as the applicants, affected by reforestation decisions and involved in lengthy litigation related to recognition of the ownership of forests.

It also encouraged the competent Greek authorities, in particular the Ministry of the environment, Urban Planning and Public works, to intensify its efforts in setting up a cadastral and forest register.

• Information provided by the Greek authorities (letter of 31/03/2009): Regarding progress of the national land and forest register project, by 26/05/2008, 325 regions had been registered, which amounts to a surface area of 7 948 201 hectares and 6 278 762 property titles. In June 2008 the registration of a further 107 regions, including the prefectures of Attica and Thessaloniki, began. This new phase will cover the entirety of the urban centres and two thirds of the country’s population concerning property rights. By 2011 when this phase ends, it is estimated that a further 3 million hectares and around 6 million property titles will have been registered. In view of the amount of work required and its significant cost, the completion of the national land and forest register project is not expected before 2016.

The Deputies,

1. recalled Interim Resolution ResDH(2006)27 adopted in these cases by the Committee, on 7 June 2006;

2. took note with interest of the information provided by the Greek authorities on progress of with setting up a land and forest register in Greece and invited them to keep the Committee informed on this subject ;

3. in addition, took note with interest of the information provided at the meeting on the existing means of protection under the national law as well as on the development of domestic courts’ case-law relating to the possibility to provide compensation for persons who, like the applicants, are affected by decisions to reafforest plots of land possessed by them;

4. considered that the information provided at the meeting needs to be assessed;

5. decided to resume consideration of these items at the latest at their 1st DH meeting of 2010, in the light of the assessment of the information provided and of further clarification to be provided if needed by the Greek authorities.

35859/02 Housing Association of War Disabled and Victims of War of Attica and others, judgment of 13/07/2006, final on 11/12/2006 and judgment of 27/09/2007 final 31/03/2008[33]

- 169 cases of length of judicial proceedings and of lack of an effective remedy

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

Interim Resolution CM/ResDH(2007)74

In all these cases violations of Article 6§1 were found on account of the excessive length of proceedings before administrative courts and the Conseil d’Etat, civil and criminal courts. Some of these cases also concern the absence of an effective remedy making it possible to bring a complaint against the length of the proceedings (violations of Article 13).

The Diamantides No. 2 case also concerns a violation of the principle of presumption of the applicant's innocence in that, in 2000 and 2001 the indictment chambers of the Athens Court of Appeal and of the Court of Cassation, in decisions dismissing complaints by the applicant, used terms of a particularly categorical and vague nature which left no doubt that the applicant had committed acts of which he had already been acquitted or for which he was facing charges in criminal courts (violation of Article 6§2).

Individual measures:

1) Excessive length of proceedings of judicial proceedings (Article 6§1):

• Information is awaited on the current state of the domestic proceedings, and if necessary on their acceleration, in the cases of Inexco, Sakkopoulos No. 2, Athanasiou, Kontogeorgas, Lalousi-Kotsovos, Karellis, Oikonomidis, Leonodopoulos, Karahalios No.7, Karahalios No. 8, Papasteriades, Papastefanou, Kaparos, Gikas, Peca, Behar Metushi, Luan Metushi and Katsivardelos, Sossoadouno, Angelov, Petrouli and Philippos Ioannidis. All the other procedures are closed.

2) Violation of the presumption of innocence (Article 6§2): In the Diamantides No. 2 case, it is noted that the applicant was acquitted in the criminal proceedings against him, which were pending at the material time.

General measures: In June 2007, the Committee of Ministers adopted Interim Resolution ResDH(2007)74 recalling in particular its Recommendation Rec(2004)6 on the improvement of domestic remedies and urging the Greek authorities to accelerate the adoption of legislative and other measures required.

1) Excessive length of proceedings of judicial proceedings:

a) Cases before the Conseil d’Etat and administrative courts:

- Greece has adopted a number of legislative and other measures with a view to accelerating proceedings before administrative courts (see Final Resolution ResDH(2005)65 on Pafitis and others and 14 other cases against Greece, adopted on 18/07/2005). However, other issues have been raised by recent judgments in this group of cases and are being examined by the Greek authorities under the supervision of the Committee of Ministers.

• Information provided by the Greek authorities (letter of 25/06/2008) on the new law

No. 3659/2008 entitled “Improvement and acceleration of proceedings before administrative courts and other provisions”: The main innovative measures may be summed up as follows: the notion of the so-called “model trial” has been introduced into the Greek Code of Administrative Procedure. The “model trial” concept empowers the Commissioner General before the administrative courts to require that cases raising very important legal questions and repetitive cases are heard as a matter of priority.

Decisions must be delivered within 8 months of the hearing. This deadline may only be extended for two months and only in serious and exceptional circumstances. Failure to comply with this deadline will result in replacement of the judge responsible for the delay, whose disciplinary responsibility is engaged. Hearings may only be adjourned once either at the applicant’s request or ex officio by the court and for serious reasons.

No judicial appeal is admissible if the administrative remedies have not been exhausted. Appeals which are manifestly inadmissible or have no legal basis will from now on be considered and, if need be, dismissed following simplified proceedings before a chamber of the Council of State.

A limitation of the administrative courts’ jurisdiction is provided for when the amount at issue exceeds a certain sum (20 000 euro). All provisions providing procedural prerogatives for the state or public-law corporations in relation to stays of execution of judgements before they became final, have been revoked. From now on, enforcement of judgments against the state takes place in the same conditions as against a private individual.

Furthermore, the new law has transferred to the administrative courts a number of cases which previously came within the Council of State’s jurisdiction, to relieve ~~the~~ it when possible.

The new law also provides creation of 74 new posts of judges.

According to the Greek authorities, it is expected that the implementation of these new measures will result in reducing the duration of proceedings before administrative courts by at least a year. This implies that the average length of first-instance proceedings will not exceed two years and those before the appeal courts will not exceed one year. Following the limitation of the Council of State’s jurisdiction, the number of cases brought before it will be reduced to 800 cases a year, which represents 10% of the cases brought before this court every year.

In relation to the Council of State, further measures are envisaged. A draft law is currently in its final phase of drafting. Furthermore, the computerisation of most administrative courts and of the Council of State is also contributing to the acceleration of proceedings In this context it may be noted that Article 42 of the new law No. 3659/2008 provides establishment of an electronic legal system: lawyers will be able to follow their cases on their computer; the dates of hearings and deliberations, as well as the progress of judgements already rendered (for more detail concerning the Council of State see the internet site: www.ste.gr, inaugurated on 23/05/2007).

• The Secretariat is examining this information.

• Information is awaited on the timetable of the draft law concerning the acceleration of the proceedings before the Council of State, including a translation of the text. Information would be useful about the programme concerning the construction of 25 court buildings which was expected to be finalised by the end of 2006.

- As regards in particular the case of Lalousi-Kotsovos, it is noted that although the proceedings also concern administrative courts, its excessive length was mainly caused by serious delays before the administrative “special evaluation commission” (§15 and 24 of the judgment).

• Information is still awaited on the current average length of proceedings before this commission and measures envisaged to accelerate them.

b) cases before civil courts: A number of legislative and other measures were adopted (Laws No. 3327/2005 and 3346/2005) to accelerate proceedings before civil courts (see Final Resolution ResDH(2005)64 concerning Academy Trading Ltd and other cases against Greece, adopted on 18/07/2005).

• Information would be welcome on the current situation at national level concerning the length of civil proceedings, and if necessary, as to whether it is necessary to adopt further measures.

c) Cases before criminal courts: Greece has adopted a number of legislative and other measures with a view to accelerating proceedings before criminal courts (see Final Resolution ResDH(2005)66 on the case of Tarighi Wageh Dashti against Greece and 7 other cases, adopted on 18/07/2005).

• Information would be welcome on the current situation concerning the length of criminal proceedings, and if necessary, as to whether it is necessary to adopt further measures

2) Effective domestic remedies: The Greek delegation has informed the Secretariat of the work accomplished on the draft law entitled “compensation of litigants due to excessively lengthy judicial proceedings”. This draft law provides a domestic remedy, in the form of compensation, in cases of excessive length of proceedings, at any stage whatsoever, before administrative, civil or criminal courts. This draft law was expected to be tabled before Parliament during the 2008 summer session (letter from the Greek authorities dated 25/06/2008)

• Information is urgently awaited on the developments and timetable for adoption of the draft law, including a translated copy.

3) Violation of the presumption of innocence (Diamantides No.2): By a letter of 15/02/2006 the Greek authorities informed the Committee that the Court’s judgment has been translated and published on the website of the State Legal Council (www.nsk.gr) and sent to the Ministry of Justice and the Court of Cassation.

It is noted that Article 366§2 of the Criminal Code provides that if the fact alleged or imparted by the responsible person is an offence for which prosecution has been initiated, defamation proceedings are to be suspended until the conclusion of the prosecution. The defamation-related fact is considered as proven in case of a conviction and untrue in case of an acquittal. Proceedings violating this provision are absolutely void (Article 171 §1c of Code of Criminal Procedure).

It should be noted that the special issue of the length of proceedings before the Court of Audit is dealt with in the context of the Papazoglou group (73840/01, Section 4.2).

The Deputies decided to resume consideration of these items at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of the assessment of information already provided and on the basis of additional information to be provided on individual and general measures, in particular concerning progress made in respect of the draft laws on the acceleration of proceedings before the Council of State and the provision of an effective remedy.

- Cases of length of proceedings concerning civil rights and obligations before the Court of Audit

73840/01 Papazoglou and others, judgment of 13/11/03, final on 13/02/04

66296/01 Belaousof and others, judgment of 27/05/2004, final on 10/11/2004

12767/02 Hourmidis, judgment of 19/05/2004, final on 19/08/2004

66808/01 Lazarou, judgment of 08/07/2004, final on 08/10/2004

62771/00 Litoselitis, judgment of 05/02/2004, final on 05/05/2004

11536/05 Papadopoulos Georgios, judgment of 11/10/2007, final on 11/01/2008

These cases concern the excessive length of certain proceedings concerning human rights and obligations before the Court of Audit. The European Court indicated in the Lazarou case that the chronic case backlog of a court may not constitute a valid explanation for delays (§21 of the judgment) (violations of Article 6§1).

Individual measures: None (all proceedings are closed).

General measures:

• Information provided by the Greek authorities (letter of 02/01/2006): according to information provided by the President of the Court of Audit to the Justice Ministry in 2005, hearings in this Court are on average fixed within 7-8 months following the lodging of the application and judgments are rendered within 6 months thereafter. Delays may exceptionally occur in cases of influxes of applications by large groups of individuals, such as former servicemen, as in the present cases.

However, the Ministry of Justice has created a committee to examine a possible amendment of the Court of Audit's rules of procedure, taking into account proposals by this Court's President.

• More information is awaited on the progress of this committee's work.

The Deputies decided to resume consideration of these items at the latest at their 1st DH meeting in 2010, in the light of information to be provided on general measures.

- 102 cases against Hungary

- 102 cases of length of proceedings concerning civil rights and obligations

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

These cases concern the excessive length of proceedings concerning civil rights and obligations, some before labour courts (violations of Article 6§1). The proceedings began between 1986 and 2001 and most of them ended between 2000 and 2005.

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

Individual measures: If they are still pending, acceleration of the proceedings in the cases of Czmarkó, Earl, Szilágyi, Kiss Klára, Kovács, Pepszolg, Szebellédi, Tardi and Várnai.

• Information provided by the Hungarian authorities: Domestic proceedings have been ended in the following cases: Barna, on 15/01/2007 before the Supreme Court; Kalmár, on 17/05/2007 before the Budapest Regional Court; Karalyos and Huber on 26/10/2006; Magyar, on 11/07/2007 before the Supreme Court; Tóth, on 27/02/2008 before the Supreme Court; Vass, on 07/11/2007 before the Budapest Regional Court.

Review proceedings have been instituted by the applicants before the Supreme Court in the cases of Szilágyi and Earl.

• Additional information is awaited on the state of these proceedings and on their acceleration, if still pending.

General measures:

1) Excessive length of civil proceedings: The government has indicated that the workload of the Supreme Court decreased considerably following a reform of the legal system in Hungary in 2002 which transferred appeal competence to the five Courts of Appeal created in 2003 and 2004. Before the end of 2003 the Courts of Appeal adopted final decisions in two thirds of the 5 443 cases which were transferred to them by the Supreme Court. Thus, at the end of 2003, the Supreme Court's roll of civil and criminal cases on appeal had been reduced to 1 180 cases, that is to say 16% of its workload before the reform.

As for the additional measures adopted by the authorities to reduce the length of judicial proceedings, the delegation indicated that several amendments of the 1952 Code of Civil Procedure were adopted after the changes of 1989 with the aim of accelerating civil proceedings and modernising the system of legal remedies. More strict time-limits were provided for the stay of proceedings and the drafting and notification of judgments. As from 01/01/1999, the double degree of jurisdiction for administrative cases was removed and legal competence in this kind of cases was transferred to regional courts. The possibilities of appeal against first-instance decisions in cases concerning small amounts were limited by an amendment of the Code of Civil Procedure which came into force in 1998: appeal proceedings in such cases were simplified. Moreover, the conditions of revision of judgments before the Supreme Court were modernised in 2002 in order to restrict the use of this extraordinary means and to reduce the length of this kind of proceedings. Finally, in 1999 administrators were appointed to courts to ensure better case management. The authorities also indicated that according to the Act of 1997 on the Organisation of Courts, the Office of the National Judicial Council and the presidents of courts are in charge of administrative supervision of the examination of cases and may order that certain civil or criminal cases are examined in priority. Moreover, the Office of the National Judicial Council has regularly requested from courts information on cases pending for more than two years and the respect of legal time-limits.

The authorities informed the Committee on 23/01/2008 that if an expert fails to submit his opinion within the prescribed time-limit without just cause, the court has at its disposal a number of procedural possibilities to ensure the speedy termination of the proceedings, such as appointing another expert, obliging the expert in default to reimburse the expenses or fining him or her. The court may also order the recall of any expert who failed to appear or left a hearing without permission. Moreover, the authorities indicated on 07/07/2008 that the 2008 amendments to the Code of Civil Procedure, which will enter into force on 01/01/2009, provide that a court expert responsible for unjustified delay must reimburse costs caused by him, while the court may fine him and reduce his remuneration by 1% for each day of unjustified delay.

Statistics have been provided for the year 2006: less than 1% of the cases before the Supreme Court have been pending before it for over 12 months. At the appeal level, 2% of civil cases and 1.2% of commercial cases have been pending at that level for more than 12 months. However, at first-instance, the statistics do show a higher percentage of cases pending for over 12 months.

• Assessment: The Secretariat takes note of a number of measures taken by the Hungarian government in connection. However, it appears that notwithstanding the measures taken the statistics show a higher percentage of cases pending at the first-instance courts for more than 12 months.

• Information awaited: Further statistical data regarding the cases pending before the first-instance local courts and country courts at the end of 2008 would be appreciated so as to evaluate the efficacy of the measures adopted so far.

2) Effective remedy against excessive length of judicial proceedings: The delegation has indicated that Act XIX of 2006, a law allowing parties to ask for such proceedings to be accelerated, entered into effect on 01/04/2006.

One part of the Act supplements the Code of Civil Procedure, while the other part amends the Code of Criminal Procedure. Parties to civil proceedings may complain where:

(i) a time-limit prescribed by law by which a court must end proceedings, perform a procedural act or take a decision has elapsed without result;

(ii) a time-limit set by a court itself, by which a party to proceedings must perform a procedural act has elapsed without result, and the court has failed to impose on that person the measures permitted by law; or where

(iii) a court fails to end the proceedings within a reasonable length of time by failing to perform or order the performance of a procedural act, counting from the last action taken by the court on the merits of the case.

A written complaint is filed with the court before which proceedings are pending, which must examine it within 8 days. If it finds the complaint well-founded, it has 30 days to take or order appropriate measures to put an end to the situation complained of. The court shall inform the complainant of how the complaint has been determined.

If the court finds the complaint ill-founded, it shall forward the file within 16 days, together with the observations of the opposing party and its own reasons as to why it was impossible to perform the procedural act or take a decision, to the court empowered to determine the complaint, the superior court. The superior court has 15 days upon receipt of the files to determine the complaint. If the superior court finds the complaint ill-founded, it shall dismiss the complaint in a reasoned decision. If it finds the complaint well-founded, it shall set a time-limit and invite the court before which proceedings are pending to take the action required for the proper progress of the case or the most effective action. If the complaint concerns an omission by the lower court to perform an act within a time-limit prescribed by law, the superior court may instruct that court to do so.

• Assessment: The Secretariat takes note of the remedy introduced, which appears to provide several acceleratory remedies in lengthy proceedings. However, it cannot make any assessment at this point as to whether or not the remedy in question is efficiently applied in practice. On the other hand, the European Court has frequently noted that an acceleratory remedy offers advantages over a remedy affording only compensation. It acknowledged on a number of occasions that this type of remedy is “effective” insofar as it hastens the decisions by the court before which the lengthy proceedings are pending. However, the European Court has also observed that it is clear that for countries where length-of-proceedings violations already exist a remedy designed to expedite the proceedings – although desirable for the future – may not be adequate to redress a situation in which the proceedings have clearly already been excessively long (see e.g. the Grand Chamber judgment in Scordino v. Italy (No. 1) (application No. 36813/97), §§183-185). In this context, the authorities’ attention is also drawn to the measures taken in Lukenda group of cases (1072nd meeting, December 2009).

• Information is awaited on how the remedy introduced to accelerate proceedings is applied in practice (e.g. statistics, examples showing that the remedy is used and the pending proceedings are shortened if it is used). The information would be also appreciated on whether the Hungarian authorities might also envisage introducing compensatory remedies.

3) Publication and dissemination: The judgments of the European Court in the cases of Tímár, Simkó, Lévai and Nagy, Nyírő and Takács, Mezötúr-Tiszazugi Vizgazdálkodási Társulat and Szilágyi were published on the website of the Ministry of Justice (www.irm.gov.hu). The judgments in the cases of Tímár and Simkó and Lévai and Nagy were also published in the human rights quarterly “Acta Humana” and were sent to the Office of the National Judicial Council in order to be disseminated to civil and labour courts.

- 3 cases against Iceland

39731/98 Sigurđsson, judgment of 10/04/03, final on 10/07/03[34]

31930/04 Eggertsdottir, judgment of 05/07/2007, final on 05/10/2007[35]

42628/04 Westlund Súsanna Rós, judgment of 06/12/2007, final on 07/07/2008[36]

- 1 case against Ireland

39474/98 D.G., judgment of 16/05/02, final on 16/08/02

The concerns the fact that the applicant, a minor suffering from severe personality disorders and consequently a risk to himself and to others, was placed from 27/06 to 28/07/1997, because of a lack of appropriate institutional facilities, in a penal institution ill-suited to fulfilling his constitutional rights (violation of Article 5§1). The applicant needed a secure unit where he could be detained and looked after, and no such unit existed in Ireland at the time.

It also relates to the fact that he was unable to obtain compensation in respect of this detention, since it was imposed in conformity with national law (violation of Article 5§5).

Individual measures: None: the applicant is no longer placed in a penal institution. Moreover, he has meanwhile reached the age of majority. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

General measures:

1) Violation of Article 5§1:

a) Increase in special residential places for non-offending children: Since the mid 1990s health boards and, subsequently, the Health Service Executive (established on 1/01/2005 under the 2004 Health Act) have put in place a programme of high support and special care unit development to address the needs of a small number of disturbed non-offending children in need of special care or protection. The High Support Units operate as open units (i.e. children are not detained). The children in Special Care Units are detained by order of the High Court as a measure of last resort and for as short a period of time as possible. The Irish authorities have stated that the number of all categories of special residential places for non-offending children in need of special care and protection increased from 17 in 1997 to a total of over 120 places in 2003, with over two-thirds of those places being in the high support category.

Finally, today there are three designated special care units with a total capacity of 22 special care places. In 2008, the overall average occupancy of those 22 special care places per month was 14.5 young people. Those figures demonstrate that there was an excess of available places in relation to those needed. The national authorities indicated that should the demand increase, the number of places could be assessed.

b) The Children Act 2001: This Act provides the statutory scheme for non-offending children in need of special care or protection. It enables the court to order a special care placement. It amends the Child Care Act 1991 and in Part 3 imposes statutory duties on health boards in relation to children in need of special care or protection. Part 2 of the Act establishes the Family Welfare Conference on a statutory basis. Part 11 establishes the statutorily based Special Residential Services Board to coordinate special residential services. The Act was fully implemented in 2007.

• Assessment: In the light of the statutory scheme for non-offending children in need of special care or protection and the excess of available special care places for such children in relation to those needed, it appears that no further measures are needed with respect to the violation of Article 5§1.

2) Violation of Article 5§5: The government has indicated that anyone who suffers damage as a result of the acts of state institutions which are incompatible with the Convention (but in conformity with national law) may seek compensation under Section 5 of the European Convention on Human Rights Act 2003. According to this provision, following a “declaration of incompatibility” made by the High Court or the Supreme Court, the injured party may apply to the government, through the Attorney General, for an ex gratia compensation payment in respect of any loss, injury or damage suffered as a result of the incompatibility.

• Bilateral contacts are under way with respect to this mechanism.

3) Publication and dissemination:The European Court's judgment has been published in the European Human Rights Reports at (1998) 25 EHRR 33.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of the bilateral contacts under way on general measures with respect to the violation of Article 5§5.

- 89 cases against Italy

25337/94 Craxi No. 2, judgment of 17/07/03, final on 17/10/03[37]

64088/00 Pilla, judgment of 02/03/2006, final on 02/06/2006[38]

- Cases concerning the special prison regime provided by Article 41bis of the Prison Administration Act (Article 8)

28320/02 Guidi, judgment of 27/03/2008, final on 27/06/2008

22728/03 De Pace, judgment of 17/07/2008, final on 01/12/2008

These cases concern the arbitrary monitoring of the applicants’ correspondence, while in life imprisonment, up to May 2004 (De Pace) and June 2005 (Guidi) (violations of Article 8). The applicants, subject to the special prison regime provided by Article 41bis of the Prisons Act applicable to prisoners convicted of offences linked with the Mafia, were subjected to restrictions inter alia with respect to correspondence.

The European Court found that the censorship of their correspondence before 2004 was not provided by the law in force at the material time, particularly Article 18 of the Law on Prison Administration, insofar as the law fixed neither the duration of the control of their correspondence nor the reasons required to justify it and failed to indicate with sufficient clarity how the competent authorities should exercise it. Moreover, the Court considered that, notwithstanding the entry into force of Act No. 95/2004, which was supposed to remedy to these shortcomings, its own correspondence with the applicants in 2005 was still subject to censorship (§55).

Individual measures: The applicants were sentenced to life imprisonment in 2001. According to the judgments they have no longer been subject to any special detention regime since, respectively, the end of 2005 and 2006. The European Court considered that the finding of a violation constituted just satisfaction for the non-pecuniary damages suffered.

• Assessment: no further individual measure seems necessary.

General measures: The law at issue in these cases was modified in April 2004 (see Resolution ResDH(2005)55 adopted on 05/07/2005, closing supervision of the cases of Calogero Diana and others). However, the continuation of censorship in 2005 casts doubt on the proper application of the new legislation.

To repair the violation and prevent future similar violations, the Ministry of Justice translated the judgment of the European Court in the Guidi case into Italian and sent it out to the competent courts. The judgment has also been published in the database of the Court of Cassation on the case-law of the European Court of Human Rights (www.italgiure.giustizia.it). This website is widely used by all those who practice law in Italy: civil servants, lawyers, prosecutors and judges alike.

• Information is awaited on any other measure taken by the Italian authorities to ensure that the legislation and its implementing circulars have been broadly disseminated.

- Cases concerning the special prison regime provided by Article 41bis of the Prison Administration Act (Articles 6§1 and 13)

41576/98 Ganci, judgment of 30/10/03, final on 30/01/04

56317/00 Argenti, judgment of 10/11/2005, final on 10/02/2006

35795/02 Asciutto, judgment of 27/11/2007, final on 07/07/2008

60915/00 Bifulco, judgment of 08/02/2005, final on 08/05/2005, Interim Resolution ResDH(2005)56

53723/00 Gallico, judgment of 28/06/2005, final on 28/09/2005

25498/94 Messina Antonio No. 2, judgment of 28/09/00, final on 28/12/00, Interim Resolution ResDH(2001)178

33695/96 Musumeci Carmelo, judgment of 11/01/2005, final on 06/06/2005

60395/00 Papalia, judgment of 04/12/2007, final on 04/03/2008

42285/98 Salvatore, judgment of 06/12/2005, final on 06/03/2006

8316/02 Viola, judgment of 29/06/2006, final on 29/09/2006

These cases concern the lack of access to an effective judicial supervision of the lawfulness of restrictions imposed to the applicants under a special detention regime (violations of Article 6§1).

The ineffectiveness of the judicial review was due to delay (systematic failure to comply with the statutory ten-day time-limit by courts responsible for the execution of sentences) or from the failure to decide on the merits of appeals against the imposition of this regime by the Minister of Justice on prisoners convicted of offences linked with the mafia. This special regime, provided by Article 41bis of the Prisons Act No. 354/1975, amended most recently by Act No. 279/2002, authorises certain restrictions with respect for example to correspondence, visits, receiving goods from the outside, the schedule for outdoor exercise and recreational activities.

In 2000, in the Messina case, the European Court,while acknowledging that the mere fact of exceeding a statutory time-limit does not amount to an infringement of the right to an effective remedy, affirmed that the systematic failure to comply with the statutory ten-day time-limit considerably reduced – indeed practically nullified – the impact of judicial review of decrees issued by the Minister of Justice. In this case, in view of the excessive delays due to the systematic failure to comply with the time-limit, the European Court found that the complaints procedure was not an effective remedy with regard to a legitimate grievance concerning a violation of the right to respect for one’s family life guaranteed by Article 8 of the Convention (violation of Article 13). In a subsequent case, the Ganci case (2003), the European Court also found that the lack of any decision on the merits of the appeals nullified the effect of the courts' review of the decrees issued by the Minister of Justice.

In the succeeding cases as from Ganci, it concluded that there had been a violation of Article 6§1 on account of the breach of the applicants’ right to have their cases heard by a court as a consequence of either the systematic delay of judicial decisions, or the lack of any decision on the merits concerning their appeals. In the light of these findings, the Court considered that it was no longer necessary to examine these cases under Article 13.

Moreover, in the Musumeci case, the domestic court dismissed an appeal against the imposition of another special regime, the “high-level surveillance” (EIV), on the applicant, considering that this regime, provided in Circular No. 3479/5929 (9/07/1998) of the Prisons Administration Department was nothing more than an organisational measure concerning prison life. The European court considered that an imprisonment regime prohibiting contact with detainees from other sections and incorporating a particularly strict level of surveillance was in fact an interference in civil rights which the applicant had had no opportunity to contest (violation of Article 6§1).

The Messina No. 2, Argenti, Musumeci, Salvatore, Viola, Papalia and Asciutto cases also concern a violation of the applicants’ right to respect for their correspondence due to the application of the law in force at the material time, particularly Article 18 of the Law on Prison Administration. The censorship of their correspondence was not provided by law insofar as the law fixed neither the duration of the control of their correspondence nor the reasons required to justify it and failed to indicate with sufficient clarity how the competent authorities should exercise it (violations of Article 8).

Individual measures: Apart from the Asciutto case, no individual measure is required since the applicants are no longer subject to any special detention regime.

• Information is awaited on the applicant’s situation in the case Asciutto, in particular whether he is still subject to the special detention regime provided by Article 41bis of the Prison Act.

General measures:

1) Systematic delay or lack of judicial decisions on the merits on complaints against the imposition of a special prison regime – violations of Articles 6§1 and 13: In the cases where it found a systematic delay in taking judicial decisions, the European Court reached the conclusion that courts’ judicial review of the decrees of the Ministry of Justice was ineffective taking into account in particular two factors: the limited period of validity (six months) of each decree imposing the special regime and the fact that the Minister of Justice was not bound by any decision the court responsible for the execution of sentences may have taken to rescind all or part of the restrictions imposed by the previous decree. This second element brought along a chain of decrees which did not take into account the judicial decisions having, meanwhile, possibly struck down certain restrictions (a pluribus, Asciutto judgment, §§37 and 41). “In the Court's opinion, the applicable legislation lays down a time-limit of only ten days for adjudication partly because of the seriousness of the special regime's impact on prisoners' rights and partly because the impugned decision remains valid for only a limited time” (a pluribus, Ganci judgment, §31).

In Interim Resolution ResDH(2005)56 of 05/07/2005, the Committee of Ministers highlighted three main shortcomings in the judicial review: (i) court’s systematic failure to respect the legal time-limit of tens days for pronouncing on complaints; (ii) the fact that Minister of Justice was not bound by earlier judicial decisions when deciding to prolong restrictions; and (iii) the existence of domestic case-law according to which complaints are inadmissible if the restrictions complained of are no longer being applied.

The Interim Resolution also pointed out (item b) that Law No. 179 of 2002 now provides that the Minister of Justice must give reasoning when re-imposing a special regime if his earlier decision has been set aside in whole or in part by a judicial review and (item c) that the Court of Cassation, in its judgment No. 4599, of 5 February 2004, Zara, recognised the right to judicial review of restrictions on prisoners even when they were no longer in application, and this on account of the direct effect of the decision on the decrees subsequent to the appealed one.

The Committee of Ministers noted “with satisfaction that these developments have gone a long way towards solving the problems identified by the European Court”, but the problem of systematic delay in decisions (item a) remained untouched. In 2005 the government indicated that the ten-day legal time-limit for judicial review provided in Law No. 354 of 1975 was not complied with, statistics indicating that in practice judicial review tool between 45 days and four months.

• Information provided by the Italian authorities (17/09/2008): The Italian authorities underlined that, by virtue of a procedure respecting the right of defence, as provided by the Prison Act, it is practically impossible to respect the ten-day time-limit set by law without at the same time infringing the effective guarantees in the detainee’s favour. They also made reference to recent judgments of the European Court where no violation of Article 6§1 was found on account of the delay in examining appeals against the ministerial decrees: although beyond the legal ten-day time-limit, the court responsible for execution of sentences pronounced itself before theexpiry of the period of validity of the decrees at issue (Campisi judgment, application No. 24358/02, §76; whereas in cases of Guidi, application No. 28320/02, § 59, and De Pace, application No. 22728/03, §63, the Court considered the grievance unfounded since the applicants obtained a decision before the expiry of the period of validity of the decrees). Finally, a reform of Article 41bis is currently pending before the Chamber of Deputies (draft law S733 approved by the Senate on 5/02/2009).

• Information is awaited on the reform of Article 41bis and, in particular, on its effect on the systematic delay of judicial decisions determining the ineffectiveness of courts’ judicial control over decrees of the Ministry of Justice.

2) Absence of appeal against “high-level surveillance” (EIV) – violation of Article 6: In its decision No. 623 of 2004, the Court of Cassation, rejected the possibility of seising the supervisory magistrate (magistrato di sorveglianza) in order to object to the application of the “E.I.V.” regime as its implementation concerns the organisation of imprisonment with certain additional precautions whilst respecting the detainee's basic rights.

Since the issue of the absence of appeal against the application of the EIV regime is pending before the Grand Chamber in the context of another case (Enea, application No. 74815/01), the Italian authorities asked for the postponement of the examination of this issue until the European Court delivers its judgment.

3) Control of prisoners’ correspondence – violations of Article 8: The law at issue in these cases was modified in April 2004 (see Resolution ResDH(2005)55 adopted on 05/07/2005, closing supervision of the cases of Calogero Diana and others; see also Interim Resolution ResDH(2005)56 mentioned above).

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures concerning the Asciutto case, as well as on general measures.

59909/00 Giacomelli, judgment of 02/11/2006, final on 26/03/2007[39]

55764/00 Zečiri, judgment of 04/08/2005, final on 04/11/2005[40]

37201/06 Saadi, judgment of 28/02/2008 – Grand Chamber[41]

26740/02 Grande Oriente d’Italia di Palazzo Giustiniani No. 2, judgment of 31/05/2007, final on 31/08/2007[42]

36822/02 Bracci, judgment of 13/10/2005, final on 15/02/2006[43]

62094/00 Majadallah, judgment of 19/10/2006, final on 26/03/2007

58295/00 Zagaria, judgment of 27/11/2007, final on 07/07/2008[44]

37710/97 Elia S.r.l., judgment of 02/08/2001, final on 02/11/2001 and of 22/07/2004, final on 22/10/2004[45]

27265/95 Terazzi S.A.S., judgment of 17/10/2002, final on 21/05/2003 and du 26/10/2004, final on 26/01/2004

36815/97 Scordino No. 2, judgment of 15/07/2004, final on 15/10/2004

- 65 cases concerning the effectiveness of the compensatory remedy (Pinto Act)[46]

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

- 3 cases against Latvia

64846/01 Moisejevs, judgment of 15/06/2006, final on 23/10/2006

The case concerns a number of violations linked to the applicant’s detention on remand and the criminal proceedings subsequently brought against him:

- the irregularity of the detention between 04/06/1998 and 26/11/1998, his detention order having been extended automatically on expiry on the basis of a practice based on wrongful interpretation of the law (violation of Article 5§1);

- the excessive length of the detention (4 years, 2 months and 28 days) in the absence of any reason for extending it (violation of Article 5§3);

- the excessive length of the criminal proceedings (6 years, 1 month and 10 days) due to periods of inactivity and several adjournments (violation of Art. 6§1).

- a breach of the applicant’s right to respect for his private and family life due to the almost total refusal to allow him to receive family visits during his detention on remand (violation of Art. 8), and a lack of an effective remedy in this respect (violation of Article 13 combined with Article 8);

- the violation of the applicant’s right of individual application due to the interception of a letter he had addressed to the European Court (violation of Article 34);

- the fact that insufficient food was provided on court hearing days, amounting to “degrading treatment” (violation of Article 3).

Individual measures: The applicant is no longer detained on remand: on 25/09/2001 he was convicted and on 17/01/2003 sentenced to 12 years’ imprisonment. He claimed no just satisfaction before the European Court.

• Assessment: This being the case, no further individual measure seems necessary.

General measures: This case presents similarities to that of Lavents (judgment of 28/11/2002, Section 6.2) and the Kornakovs case (judgment of 15/06/2006, Section 5.3).

• Measures adopted or under way in respect of the following violations:

1) Violation of Article 5§1: The Article on the basis of which the applicant was kept unlawfully in the detention, namely Article 77 of the Code of Criminal Procedure, has been repealed by a law of 20/01/2005 which has entered into force on 01/02/2005.

2) Violation of Article 5§3: The grounds for the detention were not challenged by the European Court. The new Law on Criminal Procedure entered into force on 01/10/2005. The new law introduces a post of investigative judge whose main function is to supervise the observance of human rights in criminal proceedings. The judge decides on the application and extension of certain means of restraint (detention, house arrest, placement in an institution) as well as on complaints related to other means of restraint (e.g. restraint orders, bail, conditions of police supervision). The new law also imposes several time-limits for pre‑trial detention. In May 2003, the Human Rights Institute of the University of Latvia organised a seminar on detention issues for judges, prosecutors, practicing lawyers, government and parliament representatives.

3) Violation of Article 6§1: There does not seem to be a systemic problem of excessive length of criminal proceedings in Latvia.

4) Violation of Article 8 (family visits): On 29/04/2003, the Latvian government adopted the Regulation on the internal rules of provisional detention centres, which provides inter alia that the administration of such establishments should allow detainees to have contact their families or others.

5) Violation of Article 34 (correspondence): In addition to the measures already taken in the context of the Lavents case (legislative reform), publication and dissemination with a covering letter, in particular to the prison authorities, seems necessary.

• Measures required in respect of other violations:

6) Violation of Article 3: The European Court noted that, following a complaint by the applicant, he and other defendants began to receive more food. However, to make sure that other detention centres also follow the same practice, publication and dissemination of the judgment with a covering letter, in particular to the prison authorities, seems necessary.

7) Violation of Article 8 combined with Article 13: The Latvian authorities are invited to provide information on the existence of an effective remedy concerning family visits. On this point, the authorities may wish to take into account the concerns voiced by the European Committee for the Prevention of Torture and Inhuman Treatment or Punishment (CPT) regarding the contacts of detained persons with the outside world (See the CPT Report to the Latvian Government, 5-12 May 2004 visit, made public on 13/03/08, page 35. Available at www.cpt.coe.int/documents/lva/2008-15-inf-eng.pdf)

• Information is thus awaited on these two issues.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of further information to be provided concerning general measures, namely the publication of the European Court’s judgment and its dissemination to the authorities concerned, as well as the existence of an effective remedy concerning family visits.

61655/00 Miholapa, judgment of 31/05/2007, final on 31/08/2007

The case concerns the unfairness of civil proceedings in which the applicant was sued for damages (violation of Article 6§1).

The applicant owned a flat in a block in Riga, which was put up for compulsory auction on account of non-payment of municipal taxes. The purchaser of the flat brought two actions against the applicant. The first proceedings resulted in the applicant’s eviction; in the second set of proceedings, in January 1999, the applicant was ordered to pay damages because she continued to occupy the apartment following the eviction order. The court took this decision in absentia as her new address could not be found and as she has not responded to the notification made in the Official Gazette (§25 of the judgment).

The European Court considered that the district court had not shown sufficient diligence and had not done all that could be reasonably expected of it in order to summons the applicant to appear (§31 of the judgment).

Individual measures: As the applicant had not submitted any claim for just satisfaction, the Court considered that there was no need to make an award.

• Assessment: No further individual measure thus seems necessary.

General measures:

• Information has been awaited since December 2007 on the general measures taken or envisaged by the Latvian authorities to prevent new, similar violations in the future, in particular publication of the judgment of the European Court and its dissemination to judicial authorities.

61638/00 Dmitrijevs Igors, judgment of 30/11/2006, final on 28/02/2007

The case concerns the violation of the applicant’s right to respect for his private life due to the ban imposed on his corresponding with his mother during his pre-trial detention as well as on account of the opening and monitoring of the letters addressed to the applicant by the European Court (double violation of Article 8).

The case concerns also a violation of the applicant’s freedom of thought, conscience and religion on account of the ban on the applicant’s attending the prison’s religious services (violation of Article 9). The European Court found that this interference was not provided by law (§79 of the judgment).

Finally, the case concerns a violation of the right of individual application due to the repeated refusal to forward the applicant’s application form to the European Court as well as the assertion by the deputy governor of the prison that the applicant required the authorisation of the Latvian courts to write to the Court (double violation of Article 34).

Individual measures: The applicant was released in December 2002 (§44 of the judgment). He made no application before the European court in respect of just satisfaction.

• Assessment: No further individual measure thus seems necessary.

General measures:

1) Violation of Articles 8 and 34: This case presents similarities to the Kornakovs case (judgment of 15/06/2006, Section 5.3) in which the Latvian authorities have adopted and are adopting measures in this respect.

2) Violation of Article 9:

• Information is awaited on legislative measures taken or envisaged, in addition to those mentioned above, to remedy the lack of provisions concerning the right of detainees on remand to attend religious services (§§79‑80 of the judgment). In addition, information is awaited on publication of the judgment of the European Court and dissemination to the relevant authorities.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of further information to be provided on general measures, namely legislative measures taken or envisaged to remedy the lack of provisions concerning the right of remand prisoners to attend religious services.

- 2 cases against Lithuania

70659/01+ Juozaitienė and Bikulčius, judgment of 24/04/2008, final on 24/07/2008

This case concerns the deaths of the applicants' sons in Kaunas in July 1998 as a result of the excessive use of force exercised by a police officer in order to effect a lawful arrest following a car-chase in which the applicants' sons were passengers (substantive violation of Article 2).

The European Court considered that the action of the police officers implicated in the-car chase, in particular the erratic shooting at the car, indicated a lack of caution in the use of firearms (§82 of the judgment).

The case also concerns the authorities' failure to conduct an effective investigation into the deaths of applicants' sons (procedural violation of Article 2). The European Court identified the following deficiencies in the criminal investigation and during the subsequent judicial proceedings: the investigation was not opened almost until 10 months after the incident; a number of key elements of the incident were not subject to adequate assessment, the inquiry only focused on the version presented by the police and the prosecutor discontinued the investigation against the police officer on several occasions on the ground that no evidence of any crime had been found.

Individual measures:

• Information provided by the Lithuanian authorities (06/11/2008): Under Lithuanian law, any applicant may apply for reopening of an investigation following to a violation found by the European Court.

• Information is awaited as to whether the applicants have applied for reopening of the investigation in the present case.

General measures: The European Court’s judgment has been translated into Lithuanian and placed on the official website of the Ministry of Justice (http://www.tm.lt/default.aspx?item=stras_bsp) together with an explanatory note. The Government Agent sent an explanatory note on the judgment to all relevant institutions and domestic courts.

• Information is awaited on measures envisaged or already taken to prevent similar violations (e.g. training and awareness-raising for police officers, prosecutors and judges; specific guidelines and, if appropriate, legislative changes concerning conditions for the use of firearms; etc). In this regard, authorities' attention is drawn to measures taken in the Makaratzis case (50385/99, 1072nd meeting, December 2009) and in the Nachova case (43577/98,Section 4.2).

27527/03 L., judgment of 11/09/2007, final on 31/03/2008

The case concerns the state’s failure in its positive obligation to ensure respect for private life in not introducing implementing legislation to enable a transsexual to undergo gender reassignment surgery and change his gender identification in official documents (violation of Article 8)

The applicant was registered as a girl at birth in 1978 but, from an early age, regarded himself as a male. In 1997 he sought medical advice about gender reassignment. Although he was diagnosed as a transsexual, his doctor initially refused to prescribe hormone therapy in view of the uncertainty as to whether or not full gender reassignment could be legally carried out. He was therefore forced to follow the hormone treatment unofficially. Following the adoption of the new Civil Code in 2000, which for the first time introduced a right to gender reassignment surgery in Lithuanian law (Article 2.27§1), the applicant underwent partial reassignment surgery. However, he agreed with the doctors to defer any further surgical steps pending the introduction of implementing legislation on the conditions and procedure for gender reassignment. The implementing legislation, intended to lay down conditions and procedure for gender-reassignment surgery as required by Article 2.27§2 of the Civil Code, has not yet been enacted following strong opposition to the Bill in the Parliament. The applicant remained a female under domestic law and although he was eventually permitted to change his name to one that was not gender sensitive, his new birth certificate and passport and his university diploma continued to indicate his gender as female.

The European Court established that the legislative gap had left the applicant in a situation of distressing uncertainty with regard to his private life and the recognition of his true identity. Budgetary restraints in the public health service might have justified some initial delays in implementing the rights of transsexuals under the Civil Code but not a delay of over four years. The State had therefore failed to strike a fair balance between the public interest and the applicant’s rights (§59 of the judgment).

Individual measures: The European Court held that the Lithuanian state must satisfy the applicant’s claim for pecuniary damage by the adoption of the requisite subsidiary legislation within three months of the judgment becoming final. Failing that, it was to pay the applicant 40 000 euros to cover the cost of having the final stages of the necessary surgery performed abroad.

• Information provided by the Lithuanian authorities (letter of 01/10/2008): On 28/06/2008 the just satisfaction awarded was paid.

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

General measures: It appears from the judgment that prompt adoption of the pending implementation legislation would be able to prevent new similar violations.

The Secretariat addressed an initial-phase letter to the Lithuanian authorities on 07/08/2008 regarding the general measures taken or envisaged and invited them to provide information on the status of the legislation mentioned.

• Information provided by the Lithuanian authorities (letter of 01/10/2008): The Lithuanian authorities stated that the domestic courts were in position to fill the existing legal lacunae. Moreover, a bill tabled on 19/03/2008 proposing the repeal of Article 2.27 of the Civil Code is currently before Parliament. The authorities affirmed that possible repeal of the provision at issue would have no effect as regards the possibilities for the treatment of transsexuals. In the authorities’ view, transsexuals do receive treatment in Lithuania and their right to gender reassignment, including the subsequent adjustment of official documents, is recognised.

• Assessment: In view of the European Court’s assessment, until the implementing law is adopted there do not appear to be suitable medical facilities reasonably accessible or available in Lithuania itself (§57 of the judgment). However, it appears that the Lithuanian authorities have chosen a different method to ensure legal recognition of gender reassignments. The practical effects of the measures taken still remain to be demonstrated. In this regard, authorities’ attention is drawn to measures taken in the context of the case of Christine Goodwin against the United Kingdom (Section 6.2).

• Information is therefore awaited on measures taken or envisaged to prevent similar violations in the future, including the practical effects of measures already taken.

• Publication and dissemination: The European Court’s judgment has been translated into Lithuanian and placed on the website of the Ministry of Justice together with an explanatory note. The Government Agent informed all relevant institutions and all domestic courts about the judgment by an explanatory note. In addition, the Government Agent brought the European court’s judgment to the attention of the President of the Parliament and the Minister of Health.

- 11 cases against Luxembourg

17140/05 Kemp and others, judgment of 24/04/2008, final on 24/07/2008

This case concerns the unfairness of certain proceedings before civil courts (violation of article 6§1). In 1970, the state had purchased land which had belonged to the applicants' parents to build a motorway, which in fact was never built on the basis of the initial plans. The applicants' request for the return of the land was rejected. An appeal on points of law was rejected in 2004 on the ground that the arguments for cassation were not sufficiently detailed.

The European court considered that this decision was excessively formalistic and that the restriction on the right of access to a court imposed by the Court of Cassation was not proportional to the aim of legal certainty and the proper administration of justice.

Individual measures: The applicants have indicated that to achieve restitutio in integrum they wish to have the proceedings re-opened. For them, if the inadmissibility of their appeal on points of law was contrary to Article 6§1, it should, from now on, following the European Court's judgment, be judged on its merits.

In terms of just satisfaction the applicants asked principally for the restitution of the land in question or, failing this, the payment of the actual worth of the land (according to them it is worth over 3,5 million EUR), as well as compensation for the loss of use (estimated over 2,2 million EUR). The European Court rejected these requests as it had “found a violation of Article 6 of the Convention and not a violation of Article 1 of Protocol No. 1. It found no causal link between the violation found and the pecuniary damages they claimed to have been subjected to and therefore rejected this claim”. It however awarded just satisfaction for non-pecuniary damages.

The argument for cassation based on Article 1 of Protocol No. 1 was not the only one used by the applicants; other grounds were based on provisions of domestic law (§29 of the judgment).

• Information seems necessary on measures possibly taken or envisaged.

General measures: The rule used by the Court of Cassation to decide on the admissibility of the appeal is a jurisprudential construction (§ 52). The European Court considered that “the details required by the [Court of Cassation] for the grounds for the appeal on points of law was not essential to enable it to exercise its control. Such a requirement would considerably weaken the protection of persons before the Court of Cassation, especially taking into account that in Luxembourg there exists no system of specialist counsel” (§ 58).

The court's judgment was published in Codex, a monthly judicial and political journal in Luxembourg, March‑April 2008 (www.codex-online.com <http://www.codex-online.com). The judgment was also transmitted to the State Prosecutor General, who was requested to transmit it to the judicial authorities concerned.

• It seems necessary to receive confirmation that the European court's judgment has been sent out to the Court of Cassation court, which the Convention as interpreted by the Court, so it can take it into account in the future. Information on any other measures which may possibly be envisaged would also be useful.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of further information to be provided on individual and general measures.

24720/03 Alliance Capital (Luxembourg) S.A, judgment of 18/01/2007, final on 18/04/2007

The case concerns an excessive interference with the applicant company's right of access to a court and consequently, with its right to a fair hearing (violation of Article 6§1). Proceedings were brought against the applicant company by two other companies (Allianz Kapitalanlagegesellschaft and Allianz Asset Management) and the appeal court ordered the applicant to change its business name. Seised by the applicant, the Cour de cassation ruled in its favour but forgot to mention one of the two companies in the operative part of its judgment. The case was referred to the court of appeal before which the applicant company was unable to obtain a decision in respect of the company whose name was omitted. It was thus presented with two diametrically opposed findings in a dispute concerning applications which were related, not to say identical. Hence, the applicant company had been penalised for an error for which it could not be held responsible and against which it had no effective means of redress. In the circumstances, the applicant had therefore been subjected to excessive interference with its right of access to a court and, accordingly, its right to a fair hearing.

Individual measures: It transpires from the judgment that the dispute between the applicant company and the two other companies was settled: they reached an out-of-court agreement on the use of the business name in the various parts of the world (§21)

• Assessment: In these circumstances, the applicant company having made no further request, no other measure appears necessary.

General measures: Several measures have been taken to disseminate and publish the Court's judgment. On 19/01/2007, the Minister of Justice transmitted the judgment to the State Prosecutor General, requesting him to inform the courts concerned about it. Furthermore, the Ministry of Justice published the judgment on its Internet site (www.mj.public.lu/juridictions/arrets_concernant_le_luxembourg/Alliance_18_01_07.pdf). At the same time, an announcement was made in the Journal Officiel to draw the general public's attention to this judgment (Mémorial B No. 18, 12/03/2007). Finally, the judgment has been published in CODEX, January - February 2007.

• Thought is being given to whether further measures are required.

The Deputies decided to resume consideration of this case at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), to supervise the general measures.

76240/01 Wagner and J.M.W.L., judgment of 28/06/2007, final on 28/09/2007

The case concerns a breach of the right to a fair trial of the applicants (a Luxembourg national and her Peruvian adopted child born in 1996) on account of the refusal of the Luxembourg civil courts (final in 2001) to examine a submission regarding an alleged violation of Article 8 of the Convention (violation of Article 6§1).

The case also concerns an interference in the right to respect for family life on account of the Luxembourg courts' refusal to declare the enforceability of a Peruvian judgment of 1996 granting the first applicant full adoption of a child. This refusal stemmed from the absence of any provision in Luxembourg law enabling an unmarried person to be granted full adoption of a child (violation of Article 8).

In this connection the European Court observed that a broad consensus existed in Europe on the issue of adoption by unmarried persons;

Finally the case concerns discrimination against the applicants on account of the difference in treatment sustained by the second applicant compared with children whose full adoption granted abroad is recognised in Luxembourg and because the first applicant suffered in her daily life the indirect consequences of the obstacles facing by the second applicant, her child (violation of Article 14 combined with Article 8).

Individual measures: The European Court reiterated that the child's best interests had to take precedence in cases of this kind and considered that the Luxembourg courts could not reasonably disregard the legal status which had been created on a valid basis in Peru and which corresponded to family life within the meaning of Article 8.

Measures to ensure restitutio in integrum were adopted very quickly after the European Court judgment became final. On 13/12/2007, the Luxembourg tribunal d’arrondissement held that the Peruvian judgment of 06/11/1996 concerned in this case was enforceable in Luxembourg as if it had been delivered by a Luxembourg Court. The Tribunal ordered the provisional enforcement of the said judgment, notwithstanding any possible appeal or objection.

It appears in the judgment that both applicants live together in Luxembourg (see in particular §§ 5 and 8).

Finally, it is recalled that the European Court granted just satisfaction in respect of both non-pecuniary and pecuniary damage.

• The government considers that the measures adopted are adequate to put an end to the violations found. This appears to be the case, if the judgment declaring the enforceability becomes final. Confirmation of this would be useful.

General measures:

1) Violation of Article 6§1: In the European Court's view, the issue of the incompatibility of the first-instance decision with Article 8 - with particular reference to whether it was in accordance with good international relations - was one of the main grounds of appeal raised by the applicants, and as such called for a specific and explicit reply. The court of appeal, however, had omitted to reply to the submission that public policy dictated precisely that the Peruvian adoption decision should be declared enforceable, in accordance with Article 8. Moreover, the Cour de cassation had upheld the stance taken by the first-instance and appeal courts, despite its case-law according to which the Convention produced direct effects in the Luxembourg legal system.

The principle according to which the Convention is applicable directly in Luxembourg law does not appear to be in question. However, measures appeared necessary to draw the competent authorities’ attention to this judgment of the European Court, so that they can duly take it into account in future.

Thus, the judgment of the European Court was transmitted by the Ministry of Justice to the State Prosecutor General who sent it to all the competent judicial authorities (including the civil courts and the Court of Cassation). The judgment was also published on the website of the Ministry of Justice (www.mj.public.lu/juridictions/arrets_concernant_le_luxembourg) and in the Codex journal, issue of June-July 2007.

• Assessment: No further measure appears necessary.

2) Violations of Article 8 and Article 14 combined with Article 8: The refusal by the Luxembourg courts to declare the Peruvian judgment enforceable stemmed from the absence of provisions in Luxembourg allowing a non-parried person to adopt a child. The government indicated that a reflection was ongoing concerning the possibility to amend national law, with a view in particular to suppressing the distinction between simple adoption and full adoption. A draft law in that sense should be lodged, before the Chambre des Députés.

• Further information is awaited in this respect.

2113/04 Schneider, judgment of 10/07/2007, final on 10/10/2007

The case concerns an interference with the applicant's right to the peaceful enjoyment of her possessions (violation of Article 1 of Protocol No. 1) on account of the obligation imposed on her applicant to include her land in a hunting area. The case also concerns an interference with her freedom of assembly and association inasmuch as, under a law of 1925, the applicant was forced to enrol in an association, a so-called “hunting syndicate” (syndicat de chasse) although she disapproved of its aims (Violation of Article 11).

In spite of her declared ethical opposition to hunting and opposition to the inclusion of her land in a hunting zone, the syndicate to which she was required to belong pronounced in favour of her land being put up for rent. This decision was approved by the Ministry of the Interior and judicially endorsed in 2003 (administrative tribunal and court).

The European Court found that this system of compulsory enrolment placed the applicant in a situation which breached the fair balance which should exist between safeguarding property rights and the requirements of the general interest. To impose a legal obligation on an individual to belong to an association profoundly opposed to his or her own convictions, and to oblige that individual on the basis of such membership to authorise the association to use land which is his or her own property to conduct activities of which he or she disapproves, exceeds the bounds of the fair balance of conflicting interests and may not be considered proportional to the aim pursued.

Individual measures: It transpires from the information provided by the Luxembourg authorities that at this stage it would not be possible to stop hunting on the applicant’s land, for three reasons. First, the authorities would run up against the principle of res judicata: no national provision would allow the re-opening of the judicial proceedings at issue. Secondly, from an administrative point of view, the relevant national provisions would also make it impossible to withdraw the ministerial approval of the decision of the hunting syndicate to let hunting rights in a zone including her land. Thirdly and finally, such a withdrawal would infringe the rights of third persons (members of the hunting syndicate, tenants of the concerned hunting zone, etc.) bound by a 9-year lease, coming to an end in 2012.

• Bilateral contacts are under way.

General measures: What is called into question in this case is the Act of 20/07/1925 on land concessions for hunting and compensation of damage caused by game, which obliges landowners to join a hunting syndicate. It may be noted that since the material time, on 13/07/2004, the Administrative Court decided in a case very similar to the Schneider case to annul the ministerial decision upholding a hunting syndicate’s decision, relying in particular on Article 1 of Protocol No. 1 (see §§ 20-24 of the judgment).

Following the European Court’s judgment, the government tabled a draft law on hunting on 04/06/2008, with a view inter alia to avoiding new, similar violations.

Concerning the forced enrolment in the association, it can be noted that according to the draft law (article 23), “landowners who oppose hunting on their land for personal, ethical reasons are not members of a hunting syndicate”.

The only condition for the persons concerned is to lodge in writing a motivated statement of withdrawal, respecting certain formal conditions provided by the law, without fail at least 8 days before the general assembly of the syndicate.

Concerning the forced inclusion in a hunting zone of the property of those who oppose hunting on ethnical grounds, it may be noted that formally, their land belongs to the hunting zone, but the right to hunt on the said land is suspended during the entire lease (without prejudice of the implementation of three special provisions concerning the search for wounded game and culling carried out by the public authorities in the general interest). The statement of withdrawal must be renewed each time a lease comes to an end.

The Conseil d’Etat delivered an advisory opinion on this draft law on 03/03/2009, in which it raises certain questions, concerning among other things the date of entry into force of the legal provisions concerning ethical opposition to hunting (31/07/2011, but in practice the vast majority of the leases end on 31/07/2012), or cases in which the land is sold during the lease (a buyer opposed to hunting would have to wait for the end of the lease to request the withdrawal of his/her land).

The legislative procedure is ongoing.

The judgment of the European Court has been sent out to Administrative courts and published in the Codex journal, issue of June-July 2007.

• Bilateral contacts are under way.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of the outcome of the bilateral contacts under way.

- Cases mainly concerning length of criminal proceedings

63286/00 Schumacher, judgment of 25/11/03, final on 25/02/04

40327/02 Casse, judgment of 27/04/2006, final on 27/07/2006

11282/05 Electro Distribution Luxembourgeoise (E.D.L.) S.A., judgment of 31/07/2007, final on 31/10/2007

34471/04 S.J., judgment of 04/03/2008, final on 04/06/2008

33747/02 Laghouati and others, judgment of 05/04/2007, final on 18/05/2007

73983/01 Rezette, judgment of 13/07/2004, final on 13/10/2004

35704/06 Shore Technologies, judgment of 31/07/2008, final on 31/10/2008

These cases concern the excessive length of certain civil and criminal proceedings which began in 1991 and 2001 (violations of Article 6§1).

These cases present similarities, as each of them the excessive length of criminal proceedings was the main problem. In the Rezette and Casse cases, pursuant to the rule that civil proceedings arising from a criminal offence must await the decision of the criminal court, the civil proceedings had been postponed pending the completion of certain criminal proceedings, the length of which had also been excessive.

The Casse and Laghouati cases also concern the lack of an effective remedy (violation of Article 13).

In addition, the Casse case concerns the fact that the applicant was not informed of the nature of the accusations against him (violation of Article 6§3a). In fact he had been under accusation since 1996, but when the European Court delivered its judgment, he had never been charged, or summonsed to appear before the investigating magistrate.

Individual measures:

1) Schumacher, Laghouati and S.J. cases: none, the proceedings at issue being now closed.

2) Rezette, Casse and Shore Technologies cases: In the Rezette case, the delegation has stated that the criminal proceedings at issue (in which the applicant was not indicted) were now closed; this being so, the civil proceedings could be resumed and a judgment was delivered on appeal on 14/02/2007. In the Casse case, the applicant was charged on 13/03/2008; so according to the latest information available, the criminal proceedings are continuing.

• Information appears necessary on the present state of the proceedings concerned and on their acceleration, especially for the criminal proceedings in Casse (proceedings started in 1996) and in Shore Technologies (proceedings began in 2001).

General measures:

1) Violations of Article 6§1:

• Origin of the violations: It emerges both from the judgments and from the analysis provided by the delegation that the excessive length of the criminal proceedings at issue is due mainly either to factors specific to the cases or to the excessive workload of the Police Criminal Investigation Department (Service de Police Judiciaire, SPJ) and of the investigating magistrates of the Luxembourg Tribunal d'arrondissement. However, in the Luxembourg authorities' view, there is no structural problem as such concerning the length of criminal proceedings.

• Measures adopted:

- Excessive workload of the SPJ: Staff has been reinforced, from 138 officers in 2003 to 169 in 2005. Furthermore, the Ministries of the Interior and of Justice have reorganised the SPJ, effective since 1/12/2003. This reorganisation, instituting regular meetings between the police and the judiciary, is mostly aimed at improving the SPJ's efficiency through, among other things, better co-ordination between the judiciary and the head of the SPJ by minimising the time needed to carry out enquiries requested from the SPJ so as to accelerate treatment of criminal cases by the courts. Thus prosecutors and investigating magistrates are now in a better position to supervise the evolution of enquiries made by the SPJ. The government add that it is working work consistently to improve the material, human and organisational working conditions of the police staff and the courts as well as the rules of procedure, not least in criminal matters.

- Excessive workload of investigating magistrates:

First, here too, staff has been increased. In this respect, the delegation recalled Law of 24/07/2001 (programme of recruitment of judges and other staff), already noted in the Scheele case (ResDH(2003)89). A second programme of recruitment was provided in a law of 1/07/2005 on increasing this time the staff of the Public Prosecutor's office. More specifically, a law of 12/08/2003 also provided an increase in the number of investigating magistrates in the Luxembourg tribunal d'arrondissement, from 6 in 1996 to 13 in 2004.

Secondly, this increase in staff made it possible to reallocate files between investigating magistrates, taking into account their specialisation and experience.

Thirdly, improvements were made concerning the inventory of cases pending before investigating magistrates.

Finally, the Law of 6/03/2006, adopted to improve the everyday operation of criminal justice, introduced measures to reduce investigating magistrates' workload among others (the text of the law may be found at the following link; <http://www.legilux.public.lu/leg/a/archives/2006/0471503/0471503.pdf?SID=b8a998ca93a034e01a0c2f2a48e76ba8>). Now, a simplified form of pre-trial investigation makes it possible to take more steps in the investigation without it being mandatory to open of a pre-trial investigation, with the attendant workload for investigating magistrates. This law also introduced probation into Luxembourg law, as an alternative to detention on remand - a very severe measure requiring priority treatment of the files requesting such a measure, thus having an influence on the steady management of cases by investigating magistrates.

• Measures under adoption concerning the rule that civil proceedings arising from a criminal offence must await the decision of the criminal court. In the Rezette and Casse cases, the civil proceedings lasted too long because of postponements pending the completion of related criminal proceedings. In itself, the rule that civil proceedings arising from a criminal offence must await the decision of the criminal court has not been criticised by the European Court; on the contrary, it recalled that delivering a judgment on the civil issue before the end of the criminal proceedings could be incompatible with the requirements of the proper administration of justice.

In view of these elements, the government indicated that it was drafting a bill to give an optional character to application of the rule that civil proceedings arising from a criminal offence must await the decision of the criminal court (Article 3 of the Criminal Pre-trial Investigation Code). According to the very latest information available, this reflexion is still ongoing; studies on the application of the said principle in other countries are under way.

•Publication and dissemination of the judgments. The Rezette judgment was published in Codex No. 12 of December 2004 and in the Bulletin des Droits de l'Homme (n°11-12 - 2005) edited by the Luxembourg Human Rights Institute. The Schumacher judgment was published in Codex No. 2 of February 2004. Furthermore, both judgments were transmitted by the Ministry of Justice to the State Prosecutor General, on 29/07/2004 and 11/12/2003 respectively, for the information of all interested judicial authorities.

Finally, the Casse judgment was transmitted on 03/05/2006 to the State Prosecutor General with a request to inform the competent judicial authorities of it, which has been done. This judgment was also published in Codex No. 6 of June 2006 and on the Internet site of the Ministry of Justice(www.mj.public.lu/juridictions/arrets_concernant_le_luxembourg).

• Assessment: effect of these measures on the length of criminal proceedings: In view of the backlog which had accumulated before the measures taken, the beneficial effect of the measures on the length of criminal proceedings only began to be perceptible in 2006. The Luxembourg authorities confirm, on the specific issue of investigating magistrates' workload, that there has been a considerable reduction of the accumulated backlog since the entry into force of these laws of 24 July 2001 and 12 August 2003.

• It would be useful to confirm whether the first beneficial effects have proved correct.

2) Violation of Article 13:

• Present situation: The Luxembourg authorities have indicated that under Luxembourg law it is possible to obtain reparation for any prejudice caused to citizens by the defective running of the Civil Service, through a claim for damages lodged either under Articles 1382 ff. of the Civil Code of Luxembourg (general rules), or under a special law of 01/09/1988.

However, the European Court itself found in the above-mentioned Rezette case that the provisions mentioned by the authorities do not provide an effective remedy to complain about the excessive length of proceedings. This case-law of the Court has been confirmed recently (see e.g. the decision on admissibility in the case of Mertens-Pechackova against Luxembourg, of 26/06/2008, No. 28369/05).

The authorities did take into consideration the possibility of modifying the Law of 01/09/1988, but finally they decided not to proceed in this direction. They indicated that from their point of view, the very broad wording of this legislation already provides an appropriate remedy, the only problem being precisely that parties prefer to seise the European Court directly rather than using this internal remedy.

The authorities however concluded that thought would be given to possible alternative general measures.

3) Violation of Article 6§3a): In the Casse case the violation was a consequence of the fact that the investigating magistrate did not inform the applicant of the accusations against him.

• The authorities indicated that reflexion would begin on the possible inclusion in Luxembourg law of the concept of “assisted witness” (témoin assisté), which exists in other legal systems (e. g. France). This “assisted witness”, although not charged, should benefit from the same rights as those who have been. Concerning the dissemination the Casse judgment, see above (point 1).

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of further information to be provided on individual and general measures.

- 1 case against Malta

- Case concerning freedom of expression

7333/06 Lombardo and others, judgment of 24/04/2007, final on 24/07/2007[47]

- 98 cases against Moldova

41578/05 David, judgment of 27/11/2007, final on 27/02/2008

This case concerns the unlawful and arbitrary detention of the applicant in the Central Psychiatric Hospital to undergo medical examinations to determine whether he was fit to plead in compensation proceedings he brought against the state(violation of Article 5§1 e)).

The European Court considered that the court order of 14/03/2004 to hospitalise the applicant was not aimed at protecting him or others but simply to check his fitness to plead and that the applicant had agreed. Thus from the moment that he made it know that he wanted to leave the hospital, his detention became arbitrary and unlawful within the terms of Article 5§1 e) (§40 of judgment).

Individual measures: The applicant was released from the hospital on 29/04/2005. The European Court awarded him just satisfaction in respect of non-pecuniary damage.

General measures:

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

- Cases concerning ill-treatment under police custody, lack of effective investigation in this respect (Articles 3 and 13)

18944/02 Corsacov, judgment of 04/04/2006, final on 04/07/2006

41088/05 Boicenco, judgment of 11/07/2006, final on 11/10/2006 and of 10/06/2008, final on 10/09/2008

29089/06 Colibaba, judgment of 23/10/2007, final on 23/01/2008

6888/03 Pruneanu, judgment of 16/01/2007, final on 23/05/2007

These cases concern inhuman and degrading treatments inflicted on the applicants while in police custody (substantial violation of Article 3) and the authorities' failure to carry out effective investigations in this respect (procedural violation of Article 3). The European Court identified the following shortcomings in the domestic investigations, in particular

- a number of serious and unexplained omissions and inconsistencies of the investigation, in particular between the conclusions of the medical reports and the explanations given by the police officers (Corsacov case);

- factual findings made by the prosecutors entirely based on the statements of the police officers accused of ill-treatment (Pruneanu case);

- lack of independence of the prosecutor who conducted the investigation since it was the same prosecutor who requested the applicant's remand and ~~for~~ the extension of his detention as well as his failure to undertake any investigative measures after receiving the complaint from the applicant's lawyer, not least to consult the applicant's medical file (Boicenco case);

The Colibaba case concerns a number of serious omissions of the investigation into the applicant’s allegations of ill-treatment on account of:

- the prosecutor’s refusal without any plausible reason to grant the applicant’s request to undergo an independent medical examination in the presence of his relatives;

- the disregard by the domestic court of the applicant’s appeal against the prosecutor’s refusal and of the results of an independent medical examination revealing signs of ill-treatment later undergone by the applicant; and

- the prosecutor’s refusal to re-examine the case in the light of the conclusions of this independent medical examination.

The Court noted that since the criminal investigations conducted by the domestic authorities concluded that the actions of the police officers were legal, any civil action against them would have been ineffective. The European Court accordingly found that the applicants did not have an effective remedy to claim compensation for their ill-treatment (Corsacov and Pruneanu cases) (violations of Article 13).

In addition, the Boicenco case concerns

- the applicant's detention without a detention order (violation of Article 5§1);

- the impossibility for him to be released under section 191 of the Code Criminal Procedure as he was charged with intentional offences punishable by more than 10 years' imprisonment (violation of Article 5§3) and

- a violation of the applicant's right of individual petition due to the fact that his lawyers and a doctor were not allowed to see the applicant or his medical file for the purpose of defending his rights before the European Court (violation of Article 34).

Finally, the Colibaba case concerns a violation of the applicant’s right of individual petition on account of the Prosecutor’s General threat to initiate criminal proceedings against his lawyer on the ground of his “improper” complaint to international organisations (violation of Article 34).

Individual measures: In all cases, the European Court awarded just satisfaction to the applicants in respect of the non-pecuniary damage suffered as a result of the torture and of the failure of the authorities properly to investigate the case.

As regards the investigations into the applicants' allegations of ill-treatment:

1) Corsacov case: the General Prosecutor's Office conducted an investigation against the alleged perpetrators of the ill-treatment inflicted on the applicant. The case is currently under examination by the Hânceşti Court of First Instance (a hearing was scheduled for 28/11/2006).

• Information is expected on the progress of these proceedings.

2) Pruneanu case:

• Information is awaited in respect of conducting new investigations concerning the allegations of ill treatment in May 2001 and July 2002.

3) Boicenco case: on 06/07/2006, the Buiucani Court of First Instance decided to release the applicant on bail and he was able to leave the psychiatric hospital. Subsequently, on 03/11/2006, the same court decided to suspend the criminal proceedings against him until his recovery. He was authorised to go to Bucharest and Kyiv for medical examination.

On 27/07/2006, the Buiucani Court of First Instance asked the clinical director of the psychiatric hospital to give the applicant's lawyer immediate and free access to his medical file.

On 17/07/2006, the Deputy General Public Prosecutor quashed the decision of 08/06/2006 of the Catana public prosecutor not to open a criminal investigation against the agents of the CFECC. Subsequently, the case-file was transmitted to the Anti-corruption Prosecution Office. Additional enquiry was ordered into the facts relied on by the applicant's wife and lawyer.

On 21/02/2007 the Prosecutor of the Anti-corruption Prosecution Office, taking into account the evidence gathered in the course of this enquiry, issued an order closing the proceedings.

• More details are awaited on the new investigation, in particular on how the shortcomings identified by the European Court have been remedied and on the investigatory steps taken in this respect. The need for further individual measures is being assessed by the Secretariat.

4) Colibaba case:

• Information is awaited on the conduct of new investigations concerning the allegations of ill treatment in April 2006.

General measures:

1) Measures taken with a view to preventing ill-treatment in police custody:

a) Legislative changes: On 30/06/2005 the Moldovan Parliament adopted an amendment to the Criminal Code, defining and criminalising torture. Article 309¹ of the Criminal Code provides for a jail sentence of 2 to 5 years with suspension of the right to hold certain offices or to engage in certain activities for up to 5 years. More severe penalties are provided (3 to 8 years' imprisonment with the same suspension of rights) for organising or inciting torture and in respect of certain types or techniques of torture (5 to 10 years). Torture and other forms of cruel, inhuman or degrading treatment are prohibited by a series of special provisions contained in the Criminal Code (Articles 306-309 and 327, 328) and in the Code of Criminal Proceedings.

b) Regulatory changes:On 19/04/2006 the Moldovan government approved the Code of Police Ethics (published in December 2006) drafted with the Council of Europe's assistance. Among the relevant provisions, Section 13 provides that all police officers are fully responsible for their actions or omissions as well as for orders given to their subordinates. According to Section 16 it is prohibited to apply, encourage or tolerate any act of torture under any circumstance, to use force, except in cases of absolute necessity and only to the extent necessary to achieve a legitimate aim. Section 30 of the Code provides that any failure to comply with its provisions entails the disciplinary, civil or criminal responsibility of the police under the conditions prescribed by law.

- On 30/11/2006, the General Prosecutor adopted an order (n° 325/19) on the prevention of and the fight against torture. This order requires heads of divisions of the General Prosecutors' Office to monitor the application of the legislation by the agents in charge of investigation and penitentiary institutions. It also stresses the importance of supervising investigations into allegations of torture.

- On 11/05/2005 a commission in the Ministry of Interior has been established. The commission is responsible for the implementation of the National Plan of Action for 2004-2008 in the field of human rights.

- The Moldovan authorities informed that the Government provided 5.6 million Moldavian Lei to finance the renovation and restoration work of detention places in police headquarters.

- The Ministry of Interior set up a phone number for anonymous calls to gather complaints related to violations committed by police officers.

c) Training and awareness raising

- According to Section 11 of the Code of Police Ethics, staff training should be carried out according to the objectives of the police force, while respecting fundamental principles such as the rule of law, democratic pluralism and the protection of human rights.

- Several training programmes on human rights (torture, inhuman and degrading treatment) and the European Convention have been organised within the Ministry of Interior for the police and their co-workers. Other seminars have been organised with help of the Moldovan Institute of Penal Reform and the UNDP, for the employees of the Ministry of Interior.

- During its visit to Chisinau (29/11/06-01/12/06), the Secretariat delegation was informed that the authorities were considering setting up twelve workshops on the implementation of the Code of Police Ethics. The Secretariat has been also informed of changes already made and to come in the Police training curricula.

• Assessment: According to the Committee of Ministers' practice regarding this kind of cases (see, in particular, Interim Resolutions DH(99)434, DH(2002)98 and ResDH(2005)43 concerning the action of the security forces in Turkey, Interim Resolution ResDH(2005)20 concerning the action of the security forces in Northern Ireland and Final Resolutions ResDH(94)34 in the case Tomasi against France and ResDH(2006)13 in the cases Egmez and Denizci against Cyprus), particular attention should be paid to the existence of a number of procedural safeguards surrounding taking persons into custody.

• The detailed information provided by the Moldovan authorities by letter of 30/09/2008, in response to the issues raised by the Secretariat, concerning in particular the prosecutor’s duties in respect of persons in custody, as well as the conditions under which an individual in custody is being authorised to have contacts with the outside world, are being currently assessed by the Secretariat.

2) Measures taken with a view to ensuring the effectiveness of investigations: According to Article 298 of the Code of Criminal Procedure, as amended by the Moldovan Parliament on 28/07/2006, complaints concerning actions of organs conducting criminal investigations may be addressed to the prosecutor who supervises this investigation. If a complaint concerns the prosecutor supervising or directly involved in the investigation, he or she is required to transmit it, together with his or her explanations, to a superior prosecutor within 24 hours. All declarations, complaints or other circumstances indicating that a person has been tortured or subjected to inhuman or degrading treatment shall be examined by a public prosecutor under Article 274 of the Code of Criminal Procedure, in a separate procedure.

• The further details provided by the Moldovan authorities by letter of 30/09/2008, in response to the issues raised by the Secretariat, concerning in particular the guarantees of the investigative authorities’ independence and impartiality, are being currently assessed by the Secretariat.

3) Measures taken with a view to ensuring a possibility to claim compensation: At the material time, it was necessary to establish that the act at issue was illegal in order to claim compensation for the damage sustained.

The authorities have indicated that Articles 1403-1405 of the Civil Code establish responsibility and the possibility of compensation for damage caused by public authorities or by organs of criminal prosecution, public prosecutors and the judiciary. One example related to the application of these provisions has been provided.

• Information would be useful on whether these Articles provide for the objective liability of the state or whether their application is still subject establishing the guilt of the state agents concerned.

The authorities have also indicated that persons whose rights had been violated are entitled to compensation for non-pecuniary and pecuniary damage under the provisions of Law No. 1545 of 25/02/1998 “on Compensation for Damage caused by the Illegal Acts of the Criminal Investigation Bodies, Prosecution and Courts”. According to this Law, the damage caused shall be fully compensated, irrespective of the degree of liability of the agents of the criminal investigation organs, prosecution or courts.

• The additional clarification provided by the Moldovan authorities by letter of 30/09/2008, in response to the issues raised by the Secretariat, concerning in particular the applicability of Law No. 1545 to the compensation for infliction of torture, are being currently assessed by the Secretariat.

4) Other violations found in the Boicenco case:

- Articles 5§1 and 5§3: see the Sarban group of cases (3456/05, 1065th meeting, September 2009).

- Article 34: Information is still awaited on the measures taken or envisaged by the authorities to ensure that lawyers have access to their clients in detention and on other possible measures to prevent new, similar violations.

5) Publication and dissemination of the Court's judgments: These judgments were translated and published on the website of the Ministry of Justice (http://www.justice.md). It has also been sent for publication in the Official Journal and sent out to the national courts, the Ministry of Interior and all sections of the police.

The Deputies:

1. urged the authorities to provide additional information on individual measures;

2. decided to resume consideration of these items at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of the information to be provided on individual and general measures.

81/04 Savitchi, judgment of 17/06/2008, final on 17/09/2008

This case concerns the unnecessary recourse to physical force by police officers during the arrest of the applicant in flagrante delicto and lack of an effective investigation in this respect (substantial and procedural violations of Article 3).

The applicant, a police inspector, was arrested on 3/08/2000 on a charge of accepting a bribe in exchange for a favour concerning a case he was dealing with. The arrest in flagrante delicto was filmed by two cameras and both videos were included in the domestic criminal file.

The European Court noted that one of the videos of the applicant’s arrest clearly shows that he received at least three blows from a police officer while being restrained by five others of approximately the same size and build as he. The Court further noted that although the applicant struggled, he did not attempt to hit the police officers, but was merely trying to bend down. In these circumstances, the European Court found that the blows received by the applicant were not strictly necessary and that the police officers could have certainly achieved their goal of calming him by other, less brutal methods (§67 of the judgment).

Concerning the manner in which the domestic authorities examined the applicant’s complaint, the European Court found it surprising that the Prosecutor’s Office and the Râscani District Court limited their examination to questioning several police officers who participated in the applicant’s arrest and who denied his allegations, since the applicant’s allegations would normally be the first and most reliable evidence for the examination of such a complaint.

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

• Information is awaited as to whether it is possible to reopen the investigation in order to comply with the procedural requirements of Article 3.

General measures:

• Information is awaited on the existing legislative framework regulating the use of force by the police while apprehending suspects and on measures envisaged or already taken by the authorities with a view to preventing new, similar violations. Information is also awaited on the publication and dissemination of this judgment to all courts, prosecutors and police officers.

289/04+ Popovici, judgment of 27/11/2007, final on 02/06/2008

This case concerns a number of violations related to the applicant’s pre-trial detention, to the presumption of his innocence and to his right to a fair trial, as follows:

- the failure by the Supreme Court of Justice, when ruling on appeal, to hear the applicant in person and to produce evidence in his presence with a view to a contradictory argument before convicting him and sentencing him to life imprisonment in breach of Articles 451 and 436 of the Moldovan Code of Criminal Procedure (violation of Article 6§1).

- a public statement made by a high-ranking official, the Secretary of the Superior Security Council, in which he declared in an interview with a newspaper that the applicant was guilty before he had been so proved according to law. These statements encouraged the public to believe the applicant guilty and prejudiced the assessment of the facts by the competent judicial authority, breaching his right to the presumption of innocence (violation of Article 6§2);

- the poor material conditions of the pre-trial detention, amounting to degrading treatment (violation of Article 3) and the lack of an effective remedy in this respect (violation of Article 13 taken together with Article 3);

- the failure of domestic courts to give relevant and sufficient reasons for the extension of the applicants' detention (violations of Article 5§3).

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

The applicant is currently serving a life sentence in Rezina Prison. The European Court recalled that “where an individual has been convicted following proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation.”

• Information is awaited on action taken by the Moldovan authorities with a view to ensuring the reopening of the case.

General Measures:

1) Violation of Article 6§1: It results from the judgment that this violation was due to the inconsistent application of the existing provisions of the Code of Criminal Procedure.

• Information is awaited on possible measures to prevent such violations (e.g. organisation of an awareness-raising seminar).

2) Violation of Article 6§2: It remains unclear whether and how Moldovan law, e.g. the Code of Criminal procedure or the Criminal Code, ensures the respect of the presumption of innocence.

• Information is thus awaited in this respect, as well as on measures taken or envisaged to prevent new, similar violations (e.g. organisation of training seminars, in particular for agents of various investigative agencies, etc.).

3) Violation of Article 3: See the Becciev group (9190/03, Section 4.2.).

4) Violation of Article 13 taken jointly with Article 3: See the Becciev group

5) Violation of Article 5§3: See the Sarban group (3456/05, 1065th meeting, September 2009).

6) Publication and dissemination: The Moldovan authorities provided information about the publication in the Official Journal of the Republic of Moldova of a translated excerpt from the judgment. The full text of the judgment has been sent for publication on the official web-site of the Ministry of Justice (http://justice.md/md/cedo/).

• Information is also awaited on the dissemination of the judgment to all courts, possibly with a circular letter from the Supreme Court of Justice drawing courts’ particular attention to their obligations under Articles 6§1 and 6§2.

20289/02 Guţu, judgment of 07/06/2007, final on 07/09/2007

This case concerns a number of violations related to the applicant’s unlawful arrest and detention due to her refusal on 30/12/2001 to accompany her son, suspected of theft, to a police station and to the subsequent proceedings resulting in her conviction for disobedience of a lawful order of the police officers.

Although Article 129 of the Code of Criminal Procedure provides the possibility of forcibly taking someone into police custody, it also establishes clear conditions, i.e. the person’s failure to appear before the investigating authority after having been duly summonsed in the framework of an already opened investigation. This condition not being met, the European Court found that the applicant's arrest and detention was unlawful (violation of Article 5§1).

The European Court also found that the police officers’ entry into the applicant's house was unlawful since none of the situations described in the Police Act of 18 December 1990 was applicable to the circumstances of the present case (violation of Article 8).

The European Court further noted that it had not been shown that there had been effective remedies in respect of the applicant’s complaint under Articles 5 and 8, considering that Article 4 of law No.1545 allows claims for compensation only in case of acquittal (violation of Article 13).

Finally, the European Court also found a violation of the applicant’s right to a fair trial on account of the authorities’ failure to show that she had been summonsed to the appeal hearing concerning her alleged disobedience to the police officers’ order (violation of Article 6§1).

Individual measures: The applicant is no longer detained. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained. It results from the judgment that on 25/11/2002, the Prosecutor’s Office decided not to institute criminal proceedings against the police officers involved since the applicant had been convicted by a final judgment of the offence of disobeying the lawful orders of police officers (§ 22).

• In view of the findings of the European Court, information is awaited on measures, either criminal or disciplinary, taken or planned in respect of the police officers at the origin of the violations found.

General measures:

1) Violation of Articles 5§1 and 8: It would appear that in this particular case the police officers acted in breach of domestic law, which has not been challenged in the Court’s judgment.

• However, clarification would be useful on the current legal framework governing the arrest of persons suspected of having committed an administrative offence. Information is also awaited on measures taken or envisaged in respect of the police, in particular on training measures, mainstreaming Human Rights and the Convention’s requirements in their daily practice, strengthening of their disciplinary liability, etc.

2) Violation of Article 6§1: see the Ziliberberg case (61821/00, 1065th meeting, September 2009).

3) Violation of Article 13: see the Corsacov case (18944/02, Section 4.2).

4) Publication and dissemination of the judgment of the European Court: The judgment has been translated and published on the official web site of the Ministry of Justice (http://justice.md/md/cedo/).

• Information is awaited on the wide dissemination of the judgment to all competent authorities together with circular letters and detailed instructions to be issued by higher authorities, in particular the Ministry of Interior and the Prosecutor General, to explain to all subordinates the obligations flowing from the judgment and their effects on the day-to-day practice. An explanatory note from the Supreme Court to all lower courts would also be useful.

- Cases concerning poor conditions of detention and lack of effective remedy in this respect

9190/03 Becciev, judgment of 04/10/2005, final on 04/01/2006

12066/02 Ciorap, judgment of 19/06/2007, final on 19/09/2007

30649/05 Holomiov, judgment of 07/11/2006, final on 07/02/2007

35207/03 Ostrovar, judgment of 13/09/2005, final on 15/02/2006

8721/05+ Istratii and others, judgment of 27/03/2007, final on 27/06/2007

These cases concern various violations related to the applicants' detention on remand, as follows:

1) Violations of Article 3

- Poor conditions of detention: All these cases concern the poor conditions of the applicants' pre-trial detention between 2001 and 2005, were due in particular to the absence of outdoor exercise, the inadequacy of food, presence of parasitic insects, lack of access to daylight or electricity, the exposure to cigarette smoke, etc.

- Force-feeding of a detainee on hunger-strike: In the Ciorap case, the European Court found that the repeated force-feeding of the applicant while on hunger-strike against his detention conditions was amounted to torture.

- Lack of special medical assistance during pre-trial detention: In the Holomiov case, the European Court noted that the core issue in this case was not the lack of medical care in general but rather the lack of medical care suited to the applicant's particular conditions. The Court stressed that merely having the applicant seen by doctors and hospitalised in the prison was not enough. The applicant was prescribed urgent surgery on one of his kidneys in 2002 and 2003 but the doctor's recommendations were never followed up.

In the Istratii and others case, the violation was also due to the authorities' failure in the CFECC remand centre to provide timely medical assistance to the one of the applicants, to his transfer to prison hospital less than four hours after surgery and to the fact that he was unnecessarily handcuffed while in hospital.

2) Violation of Article 13: The Ostrovar case concerns the lack of an effective remedy into the allegations of poor conditions of detention (violation of Article 13 taken together with Article 3).

3) Violations of Article 8:

- Interception of correspondence: The Ostrovar and Ciorap cases concern the interception of the applicants' correspondence. In this respect, the European Court considered that Article 18 of the Law on Pre-Trial Detention did not indicate with reasonable clarity the scope and manner of the exercise of discretion in respect of restrictions on prisoner's correspondence.

- Failure to ensure acceptable conditions for the applicants' meetings with their relatives: Failure to ensure acceptable conditions for meeting with the applicants' families was due to the installation of a glass partition in the visitors' suite (Ciorap case) and to the refusal to authorise visits with relatives (in Ostrovar case).

4) Other violations:

The Becciev case also concerns detention on remand and its extension without sufficient and relevant grounds (violation of Article 5§3), as well as the domestic courts' refusal to hear a witness for the defence (violation of Article 5§4).

The Istratii and others case also concerns detention on remand and its extension without sufficient and relevant grounds (violation of Article 5§3), as well as and the lack of confidentiality of lawyer-client communications at the CFECC remand centre (Centre against Economic Crime and Corruption) (violation of Article 5§4).

The Ciorap case concerns the refusal by the Supreme Court to examine the applicant's complaint regarding the force-feeding, on the ground that he had not paid court fees, in breach of his right to access to court (violation of Article 6§1).

Finally, the Holomiov case also concerns detention after the expiry of his detention warrant (violation of Article 5§1) and the excessive length of criminal proceedings (violation of Article 6§1).

Individual measures: In all cases, except the Ciorap case, the applicants are no longer detained. The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicants.

Mr Ciorap ended his hunger strike on 04/10/2001. On 17/06/2008 he was transferred from prison No 13 (former No. 3) of Chisinau to Cricova prison No 15. On 01/08/2008 and 06/11/2008, the applicant’s representative lodged extensive submissions with respect to alleged violations of the applicant’s rights related to his detention. On 28/10/2008 and 19/11/2008 these submissions were transmitted to the authorities.

• Recent information submitted by Mr Ciorap: in his letter dated 6/03/2009 the applicant alleges continuing of violation of his rights under Convention by the administration of Cricova prison No 15. He refers, in particular, to:

- inadequate and insufficient feeding, in particular when he is escorted to the court where he does not have any access to food or water (sometimes during the whole day) prior to his return to prison ;

- unjustified refusal to allow him long term meetings with his family ;

- arbitrary seizure of his correspondence operated during his transfer to Cricova prison (notably related to the pending proceedings before the domestic courts, as well as to the cases pending before the European court) ;

- interception or belated delivery of court’s decisions concerning pending proceedings, etc.

• Information is awaited on measures taken by the Moldovan authorities in respect to the applicant’s allegations. Information is awaited on measures taken by the authorities with a view to ensuring the applicant’s adequate feeding, especially during the days when he participates in hearings before the domestic courts. Furthermore, information is also awaited on whether the applicant is at present allowed to have long-term meetings with his family. Finally information is awaited on measures taken by the Moldovan authorities in respect to the applicant’s allegations on seizure and interception of his correspondence.

General measures: [no examination envisaged]

1) Violations of Article 3

• Information provided by the Moldovan authorities:Most of the legal framework governing the prison system, including conditions of detention, has been changed by the new Enforcement Code, which entered into force on 01/07/2005, and other new laws.

- Overcrowding: The new Enforcement Code provides for a minimum of 4 m² for each prisoner. In an effort to reduce prison overcrowding, a Bill has been drawn up to amend the Criminal Code, reducing minimum sentences for less serious offences and increasing the number of offences in respect of which alternative penalties may be applied.

- Cell conditions: In 2005, 1500 blankets, 2000 towels, 2000 sheets, 2000 pillowcases, 1000 mattresses and 1000 pillows were acquired and distributed. Measures were taken to improve conditions in Chisinau No. 3 Penitentiary with the repair of 129 cells. New provisions have been introduced banning smoking in cells and other parts of prisons, detainees being allowed to smoke only in specially equipped rooms.

- Diet, medicines and care: New minimum daily diet standards have been established to improve the quantity and quality of rations. All prisons also now possess all major types of medicaments, particularly those needed to treat prisoners suffering from tuberculosis. Rules on the provision of medical care in prisons are in the process of being drafted and adopted.

- Prisoners' free time: Educational, cultural and sports programmes have been drawn up and implemented in prisons as a framework for detainees' free time. Psychologists and social workers are carrying out social integration programmes.

• Detailed information is awaited on the possibility for outdoor exercise.

- Lack of medical assistance during pre-trial detention: The Moldovan authorities indicated that the Department of Penitentiary Institutions of the Republic of Moldova signed contracts for 2004-2007 with specialised medical health institutions (among others the Republican Centre for Diagnosis, the Republican Hospital of neurology and neurosurgery) to improve the quality of the special medical care given to detainees.

- Force-feeding of detainees on hunger strike: The force-feeding of the applicant was carried out on the basis of instructions regarding the detention in prisons of persons refusing to take food and the manner of their force-feeding, adopted by Ministry of Health and Ministry of Justice in 1996, which prohibited the force-feeding of detainees.

The European Court noted that on 9/10/2003 Article 33 of the Law on Remand (which had provided for the force-feeding of detainees on hunger-strike) was amended to expressly prohibit the force-feeding of detainees.

• Information was expected as to whether the 1996 instructions mentioned above have been withdrawn, on implementation measures taken with respect to the new instructions based on the Law of 2003), on possible training for prison staff, etc. A copy of the new Law would also be useful.

• Assessment: The information provided is currently being assessed by the Secretariat.

2) Violation of Article 13

• Information provided by the Moldovan authorities:A Supreme Court of Justice decision of 19/06/2000 laid down that where domestic law does not provide a right to an effective remedy against any right safeguarded in the Convention, the competent court shall directly apply the provisions of the Convention, whether in civil or criminal proceedings.

Article 53 of the Moldovan Convention provides that the state is responsible for prejudice resulting from errors by prosecutors and courts in criminal proceedings. Article 1405 of the Civil Code contains a similar provision concerning the state's responsibility for judicial errors. A concrete mechanism for the reparation of judicial errors is provided in Act No. 1545-XIII of 25/02/1998. An example is given: in the case of Drugalev against the Ministries of the Interior and Finance, the applicant was awarded 15 000 Lei in respect of non-pecuniary damages.

With a view to ensuring respect for the right to an effective remedy, a Complaints Committee has been set up as an independent body with the mandate to deal with prisoners' complaints at any time during their sentence.

• More details would be useful on the composition, functioning and powers of the Complaints Committee. Relevant examples of case-law are awaited demonstrating the effectiveness of this remedy with regard to poor conditions of detention.

3) Violations of Article 8

- Interception of correspondence

• Information provided by the Moldovan authorities:Articles 18 and 19 of the Law on Pre-Trial Detention were slightly modified in 2003 and then repealed in 2005 by the new Enforcement Code. Article 229§2 of the Code prohibits the censorship of the correspondence of the detained persons with their lawyer, the Complaints Committee, the prosecution authorities, courts, the central public administration authorities and international, intergovernmental organisations protecting human rights and fundamental freedoms. The Statute on the Enforcement of Sentences (adopted 26/05/2006) provides that prisoners' correspondence with relatives or with other physical or legal persons may not be subject to censorship except under the conditions set out in the Code of Criminal Procedure or in Article 6, paragraph 2.2 of the Act on Operational Investigations.

• Information is awaited as to whether instructions exist concerning the implementation of these Articles and on how the control over the compliance with these obligations by the penitentiary authorities is ensured (e.g. internal monitoring mechanism, verifications by the prosecutors, etc).

- Failure to ensure acceptable conditions for the applicants' meeting with their relatives

• Information would be also useful on the current situation regarding the conditions of meeting of detainees with visitors in prison n° 3 Chisinau.

4) Other violations

As regards the following violations:

- Violation of Article 5§1 in the Holomiov case: see the Sarban group (Section 4.2).

- Violations of Article 5§3 (insufficient grounds for the detention) in Becciev and Istratii and others case and Article 5§4 (domestic courts' refusal to hear a witness for the defence) in Becciev case: see the Sarban group.

- Violation of Article 5§4 in the Istratii and others case on account of the lack of confidentiality of lawyer-client communications at the CFECC remand centre: see the Sarban group.

- Violation of Article 6 in the Ciorap case, the European Court noted that in accordance with Article 85 (1) of the Code of Civil Procedure, the applicant should have been exempted from paying court fees due to the nature of his claim (damage to his health caused by the actions of the authorities), regardless of his ability to pay. However the domestic court had not taken into consideration the nature of his complaint. The Moldovan authorities have indicated that the European Court 's judgment has been published in the Official Journal and sent out to national courts.

As regards the violation of Article 6§1 in the Holomiov case due to the excessive length of proceedings:

• Information is awaited on the publication and dissemination of the judgment to all courts together with a circular letter of the Supreme Court of Justice drawing their attention to their obligations with regard to the reasonableness of the proceedings.

5) Publication and dissemination: All judgments of the European Court have been translated and published in the Official Journal of the Moldovan Republic (Monitorul Oficial) as well as on the official internet site of the Ministry of Justice (http://www.justice.md) and sent out to all appropriate authorities.

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of the comments to be provided by the Moldovan authorities on the applicant’s new submissions in the Ciorap case, as well as information to be provided on the general measures.

- Cases mainly concerning violations related to detention on remand[48]

3456/05 Sarban, judgment of 04/10/2005, final on 04/01/2006

23393/05 Castravet, judgment of 13/03/2007, final on 13/06/2007

21984/05 Gorea, judgment of 17/07/2007, final on 17/10/2007

14437/05 Modarca, judgment of 10/05/2007, final on 10/08/2007

42440/06 Muşuc, judgment of 06/11/2007, final on 06/022008

8207/06 Stepuleac, judgment of 06/11/2007, final on 06/02/2008

35324/04 Stici, judgment of 23/10/2007, final on 23/01/2008

10809/06 Turcan, judgment of 27/11/2007, final on 27/02/2008

39835/05 Turcan and Turcan, judgment of 23/10/2007, final on 23/01/2008

3817/05 Ursu, judgment of 27/11/2007, final on 27/02/2008

35615/06 Cebotari, judgment of 13/11/207, final on 13/02/2008[49]

36492/02 Bujnita, judgment of 16/01/2007, final on 16/04/2007[50]

- Cases concerning the violation of the right of access to a court due to the refusal by tribunals to examine appeals for lack of payment of court fees[51]

13229/04 Clionov, judgment of 09/10/2007, final on 09/01/2008

28790/03 Istrate No. 2, judgment of 10/06/2008, final on 10/09/2008

32263/03 Tocono and Profesorii Prometeişti, judgment of 26/06/2007, final on 26/09/2007[52]

41827/02 Kommersant Moldovy, judgment of 09/01/2007, final on 09/04/2007

The case concerns a violation of the applicant company's right to freedom of expression due to a decision of the Moldovan Economic Court ordering the closure of its newspaper (violation of Article 10).

This decision was based on the fact that between June and September 2001 the applicant company published a series of articles criticising the Moldovan authorities for their actions in respect of the break-away region of Moldova ( “Moldovan Republic of Transdniestria” or “MRT”) and reproducing harsh criticism of the Moldovan government by certain leaders of the “MRT” and the Russian Federation.

The European Court observed that in their decisions the domestic courts did not consider the question of whether it was necessary to interfere as they did in the applicant's rights. It noted, in particular, that they did not specify which passages of the articles at issue were objectionable and in what way they endangered national security or the territorial integrity of the country or defamed the President and the country. The only analysis made was limited to the issue of whether the articles could be considered as reproductions in good faith of public statements for which the applicant could not be held responsible in accordance with domestic law. The Court considered that the domestic courts did not give relevant and sufficient reasons to justify the interference in question and was not satisfied that they “applied standards which were in conformity with the principles embodied in Article 10” or that they “based themselves on an acceptable assessment of the relevant facts”.

Individual measures: The European Court awarded the applicants just satisfaction in respect of the pecuniary and non-pecuniary damages suffered by the applicant company. Moreover, the applicant company was subsequently re-registered under the name “Kommersant-Plus” and has resumed publication of the newspaper after only a brief pause.

• Applicant’s submission: The applicant’s representative states that on 29/05/2007, i.e. about 1½ months after the European Court’s judgment became final, the applicant requested a revision procedure on the basis of Article 450-g of the Moldovan Code of Civil Procedure, which provides the possibility of revision after a judgment of the European Court. However, this request was rejected by the Supreme Court of Justice on 4/10/2007 on the sole ground that it was lodged outside the 3-month time-limit provided by the Code. This decision appears to be in contradiction with the position of the Supreme Court of Justice adopted while deciding to grant the revision request in another case, namely “the Christian Democratic Peoples’ Party” (judgment of 14/02/2006). In that case, the Supreme Court of Justice indicated that the 3-month period should be calculated as from the date on which the European Court’s judgment became final.

On 13/11/2007 the submission of the applicant’s representative was submitted to the authorities for comments.

In their letter of 1/04/2008, the Moldovan authorities indicated that Article 450-g of the Code of Civil Procedure provided that revision requests must be submitted within three months as from the delivery of the judgment of the European Court and not within three months after this judgment becomes final. Moreover, the authorities did not comment on the inconsistency of the case-law of the Moldovan Supreme Court of Justice on this issue.

• Assessment: It is recalled that Article 450-g was introduced into the Code of Civil Procedure to give applicants having won a case in Strasbourg the possibility of seeking revision of their case at national level, thus ensuring compliance by the Republic of Moldova with its obligations under Article 46 of the Convention. Thus, according to the aim of Article 450-g, it should be interpreted in the light of the Convention, and in particular of Article 46. However, Article 46 refers to final judgments of the European Court.

Consequently, the Moldovan authorities’ interpretation of Article 450-g in this case is contradictory to the Convention and thus cannot be considered as a way of discharging their obligations under the Convention, namely the obligation to undertake the individual measure which guarantees the applicant restitutio in integrum.

• Information is awaited on measures taken or envisaged with a view to providing the applicant the restitutio in integrum. In this respect, information would be useful as to whether the applicant may request the revision of his case at national level, in the light of the above comments on Article 450-g.

General measures: The violation found in this case seems to arise from the fact that the domestic courts did not give sufficient reasons for their decisions, when they decided that it would be necessary to interfere with freedom of expression. Consequently, a change in domestic courts' practice in this respect appears to be necessary.

• Information provided by the Moldovan authorities:The translation of the judgment of the European Court was published in theOfficial Journal and the internet site of the Ministry of Justice (www.justice.md).

• Further information is awaited on other measures taken or envisaged to prevent new, similar violations. Information is also awaited on measures taken or envisaged (amendments to the legislation or change of the case-law) to guarantee that the mechanism provided by Article 450-g of the Code of Civil Procedure complies with the Convention.

14277/04 Guja, judgment of 12/02/2008 – Grand Chamber

This case concerns a breach of the applicant’s right to freedom of expression, in particular of his right to impart information, as a result of his dismissal, on 3/03/2003, from his employment as the Head of the Press Department of the Prosecutor General’s Office for having disclosed to a national newspaper two letters received by the Prosecutor’ General’s Office, neither of which bore any sign of being confidential.

In the first letter, written on the Parliament’s official headed paper, the Deputy Speaker of Parliament, Mr. V. Mişin, asked the Prosecutor General’s Office to “get personally involved in the case” of four police officers charged with illegal detention and ill-treatment of detainees. The second letter, written on official Ministry headed paper, was addressed by the vice-minister of Internal Affaires to the Deputy Prosecutor General. It revealed that one of the police officers had been re-employed by the minister, despite his conviction, among other things, for causing physical suffering and abuse of power accompanied by acts of violence, use of firearm and torture.

On 21/03/2003 the applicant brought a civil action against the Prosecutor General’s Office seeking his reinstatement. On 16/09/2003, his action was dismissed by the Court of appeal on the ground that the applicant had breached his obligations under internal regulations by not consulting other departmental heads and by disclosing secret documents. On 26/11/2003, the Supreme Court of Justice upheld the judgment and stated that obtaining information through the abuse of one’s position was not part of freedom of expression (§25 of the judgment).

The European Court noted that reporting of illegal conduct or wrongdoing in the workplace by a civil servant should in certain circumstances enjoy protection (§72) and concluded that the interference with the applicant’s right to freedom of expression was not necessary in a democratic society for the following reasons (violation of Article 10):

- there was no provision either in the legislation or in the internal regulations enabling employees to report wrongdoings;

- the information disclosed was very important for the public interest since it concerned the separation of powers, improper conduct by a high-ranking politician and the government’s attitude towards police brutality;

- the information disclosed was genuine;

- the protection of the public interest in information about undue pressure and wrongdoing within the Prosecutor’s Office was more important than that of the interest in maintaining public confidence in the Prosecutor General’s Office;

- the applicant had acted in good faith because his motive for disclosing the information was to help fight corruption and trading in influence;

- the sanction imposed on the applicant (i.e. dismissal from his employment) was the heaviest sanction possible.

Individual measures: The European Court awarded just satisfaction in respect of pecuniary and non-pecuniary damage resulting from the dismissal.

• Applicant’s submission: By letter of 4/09/2008 the applicant reported that, following the European Court’s judgment, the applicant requested the Supreme Court of Justice to review its judgment of 26/11/2003 and to reinstate him in his previous position at the press service in the General Prosecutor’s Office. On 28/05/2008, the Supreme Court of Justice upheld the revision request. On 29/05/2008 the applicant met the Prosecutor General who allegedly suggested that he resign. On 6/06/2008 the applicant received a copy of the Prosecutor’s General order, dated of 5/06/2008, indicating that the applicant was reinstated in his previous position as from 28/05/2008.
However, the applicant alleges that since 6/06/2008 he has been assigned no task, and has not been given the badge needed to access the premises of the General Prosecutor’s Office. Every morning he has had to wait until the head of security staff lets him in. The applicant has had to share the office with other employees and when they were leaving the office, the applicant was requested to stay in the corridor (sometimes for several hours), in order not to have access to secret information.

On 16/06/2008, the applicant was handed an order of the Prosecutor General, dated of the same day, indicating that with the agreement of the trade union of 6/06/2008, and on the ground of Article 14§8 of the Law on Public Service No 443 of 04/05/1995, the applicant had been dismissed on 10/06/2008. According to this provision, “civil servants of the Parliament, Presidency, State Chancellery, ministries, and other central public authorities, are hired by order of the Director of the public service concerned. The appointment of a new Director for the above-mentioned public services, results in the termination of activity, by resignation, of counsellors, assistants, civil servants of the press service and secretaries.”

The applicant pointed out that although the Prosecutor General has been changed twice since 2003, no staff member was dismissed until 16/06/2008 on the ground provided by Article 14§8 of the Law on public service.

On 28/10/2008 the applicant’s submission were transmitted to the Moldovan authorities.

• Information submitted by the Moldovan authorities: by letter of 15/12/2008, the Moldovan authorities confirmed that the applicant was reinstated on 28/05/2008 and that he has been paid salary for the period covering his forced absence between 1/07/2007 – 28/05/2008. They further pointed that the applicant was given access to the workplace on the same conditions as the other employees. Finally, the authorities confirmed the applicant’s dismissal on the ground of Article 14§8 of the Law on Public Service.

• Evaluation: the information provided by the Moldovan authorities is being assessed.

General measures: The European Court emphasised the absence of any legal framework concerning the signalling by a civil servant of illegal conduct of wrongdoings in the workplace (§81).

• Information is thus awaited on measures taken or envisaged by the Moldovan authorities with a view to remedying to this legal lacuna.

• Publication and distribution: an excerpt of the judgment of the European Court has been translated and sent for publication in the Official Journal of the Republic of Moldova (Monitorul Oficial).

• Information is now awaited on the translation of the full version of the judgment as well as on its communication to the Prosecution Service, to the Supreme Court of Justice and to the Ministry of Interior, as well as on other measures envisaged by the authorities to prevent new, similar violations.

- Cases concerning freedom of expression

31001/03 Flux No. 2, judgment of 03/07/2007, final on 03/10/2007

28702/03 Flux, judgment of 20/11/2007, final on 20/02/2008

32558/03 Flux No. 3, judgment of 12/06/2007, final on 12/09/2007

17294/04 Flux No. 4, judgment of 12/02/2008, final on 12/05/2008

17343/04 Flux No. 5, judgment of 01/07/2008, final on 01/10/2008

28700/03 Flux and Samson, judgment of 23/10/2007, final on 23/01/2008

36305/03 Tara and Poiata, judgment of 16/10/2007, final on 16/01/2008

42864/05 Timpul Info-Magazin and Anghel, judgment of 27/11/2007, final on 02/06/2008

All these cases concern violations of the applicants’ (national newspapers and journalists) right to freedom of expression on account of holding them liable for defamation in civil proceedings, between 2001-2004, and subsequent orders to pay damages for having published articles criticising alleged abuses by high-ranking officials (violation of Article 10).

In all cases the European Court observed that the domestic courts failed to distinguish between value-judgments and statements of facts. The European Court also noted that the domestic courts refused to consider evidence adduced by the applicants in support of the impugned factual statements, as well as to distinguish between the statements made by the applicant newspapers themselves and the quotations of third parties or from public documents.

In the Flux No 2 case, the applicant newspaper was fined for the announcement of an article to be published. The European Court noted that the domestic courts refused to take into consideration the main article, even though it was never found to be defamatory or untrue.

In the Flux No 3 case, the applicant newspaper was found liable for defamation for the title of an article based on the accusation made by the head of the Department for Combating Corruption against the Vice-President of Parliament, Mr. V. Matei, to the effect that he was protecting a criminal gang. The European Court noted that the domestic courts found as defamatory one statement about which even the plaintiff had never complained, and that this situation in itself would be sufficient to find a violation, especially as the statement proved to be accurate.

In the Ţara and Poiată case, the applicant was found liable for defamation for two articles citing letters written by third persons and providing information from official reports. The European Court found that this information could have reasonably appeared to the author of the articles as reliable.

In the Flux and Samson case, the applicant newspaper was fined for being unable to prove the truth of several statements made in an article. The European Court considered that to require the applicant newspaper to prove the truth of its statements, while at the same time ignoring the evidence adduced to support its statements, could not be justified as necessary in a democratic society.

In the Flux case, the applicant newspaper was found liable for defamation for an article alleging that the leader of the Communist Party parliamentary group, Mr. Stepaniuc, and the Deputy Speaker of the Parliament, Mr. V. Mişin, had personally profited from the changes to the taxation system governing fuel imports made in favour of major fuel importers. The European Court found that with the passage of time, it becomes more difficult for the media to prove the facts on which they may have relied, and that the damage caused to the plaintiff was also substantially diminished.

In the Flux No. 4 case, the European Court noted that the domestic courts paid no attention to the evidence adduced by the applicant in support of its statements, and that the Supreme Court of Justice failed even to mention an important piece of evidence (the secret service report) in its judgment or assess it or dismiss it on any ground.

In the Timpul Info-Magazin and Anghel case the applicant newspaper was heavily fined for having published an article containing allegations regarding the government’s non-transparent and wasteful manner of spending public money in its deals with a private investment fund. With a view to preventing any new publication about the investment fund, the domestic court ordered the seizure of the newspaper's office equipment and the freezing of their bank account. As a result, the applicant newspaper had to close down. The European Court noted that the applicant newspaper took extensive steps to warn readers of the unreliable character of the rumour on which it was reporting, but that the domestic courts relied only on a part of a sentence taken out of context, which could be arguably considered as a factual statement.

Finally, in the Flux No. 5 case, the applicant newspaper was found liable for defamation for having published statements, quoted from an open letter addressed by the daughter of an alleged victim of abusive criminal proceedings, Ms Duca, to various high ranking politicians and international organisations, about abuses committed by the prosecuting and judicial authorities. Considering that the complaints in the open letter were not baseless, the European Court found that there were no strong reasons to punish the applicant newspaper for assisting Ms Duca’s daughter in the dissemination of her letter and that the interference had not corresponded to a pressing social need.

Individual measures: In all cases, the European Court awarded just satisfaction in respect of pecuniary and non-pecuniary damage, as well as all the costs incurred in connection with the finings.

• Assessment: No further individual measures seem necessary, except in the Timpul Info-Magasin and Anghel case, where information is expected on the current situation of the applicant newspaper.

General measures:

• Information is awaited on measures taken or envisaged, in particular by the Supreme Court of Justice, to ensure the application by domestic courts of the requirements of Article 10 with respect to high-ranking officials. Information is also awaited on the wide publication and dissemination of the judgments.

- Cases concerning freedom of assembly

28793/02 Christian Democratic People's Party (CDPP), judgment of 14/02/2006, final on 14/05/2006

25230/02+ Roşca, Secăreanu and others judgment of 27/03/2008, final on 27/06/2008

The first case concerns a temporary ban of the Christian Democratic People's Party (CDPP), as a political party represented in Parliament, for having held unauthorised demonstrations in January 2002.

In December 2001, the applicant party informed the Chişinău Municipal Council of its intention to organise, on 9/01/2002, a rally with its voters in the front of the seat of the government. The topic of the meeting was the government’s intention to introduce the compulsory study of Russian in the school. The applicant party relied on Article 22 of the Law on the status of members of parliament, which in the applicant’s view imposed no obligation on members of parliament to seek prior authorisation for such meetings.

However, on 3/01/2002 the Municipal Council classified the gathering as a “demonstration” within the meaning of the Assemblies Law and authorised the applicant to hold it elsewhere without giving reasons. Nevertheless, the applicant party held several gatherings in the front of the seat of the government in January 2002. It informed the Municipal Council in advance of every gathering but without seeking authorisation in accordance with the Assemblies Law.

On 14/01/ 2002, the Ministry of Justice, having sent an official warning letter four days earlier, imposed a one-month ban on the party’s activities by virtue of Article 29 of the Law on parties and other socio-political organisations. On 24/01/2002 the party challenged this decision but their action was dismissed by a final judgement of the Supreme Court of Justice on 17/05/2002.

Following an inquiry by the Secretary General of the Council of Europe under Article 52 of the Convention, the ban was lifted on 8/02/2002, but the decision of 18/01/2002 was not set aside.

The Roşca, Secăreanu and others case concerns the fining of the applicants – members or supporters of the CDPP – for having participated in the unauthorised demonstrations organised by the CDPP, in breach of Article 174/1 of the Code of Administrative Offences in force at the material time.

In its judgment in the Christian Democratic People's Party case, the European Court noted that reasons given for the temporary ban on the party’s activities (lack of authorisation for the applicant’s party gatherings in accordance with the Assemblies Law, presence of children at the gatherings and calls for violence allegedly contained in some statements made at the gatherings) were neither relevant nor sufficient and the ban was thus not necessary in a democratic society (violation of Article 11).

The European Court also noted, without however finding it necessary to decide on this issue, that the failure to inform the party in the warning letter of 14/01/2002 of all the acts imputed to it might be in itself a sufficient basis for the conclusion that the impugned measures were not “prescribed by law”.

Having regard to the conclusions reached in the Christian Democratic People's Party case, and to the fact that the applicants in the Roşca, Secăreanu and others case were members or supporters of the CDPP, the European Court held that the interference with their freedom of peaceful assembly was not proportionate to the aim pursued and that it did not meet a “pressing social need” (violation of Article 11).

Individual measures: The temporary ban on the CDPP’s activities was lifted on 8/02/2002. The European Court awarded the applicants just satisfaction in respect of pecuniary and non-pecuniary damage in the Roşca, Secăreanu and others case.

• Assessment: no further individual measure seems to be needed.

General measures: The European Court noted problems of interpretation and application of the legislation concerning gatherings, in particular the relationship between the Law on the status of members of parliament and the Assemblies Law.

• Information provided by the Moldovan authorities: The judgment of the European Court has been translated and published in the Official Journal of the Moldovan Republic (Monitorul Oficial) as well as on the official internet site of the Ministry of Justice (www.justice.md).

• The authorities are invited to provide information on measures taken or envisaged to prevent new, similar violations resulting from erroneous interpretation of permissible grounds for banning political parties. The dissemination of the European Court’s judgment among the relevant authorities and domestic courts is expected, possibly together with circulars or explanatory notes stressing the problems identified by the European Court (see §76 of the judgment).

14385/04 Oferta Plus SRL, judgments of 19/12/2006, final on 23/05/2007 and of 12/02/2008 (Article 41), final on 07/07/2008

The case concerns a violation of the applicant company’s right to a fair hearing and to the peaceful enjoyment of its possessions due to the three-year failure to enforce a final judgment given in its favour in 1999, followed by the unjustified extension of the time limit for lodging an appeal by the opposite party and the wrongful quashing of the final judgment in violation of the principle of legal certainty (violations of Article 6§1 and Article 1 of Protocol No. 1).

The European Court specified that by extending the time-limit for lodging requests for revision without giving reasons, and by allowing the revision of the case notwithstanding the absence of any reasons or relevant new fact, the Supreme Court of Justice had infringed the principle of legal certainty and had interfered disproportionately with the applicant company's right to the peaceful enjoyment of its possessions.

The case also concerns a violation of the right of individual petition due to the institution of criminal proceedings against the chief executive of the company and the consequent impossibility for the applicant company’s legal representative to communicate with the chief executive during his detention without being separated by a glass partition. The European Court considered also on the basis of the materials before it that there were sufficiently strong grounds to infer that the criminal proceedings against the chief executive had been started with the aim of discouraging the company from pursuing its case before the European Court (double violation of Art. 34).

Subsequently, while the just satisfaction issue was pending before the European Court, the Supreme Court of Justice, whilst revoking the annulment of 1999 judgment, ordered on 29/10/2007 that this judgment was never to be enforced. In its Article 41 judgment of 12/02/2008 the European Court expressed serious concern that despite its abundant case-law and regardless of its findings in its principal judgment, the Supreme Court had adopted a solution which once again failed to respect the finality of the judgment of 1999 (§ 69 of the judgment).

Individual measures: In the Article 41 judgment, the European Court granted the applicant just satisfaction in respect of the outstanding debt under the original judgment of 1999 and the non-pecuniary damage sustained by the applicant as a result of the violations found.

As regards the criminal proceedings initiated against the chief executive of the applicant company, the chief executive was acquitted by the first-instance court on 28/06/2007. The public prosecutor appealed, but on 12/10/2007, the Chişinău Court of Appeal dismissed this appeal. On 1/04/2008 the prosecutor’s further appeal to the Supreme Court of justice was also dismissed as manifestly ill-founded, in particular with reference to the conclusions of the European Court.

• Applicant’s submission: In July 2008, the applicant’s representative submitted that the prosecutors’ office had challenged the judgment of the Court of Appeal of 12/10/2007 with a view to discouraging the applicant also from pursuing the just satisfaction procedure before the European Court (not least asking that the chief executive be convicted and sentenced to 15 years’ imprisonment).

• In view of the findings of the European Court and of the Supreme Court of Justice with respect to the well-foundedness of the prosecution, the Moldovan authorities are invited to provide information on any action taken in response to these findings, in particular by the prosecution authorities.

General measures:

1) Violations of Article 6§1 and Article 1 of Protocol No. 1: The general issues raised by this case present similarities notably with Luntre (non-enforcement of domestic judicial decisions, 2916/02, Section 4.2) and Popov No. 2 (use of revision procedure) (1072nd meeting, December 2009) in which the Moldovan authorities are currently adopting measures to prevent new, similar violations. The special criticism directed by the European Court against the judicial practices will be taken into account in the context of the examination of the aforementioned groups.

2) Violations of Article 34: this case presents certain similarities to that of Boicenco (41088/05, Section 4.2).

• Information provided so far by the Moldovan authorities: The glass partition at the detention centre at issue, the Centre for Fighting against Corruption and Economic Crime, which was hindering the possibility of the detainees to communicate directly with their representatives, was dismantled in April 2007.

• However, in view of the European Court’s conclusion with respect to the criminal proceedings initiated against the chief executive of the applicant company and similar situations highlighted by other cases (Colibaba (29089/06, Section 4.2), Cebotari (35615/06, 1072nd meeting, December 2009), the Moldovan authorities are invited to provide information about the measures envisaged or taken to ensure that this kind of practices can no longer take place. In the meantime, information is awaited on the publication and dissemination of the full version of the Article 41 judgment of the European Court.

The Deputies decided to resume consideration of this item at their 1065th meeting (15‑16 September 2009) (DH), in the light of information to be provided on individual and general measures.

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

2916/02 Luntre and others, judgment of 15/06/2004, final on 15/09/2004

29808/02 Avramenko, judgment of 06/02/2007, final on 06/05/2007

31530/03 Baibarac, judgment of 15/11/2005, final on 15/02/2006

32760/04 Banca Vias, judgment of 06/11/2007, final on 06/02/2008

32347/04 Becciu, judgment of 13/11/2007, final on 13/02/2008

952/03 Biserica Adevărat Ortodoxă din Moldova and others, judgment of 27/02/2007, final on 27/05/2007

25238/02+ Biţa and others, judgment of 25/09/2007, final on 25/12/2007

18872/02+ Bocancea and others, judgment of 06/07/2004, final on 06/10/2004

19981/02 Botnari, judgment of 19/06/2007, final on 19/09/2007

27533/04 Buianovschi, judgment of 16/10/2007, final on 16/01/2008

27883/04 Bulava, judgment of 08/01/2008, final on 08/04/2008

31043/04 Cogut, judgment of 04/12/2007, final on 04/03/2008

39745/02 Cooperativa Agricola Slobozia-Hanesei, judgment of 03/04/2007, final on 03/07/2007

18882/02 Croitoru, judgment of 20/07/2004, final on 20/10/2004

34322/02 Curararu, judgment of 09/10/2007, final on 09/01/2008

46581/99 Daniliuc, judgment of 18/10/2005, final on 18/01/2006

14925/03 Deliuchin, judgment of 23/10/2007, final on 23/01/2008

33276/03 Deordiev and Deordiev, judgment of 16/10/2007, final on 16/01/2008

75975/01 Draguta, judgment of 31/10/2006, final on 31/01/2007

20940/03 Dumbraveanu, judgment of 24/05/2005, final on 24/08/2005

35994/03 Grivneac, judgment of 09/10/2007, final on 09/01/2008

40541/04 Lipatnikova and Rudic, judgment of 23/10/2007, final on 23/01/2008

20567/02 Lozan and others, judgment of 10/10/2006, final on 10/01/2007

3021/02 Lungu, judgment of 09/05/2006, final on 09/08/2006

3417/02 Lupacescu and others, judgment of 21/03/2006, final on 21/06/2006

17359/04 Marcu, judgment of 16/10/2007, final on 16/01/2008

1115/02 Mazepa, judgment of 10/05/2007, final on 10/08/2007

31790/03 Mizernaia, judgment of 25/09/2007, final on 25/12/2007

14914/03 Moisei, judgment of 19/12/2006, final on 19/03/2007

18726/04 Nadulisneac Ion, judgment of 16/10/2007, final on 16/01/2008

9898/02 Pasteli and others, judgment of 15/06/2004, final on 15/09/2004

74153/01 Popov, judgment of 18/01/2005, final on 18/04/2005 and of 17/01/2006, final on 17/04/2006

2914/02 Prepeliţă, judgment of 23/09/2008, final on 23/12/2008

49806/99 Prodan, judgment of 18/05/2004, final on 10/11/2004 and of 25/04/2006, final on 25/07/2006 - Striking-out

3479/04 Rusu, judgment of 15/01/2008, final on 15/04/2008

20864/03 Scutari, judgment of 26/07/2005, final on 26/10/2005

73562/01+ Sîrbu and others, judgment of 15/06/2004, final on 10/11/2004

18893/04 Tiberneac, judgment of 16/10/2007, final on 31/03/2008

26103/04 Tiberneac Vasile, judgment of 16/10/2007, final on 16/01/2008

22970/02 ŢÎmbal, judgment of 14/09/2004, final on 14/12/2004

27568/02 Ungureanu, judgment of 06/09/2007, final on 06/12/2007

10543/02 Vacarencu, judgment of 27/03/2008, final on 27/06/2008

6901/03 Vitan, judgment of 16/10/2007, final on 16/01/2008

These cases concern violations of the applicants' right to effective judicial protection due to continual failure to enforce final judicial decisions given in their favour between 1995 and 2000 (violations of Article 6§1) the consequent violations of their right to respect for their property (violations of Article 1 of Protocol No. 1), and lack of effective remedies in case of non-execution (violations of Article 13). The issue of the lack of effective remedy has already been addressed at a high level round table held in Strasbourg (see below).The European Court indicated that in this respect insufficiency of means was not an adequate reason for a state authority not to comply with a judicial decision.

The Prodan and Popov cases concerned failure to enforce judicial decisions against a private party namely ordering the eviction of the occupants from the houses concerned and restoring ownership to the applicants respectively. In the Prodan case the failure to enforce judicial decision concerned the non-enforcement of a decision ordering the payment to the applicant of the market value of five apartments and the eviction of the occupants from the sixth.

Individual measures: The national judgments at issue, except those in the Prodan and Popov cases, were ultimately enforced after the applications before the European Court had been communicated to the respondent government.

1) Prodan case: the decisions of 1997 and 2000 were partly enforced after the application before the European Court had been communicated to the respondent government. The European Court reserved the question of compensation for the prejudice resulting from the failure to restore the 6th flat to the applicant. By letter of 22/11/2005, the Moldovan delegation informed the Secretariat that on 06/05/2004 a friendly settlement was reached with the applicant under which she accepted 510 000 MDL in compensation for the 6th flat. The European Court has struck the case out of its list.

2) Popov case: Upon a request for revision lodged by the occupants of the house at issue, the Court of Appeal quashed on 26/05/2004 the final decision of 05/11/1997 and reopened the proceedings, which were still pending at the time of the judgment of the European Court. The reopening of the proceedings has subsequently been found by the European Court in violation of Article 6 and Article 1 of the Protocol no.1 (see Popov No. 2 (Application no. 19960/04), Section 4.2).

At the 1013th meeting (December 2007) the Moldovan authorities informed the Committee of the fact that the Supreme Court upheld the initial final decision by the judgment of 17/01/2007, and invited the Moldovan authorities to provide the necessary information on the implementation of this judgment.

• Information is awaited on the measures taken for the implementation of this judgement.

• Information received from the applicants in the Buianovschi, Curăraru, Marcu, Nadulişneac, Ţiberneac O. et Ţiberneac V. cases is currently being assessed.

General measures:

1) Legislative measures:

• Information provided by the Moldovan authorities: The problem of non-enforcement of judicial decisions is being dealt within the framework of the ongoing overall reform of the judiciary. In particular, in 2002 and 2003 four new codes (the Civil Code, the Criminal Code, the Code of Civil Procedure and the Code of Criminal Procedure) were adopted and entered into force. However, these codes are in the process of being modified and a working group has been created to that end. On 24/12/2004, the new Code on Enforcement Proceedings was adopted and it entered into force on 01/07/2005. Articles 243 and 246 of the Code of Civil Procedure have also subsequently been amended.

In particular, applicants who have won their cases before a national court may take judicial action against the persons or authorities responsible for late execution or non-execution of a final judicial decision by directly invoking the provisions of the Convention or Article 20 of the Moldovan Constitution. Moreover, Article 7 of the new Code of Civil Procedure authorises national courts to open civil proceedings on the basis of an application from a person claiming the protection of his fundamental rights and freedoms. In the context of this type of actions, applicants have the right to ask before the court for compensation of pecuniary and/or non-pecuniary damage as well as the reimbursement of costs. Several judgments have already been given in this type of actions against the Ministry of Finance and one against a municipal authority. The sums awarded by the judgment may also be indexed and applicants may ask for compensation for loss of profits.

• By letter of 13/05/2009 the Moldovan authorities provided information on the legislative measures adopted and envisaged. This information is being assessed.

2) A High level Round Table have been organisedin Strasbourg on 21-22 June 2007, with a view to discussing from the comparative perspective the reforms adopted or under way in some countries, including Moldova, with a view to allowing the competent authorities to establish priorities and to prepare action plans. The conclusions of the Round Table appear on the web site of the Execution Department: <http://www.coe.int/t/e/human_rights/execution/ConclusionsRoundTableRussiaJune07.doc>.

At their 1013th meeting, the Deputies took note of the positive responses given during the meeting by the Moldovan authorities to the questions raised during the Round Table on the failure to enforce domestic judicial decisions by the public authorities. They have also invited them to continue the reflection on other useful measures to resolve rapidly the general problem of non-enforcement or delay in execution of domestic court decisions and to keep the Committee of Ministers informed of the outcome of this reflection.

• Information is awaited on the follow up given by the Moldovan authorities to the Conclusions of the Round Table.

3) Publication and dissemination: The judgments of the European Court have been translated and published in the Monitorul Oficial of 16/11/2004 and 31/01/2005. They are also published in the Bulletin of the Supreme Court of Justice of the Republic of Moldova.

The Deputies decided to resume consideration of these items at their 1065th meeting (15‑16 September 2009) (DH) in the light of information to be provided on general measures and of an assessment to be made on individual measures.

- Cases concerning the quashing of final domestic judgments[53]

19960/04 Popov No. 2, judgment of 06/12/2005, final on 06/03/2006

11712/04 Ceachir, judgment of 15/01/2008, final on 15/04/2008

3052/04 Dacia S.R.L., judgment of 18/03/2008, final on 18/06/2008 and of 24/02/2009

53773/00 Istrate, judgment of 13/06/2006, final on 13/09/2006

6923/03 Melnic, judgment of 14/11/2006, final on 14/02/2007

40663/98 Asito, judgment of 08/11/2005, final on 08/02/2006, and judgment of 24/04/2007 (Article 41) - Friendly settlement[54]

17211/03 Dolneanu, judgment of 13/11/2007, final on 13/02/2008[55]

19247/03 Balan, judgment of 29/01/2008, final on 29/04/2008

The case concerns the violation of the applicant’s rights to the peaceful enjoyment of his possessions on account of the refusal by domestic courts to compensate him for the unauthorised use by the Ministry of Internal Affairs of one of his photographs as a background for the national identity cards (violation of Article 1 of Protocol No. 1).

In the first set of proceedings (November 1998 – December 1999) the Supreme Court of Justice awarded compensation to the applicant for the author’s rights on the photograph taken by him, but rejected the applicant’s request that the Ministry be ordered to sign a contract with him for the future use of the photograph.

In the second set of proceedings (December 1999 – October 2002) concerning the continued unlawful use of the photograph between March 1999 and May 2000, the Supreme Court of Justice, essentially repeating the reasons given in the judgment of the Court of Appeal of 26/03/2002, rejected the applicant’s claims, considering that during the first set of proceedings he had already been compensated and had never asked that this photograph no longer be used.

The European Court noted “the discrepancies in the manner in which the domestic authorities interpreted the Copyright and Related Rights Act (“the 1994 Act”) in the first and in the second proceedings, even though they decided on essentially the same legal situation”. The Court found that the public interest could have been served without violating the applicant’s rights, for example by using another photograph or by signing a contract with the applicant.

Individual measures: Since 01/05/2000, the photograph taken by the applicant is no longer used on the identity cards. The European Court awarded the applicant a lump sum (5 000 euros) in respect of pecuniary and non-pecuniary damage.

• Information provided by the applicant’s representative: On 21/07/2008 the applicant lodged with the Supreme Court of Justice a revision request under Article 449 of Code of Civil Procedure.

• Information is awaited on the progress of the re-opening proceedings.

General measures: It appears that the violation of the author’s rights was a consequence of the inconsistency in application of the 1994 Act by the domestic courts.

• Information provided by the Moldovan authorities (letter of 25/09/2008): The Ministry of Justice informed the Superior Council of Magistrates of the need to strengthen the responsibility of judges while examining similar cases. The authorities also indicated that on 9/11/1998 the Plenary of the Supreme Court of Justice adopted a decision on domestic courts’ practice in applying certain legal provisions concerning copyright. Finally, the authorities mentioned the organisation by the National Institute of Justice of regular training seminars for judges and prosecutors.

• Assessment: The decision of the Plenary of the Supreme Court of Justice mentioned above had apparently already been taken when the domestic courts examined the case but it did not impede their delivering decisions which were challenged by the European Court.

• Information is therefore awaited on other measures to ensure that the domestic courts’ practice is in compliance with the Convention requirements. As far as the training seminars organised by the National Institute of Justice are concerned, more details on their content and duration would be useful.

According to the information provided by the Moldovan delegation, the excerpt of the judgment of the European Court has been translated and published in the Official Journal of the Republic of Moldova. The full text of the judgment has been sent for publication on the official web-site of the Ministry of Justice (http://justice.md/md/cedo/).

• Information is thus awaited on the publication and dissemination to all courts of the full version of the European Court’s judgment.

40117/02 Cazacu, judgment of 23/10/2007, final on 23/01/2008

This case concerns a violation of the applicant’s right to the peaceful enjoyment of his possessions due to the refusal of the domestic courts to award him redundancy payments as provided in Articles 45 and 80 of the Labour Code.

The European Court noted that the applicant fulfilled the legal conditions governing entitlement to the payment, the only reason for dismissing his claim being the failure of his employer to provide for redundancy payments even though such provision was required by law of all employers (§§44 and 46). It therefore found the domestic courts’ refusal illegal (violation of Article 1 of Protocol No. 1).

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

• Assessment: no further measure seems necessary.

General measures:

• Information is awaited on measures envisaged by the authorities to prevent new, similar violations.

15084/03 Bimer S.A., judgment of 10/07/2007, final on 10/10/2007

The case concerns the violation of the applicant right to the peaceful enjoyment of its possessions by a Customs order, based on an amendment to the Customs Code, preventing the company from continuing to operate its duty-free business and withdrawing its existing licence to carry on business at a designated location. The Court of Appeal of Moldova considered that this decision violated section 43 of the Law on Foreign Investments since the applicant company was subject to this law, which established a special regime for duty-free trading. However this decision was subsequently quashed by the Supreme Court on the ground that the decision at issue, being limited to a precise location, did not deprive the applicant of the possibility of carrying out other activities at other places and thus did not interfere in its right to respect of its possessions.

The European Court found on the contrary that the decision was an interference in that right and there was nothing to authorise the reversal of the Appeal Court’s judgment (violation of Article 1 of Protocol 1).

Individual measures: The European Court awarded just satisfaction in respect of the pecuniary damage sustained by the applicant company as a consequence of the violation (520 000 euros).

• Assessment: No further individual measure seems necessary.

General measures:

• Information is awaited on measures taken or envisaged bring the Customs Department’s regulations concerning duty-free trading into line with Section 43 of the Law on Foreign Investments and the requirements of the Convention. Information is also awaited on publication and dissemination of the judgment, in particular to the Customs authorities.

21151/04 Megadat.com SRL, judgment of 08/04/2008, final on 08/07/2008

This case concerns the violation of the applicant company’s right to peaceful enjoyment of its possessions on account of arbitrary and disproportionate invalidation of its telecommunications licences (violation of Article 1 of Protocol No. 1).

At the time of the events (2002-2003), the applicant company was the largest internet provider in Moldova and operated on the basis of two licences issued by National Regulatory Agency for Telecommunications and Informatics (ANRTI). In October 2003 ANRTI invalidated the telecommunications licences of the applicant company, on the ground that it had failed to notify it in due time of the change of address of its headquarters. The applicant company challenged the ANRTI’s decision consecutively before the Court of Appeal and the Supreme Court of Justice, arguing that the invalidation of licences was disproportionate, discriminatory, and adopted in breach of ANRTI’s procedure. The domestic courts dismissed the applicant company’s appeals, disregarding its submissions, including those regarding the discriminatory treatment.

The European Court noted that in its dealings with the applicant company ANRTI did not comply with the principles of consistency incumbent on public authorities. The Court also noted that the domestic courts failed to respect the procedural safeguards available to the applicant company to defend its interests and regretted that the Supreme Court of Justice had disregarded the applicant company’s complaints about discrimination. In the light of the above, the Court concluded that the authorities had not followed any genuine and consistent policy considerations and failed to preserve a fair balance between the sanction applied to the applicant company and the general interests at stake.

Individual measures: The European Court reserved the question of just satisfaction.

General measures: The violations in this case seem to arise from the inconsistent and the discriminatory conduct of ANRTI with regard to the applicant company, as well as from the arbitrariness of the proceedings before the Court of Appeal and the Supreme Court of Justice which failed to respect the procedural safeguards granted to the applicant by Articles 26, 56, 206, 208 and 211 of the Code of Civil Procedure.

• Information is awaited on measures taken or envisaged to ensure the uniform application of the ANRTI regulations to all companies, so that the principles of consistency and proportionality incumbent on public authorities are respected when decisions of a general interest are taken.

• Information is also awaited on measures taken or envisaged to ensure that all the domestic courts respect without discrimination the procedural safeguards granted to parties to litigation, in particular on the publication of the full version of the European Court’s judgment and its dissemination to all domestic courts, as well as on the possibility of organising an awareness-raising seminar for the judges of the Court of Appeal and of the Supreme Court of Justice.

- Cases of length of civil proceedings

13012/02 Cravcenco, judgment of 15/01/2008, final on 15/04/2008

35967/03 Gusovschi, judgment of 13/11/2007, final on 31/03/2008

These cases concern the excessive length of civil proceedings and lack of an effective remedy in this respect (violations of Article 6§1 and of Article 13 in conjunction with Article 6).

The Cravcenco caseconcerns unemployment proceedings initiated in October 1996 before the Cahul District Court against the applicant’s dismissal. These proceedings lasted almost nine years. Considering that the case was not difficult from either factual or legal point of view and bearing in mind that the national legislator confirmed the particular importance of unemployment proceedings by expressly providing in the legislation for the urgent examination (Articles 192, 208 and 256 of the Code of Civil Procedure), the European Court found that the domestic courts did not display special diligence required under both the domestic law and the Article 6§1 in this type of case.

The European Court noted that notwithstanding several actions taken by the authorities with a view to ensuring the swift enforcement of the judgments in favour of the applicant, she did not have at her disposal any means for accelerating the proceedings or obtaining compensation.

In the Gusovschi case, the applicants initiated court proceedings against the disconnection of their house from the natural gas system owing to their failure to pay the full price of the gas. The proceedings initiated before the court of Tighina in May 2000 lasted about five years and ended in March 2005. The Court, found that the long periods of inactivity of the national courts, the repeated re-hearing of the case (there were three re-hearing orders of which one to reopen the case) as a result of errors committed by lower courts, “discloses serious deficiency in the judicial system”.

Individual measures: In both cases the proceedings are closed and the European Court awarded just-satisfaction with respect to non-pecuniary damage.

• Assessment: no other individual measure is required.

General Measures: These violations appear to be the result of long inactivity periods of the lower domestic courts, and of errors committed by them, involving the necessity to order multiple re‑hearing / re-opening of cases.

On 07/08/2008 the Secretariat sent an Initial phase letter inviting the Moldovan authorities to present an action plan for the execution of these judgments. The attention of the authorities was drawn to the experiences of other member states of the Council of Europe (Interim Resolutions CM/ResDH(2007)74 on excessively lengthy proceedings in Greek administrative courts and the lack of an effective domestic remedy, ResDH(2007)2 concerning the problem of excessive length of judicial proceedings in Italy, CM/ResDH(2007)28 concerning the excessive length of criminal and civil proceedings in Poland and the right to an effective remedy and CM/ResDH(2007)48 concerning the case of Richard against France and 6 other cases requiring “exceptional diligence” before the administrative courts).

It would appear that the issues raised by the above violations are partially treated under the activities held in the framework of the Joint Programme between the Council of Europe and the European Commission on increased independence, transparency and efficiency of the justice system of the Republic of Moldova.

• An action plan is awaited.

61821/00 Ziliberberg, judgment of 01/02/2005, final on 01/05/2005[56]

- 2 cases against the Netherlands

49902/99 Brand, judgment of 11/05/2004, final on 10/11/2004

48865/99 Morsink, judgment of 11/05/2004, final on 10/11/2004

The cases concern the provisional detention of the applicants (14 and 15 months respectively) pending availability of places in a secure psychiatric facility (violations of Article 5§1).

The applicants, who had been judged responsible for their acts, had been sentenced to imprisonment. In addition, because of problems of mental health, they were ordered to be detained in a secure psychiatric facility upon expiry of their sentences (respectively in 1994 and 1998). This was not a punitive measure but rather aimed at protecting society from the risks posed by the applicants.

The European Court found that the length of time the applicants had to wait was unacceptable. In addition, the Court stated that “[…] even a delay of six months in the admission of a person to a custodial clinic cannot be regarded as acceptable” (see §66 of the judgment in the case of Brand).

Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage Compensation was awarded in domestic proceedings for the pre-placement detention. The applicants are no longer in pre-placement detention contrary to Article 5§1.

• Assessment: No further individual measure appears necessary.

General measures:

• Background: The Secretariat notes that the current legislation, which entered into force in 1997 (i.e. after the facts in this case), provides a maximum delay for placement in a secure institution of six months. The Minister of Justice may extend this period by three months at a time, if placement proves impossible.

• Measures concerning the delay in admission to a custodial clinic: The Netherlands authorities have initiated measures to increase the capacity of secure psychiatric facilities, keeping in mind that following the judgments of the European Court and developments in domestic case-law, persons waiting for six months or more for placement in a custodial clinic need to be given priority. Thus in the years 2006/2007 the capacity of the concerned clinics was to be increased by a total of 260 places.

In 2006 the capacity was expanded by 146 places and more increases were envisaged. On 16/08/2006, the Netherlands authorities have informed the Secretariat that despite these measures the waiting period has not been reduced to below 6 months in all cases as the number of confinement orders is still high and expanding capacity depends also on finding and appointing qualified staff. Accordingly, three-month extensions are not yet exceptional. In addition, a pilot programme has been initiated under which those in detention awaiting placement may receive treatment in order to shorten their subsequent stay at a clinic.

• Measures regarding the creation of an effective remedy: If placement in a custodial clinic is not possible within six months, the person awaiting admission may receive compensation for each month spent waiting in detention. The Netherlands authorities also refer to a recent appeal judgment (of 27/04/2006) in which a waiting period of more than four months was found excessive and therefore needs to be compensated. In this judgment, reference was made to the findings of the European Court in these cases.

• Latest developments (letter of 10/04/2008): The Supreme Court confirmed the appeal judgment on 21/12/2007. Consequently, a person awaiting admission in a custodial clinic for more than 4 months will receive compensation. This finding is applied in the Netherlands.

• Information is awaited on the progress of the ongoing expansion of the capacity of custodial clinics since 2006. Statistics regarding the average waiting period for placement in such clinics would be useful. In addition, information would be useful on whether the pilot programme mentioned above will become permanent in practice.

- 1 case against Norway

15472/02 Folgerø and others, judgment of 29/06/2007 – Grand Chamber

The case concerns the violation of the applicants’ right to obtain for their children an education consistent with their religious and philosophical beliefs, in that the authorities refused to dispense them entirely from “Christianity, religion and philosophy” (“KRL”) lessons which are an obligatory part of the curriculum during the ten years’ compulsory schooling in Norway (violation of Article 2 of Protocol No. 1).

The applicants are all members of a Norwegian humanist association and at the material time their children were all at primary school.

The European court noted that KRL lessons had been introduced in 1997 with the aim of promoting understanding and respect for Christian and humanist values as well as fostering comprehension and dialogue amongst people with different convictions and beliefs. Nonetheless, the description of the aims and content of the KRL syllabus as described in the 1998 Education Act and other pertinent legislative texts, gave the impression that Christianity assumes a preponderant importance, in both qualitative and quantitative terms (§ 95).

What is more, the European Court considered that the arrangement for partial dispensation from KRL classes placed a heavy burden on parents in that they were obliged to indicate in detail which parts of the syllabus they opposed, with the attendant risk of compromising their private life. It could also dissuade parents from asking for dispensation, to avoid any potential dispute concerning the reasonableness of their requests (§ 100).

Thus, the Court found that in spite of the many admirable legislative aims mentioned when KRL classes were introduced, the respondent state seemed not to have paid sufficient attention to ensuring that the course content was presented in a sufficiently objective, critical or pluralist spirit to satisfy the requirements of Article 2 of Protocol No. 1. Accordingly, it found that “the refusal to grant the applicant parents full exemption from the KRL subject for their children gave rise to a violation” of that same provision (§102).

Individual measures: The European Court considered that the finding of the violation constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage sustained by the applicants. The applicant’s children are no longer in compulsory education.

• Assessment: no further individual measure seems necessary.

General measures:

1) Violations found by the European:

a) Legal provisions and KRL Curriculum: The European Court indicated that the violation resulted directly from the legal framework at issue (in particular, Sections 1-2§1 and 2-4 of the 1998 Education Act, Circulars F-90-97 and F-03-98 and the syllabus for the ten years of compulsory schooling) and not from the manner in which it had been implemented (§109 of the judgment). Moreover, the knowledge in the curriculum was not conveyed in an objective, critical and pluralistic manner on account of the following reasons:

- teaching had to take the Christian object-clause as the starting point (Section 2-4(3);

- emphasis was put on a thorough knowledge of Christianity in comparison with other religions and philosophies of life (Section 2-4(1);

- half of the Curriculum referred to Christianity alone and the other half was shared between other religions and philosophies;

- pupils could engage in religious activities, such as prayers, psalms, learning of religious texts by heart and participations in plays (Section 2-4(4)).

b) Partial exemption scheme: the Court found it impracticable since:

- it was difficult for parents to identify the parts of the curriculum which they considered to amount to practice of another religion or adherence to another philosophy of life;

- the risk of revealing their own religious or philosophical convictions when giving reasons for asking exemption;

- the difficulty of distinguishing the parts of the Curriculum devoted to knowledge from those concerning activities;

- the fact that the scope of exemption was possibly narrowed by differentiated teaching.

2) Developments prior to the European Court judgment: The Court noted that the government had undertaken to reform the legal framework following a decision of the United Nations Human Rights Committee in 2004 (seised by different applicants) declaring the laws to be incompatible with the International Covenant on Civil and Political rights of 1996.

In 2005, the Parliament adopted certain amendments and additions to the 1988 Education Act, which entered into force with immediate effect; changes were completed by Circular F-02-05. They already remedied some of the issues that were subsequently found to be in violation of the Convention by the European Court, which examined the legal framework as it applied at the time when the case stood before national courts.

a) Legal provisions and KRL Curriculum: Amendments aimed at redressing the qualitative difference between the teaching of Christianity and other religions and philosophies, in particular by deleting the reference in section 2-4(3) to the Christian object clause of section 1-2(1) as the starting point for teaching.

The Curriculum was adapted to the changes occurred in the legislation. Each learning objective was formulated in the same qualitative manner for all religions and philosophies and it was assured that the Curriculum did not include any activities that could be regarded as the practice of a particular belief. Approximately 25% of the learning objectives in the curriculum are now related to Christianity, 55% to other religions and philosophies, and 20% to ethics. The fact that there are still more objectives regarding knowledge of Christianity is due to its role in Norwegian and European culture and, according to the government, this does not raise any qualitative difference between different religions and philosophies of life.

b) Partial exemption scheme: Under new Section 2-3a of the Education Act, it is now sufficient for parents to notify, not to apply for exemption from any activity of the school curriculum that they might perceive as the practice of another religion or adherence to another philosophy of life. Parents are no longer required to give reasons, to avoid undue interference with their private life. Schools are obliged to provide parents with sufficient information on how exemption functions and on the planned teaching in the subject. They must ensure that exemption is implemented and adapt teaching in consequence. Exemption, however, may not be requested from the academic content of the curriculum.

3) Developments following the European Court’s judgment:

a) Legal provisions and KRL Curriculum: New amendments to the Education Act entered into force on 01/08/2008 (Royal Decree of 27/06/2008) with effect from the school year 2008/2009. Section 2-4 has been amended to respond to the concern of qualitative equality between Christianity and other religions and philosophies. To this purpose the name of the subject has been altered to Religion, Philosophies of Life and Ethics (RE), and it must be presented in an objective, critical and pluralistic manner, in accordance with human rights.

A new object-clause was adopted by Parliament in December 2008. It is the authorities’ opinion that the object clause no longer gives undue preference to the Christian faith. Christianity is mentioned as one, but not the only source, in which the foundation values of education must be found.

The Curriculum has been affected by the amendments in Section 2-4 as from the 2008/2009 school year. It now emphasises that religions and philosophies of life are to be presented in an objective, critical and pluralistic manner and that working methods that may be regarded as being related to religious practice are not, and should not be, part of the curriculum. A circular letter of August 2008 gave all schools information about the amendments and instructed them to take immediate measures to implement the new Curriculum for the subject Religion, Philosophies of Life and Ethics.

b) Partial exemption scheme: A new paragraph has been added to the provision on partial exemption (2-3A) affirming that the school shall respect the religious and philosophical convictions of pupils and their parents and ensure the right to equivalent education.

4) Communications from the Norwegian Humanist Association: The Norwegian Humanist Association considered that the measures taken by the Norwegian government do not secure an objective, critical and pluralistic framework for religious education and are insufficient in practice to prevent future violations.

a) Legal provisions and KRL Curriculum: In the Association’s opinion, the object clause as adopted in the final version of December 2008, still gives priority to the Christian tradition, now defined as transmission of a Christian cultural heritage and that the subject would be still taught in accordance with the object clause.

It considered it to be the result of a political compromise not really addressing the substance of the violation found by the European Court. The Association also criticised the use of circulars, since they tend to place the responsibility on teachers and school to ensure respect of human rights standards in education. It quoted this to be also the opinion of the Norwegian Centre for Human Rights in its official reports. The Norwegian authorities responded that circulars are the normal way of informing municipalities of changes in legislation and that municipalities, schools and teachers must abide to them.

Finally, the Association hold that no instruction was issued to municipalities to provide new teaching material.

b) Partial exemption scheme: The problem of the “fictive” separation between knowledge and activity has not been solved. The new legal framework provides for more information to the parents, but this will only mean an extra burden for them in case of disagreement on what can be singled out as knowledge or activity. The maintenance of a restricted right to exemption will bring to new violations.

• Assessment: All the provisions found by the European Court to be in breach of Article 2 of Protocol No. 1 have been amended and circulars concerning the application of the new legal framework issued.

It is also recalled that the European Court affirmed that “in view of the place occupied by Christianity in the national history and tradition of the respondent State, this [the fact that knowledge about Christianity represented a greater part of the Curriculum] must be regarded as falling within the margin of appreciation in planning and setting the curriculum” (§89). Therefore, the adoption of the new object clause in combination with the fact that it is no longer considered to be the starting point for teaching is in compliance with the judgment of Court. Similarly, the European Court found that the teaching and manuals remain under the remit of the margin of appreciation of the State party.

Nonetheless, the difficulty the Court found as regards the practicability of the exemption clause appears to remain, in particular on account of the lack of a concrete distinction between knowledge and activity (§99). This distinction can remain thoroughly subjective and is only partially solved by the schools’ obligation to give parents more information about the content of lessons. Moreover, the scope of exemption which could in the past have been reduced by differentiated teaching, can still be narrowed by the obligation to provide for “adapted instruction within the scope of the curriculum” (Section 2-3a).

• Bilateral contacts are under way.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), for consideration of general measures.

- 386 cases against Poland

11638/02 Pawlik, judgment of 19/06/2007, final on 19/09/2007

This case concerns the violation of the applicant's right to respect for his family life due the authorities' failure to take effective steps to enforce his right of contact with his son, born in 1988 (violation of Article 8).

By a decision of 16/09/1994, the Szczecin Regional Court dissolved the applicant's marriage, limited the exercise of the applicant's parental rights over his son and specified the access arrangements (later modified on 30/06/2000). Since the applicant's ex-wife consistently refused to comply with these arrangements, the applicant actively sought their enforcement before the Szczecin District Court. Even though he managed to see his son only very rarely, the only sanction used against his ex-wife by the authorities was a fine imposed in September 2001. The situation only improved after 17/06/2002, when the Szczecin District Court discontinued the proceedings following an agreement reached between the applicant and his wife concerning access to the child. The European Court noted that there had been long delays in the enforcement proceedings and that no satisfactory explanation had been put forward to justify them. The inaction of the authorities placed on the applicant the burden of having to have constant recourse to a succession of time-consuming and ultimately ineffectual remedies to enforce his rights. The European Court recalled that cases of this kind of require urgent handling as the passage of time and the change of circumstances may have irreparable consequences for relations between the children and the parent who does not live with them.

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

The applicant's son reached the age of majority in 2006.

• Assessment: no further individual measure appears to be necessary in this case

General measures: A similar problem was raised in the context of the examination in the case of Zawadka (48542/99, Section 6.2), in which the violation of Article 8 was partly due to the failure to enforce access arrangements. In that case, the authorities published and widely disseminated the European Court's judgment.

• Information provided by the authorities:

1) Applicable domestic provisions: Concerning the enforcement of court decisions on parental rights of access, the provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable.

According to Section 1050§1, if the debtor fails to comply with the obligation to take measures which cannot be taken by any other person, the court may fix time-limits for complying with this obligation on pain of a fine. This provision is applicable to a situation in which one of the parents is allowed to have access to his/her child outside his/her residence. If access is only possible in the child's residence, the provision of Section 1051 is applicable, which means that in case of non-enforcement of a judicial decision the court may impose a fine on the other parent without fixing an additional time-limit to comply with the decision.

The fine shall not exceed 1 000 PLN (230 euro), but it may be imposed several times, up to a total amount of 100 000 PLN (23 000 euro). When fixing the fine, the court shall state that failure to pay will result in arrest (Section 1053§1).

Moreover, where one of the parents does not respect access arrangements, the court may hold a hearing, of which the public prosecutor is informed, and may order the guardian to take the child away from this parent (Section 598¹ of the Code of Civil Procedure). Failure to respect access arrangements by one of the parents may also constitute ground for depriving him/her of parental authority or limiting it (Sections 111 and 109 of the Family Code).

2) Legislative amendments under way: The Ministry of Justice has prepared a bill amending the Code of Civil Procedure with a view to ensuring better enforcement of decisions on access arrangements.

3) Monitoring carried out by the Ministry of Justice: The Ministry of Justice is monitoring the enforcement of judicial decisions concerning access arrangements and restitution of children.

4) Publication: The judgment of the European Court has been published on the website of the Ministry of Justice www.ms.gov.pl.

• Information is awaited on the dissemination of the European Court's judgment to the competent courts and the adoption of the bill prepared by the Ministry of Justice. Clarification would also be useful on the monitoring carried out by the Ministry of Justice with a view to improving the enforcement of decisions on access arrangements.

21508/02 W.S., judgment of 19/06/2007, final on 24/09/2007

This case concerns the violation of the applicant’s right to a fair trial and right to obtain attendance and examination of witnesses (violation of Article 6§1 in conjunction with Article 6§3(d)).

By judgment of 06/11/1997 of the Łòdź Regional Court, the applicant was convicted of sexual abuse of his daughter X. and sentenced to four years’ imprisonment. His conviction, upheld at appeal, was mainly based on the opinions of a psychologist, who had interviewed X.

The European Court noted that, X. had never at any stage been questioned either by the police, the prosecutor or the court. The authorities did not attempt to test the reliability of the victim in a less invasive manner, such as an interview in the presence of a psychologist with written questions from the defence or, in a studio, enabling the applicant or his lawyer to be present indirectly via a video-link or one-way mirror. No procedure was introduced to counterbalance the difficulties faced by the defence and the applicant and the latter was not given an adequate and proper opportunity to challenge and question this witness against him.

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

Under Article 540§3 of the Code of Criminal Procedure, he may apply to have the criminal proceedings reopened invoking the finding of a violation by the European Court (see the Skałka case, judgment of 27/05/03, final on 27/08/03, Section 5.3).

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

General measures: It appears that the violation in this case resulted from the decisions of the prosecutors and the criminal courts.

• Information is expected on the publication of the European Court’s judgment, and dissemination to relevant authorities (prosecutors, criminal courts, the Supreme Court) as well as on other measures envisaged or taken to prevent new, similar violations.

11036/03 Ladent, judgment of 18/03/2008, final on 18/06/2008

The case concerns several violations related to the unlawfulness of applicant’s detention on remand in Poland following a private prosecution for slander in March 2001.

Although the applicant, a French national, left Poland in March 2001, summonses issued in these proceedings remained unanswered. Thus on 15/07/2002 the Kraków–Śródmieście District Court ordered his remand in custody and issued a “wanted” notice.

The applicant was arrested during a routine passport check at the Polish-German border and detained on remand on 03/01/2003. On 10/01/2003 the Kraków–Śródmieście District Court revoked the remand order and substituted non-custodial measures. The applicant was ultimately released on 13/01/2003.

The European Court concluded that the district court had failed to apply the relevant domestic legislation correctly and that the applicant’s detention between 3/01/2003 and 10/01/2003 had not been in accordance with “a procedure prescribed by law”. It also found that the applicant’s detention had been arbitrary, as the detention order imposed on him could not be considered a proportionate measure to secure the proper conduct of criminal proceedings, considering in particular the petty nature of the alleged offence (first violation of Article 5§1).

Moreover, the European Court noted that the applicant had not been informed promptly and in a language which he understood of the reasons for his arrest and the charges brought against him until his release (violation of Article 5§2).

It also noted that the applicant’s detention was ordered on 15/07/2002 without having heard him and following his arrest on 03/01/2003, there was no automatic judicial review of his detention, the further review having been initiated by his counsel. Hence there has been a violation of Article 5§3.

Finally, concerning the delay in releasing the applicant between 10 and 13/01/2003, the European Court noted that the administrative formalities concerning the applicant’s release could and should have been carried out more swiftly and that the applicant’s detention during this period was unjustified (second violation of Article 5§1).

Individual measures: On 17/01/2003 the district court lifted the ban on the applicant’s leaving the country and he and his family returned to France. In 2005 the applicant was acquitted.

In March 2003, following an intervention of a member of Parliament, the applicant was informed by the President of the Court of Appeal about the possibilities of seeking institution of disciplinary proceedings against the judge who had issued the detention order, instituting criminal proceedings for abuse of power and seeking compensation in a civil court.

The European Court granted just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measure is required.

General measures:

1) First violation of Article 5§1 and violation of Article 5§2: The violation of Article 5§1 resulted from an error of the district court and the violation of Article 5§2 from this court’s and the Slubice Border Guard’s officers’ failure to provide adequate information in the applicant’s mother tongue.

• Information is awaited on the publication of the European Court’s judgment and its dissemination to criminal courts, the police and border guard (for example training). Measures would be useful to ensure that foreigners are provided with proper information on the reasons for their arrest and any charge against them in a language they understand.

2) Second violation of Article 5§1: This resulted from the district court’s delay in sending the release order to the detention centre. A similar issue has already been raised in the context of the case of Gębura (Section 5.3b), in which information is awaited on the dissemination of the European Court’s judgment, together with a circular.

3) Violation of Article 5§3: The European Court noted that in circumstances such as those of this case, where the applicant was arrested on the basis of a detention order issued in his absence, domestic law does not appear to provide an automatic initial review, instead making it dependent on application by the detainee. It underlined that review must be automatic and must not depend on the application of the detained person (§ 75 of the judgment).

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

- Cases mainly concerning the lack of promptness in examining appeals against decisions to prolong detention on remand

39742/05 Baranowski Piotr, judgment of 02/10/2007, final on 02/01/2008

54476/00 Pyrak, judgment of 12/02/2008, final on 12/05/2008

The Baranowski Piotr case concerns the failure to examine promptly the applicant’s appeal against a decision of 12/12/2003 extending his detention on remand. The Warsaw Appeal Court took 45 days to deal with it (violation of Article 5§4).

The Pyrak case concerns the excessive length detention of the applicant on remand between January 1998 and January 1999 (violation of Article 5§3) and the failure of the Warsaw Appeal Court to examine promptly his appeal against the decision to extend his remand (two months and two weeks; violation of Article 5§4).

Individual measures: The applicants have been released. The European Court awarded them just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measure appears necessary.

General measures:

1) Violation of Article 5§3 in the Pyrak case: The case presents similarities to that of Trzaska (25792/94, Section 4.2).

2) Violation of Article 5§4 in both cases: Under Article 252§3 of the Code of Criminal Procedure, any appeal against a preventive measure (including remand in custody and extension of detention pending trial) must be examined promptly (see the Trzaska case, Interim Resolution CM/ResDH(2007)75, in which a similar violation occurred before 01/09/1998, when the Code of Criminal Procedure entered into force). It seems that in these cases the violation resulted from delays caused by the Warsaw Appeal Court.

• Information provided by the Polish authorities: Promptness in examining appeals lodged in the context of criminal proceedings in which detention on remand has been ordered, is subject to supervisory measures within the judiciary system.

Moreover, the National Centre for the Training of Judges and Prosecutors regularly organises training sessions on the requirements stemming from the Convention.

The judgment in Baranowski Piotr has been published on the website of the Ministry of Justice www.ms.gov.pl.

• Information is awaited on the dissemination of the judgments to criminal courts.

The Deputies decided to resume consideration of these items at their 1065th meeting (15‑16 September 2009) (DH), in the light of information to be provided on general measures, namely the dissemination of the European Court's judgments.

- Cases concerning the applicants’ unlawful detention in a remand centre pending placement in a psychiatric hospital

26917/05 Mocarska, judgment of 06/11/2007, final on 06/02/2008

34151/04 Pankiewicz, judgment of 12/02/2008, final on 12/05/2008

These cases concern the unlawful provisional detention of the applicants pending placement in a psychiatric hospital (violations of Article 5§1 (e)).

In the case of Mocarska on 25/10/2005 the Warsaw District Court discontinued criminal proceedings against the applicant on the ground that she could not be held criminally responsible due to her poor mental condition and ordered that she be placed in a psychiatric hospital. Subsequently the applicant remained in a detention centre for eight months, due to delays caused by the district court itself and the Psychiatric Commission on Preventive Measures, which was responsible for indicating in which psychiatric hospital the applicant should be placed.

In the case of Pankiewicz case, the applicant remained in a detention centre between 05/01/2004 and 30/03/2004 pending his transfer to a psychiatric hospital.

The European Court noted that the continuation of provisional detention for eight months in the case of Mocarska and two months and twenty-five days in the case of Pankiewicz could not be regarded as lawful.

Individual measures:

In the case of Mocarska, on 30/06/2006 the applicant was transferred from the detention centre to the Pruszkow Psychiatric Hospital. She claimed no just satisfaction before the European Court.

In the case of Pankiewicz, the applicant was admitted to a psychiatric hospital on 30/03//2004. The European Court awarded him just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measure appears necessary.

General measures: According to Article 264§3 of the Code of Criminal Procedure, if proceedings are discontinued for reasons linked to the mental health of the accused, detention may be ordered pending the application of a preventive measure.

The European Court noted that the length of detention pending transfer to a psychiatric hospital is not specified by any statutory or other provision.

• Information provided by the Polish authorities: The violations result from the lack of available places in psychiatric hospitals. The Ministry of Justice is currently preparing draft amendments to the provisions on the placement in psychiatric facilities.

The Mocarska judgment has been published on the website of the Ministry of Justice www.ms.gov.pl.

• Information is awaited on the dissemination of the Mocarska judgment to competent authorities (criminal courts, psychiatric commission) and other measures to prevent similar violations in the future, in particular on the envisaged legislative changes and the measures taken to increase the capacity of psychiatric facilities.

- Cases concerning freedom of expression

28949/03 Sanocki, judgment of 17/07/2007, final on 17/10/2007

15601/02 Kuliś, judgment of 18/03/2008, final on 18/06/2008

These cases concern the violations of the applicants’ right to freedom of expression due to findings against them in civil defamation proceedings based on Article 24 of the Civil Code, which the European Court found not “necessary in a democratic society” (violations of Article 10).

In the case of Sanocki, the applicant, who at the material time was Mayor of Nysa, was the subject of several critical articles published in the local daily newspaper, Nowa Trybuna Opolska. In reply to one of these articles, which accused him of poor financial management, in March 2000 the applicant published a provocatively worded article entitled “The lies of the Trybuna” in a local weekly paper.

The company publishing the Nowa Trybuna Opolska, considering that this article was damaging to its reputation, sued the applicant for libel. In its decision of 20/12/2001, subsequently confirmed at appeal, the Opole Regional Court ordered the applicant to publish an apology to the publishing company, to pay court fees and the plaintiff’s costs and to make a payment to charity equivalent to approximately 1700 euros.

The European Court drew attention to the fact that the utterances at issue had been made in the press and in the framework of an open political debate. Although the applicant had expressed himself provocatively and immoderately against his adversary, he should legitimately have been able to defend himself when he considered that the articles written against him were untrue and likely to arouse negative public opinion concerning his exercise of his office. Thus the national courts had not convincingly established an overriding social need for giving higher priority to the rights of the journalist than to both the applicant's right to freedom of expression and the general interest of preserving such freedom in the context of political debate.

In the case of Kuliś, in 1992 the applicant, the owner of a publishing house, published an interview on the alleged kidnapping of a member of the family of a politician. The politician and his wife instituted civil proceedings claiming the protection of their personal rights. The Łódź Regional Court and Court of Appeal, on 15/05/1998 and 26/01/1999 respectively, granted their claim and ordered the applicant to pay compensation and legal costs to the plaintiffs and to publish apologies. The European Court found that the domestic courts had failed to strike a fair balance between the competing interests involved, namely the protection of the personal rights of a public figure and the applicant's right to freedom of expression on a matter of public interest.

Individual measures:

1) Sanocki case: The European Court awarded the applicant just satisfaction in respect of both non‑pecuniary and pecuniary damages, including all the sums he had been ordered to pay.

• Assessment: no further individual measure seems necessary.

2) Kuliś case: The European Court awarded just satisfaction in respect of non-pecuniary damage and pecuniary damage covering the compensation paid to the plaintiffs.

Enforcement proceedings concerning the publication of apologies are still pending.

• Information is awaited on the status of these proceedings, in particular whether they have been discontinued in view of the European Court's judgment.

General measures: The violations found derive from the national court’s failure to take into account the criteria which flow from the Convention with regard to freedom of expression.

• Information provided by the Polish authorities: The Sanocki judgment has been translated and published on the website of the Ministry of Justice www.ms.gov.pl.

• Information is awaited on the publication of the Kuliś judgment and on the broad dissemination of the two judgments to competent courts (civil courts and the Supreme Court) as well as on other measures which might be envisaged to prevent new, similar violations (for instance, training).

35014/97 Hutten-Czapska, judgment of 19/06/2006 - Grand Chamber; (Article 41) judgment of 28/04/2008 - Grand Chamber – Friendly settlement

This case concerns a violation of the applicant's right to the peaceful enjoyment of her possessions (violation of Article 1 of Protocol No. 1). Despite several civil and administrative actions brought between 1992 and 2002 the applicant, who had inherited her parent's house in Gdynia in 1990, could neither secure the re-housing of the tenants who had been assigned apartments in her house nor freely fix the amount of their rent. This resulted from a law applied to private property in Poland instituting rent controls and restrictions on the termination of leases (a law of 1994, replaced by a 2001 law and subsequently modified in 2004 following certain decisions by the Constitutional Court). This system, which had its origins in laws adopted during the communist period, fixed such a low rent ceiling that landlords could not even cover the cost of maintaining their buildings, still less make a profit.

The European Court (Grand Chamber) concluded that the finding of a violation did not reside solely in the question of the amount of the rent (unlike the conclusions of the chamber in its judgment of 22/02/2005) but was rather the result of the combined effect of the unsatisfactory provisions on the fixing of rent and the various restrictions on the right of landlords in the matter of terminating leases, the financial burdens imposed upon them and the total absence of any legal mechanism whereby they might compensate or mitigate losses sustained on maintenance or to obtain, where justified, any state assistance to that end.

In the light of the foregoing, and having regard to the effects of the operation of the rent-control legislation during the whole period under consideration on the rights of the applicant and other persons in a similar situation, the Court considers that the Polish State has failed to strike the requisite fair balance between the general interests of the community and the protection of the right of property.

Individual measures: The applicant's house was definitively made available to her in February 2006.

The European Court awarded the applicant 30 000 euros in respect of non-pecuniary damage and 22 500 euros for costs and expenses. In addition, the parties reached a friendly settlement according to which the government undertook in particular to compensate the pecuniary damage suffered by the applicant (see judgment of 28/04/2008).

• Assessment: No further individual measure seems to be required.

General measures: Applying the “pilot-judgment” procedure, in line with the case of Broniowski against Poland (31443/96, Section 6.2), the European Court concluded in the operative part of the principal judgment that:

1) the violation found was the result of a structural problem linked to a malfunctioning of national legislation which:

- despite the amendments introduced in 2004, had imposed and continued to impose restrictions on landlords' rights, particularly as the legislation contains defective provisions on the determination of rent;

- had lacked and continued to lack any legal ways and means enabling them to at least to recover losses incurred in connection with property maintenance;

2) the respondent state must secure in its domestic legal order a mechanism maintaining a fair balance between the interests of landlords and the general interest of the community in accordance with the principles of the protection of property rights under the Convention.

In this respect the European Court took due note of the Polish Constitutional Court's judgment of 19/04/2005 (i.e. rendered after the Chamber judgment of 22/02/2005) abrogating the provisions introduced by the 2004 law setting an annual 10% ceiling for in creases in rents greater than 3% of the reconstruction value of the dwelling.

Nonetheless, and notwithstanding this judgment of the Constitutional Court, the Grand Chamber took the view that the general situation has not yet been brought into line with the standards of the Convention: the Polish authorities have not yet repealed the former restrictions with regard to the termination of leases nor put in place legal ways and means for landlords to mitigate or compensate losses incurred in connection with maintenance.

The European Court also observed that amongst the many possibilities at the disposal of the Polish state, there were those set out in the recommendations made to Parliament by the Constitutional Court on 29/06/2005 which among other things set out the features of a mechanism balancing the rights of landlords and tenants and criteria for what might be considered a “basic rent”, “economically justified rent” or “decent profit” (§§136-141 of the judgment).

Finally, the European Court noted that the rent control scheme might potentially affect some 100 000 landlords and from 600 000 to 900 000 tenants. It accordingly postponed the examination of similar pending applications (standing at 18, one of which had been lodged by an association of some 200 landlords).

• Measures taken and/or under way:

1) Amendment to the Act of 21/06/2001 on the protection of the rights of tenants and the housing resources of municipalities:On 15/12/2006 the Polish Parliament adopted an amendment to this Act, which entered into force on 1/01/2007. Consequently, annual rent increases of more than 3% of the reconstruction value of the dwelling may only be made in justified cases (Article 8a, Section 4a, of the amended Act). The increase of rent is justified if :

- it does not exceed the index of the average general annual increase of the prices of consumer goods and services in the previous year (Article 8a Section 4e), or

- the landlord has no profit from the rent or other charges for the use of the dwelling at a level allowing him/her to cover the costs of maintenance of the dwelling, as well as a return on capital and a profit (Article 8a Section 4a).

The limits within which such increase may be made are set out in Article 8a, Section 4b, which determines what percentage of the costs borne by the landlord for the construction or the modernisation of the dwelling (such costs are defined in the provision of Article 2, Section, 1 Item 8a) may be included in such an increase. This provision also provides that the increase of rent mentioned in Article 8a, Section 4a, may include a “decent profit”; however, the Act does not define this term.

At a tenant's written request, the landlord shall give the reasons for the increase and its calculation in writing within 14 days (Article 8a Section 4). A rent may not be increased before 6 months have elapsed since the last increase (Article 9 Section 1 b).

Although the newly adopted amendments extend and specify landlords' rights as regards rent increases, they neither define the notion of “decent profit” nor introduce the terms of “basic rent” or “economically justified rent”, as stated in the Constitutional Court's decision of 29/06/2005. According to the authorities, the scope of the notion of “economically justified rent” has been determined in the provisions of Article 8a on the increase of rents. The definition of the “decent profit” has been, however, left to national courts. The “decency” of rents is to be determined on a case-by-case basis. In this respect, the authorities provided an example of a judicial decision (decision of 14/06/2007 of the Tarnów District Court), in which the court referred to the usual meaning of the word “decent” in the Polish language and also to the average interest rate on State Treasury bonds (5%). In any event, the financial situation of the tenant should have no impact on the determining of the “decency” of a rent.

2) Constitutional Court's Judgment of 11/09/2006: The Constitutional Court found that the provision of Article 18, Section 4, of the Act of 21/06/2001 limiting municipalities' civil liability for damage resulting from failure to provide welfare accommodation to tenants entitled to it, was contrary to the Constitution. Consequently, this provision has been repealed. Nowadays, landlords may claim full compensation for such damage on the basis of Article 417 of the Civil Code.

3) Act of 8/12/2006 on financial assistance for welfare accommodation, protected accommodation, night shelters and housing for the homeless: This new legislation aims at solving the problem of the shortage of welfare accommodation in municipalities by providing means whereby the state may finance the construction of such housing. It entered into force on 23/12/2006.

4) Amendment to the 1997 Land Administration Act: On 24/08/2007 the Land Administration Act and certain other statutes were amended. These amendments introduced the “rent-mirror system”, i.e. a system for monitoring the levels of rent in all municipalities. It provides information on average rent levels in a given region and should serve as an auxiliary instrument enabling the courts to assess the basis for fixing or increasing rents.

5) Act on assistance for thermal insulation and renovation: This law was adopted on 21/11/2008 and entered into force on 19/03/2009. It provides that an investor who carries out renovation or thermal insulation work is entitled to the so-called “renovation refund” (premia remontowa) or “thermal insulation refund” (premia termomodernizacyjna). As a rule, the renovation refund shall not exceed 15% of the costs of the work and the thermal insulation refund 16%. Moreover, a system of compensatory funds (premia kompensacyjne) is available to owners carrying out work on properties which were subject to the rent-control scheme between 12/11/1994 and 25/04/2005. All refunds will be paid from a special fund, the Thermal Insulation and Renovation Fund, which has been created within the state bank - Bank Gospodarstwa Krajowego.

• Two sets of comments, by the National Real Property Owners Association, mainly concerning this Bill have been brought to the attention of the Committee of Ministers, together with observations of the delegation in August and October 2008. These comments have been made in conformity with Rule No. 9 (Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements).

6) Other measures foreseen: The Minister of Construction is currently preparing a draft law which would extend landlords' right to dispose of the object of lease.

7) European Court’s further assessment in the judgment of 28/04/2008 (friendly settlement): The European Court noted that the relevant legislative process was under way (see above) and underlined that by virtue of Article 46 of the Convention it will be for the Committee of Ministers to evaluate the general measures adopted by Poland (§§ 42-43). Having taken account the government’s demonstrated active commitment to taking measures to resolve the systemic problem identified in the principal judgment and the individual measures of redress afforded to the applicant under the terms of agreement, it decided to strike the case out of the list.

On 8/07/2008 the European Court decided to maintain the adjournment of pending (24) and future applications concerning the operation of the rent-control scheme in Poland pending the implementation by Poland of general measures referred to in the judgment of 28/04/2008.

• Further information is awaited on the development of domestic courts' case-law concerning the definition of “decent profit”, the legislative work mentioned in item 6 above as well as on other measures to prevent new, similar violations. Clarification would be also useful concerning the determination of the scope of the notion of “basic rent” and its introduction into the legislative framework.

The Deputies

1. recalled that in its judgment the European Court concluded that the violation of the applicant’s right to her property was the result of a structural problem linked to a malfunction of national legislation imposing restrictions on landlords’ rights and noted that several applications concerning the operation of the rent control scheme in Poland are pending before the European Court;

2. welcomed the general measures taken so far by the Polish authorities to solve this structural problem, and in particular the recent adoption of the Law on assistance for thermal insulation and renovation, which provides for a system of compensation for owners carrying out work in properties which had been subject to the rent control scheme;

3. decided to resume consideration of this item at the latest at their 1st DH meeting in 2010, in the light of further information to be provided on general measures, in particular the development of national courts' case-law concerning landlords’ “decent profit” and a draft law to reduce restrictions on termination of leases.

- 109 cases of length of detention on remand

Interim Resolution CM/ResDH(2007)75

(see Appendix for the list of cases in the Trzaska 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 since special diligence was not displayed in the conduct of the proceedings (violations of Article 5§3).

The Baginski, D.P. and G.K. cases also concern the prolonged detention of the applicants on remand, 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 Baginski, G.K., Trzaska, Wedler and Wesołowski 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, 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, Kankowski and Krawczak cases the applicants were released on 19/10/2005.

• Information is awaited concerning the applicants’ situation in the Choumakov, Konrad, Kozłowski and Jaworski 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 maintenance in detention on remand were modified with the entry into force on 01/09/98 of the new Code of Criminal Procedure. Detention on remand may be ordered if there is a strong probability that the accused has committed an offence and, cumulatively, if there is a risk of his or her absconding, obstructing the proceedings or, in certain cases, re-offending. According to Article 258§2 of the Code of Criminal Procedure, an accused may be detained on remand if he or she risks a long term of imprisonment (if the charges relate to offences punishable by at least 8 years of imprisonment or if a court of first instance sentenced the accused to a minimum of 3 years of imprisonment).

The maximum period of detention on remand before the case is referred to a court is limited to 3 months; in exceptional cases, to 12 months. Before 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 investigative procedures, in the case of “insurmountable obstacles”. The article was consequently amended on 12/01/2007: it is no longer possible to prolong remand 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:

The Ministry of Justice sent to the Parliament a draft amendment to the Code of Criminal Procedure. It will imply among other things a change in Article 263§4a, removing “insurmountable obstacles” as a ground for the extension of detention on remand.

Moreover, it is envisaged to remove from Article 263§4 two other grounds for extending detention on remand: 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.

Moreover, 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.

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 case-law of the European Court concerning the requirements relating to the reasons for placing and keeping of a person in detention pending trial. It was underlined in particular that the reason evoked in paragraph 2 of Article 258 of the Code of Criminal Procedure cannot justify keeping someone in detention for a long period of time.

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

• 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 of courts to draw special attention to the drafting of decisions on the use 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 use 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 their decisions in 26 cases to the case-law of the European Court and also in some cases to the circular sent out by the Ministry of Justice.

In most of these cases the courts decided to bring an end to the detention on remand and replace it by some alternative measure of constraint, such as the obligation to report to the police or prohibition on leaving the country. In two other appeal court districts, similar decisions have been handed down in three cases, but without reference to the case-law of the European Court.

• 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 use 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 12 and 6 months up to 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 opinion that the number of people 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).

• Assessment: the above data indicate a general downward trend in the number of suspects/accused remanded in custody. In the first half of 2008, compared with the first half of 2007, 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 considerably compared with the situation on 30/06/2007. 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 the first half of 2008 show a downward trend as regards long detentions.

In this context it should be also noted that in the judgment of Kauczor (judgment of 3/02/2009, see also DD(2009)39), the European Court concluded that numerous 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, under Article 46, invited the Polish authorities to take further efforts in adopting 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 welcome but the Polish authorities are also encouraged to take further steps to solve the problem of excessive length of detention on remand.

• In this context information is awaited on the adoption of the amendment to Article 263 of the Code of Criminal Procedure, further awareness measures (publication and dissemination of the European Court’s judgments) and monitoring of courts’ practice concerning the use 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 current trends (second half of 2008 and the first months of 2009) concerning length of detention on remand, and in particular long detentions. Clarification would be also needed on the number of remands decided by district and regional courts and on the trends concerning detention pending investigation.

2) Violations of Article 5§1 in the cases of Baginski, 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 examined 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 seems 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 seems 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 seems 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 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 seems 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, judgment of 26/10/00, Interim Resolution CM/ResDH(2007)28, Section 4.2).

7) Violations of Article 8: The cases also present similarities to that of Klamecki No. 2 (31583/96, 1065th meeting, September 2009).

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 Internet site of the Ministry of Justice, www.ms.gov.pl.

The Deputies

1. recalled that the problem of excessive length of detention on remand is of a systemic nature due to a practice of domestic courts incompatible with the Convention;

2. welcomed the general measures taken and envisaged following the adoption of Interim Resolution CM/ResDH(2007)75 of 6 June 2007, in particular the recent amendment to the Code of Criminal Procedure providing a strict definition of the conditions in which detention on remand may be prolonged;

3. noted with interest a downward trend in 2008 in the number of detentions on remand ordered by domestic courts and in the number of detentions on remand lasting over a year;

4. encouraged the authorities to continue their efforts to reduce the excessive length of detention on remand;

5. decided to resume consideration of these items at the latest at their 1072nd meeting (December 2009) (DH), in the light of information to be provided on additional general measures and on individual measures, if need be.

- 190 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 certain 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 in handling the case. Also, in the Durasik, R.P.D., Koblański, Sibilskiand Irena Pieniążek cases, the European Court noted that having regard to what was at stake for the applicants (respectively compensation for bad medical treatment in the first two cases, compensation for wrongful conviction and unjustified detention, divorce and protection of personal rights) special diligence was required from the domestic courts in handling them.

As far as the Orzeł, Pachnik and Rychliccy cases are concerned, the Court indicated that the proceedings (which dealt with compensation claims for medical malpractice and in respect of an accident) were of considerable importance for the applicants.

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, 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, Krzysztof Kaniewski, Kwiatkowski, Kuczkowska, Kyziol, Romaniak and Sadura.

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 new cases brought before the Polish 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 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. Therefore 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.

2) Structural measures to cut the duration of court proceedings and reducing 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:

- Between 2006 and 2007 the number of judges and court staff increased (up to 8599 judges, 2714 judges’ associates and 1524 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 4723161000. The Budgetary Act for 2008 (of 23/01/2008) allocated the amount of PLN 5116404 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 welcome and further information on their progress expected. However, it should be noted that the number of new cases introduced before Polish civil courts is still increasing and the backlog of old cases is not decreasing.

• Information is awaited on measures aimed particularly on reducing the backlog. Statistics concerning current trends (second half of 2008 and 2009) in this respect are also awaited. Moreover, clarification would be useful concerning the statistics provided (in particular on the average length of proceedings).The 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.:

• Information provided by the Polish authorities:

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 http://www.ms.gov.pl.

Moreover, it has been discussed by civil servants dealing with the application of the Hague Convention in the Ministry of Justice (acting as the Central Authority in the meaning of the Hague Convention). The issue of expediting proceedings conducted on the basis of the Hague Convention will be included in the programme of the training for judges dealing with family law.

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.

The Deputies,

1. noted with interest the amendment to the Act of 17/06/2004 on complaints against excessive length of judicial proceedings so as to allow, among other things, the possibility to complain of the excessive length of criminal investigations;

2. recalled nevertheless that the problem of excessive length of judicial proceedings in Poland is of a systemic nature and noted with concern that the domestic judicial backlog has not decreased;

3. invited the Polish authorities to carry out a more thorough reflection on a solution to this structural problem and to take all necessary measures to reduce the judicial backlog and accelerate judicial proceedings;

4. encouraged the Polish authorities and the Secretariat to co-operate in the framework of the Committee of Experts on effective remedies for excessive length of proceedings (DH-RE), with a view to drafting a recommendation on existing effective domestic remedies concerning excessive length of proceedings;

- Cases mainly concerning the length of criminal proceedings and the lack of an effective remedy

Interim Resolution CM/ResDH(2007)28

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

34220/96 A.W., judgment of 24/06/2004, final on 10/11/2004

28836/04 Abramczyk, judgment of 12/06/2007, final on 12/09/2007

8174/02 Amurchanian, judgment of 19/06/2007, final on 19/09/2007

72999/01 Andrzejewski, judgment of 17/10/2006, final on 12/02/2007

43316/98 B.R., judgment of 16/09/03, final on 16/12/03

7870/04 Bąk, judgment of 16/01/2007, final on 16/04/2007

60299/00 Bogacz, judgment of 09/05/2006, final on 09/08/2006

21340/04 Borowski, judgment of 17/07/2008, final on 17/10/2008

49035/99 Bzdyra, judgment of 15/11/2005, final on 15/02/2006

15067/02 Czajka, judgment of 13/02/2007, final on 13/05/2007

2983/02 Dzierżanowski, judgment of 27/06/2006, final on 27/09/2006

13893/02 Golik, judgment of 28/11/2006, final on 23/05/2007

47986/99 Gossa, judgment of 09/01/2007, final on 09/04/2007

25413/04 Hołowczak, judgment of 04/03/2008, final on 04/06/2008

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

59738/00 Jagiełło, judgment of 23/01/2007, final on 23/04/2007

30072/04 Kozłowski Stefan, judgment of 22/04/2008, final on 22/07/2008

40387/06 Krawczak, judgment of 08/04/2008, final on 08/07/2008

35615/03 Krzych and Gurbierz, judgment of 13/02/2007, final on 09/07/2007

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

10838/02 Maciej, judgment of 27/02/2007, final on 27/05/2007

15154/03 Malikowski, judgment of 16/10/2007, final on 16/01/2008

7224/04 Naus, judgment of 16/09/2008, final on 16/12/2008

64218/01 Niewiadomski, judgment of 26/09/2006, final on 26/12/2006

13732/03 Osiński, judgment of 16/10/2007, final on 16/01/2008

38663/97 Panek, judgment of 08/01/04, final on 08/04/04

5650/02 Piątkowski, judgment of 17/10/2006, final on 17/01/2007

66463/01 Pielasa, judgment of 30/01/2007, final on 30/04/2007

28633/02 Popławski, judgment of 29/01/2008, final on 29/04/2008

28492/04 Ratusznik, judgment of 06/11/2007, final on 06/02/2008

25668/03 Sienkiewicz Adam, judgment of 27/05/2008, final on 01/12/2008

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

31397/03 Stanclik, judgment of 15/01/2008, final on 15/04/2008

6880/02 Stasiów, judgment of 12/12/2006, final on 12/03/2007

21105/06 Szklarska, judgment of 17/07/2008, final on 17/10/2008

1326/04 Szydlowski, judgment of 16/10/2007, final on 16/01/2008

55233/00 Wojda, judgment of 08/11/2005, final on 08/02/2006

46002/99 Wróbel, judgment of 20/07/2004, final on 15/12/2004

9382/05 Żelasko, judgment of 04/03/2008, final on 04/06/2008

14357/03 Zoń, judgment of 16/10/2007, final on 16/01/2008

25728/05 Zwoźniak, judgment of 13/11/2007, final on 13/02/2008

CM/Inf/DH(2004)31

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, Czajka and Kudła the applicants are no longer detained on remand.

• Information is awaited as to whether the applicants in the cases of Bąk and Ratusznik are still on remand.

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, Krawczak, Malikowski, Osiński, Poplawski, Ratusznik, Adam Sienkiewicz, Szklarska and Szydlowski.

General measures:

1) Violation of Article 3 in the case of Iwánczuk:

• Information provided by the Polish authorities: 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” being 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):

• Information provided by the Polish authorities: The judgment of the European Court was published on the Internet site of the Ministry of Justice www.ms.gov.pl and in the Bulletin of the Council of Europe, issue No. 3 of 2002. It was also sent out by the Ministry of Justice to prison authorities and courts (letters of 22/01/2003 and 04/07/2003).

• 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 (Interim Resolution CM/ResDH (2007)75, 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 longer refer cases back to the preliminary proceedings in order to conduct further investigations; increased possibilities of closing criminal proceedings by way of settlement are provided and preparatory proceedings and those concerning several co-defendants are simplified.

- Structural measures to cut the duration of court proceedings and reducing the existing backlog: Reform of the court system, recruitment of new judges, assessors and judicial assistants (referendarze sądowi), better administrative organisation of courts and case-management, improvement of the efficiency of the activity of court experts and of the execution of judgments, implementation of information technology resources, increase of the courts’ budget, etc.

- 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.

• 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 the first half of 2008 (until 30/06/2008) have been provided. In 2007, the number of new criminal cases before district courts amounted to 510 906 (7.3% fewer than in 2006) and 531 489 cases were completed. However, before the regional courts the number of new cases has increased from 65 972 to 74 872. In the same year 75 632 were completed before these courts. Concerning appeal courts, the number of cases decreased from 3 315 to 3 230 (2.6%) and 3 233 cases were completed.

In the first half of 2008 there were 1 282 599 new criminal cases introduced before courts, which was 5.9% fewer than in the first half of 2007 (1 362 420) but equal to the number of cases introduced in the second half of 2007 (0.2% more). The courts completed 1 275 547 cases, which was 7 052 fewer than the number of new cases. On 30/06/2008 there remained 397 068 cases to be completed, which is 1.6% more than the number of cases remaining at the end of 2007.

• Assessment: in 2007 the number of new criminal cases was lower than the number of cases completed. However, at the end of the first half of 2008 the number of criminal cases completed was slightly lower that the number of new cases introduced to courts during this period. On 30/06/2008 criminal courts still had to deal with a backlog of cases.

• Further information would be useful on the number of new cases and cases completed as from 30/06/2008 and on the average length of criminal proceedings. A more detailed information on the number of cases dealt by different types of criminal courts (district, regional, appeal) would be useful.

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 entered into force on 17/09/2004, which allows those involved in court proceedings to file a complaint concerning the length of their proceedings while those proceedings are still pending. The appellate court may find a violation of Article 6 of the Convention and instruct the lower court to take measures to accelerate the proceedings. The appellate court can also award the complainant compensation of up to 10,000 zlotys (approximately 2,550 euro). On 17/06/2004, the Polish Parliament also adopted an amendment to the Civil Code on 01/09/2004 concerning the civil liability of the State Treasury for actions or omissions of public authorities.

The Polish authorities have provided additional information on the first months of implementation of the new law on effective remedy of 2004 namely until 30/06/2008. 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. The average compensation awarded by courts in case of finding of excessive length amounted to 2 007 PLN (557 euro). In the first half of 2008, the number of such complaints amounted to 1382 (only 8 more than in the first half of 2007). 276 complaints were found justified and in 187 of them compensation was awarded (in an average amount of 2 303,20 PLN (687 euro)).

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 case it noted that this domestic remedy had turned out to be ineffective, the Gdańsk Appeal Court having awarded the applicant's 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 although 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 refused to grant the applicant compensation for non-pecuniary damage without any reason, even though it 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 did not take 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 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 did not take 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 at 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.

• Assessment: the Secretariat welcomes the adoption of the amendment to the 2004 law. 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 Krawczak would be useful.

- Other measures: 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 cae of Abramczyk: The case presents similarities to that of the group Klamecki No 2 (31583/96, 1065th meeting, September 2009).

The Deputies,

2. recalled nevertheless that the problem of excessive length of judicial proceedings in Poland is of a systemic nature and noted with concern that the domestic judicial backlog has not decreased;

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

33870/96 Fuchs, judgment of 11/02/03, final on 11/05/03

51837/99 Beller, judgment of 01/02/2005, final on 06/06/2005

59857/00 Bennich-Zalewski, judgment of 22/04/2008, final on 22/07/2008

23484/02 Berent-Derda, judgment of 01/07/2008, final on 01/10/2008

22305/06 Błaszczyk, judgment of 08/01/2008, final on 08/04/2008

49961/99 Bogucki, judgment of 15/11/2005, final on 15/02/2006

34105/03 Bogusław Beata, judgment of 29/07/2008, final on 29/10/2008

34103/03 Bogusław Marek, judgment of 29/07/2008, final on 29/10/2008

71146/01 Borysiewicz, judgment of 01/07/2008, final on 01/10/2008

4054/03 Boszko, judgment of 05/12/2006, final on 05/03/2007

32098/05 Cieślak, judgment of 03/06/2008, final on 29/09/2008

43702/02 Grabiński, judgment of 17/10/2006, final on 17/01/2007

40732/98 J.S. and A.S., judgment of 24/05/2005, final on 12/10/2005

38049/02 Kaniewski, judgment of 08/11/2005, final on 08/02/2006

27710/05 Kita Lidia, judgment of 22/07/2008, final on 22/10/2008

52495/99 Koss, judgment of 28/03/2006, final on 28/06/2006

77420/01 Kryszkiewicz, judgment of 06/03/2007, final on 06/06/2007

12550/02 Olesiński, judgment of 18/12/2007, final on 18/03/2008

13024/05 Olszewska, judgment of 18/12/2007, final on 18/03/2008

77795/01 Orzechowski, judgment of 24/10/2006, final on 24/01/2007

77741/01 Piekara, judgment of 15/06/2004, final on 15/09/2004

23759/02 Przepałkowski, judgment of 22/07/2008, final on 01/12/2008

11101/04 Rygalski, judgment of 22/01/2008, final on 22/04/2008

61967/00 Sernawit, judgment of 06/11/2007, final on 06/02/2008

19607/03 Sito, judgment of 09/01/2007, final on 09/04/2007

36431/03 Skowroński, judgment of 24/01/06, final on 24/04/06

13568/02 Stevens, judgment of 24/10/2006, final on 24/01/2007

12534/03 Stukus and others, judgment of 01/04/2008, final on 01/07/2008

67979/01 Szenk, judgment of 22/03/2005, final on 22/06/2005

33777/96 Urbańczyk, judgment of 01/06/2004, final on 01/09/2004

12134/02 Urbańska, judgment of 13/11/2007, final on 13/02/2008

17949/03 Wesołowska, judgment of 04/03/2008, final on 04/06/2008

28983/02 Wilczkowska and others, judgment of 08/01/2008, final on 08/04/2008

35760/06 Wilczyński, judgment of 18/03/2008, final on 29/09/2008

33017/03 Wójcicka-Surówka, judgment of 27/11/2007, final on 27/02/2008

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

In these cases, the European Court indicated that the length of proceedings was due to the inactivity of administrative authorities (including local administrative authorities in certain cases) which were examining the applicants' requests and of the Supreme Administrative Court or regional administrative courts, when examining the appeals against the administrative decisions or complaints about administrative organs’ inactivity.

Moreover, in the case of Wesołowska, the European Court found the complaint about the inactivity of administrative authorities before the Supreme Court and the Regional Administrative Court was not effective, as the proceedings at issue had remained pending for nearly 15 years, even though this complaint had been lodged several times by the applicant and declared well-founded by the competent courts (violation of Article 13).

Individual measures:

1) Fuchs case: Both sets of proceedings at issue are now closed.

2) Beller case: On 14/10/2005, following an appeal brought by the applicant, the Warsaw Voivodship Administrative Court overturned the wojewoda decision of 23/07/2001 and referred the matter to the Mayor of Warsaw to be reconsidered. This nonetheless requires the wojewoda to consider an application introduced by the Social Security Agency. The applicant complained to the administrative court alleging inactivity on the part of the Mayor of Warsaw. On 07/12/2007 the Warsaw Voivodship Court ordered the Mayor to issue a decision on the merits, but on 02/10/2008 the Supreme Administrative Court quashed this decision and remitted the case for re-examination to the Warsaw Voivodship Administrative Court.

3) Szenk case:The matter is still pending before the Mayor of Warsaw pending the outcome of court proceedings to remove the communal status of the building at issue, which is a necessary condition for its restitution to the applicant. The municipal authorities are collecting together the documentation needed to launch such proceedings.

4) J. S. and A. S. case: On 24/01/2006 and 21/03/2006 the Ministry of Agriculture and Rural Development issued a decision annulling the nationalisation of part of the land at issue. This decision of is now final.

The Ministry has initiated further proceedings with a view to determining who is entitled to compensation in respect of the remaining part of the land.

5) Skowroński case: On 27/02/2007 the starosta issued a partial decision defusing to award compensation to the applicant, who has consequently appealed. On 25/05/2007 the voivod upheld this decision. The applicant appealed to the Voivodship Administrative Court. In March 2008, the administrative court suspended the proceedings because of disciplinary proceedings instituted against property law experts.

6) Koss case: The proceedings are closed: on 10/06/2008 the Mayor of Warsaw delivered a decision establishing the right of perpetual use of the plot at issue and consequently an agreement on the perpetual use was signed in the form of notarised deed.

7) Kaniewski case: the proceedings concerning the granting of temporary ownership of the property at issue are still pending before the Mayor of Warsaw because evidence needs to be collected.

8) Grabinski case: the proceedings are still pending before the Mayor of Warsaw.

9) Kryszkiewicz case: the proceedings are pending before the first instance authority, the Starosta of the West Warsaw District. On 12/08/2008 they were suspended until the heirs of certain parties to these proceedings are identified.

• Additional information is awaited on the state of domestic proceedings in the Beller, Szenk, Kaniewski, Kryszkiewicz, Grabinski and Skowroński cases. Moreover, information is awaited on the progress of domestic proceedings and on their acceleration, if needed, in the cases of Berent-Derda, Borysiewicz, Błaszczyk, Olszewska, Stukus and others, Urbańska, Wesołowska, Wilczynski and Wójcicka-Surówka.

General measures:

1) Publication and dissemination

The Fuchs and Piekara judgments have been sent out to the authorities competent for construction matters and published on the internet site of the Ministry of Justice (www.ms.gov.pl). The judgments delivered in the Beller, Fuchs, Piekara, Szenk and Urbańczyk cases have been sent out to the Supreme Administrative Court and to Voivodship Administrative Courts. The J.S and A.S. judgment has been sent out to officials of the Ministry of Agriculture and Rural Development and published on the internet site of the Ministry of Justice.

2) Excessive length of proceedings before the Supreme Administrative Court:

- Organisation and functioning of the administrative court system:

The Act on the Organisation of Administrative Courts and of the Act on Proceedings before Administrative Courts entered into force on 1/01/2004. These laws institute a two-instance system of administrative courts (the newly created voivodship administrative courts and the Supreme Administrative Court) and provide solutions to accelerate procedures, such as mediation and summary proceedings.

Before their entry into force, some two years were required for the Supreme Administrative Court or one of its 11 satellites throughout the country to consider an appeal, taking into account the constantly growing backlog of cases (around 70 000 new cases a year) and the insufficient number of judges (300). The reform set up 16 Voivodship Administrative Courts and personnel numbers were increased so that, as of 30/09/2005 there were 424 judges, 125 trainee judges (asesorzy) and 84 judicial assistants (referendarze sądowi).

On 1/01/2004, some 92 600 cases were transmitted to the voivodship administrative courts and during the first year about 59 000 new cases were brought before them. In 2004, these courts examined around 83 000 cases, leaving a backlog of approximately 68 000 cases. At the end of 2004, this figure had been reduced to about 68 000 and to 43 780 cases on 31/12/2005. In 2006, the voivodship administrative courts had been seized of 62 436 new cases with a backlog of 27 556 cases, reduced by 37% as compared to the previous year. In 2007 the number of new cases brought before voivodship administrative courts amounted to 58 628 and the backlog amounted to 27 556 cases. The backlog has gradually decreased to 18 718 cases in 2008 and 17 318 in 2009 (a decrease by 70% compared with 2004).

In the meantime the number of cassation appeals lodged before the Supreme Administrative Court has increased from 6 167 in 2004 to 9 447 in 2007. In 2008 the Supreme Administrative Court completed 9 389 cases.

The present mean duration of an appeal has been estimated at 3-4 months before voivodship administrative courts and from 6 to 12 months before the Supreme Administrative Court (the authorities’ letter of 01/04/2009).

According to the President of the Supreme Administrative Court, the excessive length of some administrative proceedings which took place in the 1990s was also linked to the structural reorganisation of the Polish state which took place at the beginning of the decade.

- Administrative courts' control over administrative authorities:

The Act of 30/08/2002 on Proceedings before Administrative Courts contains provisions to ensure control of the functioning of administrative authorities. It allows parties to administrative proceedings to lodge complaints before the court concerning the inactivity of administrative authorities. Article 154 provides that where a court judgment finding such inactivity has not been enforced, or in cases of administrative inactivity following a judgment quashing an administrative decision, parties may lodge a fresh complaint before an administrative court, requesting that the authority in question be fined. Moreover, Article 155 provides that if the administrative court, when examining the case, finds substantial errors in law or circumstances which might give rise to such errors, it may deliver a decision informing the competent authority or its superior authority about such errors. The authority concerned then has to take a position and inform the court within 30 days.

Moreover, the law of 17/06/2004 on complaints against excessive length of judicial proceedings (examined in context of the Kudła case, judgment of 26/10/2000, Interim Resolution ResDH(2007)28, Section 4.2) also concerns proceedings before administrative jurisdictions.

In a letter of 11/09/2006, the President of the Supreme Administrative Court took the view that the measures set out above guarantee an effective domestic remedy against excessive length of proceedings.

3) Excessive length of proceedings before administrative bodies:

- Construction law:

Following decentralisation, i.e. the administrative reform which entered into force on 01/01/1999, the powers of the central administrative building supervision body were restricted. Proceedings under the Building Act are conducted at first instance before the building supervision inspector of the powiat or the starosta and at second instance before the building supervision inspector of the voivodship or the voivod. An important amendment to the Building Act, aiming at simplifying and accelerating proceedings, entered into force on 11/07/2003 and introduced a disciplinary provision in respect of the administrative authorities. According to this provision, an administrative authority dealing with a building permit issue shall give its decision within 65 days, otherwise the superior authority may impose a financial penalty on it.

- Requests for the right of usufruct in respect of nationalised land in Warsaw:

The Ministerof the Interior and Administration asked the Mayor of Warsaw to send out the judgments in the Beller and Szenk cases to civil servants of the Warsaw-Centre Municipal Office, which deals with such requests.

- Length of proceedings before administrative authorities in general:

In his letter of 11/09/2006 mentioned above, the President of the Supreme Administrative Court stated that he was not in a position to assess whether the excessive length of such proceedings stems from a systemic problem. In his opinion, it is up to the Minister of the Interior and Administration to make an assessment of this issue.

By letter of 25/04/2007, the Minister of the Interior and Administration presented legislative changes which might be envisaged to improve the promptness and efficiency of administrative proceedings, including:

- introduction of “participative proceedings”, namely the obligation to appoint a representative when the number of parties to a case reaches a certain level (20 for example);

- introduction of a legal prohibition of abuses of administrative law, in particular a ban on the repeated extension of the legal time-limit for dealing with a case (Article 36 of the Code of Administrative Procedure);

- shortening legal time-limits for examining cases, or imposing financial penalties on administrative organs which do not respect the legal time-limits (as in construction law, see below);

- introduction of “tacit agreement” by administrative organs: when an administrative body does not deliver its decision within a certain time (for example 30 days), it is assumed, under certain conditions, that a tacit decision in favour of the applicant has been rendered;

According to the Minister of the Interior and Administration, some of these proposals do not fall within his competence and should therefore be accepted by other ministers concerned.

In autumn 2008 the Ministry of Interior and Administration prepared a bill to amend the Code of Administrative Procedure with a view to making administrative proceedings more efficient and guaranteeing the efficiency of domestic remedies against excessive length of administrative proceedings in line with the requirements stemming from the European Court’s judgments.

Moreover, in February 2008 the Secretariat held high-level meetings with the Polish authorities to discuss the execution measures in these cases.

• Information is still awaitedconcerning:

- whether the judgments delivered in the Szenk and Beller cases have been published and sent out to the civil servants of the Warsaw-Centre Municipal Office,

- the follow-up to the proposals made by the Minister of the Interior and Administration on the reform of administrative procedure.

Moreover, clarification concerning the workload of the Supreme Administrative Court (statistics for 2007-2008) would be useful.

4) Violation of Article 13 in the case of Wesolowska: The European Court noted that the complaint about inactivity of administrative bodies, although in theory capable of accelerating the process of obtaining an administrative decision (see the Bukowski case, decision of 11/06/2002, application No 38665/97), in practice did not satisfy the requisite criteria of effectiveness within the meaning of Article 13.

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

The Deputies decided to resume consideration of these items at the latest at their first DH meeting in 2010, in the light of information to be provided on individual and general measures.

- 37 cases against Portugal

39005/04 Santos Pinto, judgment of 20/05/2008, final on 20/08/2008[57]

40225/04 Feliciano Bichão, judgment of 20/11/2007, final on 20/02/2008[58]

25053/05 Ferreira Alves No. 3, judgment of 21/06/2007, final on 21/09/2007[59]

7623/04 Antunes and Pires, judgment of 21/06/2007, final on 21/09/2007

- Cases concerning inadequate compensation for land expropriated under the agrarian reform of 1975

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

10172/04 Campos Costa and others, judgment of 30/10/2007, final on 30/01/2008

21513/05 Companhia Agrícola da Barrosinha S.A., judgment of 15/01/2008, final on 15/04/2008

21240/02+ Companhia Agrícola de Penha Garcia, S.A. and 16 other cases “Agrarian reform”, judgment of 19/12/2006, final on 19/03/2007

44311/04+ Costa Capucho and 23 other cases “Agrarian reform”, judgment of 15/01/2008, final on 15/04/2008

41453/02 Herdade da Comporta - Actividades Agro Silvícola e Turísticas, S.A., judgment of 10/07/2007, final on 31/03/2008

31677/04 Sociedade Agrícola Herdade da Palma S.A., judgment of 10/07/2007, final on 12/11/2007

These cases concern the failure by the respondent state to strike a fair balance between the public interest and the applicants' or the applicant companies’ right to the peaceful enjoyment of their possessions (violations of Article 1 of Protocol No.1). The applicants suffered excessive delay with respect to the determination and payment of final compensation for their properties, expropriated in the framework of the 1975 agrarian reform.

Individual measures:

1) Carvalho Acabado: The European Court awarded just satisfaction on equitable principles in respect of both the pecuniary and non-pecuniary damages suffered as a consequence of the delay in payment of the compensation and the default interests rate, which was too low as compared with the currency depreciation during the same period.

In March 2008 the Portuguese authorities indicated that the Supreme Admnistrative Court had given judgment ordering the recalculation of the compensation. This was fixed by the domestic services at 49.889,65 euros and was recalculated and paid (21/05/2007) when the domestic decision became final. No other proceedings concerning the applicant are pending.

• Assessment: no other individual measure seems necessary.

2) Companhia Agrícola de Penha Garcia, S.A. and 16 other cases: The European Court awarded just satisfaction in respect of pecuniary or non-pecuniary damages or both according to the individual situations of the applicants. Just satisfaction was meant to cover the delay in payment of the compensation and the default interest rate, which was too low as compared with the currency depreciation during the same period.

The relevant amounts due at domestic level (compensation and default interests) in the case of Carneiro Vieira da Silva and others (Application No. 1999/04) were paid in 2006.

• Assessment: no other individual measure seems necessary.

3) Sociedade Agricola Herdade da Palma S.A.,Campos Costa, Herdade da Comporta - Actividades Agro Silvícola e Turísticas, S.A., Companhia Agrícola da Barrosinha S.A. : Proceedings are closed. The European Court awarded just satisfaction on equitable principles in respect of the pecuniary damage suffered, as a consequence of the delay in payment of the compensation and the default interests rate, which was too low as compared with the currency depreciation during the same period.

• Assessment: no other individual measure seems necessary.

4) Costa Capucho and 23 other “Agrarian reform” cases: The European Court awarded just satisfaction in respect of either pecuniary or non-pecuniary damages, or both, according to the circonstances of the cases, suffered as a consequence of the delay in payment of the compensation and the default interest rate, which was too low as compared with the currency depreciation during the same period.

• Assessment: no further individual measure seems necessary.

General measures: The present cases present similarities with that of Almeida Garret, Mascarenhas Falcão and others against Portugal (Section 6.2).

The European Court found that, as regards the determination and payment of compensation “the delay is indisputably attribuable to the State” (§54 of the Almeida Garret, Mascarenhas Falcão and others case). The criteria for determining the amount of compensation had been finally set by Legislative Decree No. 38/95 and through a cumbersome procedure final compensation is being paid.

• Information provided by the Portuguese authorities (07/10/2008): Currently, there are 30-35 pending compensation proceedings at national level: 13 in the final phase of investigation, 3 in the execution phase, 2 in course of payment, and between 12 and 17 are the object of pending appeals to the fiscal and administrative courts. It is the opinion of the authorities that almost all these proceedings will result in applications before the European Court as a consequence of the higher pecuniary and non-pecuniary damages it awards. However, the authorities also consider that the number of new applications concerning the agrarian reform brought before the European Court will run out in the short term.

All the European Court's judgments have been translated and published on the Internet site of the Cabinet of Documentation and Comparative Law (www.gddc.pt), which comes under the Prosecutor General of the Republic.

• Assessment: under way.

The Deputies:

1. noted that no further individual measure seemed to be required for the execution of these cases, apart from the payment of the just satisfaction awarded by the European Court;

2. decided to resume consideration of these cases at their 1065th meeting (15‑16 September 2009) (DH), in the light of the assessment of the general measures.

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

33729/06 Martins Castro and Alves Correia de Castro, judgment of 10/06/2008, final on 10/09/2008

This case concerns the excessive length of civil proceedings (violation of Article 6§1) and the ineffectiveness of a compensatory remedy available to victims of excessively lengthy proceedings (violation of Article 13).

With respect to Article 13, the European Court found that an action for extra-contractual civil responsibility of the state did not represent an effective remedy under this article and will not become such a remedy as long as case-law which arises, inter alia, from the Supreme Administrative Court judgment of 28/11/2007, is not consolidated in the Portuguese legal order by harmonising the jurisprudential discrepancies which may currently be observed.

Individual measures: The proceedings at issue came to an end in September 2009. The European Court awarded the applicants just satisfaction in respect of the non-pecuniary damage suffered.

• Assessment: No further individual measure seems necessary.

General measures:

1) Length of the proceedings: This case presents similarities to the Oliveira Modesto and others group (34422/97, Section 4.2).

2) Effective remedies against excessive length of the proceedings: In the Portuguese legal order, the remedy for excessive length of judicial proceedings had been developed by case-law on the basis of Law-Decree No. 48051/1967 on state extra-contractual civil responsibility. Law No. 67/2007 of 31/12/2007 on state extra-contractual civil responsibility consolidated its application in case of excessive length of proceedings (Article 12). This provision makes clear that in these cases “the rules on extra-contractual liability for unlawful acts committed by administrative authorities” will apply. Case-law on extra-contractual liability considers that damages must be awarded if an unlawful act has been committed with fault and there is a causal link between the act and the damages alleged.

Moreover, in its case-law on length of proceedings, including a judgment of 28/11/2007, the Supreme Administrative Court affirmed that applicable domestic legislation must be interpreted in conformity with the Convention case-law and that non-pecuniary damage following from the finding of a violation of Article 6 of the Convention on the ground of excessive length of proceedings must be compensated.

On the basis of these measures, the European Court dismissed a number of applications concerning the length of judicial proceedings on the grounds of failure to exhaust domestic remedies (see in particular the decision of inadmissibility in the case of Gouveia da Silva Torrado, 22/03/2003) and including an initial application lodged by the applicants in the present case concerning the proceedings at issue.

However, in its judgment in the present case, the European Court underlined that the Supreme Administrative Court’s case-law is not yet sufficiently consolidated in the Portuguese legal order, thereby undermining the effectiveness of the remedy. It therefore invited the Supreme Administrative Court to end the uncertainty and, to this purpose, it recalled Article 152 of the Procedural Code of Administrative Courts which provides the public prosecutor with the power to ask for a harmonisation of jurisprudence.

• Assessment: Information is awaited as to whether a request for harmonisation of jurisprudence has been introduced by the public prosecutor to make the remedy for excessive length of proceedings effective.

3) Publication and dissemination: Recalling Interim Resolution CM/ResDH(2007)108 of the Committee of Ministers on excessive lengths of judicial proceedings in Portugal, the European Court underlined that if the existence of a remedy is necessary, it is not in itself sufficient, as demonstrated by the present case. It is also necessary that national jurisdictions may apply the European Court’s case-law directly in the internal legal order and that their knowledge of such case -aw is facilitated by national authorities.

• Assessment: Information is awaited on publication of the European Court’s judgment and its dissemination to the competent authorities, as well as on its inclusion in future awareness-raising activities on the case-law of the European Court. Information on recent judgments of national courts applying this case law would also be useful.

The Deputies,

1. noted that the European Court’s judgment in the present case recommended “the Supreme Administrative Court to put an end to the uncertainty [in domestic case-law] and recalled in this respect that Article 152 of the Procedural Code of Administrative Courts provides the public prosecutor with the power to ask for a harmonisation of jurisprudence” (§ 55 of the judgment);

2. accordingly encouraged the Portuguese authorities to pursue their efforts to introduce such a remedy for harmonisation of jurisprudence as soon as possible;

3. took note, in addition, of the information provided by the authorities on publication and dissemination of the judgment of the European Court, in particular to domestic courts;

4. considered that, while waiting for the introduction of such a remedy, these measures are appropriate to the extent that they may encourage the direct application of the European Court’s case-law by domestic courts; possible complementary information on the current practice of courts and its evolution would thus be useful;

5. decided to resume consideration of this item at the latest at their 1072nd meeting (December 2009) (DH), in the light of any possible complementary information on general measures provided by the Portuguese authorities.

- Cases of length of judicial proceedings

Interim Resolution CM/Res/DH(2007)108

a. Cases before civil courts

34422/97 Oliveira Modesto and others, judgment of 08/06/00, final on 08/09/00

54926/00 Costa Ribeiro, judgment of 30/04/03, final on 30/07/03

53997/00 Dias Da Silva and Gomes Ribeiro Martins, judgment of 27/03/03, final on 27/06/03

53534/99 Esteves, judgment of 03/04/03, final on 03/07/03

56345/00 Ferreira Alves No. 2, judgment of 04/12/03, final on 04/03/04

53937/00 Ferreira Alves, Limited, judgment of 27/02/03, final on 27/05/03

49671/99 Ferreira da Nave, judgment of 07/11/02, final on 07/02/03

56110/00 Frotal-Aluguer de Equipamentos S.A., judgment of 04/12/03, final on 04/03/04

58617/00 Garcia da Silva, judgment of 29/04/2004, final on 29/07/2004

49279/99 Koncept-Conselho em Comunicação e Sensibilização de Públicos, Lda, judgment of 31/10/02, final on 31/01/03

52412/99 Marques Nunes, judgment of 20/02/03, final on 20/05/03

54566/00 Moreira and Ferreirinha, Lda and others, judgment of 26/06/03, final on 26/09/03

55081/00 Neves Ferreira Sande e Castro and others, judgment of 16/10/03, final on 16/01/04

57323/00 Pena, judgment of 18/12/03, final on 18/03/04

48187/99 Rosa Marques and others, judgment of 25/07/02, final on 25/10/02

59017/00 Soares Fernandes, judgment of 08/04/2004, final on 08/07/2004

44298/98 Tourtier, judgment of 14/02/02, final on 14/05/02

b. Cases before administrative courts

52662/99 Jorge Nina Jorge and others, judgment of 19/02/04, final on 19/05/04

55340/00 Sociedade Agrícola do Peral and autre, judgment of 31/07/03, final on 31/10/03

c. Cases before criminal courts

48956/99 Gil Leal Pereira, judgment of 31/10/02, final on 31/01/03

14886/03 Monteiro da Cruz, judgment of 17/01/2006, final on 17/04/2006

50775/99 Sousa Marinho and Marinho Meireles Pinto, judgment of 03/04/03, final on 03/07/03

52657/99 Textile Traders, Limited, judgment of 27/02/03, final on 27/05/03

d. Case before family courts

51806/99 Figueiredo Simoes, judgment of 30/01/03, final on 30/04/03

e. Case before labour courts

53795/00 Farinha Martins, judgment of 10/07/03, final on 10/10/03

These cases concern the excessive length of proceedings before civil, criminal, administrative, family and labour courts (violation of Article 6§1).

At the 1013th meeting (October 2007), the Deputies adopted an interim resolution, which assessed the measures taken by Portuguese authorities and the outstanding issues (Interim Resolution CM/ResDH(2007)108).

Individual measures: In the interim resolution, the Committee of Ministers noted that three sets of proceedings were still pending before domestic courts and invited the authorities to take action to bring them to an end as soon as possible.

• Information provided by the Portuguese authorities (12/03/09): The cases of Garcia da Silva and Sociedade Agricola do Peral were both closed in 2008.

• Information is awaited on the state of proceedings in the case Oliveira Modesto, which is still pending.

General measures:

1) Measures taken to reduce the length of civil, criminal, administrative and fiscal proceedings: In the interim resolution, the Committee of Ministers took note of the several legislative and administrative measures taken by the Portuguese authorities and encouraged them to continue their efforts with a view to solving the general problem of the length of judicial proceedings. The Committee also invited them to provide further information on the practical impact of all the reforms on the matter, and in particular additional comparative, statistical data in this respect.

• Developments since the adoption of the interim resolution: The Portuguese authorities provided information and statistics on developments as regards length of proceedings on 9/03/2009. Progress accomplished can be resumed as follows:

a) General Mesures : The modernisation of the judicial system has been accomplished during 2008 (Citius project), permitting the digital treatment of cases and management of files. Taking into account its recent establishment, its impact on the length of proceedings will be examined at a later stage.

Arbitration centres (alternative dispute resolution measures) are operational, their number having increased from 16 to 27 in 2005-2007. The demand for arbitration remains constant at around 9 000 applications per year. The backlog is reducing (1 546 pending applications in 2006 and 1 157 in 2007), which, according to the authorities, seems to imply a reduction in the waiting-time for justice.

The number of judges increased in 2003-2007, from 1 633 to 1 859 for ordinary judges and from 1 204 to 1 349 for public prosecutors. The number of justices of the peace has also increased, passing from 17 to 24 in 2005-2008.

b) Civil proceedings: The reform introduced by Law-decree No. 303/2007, amending the Code of Civil Procedure with the aim of reducing the number of appeals brought in general and to the Supreme Court in particular, has not yet produced the desired impact on the length of proceedings, insofar as it only applies to proceedings initiated after its entry into force (i.e. 1/01/2008). The decrease in civil appeal proceedings (7,6% in 2008 as compared to 2007) does not therefore seem to be the direct consequence of the legislative change.

c) Criminal proceedings: The reform of criminal proceedings has obviously contributed to a reduction of their length: 67% less for “summary proceedings” and 33% less for “special procedures”.

d) Administrative proceedings: The implementation of Law-decree No. 229/96, which introduced a second instance of administrative jurisdiction (the Central Administrative Tribunal) and re-organised competencies among the three levels of jurisdiction, has had as direct consequence the obvious reduction of the administrative backlog for the Supreme Administrative Court. Pending cases and registered cases before this jurisdiction have thus dropped by 50% between 1994 and 2000, the Central Administrative Tribunal having been established as from 1997. The number of cases closed in the fiscal field has also increased. However, in the same period, the average length of administrative proceedings did not drop at the three levels of jurisdictions, remaining stable at, respectively, 14 months for the Supreme Administrative Court, 12 months for the Central Administrative Tribunal, and 15 months for the administrative courts of first instance.

e) Enforcement proceedings: The average length of enforcement proceedings has not reduced following the adoption of Law-decree No. 38/2003; on the contrary, in certain cases, it even increased as a consequence of other measures adopted to ease tribunals’ congestion. In 2007, the average length of proceedings was 33 months. A new reform entered into force on 31/03/2009.

• Assessment: It should be noted that, in the recent years, the Portuguese authorities undertook efforts focusing simultaneously on legislative reform, the reorganisation of the judiciary, as well as the progress in the application of information technology to the activities of judicial offices in order to reorganise and rationalise judicial activities. In particular, they implemented legislative reforms in the fields of civil, criminal, administrative and enforcement proceedings, with a view to resolving the structural problem of the excessive length of judicial proceedings. In addition, the clearance rate[60], as calculated by the CEPEJ, stands at 112% for civil proceedings but only 95% for enforcement proceedings. Data are not available for criminal and administrative proceedings. In the light of the information provided to date by Portuguese authorities, it seems that the stocktaking of these measures is lukewarm.

• Information awaited: Whereas progress is shown with regard to the length of criminal and administrative proceedings, additional appropriate information and statistics are still necessary to complete the appreciation of the situation in these fields. Moreover, more precise information and appropriate statistics are equally necessary to appreciate the situation in the fields of civil proceedings, including on the impact of the justices of peace, and the new reform on enforcement proceedings.

• The Portuguese authorities provided on 18/05/2009 the complementary information and statistics required following the 1051st meeting (March 2009). This information is currently under assessment.

2) Legislative measures to introduce an effective domestic remedy in cases of excessive length of judicial proceedings: In its interim resolution, the Committee took note of the existence of a remedy to complain about the excessive length of judicial proceedings. Articles 108 and 109 of the Portuguese Code of Criminal Procedure enable a person to complain of the excessive length of criminal proceedings in Portugal and to request their acceleration. These articles thus provide a true legal remedy.

In addition, the case-law of the Portuguese Supreme Administrative Court has developed so as to ensure that the decree of 1967 on the extra-contractual civil responsibility of the state provides an effective remedy against the excessive length of civil proceedings.

The 1967 decree has been replaced by Act No. 67/2007, which introduced a new regime of extra-contractual civil responsibility of the state and other public entities which also applies explicitly to unreasonable length of judicial procedures (Article 12).

• Developments following to the adoption of the interim resolution: see the notes in case Martines Castro and Alves Correia de Castro (application No. 33729/06, Section 4.2)

3) Publication: All the judgments of the European Court at issue here have been published on the website of the Office of Documentation and Comparative Law of the General Prosecutor’s Office (www.gddc.pt).

The Deputies, recalling Interim Resolution CM/ResDH(2007)108 adopted by the Committee as regards this group of cases in October 2007,

1. noted with interest the information recently provided by the Portuguese authorities concerning the backlog and the excessive length of judicial proceedings, including statistics, as well as the re-organisation of the judiciary, the plans for reducing court congestion, and the application of information technology in courts;

2. observed that, whereas progress is visible as far as proceedings before criminal courts, as well as before higher civil and administrative courts are concerned, the situation seems less satisfactory before first-instance civil and administrative courts, as well as regards civil enforcement proceedings;

3. encouraged the authorities to continue their efforts to ensure a solution to the problem of excessive length of judicial proceedings in Portugal by adopting any other measures they consider appropriate for improving the efficiency of justice, if necessary;

4. noted that, as far as individual measures are concerned, the proceedings pending before domestic courts had been closed with the exception of the proceedings in the Oliveira Modesto case and invited the Portuguese authorities to accelerate them to the extent possible;

5. decided to resume consideration of these items at the latest at their 1072nd meeting (December 2009) (DH), on the basis of an interim resolution to be prepared by the Secretariat with a view to a full evaluation of the different aspects mentioned in the information provided by the Portuguese authorities.

- 178 cases against Romania

28341/95 Rotaru, judgment of 04/05/00 - Grand Chamber, Interim Resolution ResDH(2005)57

The case concerns a breach of the applicant's right to respect for his private life in that the relevant national legislation does not contain sufficient safeguards against abuse as regards the way in which the Romanian Intelligence Service (RIS) gathers, keeps and uses information. The European Court has thus concluded that the holding and use by the RIS of information on the applicant's private life were not “in accordance with the law” within the meaning of the Convention (violation of Article 8).

In this context the European Court observed that section 8 of Law no. 14/1992 on the Organisation and the Operation of the Romanian Intelligence Service provided that information affecting national security might be gathered, recorded and archived in secret files. No provision of domestic law, however, laid down any limits on the exercise of those powers. Thus, for instance, the Law did not define the kind of information that may be recorded, the categories of people against whom surveillance measures such as gathering and keeping information may be taken, the circumstances in which such measures may be taken or the procedure to be followed. Similarly, the Law laid down no limits on the age of information held or the length of time for which it might be kept.

Further section 45 of Law No. 14/1992 empowered the RIS to take over for storage and use archives that belonged to the former intelligence services operating on Romanian territory and allowed inspection of RIS documents with the Director's consent. The European Court noted that this section contained no explicit, detailed provision concerning the persons authorised to consult the files, the nature of the files, the procedure to be followed or the use that may be made of the information thus obtained (see §57 of the judgment).

The case also concerns an infringement of the applicant’s right to an effective remedy before a national authority that could rule on his application to have the file amended or destroyed (violation of Article 13).

Lastly, the case concerns a breach of the applicant's right to a fair trial on account of the Court of Appeal's failure to consider the claim for damages and costs (violation of Article 6§1).

Individual measures: The Romanian delegation has indicated that there was no individual file on the applicant. Following the judgment of the European Court, the document that was in the possession of the RIS, based on which the applicant was erroneously designated as a member of an extreme-right organisation, was modified in order to avoid any confusion (another person bearing the same name as the applicant was listed there).

The Romanian authorities have indicated that the judgment of the European Court has been included in the file of the Romanian intelligence service, in order to avoid that any such confusion could occur again.

General measures:

1) Progress in the adoption of general measures

• Adoption of Interim Resolution: On 05/07/2005, the Committee of Ministers adopted Interim Resolution ResDH(2005)57, in which it noted with interest the provisions of Law No. 535/2004 on the prevention and repression of terrorism which provide a procedure of judicial supervision of all secret surveillance measures, including cases involving threats to the national security. The Committee noted in addition the procedure provided by Law No. 187/1999 which, in spite of the shortcomings identified by the European Court (see §71 of the judgment), nevertheless allows interested persons to inspect the files created concerning them between 1945 and 1989 by the organs of the former Securitate, to obtain certificates concerning their possible collaboration with the former Securitate and to contest before a court the content of such certificates. Nevertheless, the Committee noted with regret that, more than five years after the date of the judgment, several shortcomings identified by the European Court still did not seem to have been remedied, in particular concerning the procedure to be followed in order to have access to the archives taken over by the RIS from former secret services (other than the Securitate), the absence of a specific regulation concerning the age of the information which could be stored by the authorities, or the lack of any possibility to contest the holding of this information and, save for the cases provided for by Law No. 187/1999, their truthfulness.

The Committee therefore called upon the Romanian authorities rapidly to adopt the legislative reforms needed to respond to the criticism made by the Court in its judgment concerning the Romanian system of gathering and storing of information by the secret services.

• Interim measures

Due to the very broad scope of the reform in the field of national security (a package of 5 draft laws) and the ongoing national consultation process, the time-frame for adoption of the package of laws has not yet been established. In the course of bilateral consultations between the Secretariat and the competent authorities (March, May, and July 2008) it was agreed that until the adoption of specific regulations related to the functioning of the intelligence service, general rules related to the protection of personal information adopted after the violation found by the European Court in the above case should be reviewed in order to assess their possible capability to prevent new violations to occur. In this context it has been also noted that the analysis made by the Supreme Council of Magistrates of the domestic courts’ decisions, delivered in the period from 2000 to 2008 demonstrates that no similar case has been dealt with since the delivery of the European Court’s judgment in the present case.

It should be further noted that after the delivery of the European Court’s judgment a series of measures were taken to secure respect for individuals’ rights and fundamental freedoms, with regard to automatic processing of personal data:

- ratification, in November 2001, of the Council of Europe’s Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data;

- adoption, in November 2001, of Law 677/2001 for the protection of persons related both to the processing of personal data and to the free circulation of such data;

- adoption of Law No. 102/2005 regarding the setting up, organisation and functioning of the National Supervisory Authority for Personal Data Processing;

- adoption of Law No. 182/2002 on Protection of Classified Information.

• Bilateral contacts are under way to assess this information, in particular, the applicability of the laws adopted since the judgment of the European Court to situations similar as this in the present case.

2) Violation of Article 8: The Romanian authorities indicated that the shortcomings identified by the European Court in respect of the violation of this Article should be taken into account in the context of the legislative reform which is currently under way. Thus, under the draft Law on information activities, counter-information and protection of information the Romanian intelligence services have an obligation to assure information and to take measures necessary to guarantee the constitutional order, human rights and fundamental freedoms (Article 2). It should be also noted that the objectives of intelligence activities include: defence of democracy and constitutional order, rights and fundamental freedoms of the citizens, as guaranteed by the Romanian Constitution, and protection of an unlimited exercise of rights and fundamental freedoms. The draft Law contains provisions related to the collection of information, in particular, the procedure for a judicial authorisation. It also provides that the competent authorities are obliged to delete personal data from their files if it does not relate to any threat to Romanian national security (Article 70§1). Information concerning personal data, private life, honour and reputation of individuals obtained accidentally in the course of collecting information necessary for the protection of national security cannot be presented publicly, stored or archived. Thus, it should be destroyed as soon as it is established that that it has no relation to any threat to national security (Article 70§2).

The Romanian authorities further indicated that certain guarantees are offered by instructions and laws amended or adopted after the European Court’s judgment in the present case. In particular, Law No. 535/2004 on Prevention and Suppression of Terrorism provides that the authorisation of secret surveillance measures in all cases of presumed threats to national security provided by Law No. 51/1991, comes within the competence of judges of the High Court of Justice and Cassation.

• Bilateral contacts are under way to assess this information and progress in the adoption of the draft law.

3) Violation of Article 13: The Romanian authorities indicated that the legislative reform in the field of national security should also respond to the European Court’s criticism concerning the violation of Article 13. In this context it should be noted that certain provisions of the draft Law on information activities, counter-information and protection of information might make it possible to challenge the holding by the intelligence services of information on private life or to refute the truth of such information. Thus, everyone should have a right to ask the competent authorities to provide access to information which concerns him/her exclusively (Article 68). The draft Law also provides a possibility to request the administrative authorities to verify, correct or delete personal data if they are incorrect, incomplete or obtained illegally (Article 69). The competent authorities are obliged to respond to such requests within specific time-limits (Articles 68-69). Finally, Article 70 provides a possibility of judicial recourse in circumstances foreseen in those Articles, including compensation for damage sustained.

The Romanian authorities also noted that the publication of the Rotaru judgment and its dissemination has allowed the Romanian courts to take account of the European Court’s findings, in particular of those concerning the right to challenge the holding of personal data by the intelligence service, to challenge their truthfulness and to request modification of inexact data. Moreover, they indicated that following the decision of the Constitutional Court of 31/01/2008, finding Law No. 187/1999 on access to personal files and disclosure of the Securitate as political police to be unconstitutional, the government adopted a new law, Emergency Ordinance No. 24/2008, regulating access to personal files. In this context, numerous examples of requests lodged with the courts to obtain the access to personal files have been provided.

• Bilateral contacts are under way to assess the information provided by the authorities in the context of the Emergency Ordinance No. 24/2008.

• Further information is expected on the progress of the legislative reform.

4) Violation of Article 6§1: The Romanian authorities observe that domestic courts will give direct effect to the Rotaru judgment, so as to avoid new violations, similar to that found in the present case, in which the Bucharest Court of Appeal failed to consider the applicant's claim for compensation and for the reimbursement of the costs incurred in order to obtain the rectification of the data at issue.

5) Publication and dissemination:The judgment of the European Court has been translated and published in the Official Journal.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of the bilateral consultations to be held with the Romanian authorities in June 2009 and, if necessary, further information to be provided on general measures.

31679/96 Ignaccolo-Zenide, judgment of 25/01/00[61]

37284/02 Lafargue, judgment of 13/07/2006, final on 13/10/2006[62]

- 1 case against Romania and 1 case against Hungary and Romania[63]

71099/01 Monory, judgment of 05/04/2005, final on 05/07/2005

7198/04 Iosub Caras, judgment of 27/07/2006, final on 11/12/2006

33343/96 Pantea, judgment of 03/06/03, final on 03/09/03[64]

29761/02 Tase, judgment of 10/06/2008, final on 10/09/2008

10337/04 Lupsa, judgment of 08/06/2006, final on 08/09/2006[65]

33970/05 Kaya, judgment of 12/10/2006, final on 12/01/2007

- Cases mainly concerning the applicants’ poor conditions of detention

22088/04 Bragadireanu, judgment of 06/12/2007, final on 06/03/2008

4792/03 Petrea, judgment of 29/04/2008, final on 01/12/2008

These cases concern the inhuman and degrading conditions under which the applicants were detained, due in particular to prison overcrowding and the lack of health facilities appropriate to the condition of one of the applicants (violations of Article 3).

In the Bragadireanu case, the European Court noted that although the authorities were aware that the applicant’s medical condition was severe, he was detained, as from March 2004, in an ordinary prison, sharing a cell with others with no shower or warm water at his disposal and received no regular assistance related to his needs.

The Bragadireanu case also concerns the excessive length of criminal proceedings which ended in February 2004 (7 years and 8 months within the competence of the European Court) (violation of Article 6§1).

Individual measures:

1) Bragadireanu: When the European Court delivered its judgment the applicant was still in prison and it seemed that he had not been transferred to an individual cell.

• Information provided by the Romanian authorities: The applicant was offered medical treatment and examinations on several occasions in 2007 and 2008. Since 1/10/2007 he has been placed in the infirmary section of the prison where he has been provided with proper conditions of personal hygiene. Thus, currently he is detained with two other persons (one of whom is his personal carer)in a room that has three beds and an area of 19,58 square metres. The applicant gave his written consent to the presence of the third person in the room. The room has both natural and artificial light and is ventilated by two windows. A sanitary space is available in a separate room of 8.36 square metres which is equipped with a toilet, a shower and two wash-basins. The detainees have permanent access to cold and, twice a week, warm water, and receive necessary hygienic supplies. As from 18/06/2008, the applicant has a personal carer at his disposal.

In February 2007, the applicant married and has benefited since then of the right to 48 hours’ conjugal visit.

• Bilateral contacts are under way to assess the information provided by the authorities.

2) Petrea: The applicant was released on probation in June 2005. The European Court awarded him just satisfaction in respect of non-pecuniary damage.

• Assessment: No further individual measure seems to be necessary.

General measures:

1) Violation of Article 3: The European Court noted that cumulative effect of overcrowding in large dormitories, a poor activity regime and inadequate access to washing facilities is detrimental to prisoners.

• Information is expected on measures taken or envisaged to avoid similar violations resulting from inadequate detention conditions, in particular in situations involving detainees in poor medical condition.

2) Violation of Article 6§1: The Bragadireanu case presents similarities to the Stoianova and Nedelcu group of cases (77517/01, 1072nd meeting, December 2009).

The Deputies decided to resume consideration of these items at the latest at their 1st DH meeting in 2010, in the light of information to be provided on general measures and individual measures, if necessary.

- Cases mainly concerning ill-treatment by the police and lack of an effective investigation

46430/99 Anghelescu Barbu No. 1, judgment of 05/10/2004, final on 05/01/2005

42066/98 Bursuc, judgment of 12/10/2004, final on 12/01/2005

48254/99 Cobzaru, judgment of 26/07/2007, final on 26/10/2007

49234/99 Dumitru Popescu No.1, judgment of 26/04/2007, final on 26/07/2007

25230/03 Georgescu, judgment of 13/05/2008, final on 13/08/2008

64536/01 Iambor No.1, judgment of 24/06/2008, final on 24/09/2008

43247/02 Melinte, judgment of 09/11/2006, final on 09/02/2007

42722/02 Stoica, judgment of 04/03/2008, final on 04/06/2008

These cases concern the ill-treatment inflicted on the applicants by police officers amounting to inhuman and degrading treatment or torture (substantive violations of Article 3). In particular, in the Barbu Anghelescu case the applicant was subjected to injuries at a roadside checkpoint in 1996 in the Bursuc, Cobzaru, Georgescu and Iambor No. 1 cases the applicants were ill-treated while in police custody between 1996 and 1999 and in the Stoica case during an incident between policemen and a group of Roma outside a bar, in 2001.

All these cases relate to the ineffectiveness of the investigations conducted by the domestic authorities into the accusations against the police officers or other persons involved (in the Melinte case concerning an alleged ill‑treatment in 1999 and in Dumitru Popescu No. 1 case concerning an alleged ill-treatment by the police in 1998), investigations which had led to decisions not to prosecute anyone (procedural violations of Article 3). First of all, the European Court noted that the investigations against the state agents had been conducted by military prosecutors, whose independence was open to doubt in view of their status of active officers within the military. At the time of the events, the policemen had the same status of active officers. Moreover, in the Bursuc case, the European Court also criticised the fact that, within the framework of the domestic investigation, evidence and statements were obtained by the local criminal investigation department, even though the police officers under investigation were serving in the police station of the same town. That state of affairs was incompatible with the rule that there should be no hierarchical or institutional link between the persons called upon to conduct the investigation and those implicated in the offence under investigation. What is more, the European Court criticised the military prosecutor's office failure to make any reference, in its order discontinuing the proceedings, to the findings of the forensic experts' reports drawn up in the Bursuc case, as well as the fact that the prosecutor's office failed to carry out supplementary investigations, as instructed by the court before which the applicant lodged a complaint against the decision not to prosecute, in the Barbu Anghelescu case. Finally, in the Cobzaru and Stoica cases, the European Court noted that the prosecution had established the facts solely on the basis of the accounts given by the police officers accused of ill-treatment or their colleagues, while crucial statements from eyewitnesses had been disregarded. The investigation carried out by the domestic authorities appeared to have other shortcomings such as a failure to question certain key witnesses or to pursue obvious lines of questioning and the investigation file contained a number of contradictions.

The Bursuc and Georgescu cases also deal with the excessive length of the criminal proceedings brought against the applicants (violation of Article 6§1). In the Bursuc case, the proceedings began on 27/01/1997 and ended on 24/01/2001 and in the Georgescu case they began on 11/01/1996 and ended on 04/07/2003.

The Cobzaru case also concerns the absence of an effective remedy. Thus, due to the authorities’ failure to carry out an effective criminal investigation into the applicant’s allegations against police officers, any other remedy available to the applicant, including a claim for damages, had limited chances of success and could be considered as theoretical and illusory, not capable of affording him redress (§83 of the judgment) (violation of Article 13).

The Cobzaru and Stoica cases concern the authorities’ failure to investigate possible racial motives in the applicants’ ill-treatment, combined with their attitude during the investigation, in particular the tendentious remarks made by the prosecutors or by police officers in relation to the applicants’ Roma origin (violation of Article 14 taken in conjunction with Articles 3 (procedural limb) and, in addition, Article 13 in the Cobzaru case).

The Iambor No. 1 case also concerns the infringement of the applicant’s right of individual application due to the pressure allegedly put on him by prison doctors, taken together with the refusal to give him the documents he required in support of his application to the European Court (violation of Article 34).

Individual measures:

1) Barbu Anghelescu No.1: The Office of the Prosecutor General at the High Court for Appeal and Justice, after the re-examining of the case, decided to discontinue it on 29/09/2005 due to the prescription of the criminal responsibility. This decision became final due to lack of appeal by the applicant.

• Assessment: It appears that no further measure is necessary.

2) Bursuc: By a decision of 12/06/2006, the General Prosecutor's Office at the High Court for Appeal of Bacau decided to discontinue the case after a new analysis of the criminal issue in the light of the statements of the European Court, after hearing of eight police officers involved in the incident at issue, the widow of the applicant, the witnesses proposed by the parties and after having examined all appropriate proofs. This decision became final due to lack of appeal by the interested party.

• Assessment: It appears that no further measure is necessary.

3) Cobzaru: The investigation into the ill-treatment of the applicant was closed on 18/11/1998, as the applicant’s appeal was dismissed by Chief Prosecutor of the military section of the Prosecutor General’s Office.

4) Georgescu: On 26/08/2003, at the applicant’s request, the Bucharest military prosecutor informed him of the decision of 19/04/1996 discontinuing the investigation.

5) Iambor No.1: On 4/09/2000 the Timişoara military prosecutor discontinued the investigation with respect to the police officer accused of ill-treating the applicant. Proceedings against other persons involved in the ill-treatment of the applicant were closed on 15/03/2001 on the ground that the applicant had been absent from two consecutive hearings and that, consequently, his criminal complaint was to be considered as withdrawn, in accordance with the legislation in force at the relevant time.

6) Melinte: On 13/12/2001 the Bucharest military prosecutor discontinued the investigation into the applicant’s allegations of ill-treatment.

In a letter of 3/03/2008 the Romanian authorities indicated that since 2006, when the European Court adopted its judgment, the applicant had not asked the Prosecutor’s office to reopen the criminal proceedings.

7) Dumitru Popescu No.1: By a decision of 18/06/2004 a military prosecutor at the Supreme Court confirmed the decision of 14/10/1998 discontinuing the investigation into the applicant’s complaints of ill-treatment.

8) Stoica: On 2/10/2001, the military prosecutor decided not to prosecute the alleged perpetrators of the ill-treatment (decision confirmed on 15/05/2002).

• Information is expected on the possibility of reopening the investigations into the alleged ill-treatment of the applicants in the Cobzaru, Georgescu, Iambor No.1, Dumitru Popescu No.1 and Stoica cases.

General measures:

1) Ill-treatment inflicted on the applicant by police:

• Measures adopted: Ministry of Administration and Home Affairs has disseminated the text of the judgment to the police units. Moreover, sessions of in-service training in the field of human rights have been initiated at the level of territorial police units, aimed at preventing abuses. Police officers are also kept informed in connection with the cases highlighted by public or private bodies dealing with the protection of human rights. Moreover, work sessions take place regularly at the level of territorial police units, involving in particular social workers and experts in psychology and human rights, in view of creating a multidisciplinary network able to react to human rights violations.

• Bilateral contacts are under way to assess the scope of measures undertaken and to determine whether further measures are needed.

2) Effectiveness of the investigations into alleged police abuses: Following the reform of the status of police officers undertaken in 2002, they now have the status of civil servants, so that the competence to investigate and prosecute acts committed by them now belongs to ordinary prosecutors and courts.

Nevertheless, in the light of the findings of the European Court in the Bursuc case (§104), information was requested on the measures envisaged by the domestic authorities to ensure that enquiries concerning police officers are no longer conducted by members of criminal investigation departments serving in the same police units as the persons under investigation.

• Measures adopted: The law on the organisation of the police and the Code of Criminal Procedure has been modified in respect to the investigations concerning offences allegedly perpetrated by police officers. The authorities have also provided statistical data on prosecution of police officers for alleged ill-treatment.

• Bilateral contacts are under way to assess the statistical data and determine whether further measures are needed.

3) Violation of Article 6§1: The Bursuc and Georgescu cases present similarities to the Stoianova and Nedelcu group of cases (Section 4.2, 1072nd meeting, December 2009).

4) Violation of Article 13: The European Court drew attention to the particular circumstances of the case, i.e. the failure to carry out an effective criminal investigation into the ill-treatment of the applicant, which rendered the possibility of suing the police for damages merely theoretical.

Thus, while the civil courts had the capacity to make an independent assessment of fact, in practice the weight attached to a preceding criminal inquiry is so important that even the most convincing evidence to the contrary furnished by a plaintiff would often be discarded (§§ 42, 43, 83 of the judgment).

• Information is expected on current practice of civil courts in cases related to claims for damages in similar situations and on measures taken or envisaged to avoid similar violations.

5) Violation of Article 14: Issues related to discrimination against Roma are also being examined in the context of the Moldovan group of cases (Section 4.2). However, the violation of Article 14 found in the Cobzaru and Stoica cases relate to lack of an effective investigation into alleged ill-treatment by the police and lack of an effective remedy.

• Information is expected on measures taken or envisaged to avoid new similar violations. In this context the authorities might envisage preparation of special training and issue of instructions underlining the necessity to investigate possible racial motives in similar situations.

6) Violation of Article 34:

• Information is expected on measures taken or envisaged to avoid new, similar violations.

7) Publication and dissemination: It should be noted that all judgments of the European Court against Romania are regularly published in the Official Journal and on the Internet site of the Supreme Court of Cassation and Justice (http://www.scj.ro/decizii_strasbourg.asp). The judgments of the European Court in the Anghelescu Barbu No.1 and Bursuc cases were translated and published in the Official Journal in May 2005. They have also been sent to the Superior Judicial Council, to the Prosecutor General, to the Ministry of Justice and to the Ministry of Administration and Home Affairs, which have ensured their dissemination to courts of appeal, prosecutors and police units. The judgments in the Cobzaru and Melinte cases were also sent to the Superior Council of Magistracy, with a view to bringing them to the attention of all domestic courts, with the recommendation that they be discussed amongst the activities related to continued education of magistrates.

The Deputies decided to resume consideration of these items at the latest at their 1st DH meeting in 2010, in the light of information to be provided on individual and general measures.

41124/02 Filip, judgment of 14/12/2006, final on 14/03/2007

This case concerns the compulsory psychiatric hospitalisation of the applicant between November 2002 and January 2003, at the behest of a public prosecutor, with a view to determining his capacity of judgment. The European Court considered that it had not been adequately established that the applicant was deranged, no prior medical opinion having been sought nor any precise indications given as to the elements which led the prosecutor to apply for the applicant's detention. It also noted that the applicant's committal had not been carried out according to law, in that the competent medical commission ought to have been implicated at the moment the committal was enforced. In point of fact, the commission which was seised a month later did not concur with the need for committal (violation of Article 5§1).

The case also concerns the failure to ensure a prompt determination of the lawfulness of the applicant's psychiatric detention (violation of Article 5§4): the relevant domestic court instead of determining the applicant's complaint, submitted in December 2002 under Article 434 of the Code of Criminal Procedure, it referred it to the prosecutor. The prosecutor ordered the withdrawal of the detention order, without examining the complaint on the merits, in January 2003. Thus the authorities took 8 weeks to withdraw the detention order.

Finally the case concerns the inadequacy of investigations carried out into the applicant's allegations of ill-treatment (violation of Article 3). The court noted that the prosecution failed to pronounce upon these complaints and the Romanian authorities provided no information indicating that a criminal investigation had been opened in this respect.

Individual measures: After the lifting of the hospitalisation order and release of the applicant the Romanian courts ordered psychiatric treatment recommended by the medical commission. The applicant did not appeal against this order.

• Information is expected as to whether it is possible to open an investigation concerning the applicant's allegations of ill-treatment during his detention in the psychiatric hospital.

General measures:

• Information is expected on measures taken or envisaged to avoid similar violations. In particular, to assess the necessity and scope of specific measures, the authorities are invited to clarify:

- the legal basis for opening criminal investigations and the reasons for disregarding the applicant's complaints about his alleged ill-treatment in present case;

- the current law governing detention in psychiatric hospitals.

• Information is also expected on the publication and dissemination of the European Court's judgment among relevant courts and authorities, to raise domestic courts' awareness of the Convention's requirements as they result from this case.

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting in 2010, in the light of information to be provided on individual and general measures.

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

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) 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.

(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 is currently being examined by the Secretariat.

• Further information is awaited on the progress achieved in the implementation of undertakings foreseen in the friendly settlement and other possible measures with respect to the Moldovan and others cases and in the implementation of the undertakings foreseen in the Kalanyos and others and Gergely cases.

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+, 1072nd meeting, December 2009).

3) Publication and dissemination: The judgements of 12/07/2005 have been 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.

The Deputies, having noted the information submitted by the Romanian authorities on the state of the execution of this group of cases and the outstanding issues, as presented in a memorandum prepared by the Secretariat;

1. noted the measures adopted in the framework of the action plan adopted by the Romanian authorities for the Hădăreni village and invited the authorities to provide clarifications and further information, in particular concerning their assessment of the results achieved and, if necessary, further necessary measures;

2. noted that similar programmes have been also adopted for the localities Plăieşii de Sus and Caşinul Nou; observed however the delay in implementing the undertakings given by the authorities and encouraged them to intensify their efforts in this respect;

3. welcomed in this context the bilateral consultations planned shortly between the authorities directly involved in the execution of these judgments and the Secretariat;

4. decided to declassify the memorandum and to resume consideration of these items at the latest at their 1st DH meeting in 2010, in the light of further information and clarification to be provided by the Romanian authorities on individual and general measures.

- Case concerning the violation of the right of access to a court due to excessive court fees required[66]

4227/02 Iorga, judgment of 25/01/2007, final on 25/04/2007

- Cases concerning the lack of judicial guarantees in the context of detention on remand[67]

33065/03 Samoilă and Cionca, judgment of 04/03/2008, final on 04/06/2008

29723/03 Lapusan, judgment of 3/06/2008, final on 3/09/2008

42084/02 Vitan, judgment of 25/03/2008, final on 01/12/2008

1434/02+ Lupaş and others, judgment of 14/12/2006, final on 14/03/2007

The case concerns the violation of the applicants' right of access to a court due to the application of a rule requiring unanimity amongst joint owners in order to bring an action for recovery of a property held in common which had been nationalised under the former regime (violation of Article 6§1).

The 19 applicants are the descendants of certain joint owners of a 50-hectare plot on the Black Sea coast, which was expropriated in 1950 for the construction of a military base. In 1998 and 1999 three actions for recovery of the property were brought by some of the applicants, without the agreement of the heirs of two of the former co-owners. Between 2001 and 2002 all three actions were dismissed at final instance by the Supreme Court of Cassation pursuant to the unanimity rule, on account of the refusal of one of the heirs and the difficulty of identifying all the heirs of one of the former owners.

The European Court noted that the unanimity rule had satisfied the criteria of accessibility and predictability and it had pursued the legitimate aim of protecting the rights of all the heirs of the former joint owners of the property. On the other hand, given the circumstances of the case, the strict application of the rule erects an insurmountable obstacle to any future attempt to establish the applicants' title, and imposes a disproportionate burden on them by denying them any clear and concrete possibility of having their request determined by a court.

Individual measures: Romanian law provides, in Article 322§9 of the Code of Civil Procedure, the possibility of reopening of civil proceedings in cases in which the European Court found a violation of the European Convention. As the Convention and the case-law of the Court have direct effect under Romanian Law, courts will without doubt adapt the jurisprudence criticised in this case.

In addition, all applicants were awarded just satisfaction for non-pecuniary damage.

• Assessment: Consequently, it seems that no other individual measure is necessary.

General measures: Although the unanimity rule applied in the present case had no base in domestic legislation, it was adhered to by most of the domestic courts. In its judgment, the European Court noted with interest a draft law amending the civil code, which eliminates the unanimity rule.

• Information is expected on measures taken or envisaged to avoid future violations, in particular, the draft law setting aside the unanimity rule in this context and the possible time frame for its adoption.

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

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting in 2010 in the light of information to be provided on general measures.

73957/01 Varga, judgment of 01/04/2008, final on 01/07/2008

The case concerns the illegality of the applicants’ detention on remand, between 18/01/2001 and 1/02/2001, after the expiry of the detention order (violation of Article 5§1).

The case also concerns a violation of the applicants’ right to respect for their home due to the illegal search of their house on 19/12/2000 (violation of Article 8).

The European Court observed that the search, which had been carried out without a warrant and without impartial observers, had not respected the minimum guarantees the law imposed on the authorities in charge of the criminal investigation, and had not been subject to judicial scrutiny. It also noted that the legislation governing searches in the home at the material time had been lax and deficient, particularly concerning the broad powers assigned to the prosecuting authorities.

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage resulting from the illegal detention and search.

• Assessment: No further individual measure appears to be necessary.

General measures:

1) Illegal detention: The case presents similarities to the Konolos case (26600/02, Section 3).

2) Illegal search: The European Court noted that the provisions of the Code of Criminal Procedure concerning house searches have been modified by Government Ordinance No. 109 of 24/10/2003 and by Law No. 356 of 21/07/2006. According to the new wording of the relevant provisions, house searches may only be carried out on the basis of an interlocutory decision after the prosecution against the person in question has begun. A search warrant given on the basis of this decision by a judge may be used only once and must specify, among others, the period of time and the place where the search should take place, the names of the persons present at home and the name of the prosecuted person. The search is to be carried out by a prosecutor or by the authorities charged with the criminal investigation, who should be accompanied, according to the circumstances, by “operative personnel” (§25 of the judgment).

In a letter of 14/11/2008, the Romanian authorities provided information regarding the present law in the field of house searches.

• Bilateral consultations are under way to assess the necessity of further measures.

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting in 2010, in the light of an assessment of general measures.

70786/01 Rosengren, judgment of 24/04/2008, final on 24/07/2008[68]

60868/00 Vasilescu Grigore, judgment of 08/06/2006, final on 08/09/2006[69]

17309/02 Grozescu, judgment of 27/09/2007, final on 27/12/2007

The case concerns the unfairness of certain civil proceedings at appeal due to the hearing of the opposing party, in December 2001, without the applicant and his lawyer having been informed (violation of Article 6§1).

The European Court noted that the court of appeal, having reopened the oral part of the proceedings to hear the opposing party without informing the applicant, rendered a new judgment unfavourable to him.

Individual measures: The European Court noted that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained. Romanian law (Article 322§9 of the Code of Civil Procedure) provides the possibility of reopening civil proceedings in cases in which the European Court found a violation.

• Assessment: no further measure appears necessary.

General measures:

• Information is expected on current legislation and practice of civil courts with respect to oral hearings in appeal proceedings and measures taken or envisaged to avoid similar violations.

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

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting in 2010, in the light of information to be provided on general measures.

30658/05 Beian No. 1, judgment of 06/12/2007, final on 06/03/2008[70]

1477/02 SC Pilot Services S.A. Constanţa, judgment of 03/06/2008, final on 03/09/2008[71]

- 88 cases concerning the failure to restore or compensate for nationalised property sold by the state to third parties

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

All these cases concern the sale by the state of property nationalised under the communist regime to third parties (tenants) without compensation to the legitimate owners, although the domestic courts declared, between 1993 and 2003, that the acts of nationalisation had been illegal (violation of Article 1 of Protocol No. 1).

The Străin case also concerns the excessive length of the proceedings for recovery of the property at issue. Proceedings began in September 1993 and lasted until 30/06/1999, when the Timişoara Court of Appeal delivered its final judgment (violation of Article 6§1).

Individual measures: The European Court ordered the return of the properties in question or payment of just satisfaction for pecuniary damage corresponding to their market value within three months of the date on which its judgments became final in all the cases except those of Nistorescu,Petrescu, Suciu Arama and Vlăduţ.

The authorities decided to pay the compensation for the nationalised properties in the majority of cases with exception of the Străin case in which the property in question has been returned.

In the Petrescu, Suciu Arama and Vlăduţ cases the applicants recovered their property before the European Court gave its judgments and in the and Nistorescu cases the European Court awarded just satisfaction for pecuniary damage corresponding to the market value of the properties in question.

The European Court also awarded just satisfaction for non-pecuniary damage in all the cases except those of Capetan-Bacskai, Cohen, Dragoş, Gabriel, Popescu and Daşoveanu, Porteanu, Stan and Rosemberger,Tarbuc and Vlăduţ.

• Information is awaited on the current situation of the applicants in the majority of cases, in particular, whether their properties have been returned or if they have received just satisfaction for pecuniary damage.

General measures:

1) Violation of Article 1 of Protocol No. 1: In the Străin case, the European Court noted that, even if Law No. 10/2001 provided that a future law would regulate the procedure for granting compensation in similar situations, as well as its forms and its amount, no such law had been voted at the time the judgment was delivered.

Subsequently, in other cases, the European Court noted with interest that Law No. 247/2005, amending Law No. 10/2001, applies the principles expressed in international case-law related to illegal or de facto expropriation. The new law qualifies as illegal the nationalisations carried out by the communist regime and provides an obligation of restitution in kind or, if that is impossible, compensation equivalent to the market value of the property. Those so entitled might be compensated in the form of participation, as shareholders, in a mutual investment fund organised as a Romanian limited company (S.A.), registered at the Bucharest Companies Registry on 29/12/2005 (Proprietatea, see http://www.fondulproprietatea.ro/en/). However, the European Court has observed on several occasions that the company Proprietatea was not yet operational to the extent of being effectively able to provide the applicants with compensation. Moreover, neither Law No. 10/2001 nor Law No. 247/2005 takes into consideration prejudice resulting from the prolonged absence of compensation of persons who, like the applicants, were deprived of their property despite final judgments ordering its return (see, among others, Porteanu case, §34).

• Improvement of the compensation mechanism: Government Ordinance No. 81/2007 aimed at improving and further accelerating the processing of restitution remedies for properties seized abusively provides that, as from 1/10/2007, claimants shall benefit from the compensation titles either by converting them into shares issued by the Property Fund or, according to the claimant’s choice, as monetary compensation. Monetary compensation in lieu of restitution shall be of up to about 500 000 RON (whereas compensation above this amount is given in form of shares issued by the Property Fund) paid over a two-year period in two instalments, to be counted from the issue of the payment title. Monetary compensation of under 250 000 RON is paid in one instalment. Up to 1/02/2008, 2440 requests for monetary compensation were registered, of which 855 were finalised (the total amount of compensation paid amounted to 72 000 000 RON).

What is more, in 2007 Romania adopted Government Decision No. 1581/2007 modifying and completing Decision No. 1481/2005 concerning the Property Fund. According to Article 9(4), shareholders are free to transfer their shares at any time among themselves or to third parties.

Finally, as from 1/11/2007, the Property Fund began to distribute dividends for 2006 to shareholders registered as of 11/10/2007 with the Shareholder Registry. In June 2008, 2477 shareholders, among them the Ministry of Finance and Economy, were entitled to receive dividends for 2006, amounting in total to 2,705,352 RON.

The Romanian authorities are undertaking further steps in order to evaluate the Property Fund and then list it at the stock exchange. To this end two international companies have been selected to assist in the assessment of the stock comprising the Fund’s portfolio in accordance with the international standards and the relevant domestic legislation in force.

• Sanction mechanism: Law 10/2001, as modified by Government Ordinance No. 209/2005 (approved by Law 209/2005), provides a control mechanism for the implementation of restitution decisions. Thus, a special Control Body may exercise an administrative control and impose sanctions (see also the Popescu Sabin group of cases, 48102/99, Section 4.2.

• Stocktaking of the restitution of nationalised properties: According to the statistics of the National Authority for the Restitution of Property, between 16/10/2006 and 24/04/2008, a total of 35 068 documented claims were filed with the Central Commission for Restitution seeking to restore ownership rights over land located in 38 counties. The Commission retained 13 632 files to be addressed in accordance with the procedure provided by law, of which 9 882 were distributed to the evaluators for consideration. Due to the failure to meet the necessary requirements provided by law as to the content of the documentation, some of the files were returned to be completed. As of May 2008, 2 128 decisions granting compensation were issued and handed over to the rightful owners, the value of the compensation awards being set at 413 865 364 RON.

• Assessment of the Romanian authorities: The existing regulations providing a system to restore ownership rights are functional, offering rightful owners the possibility to choose between monetary compensation and shares in the Property Fund. In addition, according to Government Decision No. 1481/2005 as subsequently amended, shareholders in the Property Fund may dispose of the shares and are entitled to dividends. Assessing the market value of the stock comprising the Fund’s portfolio will successfully solve the objective of the public offer and the issue of the stock exchange listing.

• Further information is expected about measures taken or envisaged to avoid new, similar violations, in particular in the light of the European Court’s assessment of the functioning of the current restitution mechanism (see Viaşu case, 75951/01, Section 2). In this context, information is also expected on measures taken or envisaged to address the issue of lack of compensation for the period between the final judgments providing the restitution of properties to their owners and their actual enforcement (see, among others, the judgment in the Porteanu case, §34).

2) Violation of Article 6§1: The problem of the excessive length of the civil proceedings is being examined in the context of the Nicolau group of cases (1295/02, 1072nd meeting, December 2009).

3) Publication and dissemination: The judgments of the European Court in the Străin, Păduraru and Porteanu cases were published in the Official Journal and disseminated.

The Deputies,

1. recalled that the questions raised in these cases concern an important systemic problem, related particularly to the failure to restore or compensate nationalised property sold subsequently by the state to third parties, which it is important to remedy as soon as possible to avoid a large number of new, similar violations;

2. noted, that the European Court, in a number of judgments which have become final recently, considered among other things that the Romanian authorities should take the necessary legislative measures to prevent situations in which two titles to the same property coexist and should also amend the administrative mechanism set up by the laws on compensation to ensure that it becomes genuinely coherent, accessible, rapid and foreseeable;

3. invited the Romanian authorities to submit an action plan on measures taken or envisaged to improve the current restitution mechanism; in this context they also noted with interest that bilateral consultations are envisaged between the authorities involved in the restitution process and the Secretariat;

4. decided consequently to resume consideration of these items at the latest at their 1st DH meeting in 2010, in the light of the action plan to be provided and information on individual measures.

Cases concerning the failure or substantial delay

by the administration in enforcing final judicial decisions:

- Cases concerning the failure to enforce final judicial decisions ordering the restitution of property nationalised or lost during the communist period

48102/99 Popescu Sabin, judgment of 02/03/04, final on 02/06/04, rectified on 05/07/2004

77195/01 Abăluţă, judgment of 15/06/2006, final on 15/09/2006

7114/02 Acatrinei, judgment of 26/10/2006, final on 26/03/2007

5437/03 Anghelescu Marioara, judgment of 03/06/2008, final on 03/09/2008

6206/03 Bratulescu, judgment of 07/02/2008, final on 07/05/2008

3041/04 Burlacu and others, judgment of 17/07/2008, final on 17/10/2008

4305/03 Corabian, judgment of 27/09/2007, final on 31/03/2008

57810/00 Costin, judgment of 26/05/2005, final on 26/08/2005

54400/00 Croitoriu, judgment of 09/11/2004, final on 30/03/2005

2239/02 Dobre, judgment of 15/03/2007, final on 15/06/2007

1818/02 Dorneanu, judgment of 26/07/2007, final on 26/10/2007

78047/01 Dragne and others, judgment of 07/04/2005, final on 07/07/2005 and of 16/11/2006, final on 16/02/2007

35102/02 Draica, judgment of 03/06/2008, final on 03/09/2008

18037/02 Gavrileanu, judgment of 22/02/2007, final on 09/07/2007

58318/00 Georgi, judgment of 24/05/2006, final on 13/09/2006

2611/02 Grosu, judgment of 28/06/2007, final on 28/09/2007

18013/03 Ioachimescu and Ion, judgment of 12/10/2006, final on 12/01/2007

12334/03 Irimia, judgment of 17/06/2008, final on 17/09/2008

1204/03 Luca, judgment of 13/05/2008, final on 13/08/2008

38113/02 Matache and others, judgment of 19/10/2006, final on 19/01/2007

2726/02 Nerumberg, judgment of 01/02/2007, final on 09/07/2007

54369/00 Maria Peter and others, judgment of 31/05/2007, final on 31/08/2007

8402/03 Pietro and others, judgment of 20/07/2006, final on 20/10/2006

7234/03 Pop, judgment of 21/12/2006, final on 21/03/2007

2911/02 Popescu Mihai-Iulian, judgment of 29/09/2005, final on 29/12/2005

2739/02 Prodanof and others (No. 1), judgment of 15/11/2007, final on 07/07/2008

31442/02 Rădulescu, judgment of 28/06/2007, final on 28/09/2007

67289/01 Şandor, judgment of 24/03/2005, final on 24/06/2005

746/02 Tacea, judgment of 29/09/2005, final on 29/12/2005

16947/03 Tăculescu and others, judgment of 01/04/2008, final on 01/07/2008

9835/02 Vidu and others, judgment of 21/02/2008, final on 21/05/2008

CM/Inf/DH(2007)33

All these cases concern delays in enforcing or failure to enforce by the administrative authorities of judicial decisions, delivered between 1992 and 2005, ordering the restitution of property lost during the communist period (Popescu Sabin, Abǎluţǎ, Acatrinei, Anghelescu Marioara, Brătulescu, Burlacu and others, Corabian, Costin, Croitoriu, Dobre, Dorneanu, Dragne and others, Draica, Gavrileanu, Georgi, Grosu, Ioachimescu and Ion, Irimia, Luca Atena, Nerumberg, Maria Peter and others, Pop, Popescu Mihai-Iulian, Prodanof and others (No. 1), Rădulescu, Tacea, Tăculescu and others, Vidu and others) and/or the payment of compensation in the absence of such restitution (Dragne, Matache and others, Pietro and others, Şandor).

The European Court found violations of Article 6§1 in all the cases, except those of Pop, Burlacu and others, Draica and Prodanof and others (No. 1), and violations of Article 1 of Protocol No. 1 in all the cases, except that of Costin.

Individual measures:

The European Court awarded the applicants just satisfaction in respect of pecuniary damage (Popescu Sabin, Dragne), non-pecuniary damage (Abǎluţǎ, Acatrinei, Burlacu and others, Corabian, Costin, Dorneanu, Georgi, Irimia, Luca, Maria Peter and others, Pietro, Ioachimescu and Ion, Pop, Prodanof and others (No. 1)) or both pecuniary and non-pecuniary damage (Brătulescu, Croitoriu, Dobre, Matache and others, Popescu Mihai-Iulian, Nerumberg, Rădulescu, Şandor, Tacea).

In some cases (Abǎluţǎ, Dobre, Ioachimescu and Ion, Irimia, Luca, Nerumberg, Maria Peter and others, Pop, Rădulescu, Tăculescu and others), the European Court ordered the enforcement of the domestic decision concerning the restitution of property or payment of just satisfaction for pecuniary damage.

In the Anghelescu Marioara, Draica, Grosu, and Vidu and others cases, the European Court considered that the question of just satisfaction was not ready for decision and reserved it accordingly.

In the Gavrileanu case, the European Court ordered the enforcement of the domestic decision at issue and decided to reserve the question of just satisfaction with regard to compensation for the loss of earnings arising from the failure to execute this judgment and in respect of non-pecuniary damage.

The domestic decisions have been enforced in the cases of Popescu Sabin, Acatrinei, Brătulescu, Burlacu and others, Corabian, Costin, Dragne, Şandor, Tacea, Georgi, Pietro and others, Prodanof and others (No. 1). In the Abǎluţǎ, Dobre, Ioachimescu and Ion, Pop cases the authorities decided to pay the amount in question.

• Information is awaited on the current situation of the applicants in the Croitoriu, Gavrileanu, Irimia, Luca, Nerumberg, Maria Peter and others, Rădulescu and Tăculescu and others cases.

General measures:

1) Legislative reform: On 19/07/2005 Parliament adopted Law No. 247 on the reform of property and justice. This law modified Law No. 18/1991 and the subsequent Acts concerning the restitution of land. According to the government, it contributes to improving and accelerating proceedings. Moreover, it imposes sanctions on local authority representatives who do not respect its provisions.

According to additional information submitted by the Romanian authorities by letter of 9/09/2006, the statistical reports of March and August 2006 and a preliminary analysis concerning the application of Law No. 247/2005 show a significant increase in cases resolved by local commissions, either by admitting or dismissing requests.

Moreover, departmental commissions accepted an increasing number of proposals made by the local commissions. It should also be underlined that there is a preference for the restoration of plots of land (increase of area approved by departmental commissions). Finally, the reform also provides the verification of the validity of property titles.

In addition, in order to ensure the respect of legal provisions by the administration, a “Control Body” was created within the “Department for co-ordination and control of the application of the legislation in the field of the restitution of the land property”; in first eight months of 2006, this body carried out more than 300 controls and sanctioned approximately 6% of all acting mayors in Romania. The value of the imposed fines amounted to 1 330 000 RON (380 000 euros).

• Bilateral contacts are under way to assess the measures taken and still envisaged.

2) Publication and dissemination of the judgments of the European Court: The judgment in the case of Popescu Sabin was translated and published in the Official Journal in August 2005. In addition, a summary was published in the first issue of Themis, a journal of the National Institute of Magistrate, and later distributed free to all courts. Finally, the administrative authorities have received a copy of the judgment.

The Costin judgment was translated and is to be published in the Official Journal (letter from the Romanian authorities of 27/03/2006).

In addition, the Ministry of Public Finance addressed a circular letter to all Local Finance Administrations presenting the Şandor case to them in order to avoid similar situations. The text of the judgment was translated and is to be published in the Official Journal.

Finally, by a circular letter of 18/11/2005 addressed to the prefects of all departments, the Romanian authorities explained the principles of the European Court's case-law regarding the execution of judicial decision concerning land. They also underlined the need to execute judicial decisions ordering the setting of the ownership and/or the issue of the title deed and the importance of a transparent dialogue with the beneficiaries of the judicial decisions concerning land. Prefects were invited, in their capacity as presidents of the departmental commissions for the application of land law, to transmit this circular letter to local commissions.

The Deputies decided to resume consideration of these items at the latest at their 1st DH meeting in 2010 in the light of further information to be provided on general measures as well as on individual measures, if necessary.

- Cases mainly concerning late enforcement of final judicial decisions ordering the applicants' reinstatement in their posts within public bodies and payment of salary arrears for the period they were unemployed

23878/02 Strungariu, judgment of 29/09/2005, final on 29/12/2005

35935/02 Cone, judgment of 24/06/2008, final on 24/09/2008

6098/03 Durdan, judgment of 26/04/2007, final on 24/09/2007

23657/03 Miclici, judgment of 20/12/2007, final on 20/03/2008

5060/02 Mihaescu, judgment of 02/11/2006, final on 26/03/2007

32019/03 Ocneanu, judgment of 29/07/2008, final on 29/10/2008

9555/03 Ştefanescu, judgment of 11/10/2007, final on 11/01/2008

29762/02 Teodorescu, judgment of 29/07/2008, final on 29/10/2008

CM/Inf/DH(2007)33

These cases concern the late enforcement of court decisions, given between 1997 and 2001, ordering the applicants' reinstatement in their posts in state agencies and the payment of salary arrears for the period during which they were unemployed (violations of article 6§1).

In the Cone, Miclici and Ocneanu cases the European Court also found that the impossibility to obtain the full execution of final decisions amounted to an illegal interference with the applicants’ right to the peaceful enjoyment of their possessions (violation of Article 1 of Protocol No. 1).

The Teodorescu case also concerns the annulment of a final court decision by the Supreme Court following the application for nullity lodged by the Procurator General (violation of Article 6§1).

Individual measures:

1) Strungariu case: The decision (October 2001) ordering the applicant's reinstatement in his post in the Agency for Privatisations and Administration of State Shareholdings and the payment of the salary arrears was executed in January 2003.

2) Cone case: The European Court awarded the applicant just satisfaction in respect of the pecuniary damage sustained.

3) Durdan case: Following a domestic court’s decision in October 1997, the applicant was reinstated in his post in the District Veterinary Sanitation in May 1998 and received his salary arrears in February 2000.

4) Miclici case: The European Court noted that following the applicant’s retirement in January 2002, the final judgment of 15/12/2000 could no longer be executed in its part concerning his reinstatement. It also noted that the applicant obtained compensation for his salary for the period from his dismissal to July 2001 and awarded him just satisfaction in respect of the remaining period. Finally, the European Court noted that the Romanian authorities should take appropriate measures to pay the contributions from the applicant’s salary for the period from August to October 2001 into the health and retirement fund.

5) Mihaescu case: The decisions for his reinstatement in his post in Iaşi University of Medicine and Pharmacology (March 2000) and the payment of the salary arrears (June 2003) were executed in 2006.

6) Ocneanu case: The applicant was reintegrated in his post and received the amount to which he was entitled with respect to his salary .The European Court noted that the authorities should take measures to assure the payment of the amounts due for the applicant’s social security, health and unemployment insurance for the period from May 2000 to April 2005.

7) Ştefanescu case: The European Court ordered the execution of the decision of 1/02/1999, including the reinstatement of the applicant in an equivalent post and payment of the awarded sums, or failing to do so, payment of just satisfaction for pecuniary damage.

8) Teodorescu case: The European Court noted that the reinstatement of the applicant in his post and the payment of the amount awarded by a domestic judgment would put the applicant in the same position in which he would be if there had been no violation. The authorities should also take the necessary measures to ensure the payment of the sums in respect of the applicant’s health and retirement insurance. Failing this, the authorities are supposed to pay just satisfaction for pecuniary damage.

It should be also noted that the European Court awarded all the applicants just satisfaction in respect of non-pecuniary damage.

• Information is expected about the current state of the execution of the European Court’s judgments in the Miclici, Ocneanu, Ştefanescu and Teodorescu cases.

General measures:

1) Late enforcement of final domestic judicial decisions: Under Romanian law the obligation to reinstate a person in his post is an “obligation to do” which requires personal intervention of the debtor. According to Article 1073 of the Civil Code, the creditor has the right to obtain the exact execution of the obligation or, failing such execution, to be compensated. Further, if the execution in kind has become objectively impossible, Article 1075 of the Civil Code provides a possibility to ask the courts to order compensation for its value.

Romanian law also places at employees’ disposal various indirect coercive measures to force the employer to reinstate them:

- Article 78 of the Labour Code, published on 5/02/2003, in case of an ill-founded or illegal dismissal provides, as a main obligation, the payment of compensation, reinstatement being ordered only at the request of the employee before the court;

- Article 580³§1 of the Code of Civil Procedure provides a possibility to impose a civil fine on debtors for each day of delay until the execution of the obligation set out in the execution order;

- Article 580³§2 of the Code of Civil Procedure provides a possibility for the creditor to claim compensation for damage caused by the failure to execute;

- Article 84 of Law No. 168/1999 on work-related disputes, published on 29/11/1999, provides that failure to execute a final decision ordering the reinstatement of an employee to his post constitutes an offence punishable by imprisonment or a fine.

The judgment of the European Court in the Strungariu case was to be translated and published in the Official Journal. It was also brought to the attention of the National Agency for Public Servants, which was informed about the general principles of the European Court’s case law related to late of non-enforcement of final domestic courts’ decisions and of the implications of this judgment.

• Assessment: underway.

2) Annulment of final domestic judicial decisions: The Teodorescu case presents similarities to the Brumărescu case (Resolution CM/ResDH(2007)90).

The Deputies decided to resume consideration of these items at the latest at their 1st DH meeting in 2010, in the light of further information to be provided on individual measures and of the assessment of the general measures.

- Cases concerning failure by domestic authorities to assist in enforcing final judicial decisions placing obligations on private third parties

34647/97 Ruianu, judgment of 17/06/03, final on 17/09/03

40067/06 Butan and Dragomir, judgment of 14/02/2008, final on 14/05/2008

73706/01 Ion-Cetina and Ion, judgment of 14/02/2008, final on 14/05/2008

10395/02 Kocsis, judgment of 20/12/2007, final on 20/03/2008

67007/01 Neamţiu, judgment of 14/02/2008, final on 14/05/2008

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 Ion-Cetina and Ion and Vasile cases concerns 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 a domestic court decisions, given between 1998 and 2003, ordering payment of a certain sum to the applicants.

The Kocsis case also concerns the excessive length of civil proceedings, including the execution phase (violation of Article 6§1).

Individual measures:

1) Ruianu: Following the friendly settlement reached with their neighbours, the applicant's heirs (she died on 10/03/2005) sold to them the plot of land on which the building at issue stands.

2) Butan and Dragomir: The European Court recalled that the finding of a violation places an obligation on the authorities to put an end to the violation and to erase, as far as possible, its consequences. In the context of the present case this would require the execution of the final judicial decision of 22/11/2005. It should be noted that since the delivery of the European Court’s judgment of the applicants have complained several times about the non-execution of the domestic decision.

3) Ion-Cetina and Ion: The European Court noted that the full execution of the final judicial decision of 27/03/1997 (bringing the applicants into possession of the totality of their land) would place them, as far as possible, in the same situation as before the violations. Failing to execute this decision within three months of the date on which the European Court’s judgments became final, the authorities should pay the applicants just satisfaction in respect of pecuniary damage, corresponding to the value of the land in question. In this context it should be noted that the Romanian authorities paid the compensation for the land in question.

4) Kocsis: The European Court awarded the applicant just satisfaction in respect of all heads of damage, corresponding to the sums awarded by domestic jurisdictions.

5) Neamţiu: The European Court recalled that the finding of a violation places an obligation on the authorities to put an end to the violation and to erase, as far as possible, its consequences. In the context of the present case this would require the execution of the final judicial decision of 21/09/1995 and 16/05/1996.

6) 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.

7) 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.

8) Schrepler: The decision of 1998 had still not been executed when the European Court rendered its judgment.

9) 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 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 Butan and Dragomir, 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.

• Bilateral contacts are under way to assess the information provided by the authorities. 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 4.2,1072nd meeting, December 2009)

- Cases concerning late enforcement of, or failure to enforce final judicial decisions by public institutions

73970/01 Sacaleanu, judgment of 06/09/2005, final on 06/12/2005

37380/03 Balcan, judgment of 29/07/2008, final on 29/10/2008

13386/02 Moldoveanu, judgment of 29/07/2008, final on 29/10/2008

1486/02 Orha, judgments of 12/10/2006, final on 12/01/2007 and of 04/11/2008 - Friendly settlement

5050/02 Pântea Elisabeta, judgment of 15/06/2006, final on 15/09/2006

28333/02 SC Ruxandra Trading SRL, judgment of 12/07/2007, final on 12/10/2007 and of 02/12/2008, final on 02/03/2009

40263/05 Străchinaru, judgment of 21/02/2008, final on 21/05/2008

CM/Inf/DH(2007)33

These cases concern violations of the applicants' right of access to a court due to the late enforcement of, or failure to enforce final court decisions ordering the public authorities to take certain actions (violations of Article 6§1 in all cases with exception of Moldoveanu case). In the Moldoveanu, Orha, SC Ruxandra Trading SRL and Străchinaru cases the European Court considered that, by refusing to enforce the judgments, the authorities had deprived the applicants of their right to peaceful enjoyment of their possessions (violations of Article 1 of Protocol No. 1).

In the Sacaleanu, Balcan, Moldoveanu and Orha cases, various public authorities were ordered to pay certain sums of money to the applicants. In other cases domestic courts ordered various other actions by the authorities in favour of the applicants.

In the Sacaleanu case the European Court noted that a state-funded public institution could only pay its debts with specific sums assigned for the purpose by the Ministry of Finance. The European Court noted that delays in paying sums due to the applicant were sometimes caused by the fact that the Ministry had not made over the necessary sums in time. It therefore concluded that the state, through its own acts, had made it impossible for the applicant promptly to recover the sums which were due to her by virtue of final court decisions.

Individual measures:

1) Sacaleanu: The sums awarded by the domestic decision were paid to the applicant by the State Inspectorate for Persons with Disabilities on 22/02/2002. In addition, the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

2) Balcan: The European Court awarded the applicant just satisfaction, covering all heads of damage, resulting from the non-execution by the Galaţi authorities of a decision of 2/09/2005 ordering the reconstruction of the applicant’s house, on pain ofpaying a certain sum for each day of postponement.

3) Moldoveanu: The European Court awarded the applicant just satisfaction in respect of pecuniary damage resulting from the non-execution by a public company of a decision of 17/11/1999 ordering the payment of a certain amount of money. It also awarded him just satisfaction for non-pecuniary damage.

4) Orha: By a decision of 28/10/1999 the municipal authorities were ordered to pay the applicants certain sums for expropriation of their property. Following the European Court’s judgment on the merits, the parties agreed on a friendly settlement, according to which the applicants were recorded as owners of the land in question in the land registry.

5) Pântea Elisabeta: By a decision of 2/04/2001 the municipality of Grivita was ordered to record the applicant’s ownership of a certain property on the agricultural land register and to remove the title of a third person to the same property. Following the European Court’s judgment, the municipal authorities have also enforced the second limb of this decision.

6) SC Ruxandra Trading SRL: The European Court ordered that the Romanian authorities should either execute the decision of the Bucharest Court of Appeal of 8/06/2000, ordering the Bucharest City Hall to issue the applicant company a permanent building permit and to grant it a long-term lease in respect of the disputed land or, failing that, to pay it just satisfaction for pecuniary damage.

7) Străchinaru: The European Court ordered that the Romanian authorities should either execute the decision of Bucharest Court of Appeal of 27/04/2000, ordering the Bucharest General Council, according to Article 13 b) of Law No. 44/194 on war veterans and the rights of invalids and war widows, to attribute a plot of land to the applicant or to pay him just satisfaction for pecuniary damage. The Romanian authorities have chosen the second alternative.

• Assessment: No further individual measure appears necessary in the Sacaleanu, Balcan, Moldoveanu, Orha, Pântea Elisabeta and Străchinaru cases.

• Information is expected on the current situation of the applicant in the SC Ruxandra Trading SRL case (execution of the domestic decision at issue).

General measures:

• Information is expected on the authorities' assessment as to whether the violations found by the European Court in these cases have a structural character and on measures possibly taken or envisaged to ensure prompt execution by the public institutions of the obligations imposed on them by virtue of final judicial decisions (in this context see the conclusions of the Round table organised by the Department for the Execution of Judgments of the European Court of Human Rights on 21 and 22 June 2007 – CM/Inf/DH(2007)33).

In the context of the Orha case the European Court also raised the question of certain shortcomings of Law No. 33/1994 on expropriation (§25 of the judgment).

The European Court’s judgment in the Pântea Elisabeta case has been translated and published in the Official Journal. It was sent to the Superior Council of Magistracy and the Ministry of Interior and Administrative Reform, with a view to bringing it to the attention of all domestic courts and local authorities. It has been also brought to the attention of the municipality of Grivita.

• Information is also awaited concerning the publication and dissemination of the other judgments of the European Court to relevant domestic courts and institutions.

The Deputies decided to resume consideration of these items at the latest at their 1st DH meeting in 2010, in the light of information to be provided on individual and general measures.

- 159 cases against the Russian Federation

4353/03 Tarariyeva, judgment of 14/12/2006, final on 14/03/2007[72]

49790/99 Trubnikov, judgment of 05/07/2005, final on 30/11/2005[73]

59261/00 Menesheva, judgment of 09/03/2006; final on 09/06/2006[74]

63993/00 Romanov, judgment of 20/10/2005, final on 20/01/2006[75]

5140/02 Fedotov, judgment of 25/10/2005, final on 25/01/2006[76]

CM/Inf/DH(2006)19-rev 3 and CM/Inf/DH(2006)45

35421/05 Mechenkov, judgment of 07/02/2008, final on 07/07/2008[77]

- Cases concerning poor conditions of detention, amounting to degrading treatment[78]

47095/99 Kalashnikov, judgment of 15/07/02, final 15/10/02, Interim Resolution ResDH(2003)123

67253/01 Babushkin, judgment of 18/10/2007, final on 18/01/2008

37810/03 Bagel, judgment of 15/11/2007, final on 15/02/2008

106/02 Benediktov, judgment of 10/05/2007, final on 24/09/2007

66802/01 Dorokhov, judgment of 14/02/2008, final on 14/05/2008

205/02 Frolov Andrey, judgment of 29/03/2007, final on 24/09/2007

52058/99 Gorodnitchev, judgment of 24/05/2007, final on 12/11/2007

30983/02 Grishin, judgment of 15/11/2007, final on 02/06/2008

24650/02 Guliyev, judgment of 19/06/2008, final on 19/09/2008

34000/02 Ivanov Igor, judgment of 07/06/2007, final on 30/01/2008

37213/02 Kantyrev, judgment of 21/06/2007, final on /01/2008

25948/05 Knyazev, judgment of 08/11/2007, final on 02/06/2008

67086/01 Korobov and others, judgment of 27/03/2008, final on 27/06/2008

62208/00 Labzov, judgment of 16/06/05, final on 16/09/05

25664/05 Lind, judgment of 06/12/2007, final on 02/06/2008

63378/00 Mayzit, judgment of 20/01/05, final on 06/07/05

52697/99 Mikadze, judgment of 07/06/2007, final on 12/11/2007

22625/02 Mironov, judgment of 08/11/2007, final on 08/02/2008

66460/01 Novoselov, judgment of 02/06/05, final on 02/09/05

26853/04 Popov, judgment of 13/07/2006, final on 11/12/2006

3522/04 Salmanov, judgment of 31/07/2008, final on 31/10/2008

15591/03 Seleznev, judgment of 26/06/2008, final on 01/12/2008

42239/02 Starokadomskiy, judgment of 31/07/2008, final on 31/10/2008

3130/03 Sudarkov, judgment of 10/07/2008, final on 01/12/2008

63955/00 Sukhovoy, judgment of 27/03/2008, final on 27/06/2008

36898/03 Trepashkin, judgment of 19/07/2007, final on 19/10/2007

78146/01 Vlasov, judgment of 12/06/2008, final on 12/09/2008[79]

71933/01 Gartukayev, judgment of 13/12/2005, final on 13/03/2006[80]

55762/00+ Timishev, judgment of 13/12/2005, final on 13/03/2006[81]

55565/00 Bartik, judgment of 21/12/2006, final on 21/03/2007[82]

14139/03 Bolat, judgment of 05/10/2006, final on 05/01/2007[83]

42086/05 Liu and Liu, judgment of 06/12/2007, final on 02/06/2008

The case concerns a deportation order (not executed to this date) issued in 2005 against the first applicant, a Chinese national.

The first applicant has been married since 1994 to a Russian national (the second applicant) and had a daughter and a son with her, both Russian nationals. He lived legally in Russia from 1994-6 and 2001 to August 2003 on the basis of renewable work permits. His applications for a residence permit were repeatedly refused on the account that he presented a risk for national security. The local police department therefore initiated then deportation and administrative removal proceedings against him. The administrative proceedings opened under the Administrative Offences Code (unlawful residence on Russian territory) were finally discontinued by the courts. At the same time, the deportation proceedings launched under the Entry Procedure Act and the Instruction of the Ministry of Internal Affairs resulted in an enforceable deportation order of the Federal Migration Service. The latter proceedings were conducted without judicial scrutiny.

The European Court noted, in this respect, that Russian law establishes two parallel procedures, for expulsion of foreign nationals whose residence in Russia has become unlawful. In one of these procedures deportation of a foreign national can be ordered by the executive without any form of independent review or adversarial proceedings, while the other procedure (administrative removal) provides for judicial scrutiny. Domestic law permits the executive to chose between those procedures at their discretion. The enjoyment of procedural safeguards by a foreign national is thus dependent on the executive's choice (§66 of the judgment). In these circumstances, the European Court found that the legal provisions, on the basis of which the first applicant’s deportation was ordered, did not provide for the adequate degree of protection against arbitrary interference and thus did not meet the Convention’s “quality of law” requirements. It accordingly concluded that in the event of the deportation order against the first applicant being enforced there would be a violation of Article 8.

Individual measures: Non-pecuniary damage sustained by the applicants was compensated by the European Court. However, it appears from the judgment that the deportation order is still valid and enforceable and that deportation is imminent (§ 51 of the judgment).

• Information provided by the Russian authorities at the 1035th meeting (September 2008): On 4/08/2008 the Federal Migration Service annulled its decision of 22/03/2005 on the undesirability of the first applicant’s presence on the territory of the Russian Federation and the deportation order of 12/11/2005 delivered against him.

On 2/12/2008 the applicants lodged an application with the Central District Court of Khabarovsk seeking the reopening of proceedings on the basis of newly discovered circumstances. Following the European Court’s judgment, they asked the court to declare unlawful the refusal to grant a residence permit to the first applicant, to oblige the competent authorities to deliver him such a permit and to compensate the non-pecuniary damage sustained.

On 22/12/2008 the judge examining the case wrote to the Head of the Directorate of the Federal Migration Service for Khabarovsk region inviting him to secure the first applicant’s presence on the territory of the Russian Federation so as to allow him to effectively exercise his rights until a final judicial decision is taken in his case.

• More details are awaited on the concrete measures taken by the Federal Migration Service following the judge’s request.

On 6/02/2009, the representative of the Directorate of the Federal Security Service for Khabarovsk region lodged a request that the case be transferred to the Khabarovsk Regional Court which, according to the Russian Code of Civil Procedure, is the only level of jurisdiction competent to examine classified information, in particular that related to state secrets. This request was granted by the Central District Court and the case was sent to the Regional Court. On 17/03/2009 the Khabarovsk Regional Court dismissed the applicants’ claim. The Regional Court considered the classified information provided by the Federal Security Service and concluded that the refusal to grant a residence permit to the first applicant was lawful and justified. It appears that the applicant was present at the hearing. According to the information provided by the applicants’ lawyer, the applicants appealed against the judgment of 17/03/2009 to the Supreme Court of Russia.

• Information is awaited on the progress of the case before the Supreme Court.

The Russian authorities also indicated that the judgment and the Committee of Ministers’ decisions had been widely disseminated to all competent authorities, such as courts, prosecutors, the Ministry of the Interior and the Federal Migration Service, in particular to their regional departments in the Khabarovsk region.

General measures: General issues regarding the legislative and regulatory framework governing deportation are examined in the Bolat case (14139/03, 1072nd meeting, December 2009).

The Russian authorities indicated that the judgment of the European Court was disseminated to all territorial departments of the Federal Migration Service, by a circular letter of its Director, and to all courts.

By a letter from the Russian Government Agent, the judgment was also 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 Dalnevostochniy federal district.

The judgment was translated into Russian and published in the Bulletin of the European Court (No. 6, 2008).

The Deputies decided to resume consideration of this case at their 1065th meeting (15‑16 September 2009) (DH), in the light of information to be provided on individual measures.

- Cases concerning extradition[84]

38411/02 Garabayev, judgment of 07/06/2007, final on 30/01/2008

2947/06 Ismoilov and others, judgment of 24/04/2008, final on 01/12/2008

656/06 Nasrulloyev, judgment of 11/10/2007, final on 11/01/2008

8320/04 Ryabikin, judgment of 19/06/2008, final on 19/09/2008

16074/07 Shchebet, judgment of 12/06/2008, final on 12/09/2008

32718/02 Tuleshov and others, judgment of 24/05/2007, final on 12/11/2007[85]

184/02 Kuznetsov and others, judgment of 11/01/2007, final on 11/04/2007[86]

10519/03 Barankevich, judgment of 26/07/2007, final on 26/10/2007

3896/04 Ryabov, judgment of 31/01/2008, final on 07/07/2008[87]

72881/01 Moscow Branch of the Salvation Army, judgment of 05/10/2006, final on 05/01/2007[88]

18147/02 Church of Scientology Moscow, judgment of 05/04/2007, final on 24/09/2007[89]

30160/04 Dzhavadov, judgment of 27/09/2007, final on 27/12/2007[90]

- Cases concerning freedom of expression[91]

72683/01 Chemodurov, judgment of 31/07/2007, final on 31/10/2007

25968/02 Dyuldin and Kislov, judgment of 31/07/2007, final on 31/10/2007

73219/01 Filatenko, judgment of 06/12/2007, final on 06/03/2008

29372/02 Karman, judgment of 14/12/2006, final on 14/03/2007

12365/03 Krasulya, judgment of 22/02/2007, final on 22/05/2007

55066/00+ Russian Conservative Party of Entrepreneurs and others, judgment of 11/01/2007, final on 11/04/2007[92]

17864/04+ Krasnov and Skuratov, judgment of 19/07/2007, final on 31/03/2008[93]

35082/04 Makhmudov, judgment of 26/07/2007, final on 26/10/2007[94]

67099/01 Solodyuk, judgment of 12/07/05, final on 30/11/05[95]

15435/03 Shulepov, judgment of 26/06/2008, final on 01/12/2008[96]

19692/02 Seliverstov, judgment of 25/09/2008, final on 25/12/2008[97]

- Cases concerning the violation of the right to a fair trial since the applicants’ cases were not determined by a tribunal established by law [98]

73225/01 Fedotova, judgment of 13/04/2006, final on 13/09/2006

26716/03 Barashkova, judgment of 29/04/2008, final on 29/07/2008

5433/02 Shabanov and Tren, judgment of 14/12/2006, final on 14/03/2007[99]

66941/01 Zagorodnikov, judgment of 07/06/2007, final on 07/09/2007[100]

- Cases concerning the failure to summons the accused in criminal supervisory-review proceedings[101]

53203/99 Vanyan, judgment of 15/12/2005, final on 15/03/2006

66041/01 Aldoshkina, judgment of 12/10/2006, final on 12/01/2007

54632/00 Zhukov Stanislav, judgment of 12/10/2006, final on 12/01/2007

- Cases concerning violation of the right of access to a court or to fair trial due to the belated notification of a procedural act in civil or criminal proceedings[102]

23377/02 Mokrushina, judgment of 05/10/2006, final on 12/02/2007

70142/01 Dunayev, judgment of 24/05/2007, final on 24/08/2007

75893/01 Fokin, judgment of 18/09/2008, final on 18/12/2008

3354/02 Gorbachev, judgment of 15/02/2007, final on 15/05/2007

12377/03 Kabkov, judgment of 17/07/2008, final on 17/10/2008

74286/01 Larin and Larina, judgment of 07/06/2007, final on 07/09/2007

8630/03 Prokopenko, judgment of 03/05/2007, final on 03/08/2007

4537/04 Sidorova, judgment of 14/02/2008, final on 14/05/2008

33132/02 Metelitsa, judgment of 22/06/2006, final on 23/10/2006

6857/02 Stadukhin, judgment of 18/10/2007, final on 18/01/2008

837/03 Subbotkin, judgment of 12/06/2008, final on 12/09/2008

- Cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

Housing disputes (former military)[103]

63501/00 Konovalov, judgment of 23/03/2006, final on 13/09/2006

24435/04 Bormotov, judgment of 31/07/2008, final on 31/10/2008

14656/03 Ponomarenko, judgment of 15/02/2007, final on 15/05/2007

41307/02 Shpakovskiy, judgment of 07/07/2005, final on 07/10/2005

40078/03 Tolstov, judgment of 26/06/2008, final on 26/09/2008

- Case concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

Housing disputes (judges) [104]

11931/03 Teteriny, judgment of 30/06/2005, final on 30/09/2005

- Cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

Housing disputes (Tchernobyl)[105]

41302/02 Malinovskiy, judgment of 07/07/2005, final on 07/10/2005

7363/04 Mikryukov, judgment of 08/12/2005, final on 08/03/2006

6859/02 Nagovitsyn, judgment of 24/01/2008, final on 24/04/2008

- Cases concerning the failure or substantial delay by the administration in enforcing judgments relating to the social benefits of former Chernobyl workers[106]

Resolution ResDH(2004)85

33264/02 Levin, judgment of 02/02/05, final on 02/05/06

34439/04 Agaponova and others, judgment of 07/02/2008, final on 07/05/2008

75025/01+ Aleksentseva and others, judgment of 17/01/2008, final on 17/04/2008

966/03 Almayeva, judgment of 25/10/2007, final on 25/01/2008

32786/04 Bakharev and others, judgment of 18/09/2008, final on 18/12/2008

21932/03 Bakharev, judgment of 19/07/2007, final on 19/10/2007

37930/02 Bazhenov, judgment of 20/10/05, final on 20/01/06

34679/03 Belotserkovets, judgment of 03/07/2008, final on 01/12/2008

24620/02 Belyayev, judgment of 25/01/2007, final on 25/04/2007

72558/01 Blagovestnyy, judgment of 04/07/2006, final on 04/10/2006

1719/02 Butsev, judgment of 22/09/05, final on 15/02/06

40642/02 Denisenkov, judgment of 22/09/05, final on 15/02/06

34431/04 Denisova, judgment of 18/09/2008, final on 18/12/2008

28488/04 Dokolin, judgment of 18/09/2008, final on 18/12/2008

41842/04 Fitisov, judgment of 08/11/2007, final on 08/02/2008

38719/03 Glushakova, judgment of 12/04/2007, final on 12/07/2007

38305/02 Gorokhov and Rusyayev, judgment of 17/03/05, final on 12/10/05

11319/04 Kukalo No. 2, judgment of 24/07/2008, final on 24/10/2008

63995/00 Kukalo, judgment of 03/11/2005, final on 03/02/2006

43209/04 Ledovkin, judgment of 21/02/2008, final on 21/05/2008

35893/04 Levin, judgment of 25/09/2008, final on 25/12/2008

21074/03 Makarov, judgment of 25/01/2007, final on 25/04/2007

43282/02 Naydenkov, judgment of 07/06/2007, final on 24/09/2007

37927/02 Nikolayev, judgment of 02/03/06, final on 02/06/06

19589/02 Parkhomov, judgment of 20/10/05, final on 20/01/06

15890/04 Petrov Viktor, judgment of 24/07/2008, final on 24/10/2008

36939/02 Podyapolskiy, judgment of 12/06/2008, final on 12/09/2008

38720/03 Popov Aleksandr, judgment of 05/04/2007, final on 05/07/2007

26307/02 Shirykalova, judgment of 27/03/2008, final on 27/06/2008

32786/03 Silchenko, judgment of 28/09/2006, final on 28/12/2006

33660/04 Smelov, judgment of 02/10/2008, final on 02/01/2009

37647/04 Smorodinova, judgment of 17/01/2008, final on 17/04/2008

39013/05 Svitich, judgment of 31/07/2007, final on 31/10/2007

38845/04 Zubarev, judgment of 02/10/2008, final on 02/01/2009

- Cases of length of civil proceedings and of lack of an effective remedy[107]

53084/99 Kormacheva, judgment of 29/01/2004, final on 14/06/2004, rectified on 29/04/2004

33820/04 Angelova, judgment of 13/12/2007, final on 13/03/2008

30395/04 Avakova, judgment of 22/06/2006, final on 22/09/2006

55520/00 Baburin, judgment of 24/03/05, final on 24/06/05

22892/03 Bakiyevets, judgment of 15/06/2006, final on 15/09/2006

4171/03 Chevkin, judgment of 15/06/2006, final on 15/09/2006

11549/02 Falimonov, judgment of 25/03/2008, final on 29/09/2008

10929/03 Glazkov, judgment of 12/10/2006, final on 12/01/2007

76964/01 Kirsanova, judgment of 22/06/2006, final on 22/09/2006

76835/01 Kolomiyets, judgment of 22/02/2007, final on 22/05/2007

44374/04 Kudinova, judgment of 02/11/2006, final on 02/02/2007

12049/02 Kutsenko, judgment of 1/06/2006, final on 1/09/2006

22118/02 Kuzin, judgment of 09/06/05, final on 09/09/05

63527/00 Levshiny, judgment of 09/11/2004, final on 30/03/2005

29510/04 Marchenko, judgment of 05/10/2006, final on 05/01/2007

28602/02 Maruseva, judgment of 29/05/2008, final on 29/08/2008

15969/02 Nikitin Vladimir, judgment of 02/11/2006, final on 02/02/2007

77089/01 Olshannikova, judgment of 29/06/2006, final on 29/09/2006

14949/02 Plaksin, judgment of 29/04/2004, final on 10/11/2004

28954/02 Rash, judgment of 13/01/2005, final on 13/04/2005

9941/03 Rolgezer and others, judgment of 29/04/2008, final on 29/07/2008

19457/02 Romanenko and Romanenko, judgment of 19/10/2006, final on 19/01/2007

14983/04 Rybakov, judgment of 22/12/05, final on 22/03/06

38015/03 Salamatina, judgment of 01/03/2007, final on 01/06/2007

28639/03 Savenko, judgment of 14/06/2007, final on 14/09/2007

36219/02 Shelomkov, judgment of 05/10/2006, final on 12/02/2007

36045/02 Shneyderman, judgment of 11/01/2007, final on 11/04/2007

33914/02 Skorobogatova, judgment of 01/12/2005, final on 01/03/2006

3734/02 Sokolov, judgment of 22/09/2005, final on 22/12/2005

20496/04 Tusashvili, judgment of 15/12/05, final on 15/03/06

3852/02 Uglanova, judgment of 21/09/2006, final on 21/12/2006

75475/01 Vasyagin, judgment of 22/09/2005, final on 22/12/2005

26384/02 Vokhmina, judgment of 09/06/05, final on 09/09/05

10374/02 Volovich, judgment of 05/10/2006, final on 12/02/2007

42138/02 Yaroslavtsev, judgment of 02/12/2004, final on 02/03/2005

60408/00 Yemanakova, judgment of 23/09/2004, final on 02/02/2005

70190/01 Zimenko, judgment of 23/06/2005, final on 23/09/2005

- 2 cases against San Marino

40786/98 Beneficio Cappella Paolini, judgments of 13/07/2004 and of 03/05/2007, final on 13/10/2004 and on 03/08/2007 - Friendly settlement

The case concerns the excessive length of certain civil proceedings (more than 9 years and 9 months), to obtain partial restitution of land formerly belonging to the applicant institution which had been expropriated for the purposes of certain public works (violation of Article 6§1).

The case also relates to the lack of access to a court, in that neither the civil courts nor the administrative courts gave an answer to the applicant institution’s question concerning whether or not it had a right to restitution of that part of the expropriated land which was not used for the public works in question (violation of Article 6§1). The European Court also found that this failure to restore the land disturbed the proper balance between the requirements of the general interest and the obligation to protect the applicant institution’s right to the peaceful enjoyment of its property (violation of Article 1 of Protocol No. 1).

Individual measures: On 28/11/2006, the Court received a joint statement from the respondent state and the applicant to the effect that a friendly settlement had been reached on issues concerning Article 41. In particular, it provided for restitution of the land in question to the applicant institution. Being satisfied with the terms of this agreement, the Court decided in its judgments of 3/05/2007 to strike out the case.

• Assessment: No further individual measure appears necessary.

General measures:

1) Length of proceedings: This case presents similarities to the Vanessa Tierce case (69700/01, Section 4.2).

2) Peaceful enjoyment of possessions:

• Information has been awaited since November 2004 on measures envisaged or taken by the respondent state to establish clear rules concerning the right to obtain restitution of land expropriated but not used. The Secretariat wrote to the respondent state in November 2004 concerning these issues.

• Information provided on 06/01/2005): The judgment of the European Court has been translated in Italian and made public ad valvas palatii (the traditional means of formally publicising a document in San Marino).

69700/01 Tierce Vanessa, judgment of 17/06/03, final on 03/12/03

This case concerns the excessive length of certain civil proceedings which lasted from 1993 to 2001, i.e. around 8 years and 9 months for two degrees of jurisdiction (violation of Article 6§1). The European Court noted that the reason for such a length was mainly the complexity of civil procedure in San Marino, characterised by the need to observe various statutory periods as well as the fact that civil judges have no power of initiative if the parties are inactive (§31 of the judgment).

Individual measures: None. The proceedings are closed.

General measures:

• Information provided by the authorities of San Marino (letter of 25/01/2006): A working group was established to take measures to reduce the length of proceedings. This group consists, inter alia, of representatives of the Ministries of Justice and of Foreign Affairs, judges and lawyers. The group started its meetings at the beginning of 2005. The working group concluded its work in early 2006 and its conclusions will be published shortly.

At the same time, a new law (No. 145) adopted on 28/10/2005 introduces procedural and material changes in order to shorten the length of proceedings. The law provides, inter alia, that the civil suits may now also be extinguished ex officio and not only on the application of the parties. The aim of this change is to prevent parties from prolonging proceedings by remaining inactive. Also, the workload of the Commissario della legge has been reduced by widening the competencies of the conciliating judges (Giudici Conciliatori) and by directing appeals concerning their decisions to appeal judges (Guidici delle Appellazioni) rather than to the Commissario della legge.

• Information is awaited on the follow-up to be given to these proposals and on the timetable for the possible legislative reform as well as on the effective remedy in the length of proceedings cases.

• Information is also awaited on publication and dissemination of the judgment of the European Court.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (3-4 and 4 (morning) December 2009) (DH), in the light of further information to be provided on general measures.

- 16 cases against Serbia

- Cases concerning failure or substantial delay by the administration in abiding by final domestic decisions

a. Commercial matters

3102/05 EVT Company, judgment of 21/06/07, final on 21/09/07

17556/05 Marčić and 16 others, judgment of 30/10/2007, final on 30/01/2008

These cases concern the violation of the applicants’ right to the peaceful enjoyment of possession on the account of the authorities’ failure to enforce domestic judgments in commercial matters (violations of Article 1 of Protocol No. 1). The leading case of EVT Company also concerns the violation of the applicant’s right to a fair trial as a result of the authorities’ failure to carry out effective enforcement proceedings (violation of Article 6§1).

The European Court found that the Serbian judicial authorities have failed to conduct enforcement proceedings effectively as a result of repeated refusal by the police to assist the bailiffs (EVT only) and prolonged periods of inactivity of the courts.

The European Court noted in the case of Marčić and 16 others, that there had been no attempt to enforce the Commercial Court’s decision throughout the period in question, even though there is no evidence that this delay could be attributed to the debtor’s lack of means which, had it existed, should by now have resulted in the conclusion of the insolvency proceedings as well as the extinction of the debtor as a legal entity (§59).

The European Court noted that irrespective of whether a debtor is a private or a state actor, it is up to the state to take all necessary steps to enforce final court judgments, as well as to ensure the effective participation of its entire administrative structure (§48 in EVT, see also in §56 in ZIT Company below).

Individual measures:

1) EVT Company case:The European Court held that “the applicant’s claim for pecuniary damage must be met by the Government ensuring, by appropriate means, the full execution of the Commercial Court’s final judgment of 7/05/1996 as modified by the enforcement orders of 17/10/ 1996 and 21/12/1998” (§60 of the judgment).

• Information provided by the Serbian authorities (letters of 04/12/2007, 05/03/2008, 09/04/2008, 17/04/2008, 15/10/2008 and 15/01/2009): The domestic court established the facts concerning the assets of the debtor companies, which appear to be largely insufficient to cover the applicant’s claim. On 11/03/2008 the applicant filed a motion to change the particular assets subject to enforcement. However, it turned out that the property specified by the applicant had been subject to prior enforcement proceedings involving over 80 other creditors. The applicant is informed of the situation and is entitled to indicate another debtor’s property should there be any free of prior encumbrance. The public auction of the assets concerned will be scheduled once the parties provide their comments on the financial expertise submitted to the domestic court.

• Information is awaited on further developments and measures taken or envisaged to ensure full execution of this judgment.

2) Marčić case: The European Court noted that the respondent state must secure, by appropriate means, the enforcement of the Commercial Court’s final decision of 27/12/1990 (§65).

• Information provided by the Serbian authorities (letter of 25/07/2008): On 25/07/2008 the Commercial Court of Leskovac informed the applicants’ lawyer in writing that the funds for enforcement of the final decision of 27/12/1990 had been secured. It further invited the lawyer to communicate bank account details for payment or to ensure that funds were collected from the court in cash.

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

General measures:

1) Non-enforcement of court decisions:

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

A. Legislative measures: For the certain measures adopted so far and outstanding issues concerning the non-enforcement of court decisions see also the case of V.A.M. (Section 4.2.). Concerning the context of the specific circumstances of the cases here: The Minister of Justice appointed a working party to prepare amendments to the Enforcement Procedure Act. Certain proposals have been discussed, such as introducing a parallel system of private bailiffs, establishing a separate register listing all judicial attachments, improving service of court documents to corporations, etc. The draft bill is currently under preparation.

In addition, the Regulatory Reform Council, Ministry of Economy and Regional Development, appointed a working party to prepare amendments to the Insolvency Procedure Act with a view to curbing the length of such procedures, increasing efficiency and decreasing costs.

B. Obligation of the police to assist bailiffs: The authorities indicated that the 2004 Enforcement Procedure Act defines the obligation of the police “to render a bailiff all assistance necessary to carry out enforcement” (Article 57§2). If necessary the bailiff may request that adequate preparatory measures are implemented. The regulations concerning the police will apply to the police assisting bailiffs in the course of an enforcement procedure. Finally, courts are obliged to inform the Ministry of the Interior if the police fail to act in accordance with these rules.

C. Prolonged inactivity of courts: The European Court noted that the 2005 Criminal Code incriminates “non-enforcement of a court decision” (§30 in EVT). Any official failing to enforce a final court decision within the stipulated time period is subject to fine or a prison term.

• Assessment: It seems that the legislative measures adopted are appropriate to reinforce the obligations of the police to assist bailiffs and to comply with court decisions. However, certain measures are still in the adoption process and it appears necessary to follow up their development further.

• Information is therefore awaited on further developments in the context of the proposed legislative amendments and their proposed time-frame. The text of the draft bills would be helpful if available.

2) Violation of the right to peaceful enjoyment of possessions: The above measures are also relevant in order to prevent similar violations under this head.

b. Socially-owned companies

2269/06+ Kačapor and others, judgment of 15/01/2008, final on 07/08/2008

This case concerns the violation of the applicants’ right to a fair trial due to the authorities’ failure to take the necessary measures to enforce domestic judgments ordering a socially-owned company to pay salary arrears and employment benefits (violation of Article 6§1).

The case also concerns the violation of the applicants’ right to the peaceful enjoyment of their possessions in this regard (violation of Article 1 of Protocol No. 1).

The European Court noted in the context of the socially-owned companies that they did not enjoy sufficient institutional and operational independence from the State to absolve the latter from its responsibility under the Convention. It further stated that companies predominantly comprised of social capital were as such closely controlled by the Privatisation Agency, itself a state body, as well as the government, irrespective of whether any formal privatisation had been attempted in the past (§§97-98, 75). The European Court also noted that the state cannot cite either the lack of its own funds or the indigence of the debtor predominantly comprised of social capital as an excuse for the non-enforcement of final judgments (§114). Finally, the European Court noted that the period of non-execution should not be limited to the enforcement stage only, but should also include subsequent insolvency proceedings (§ 115).

The European Court found that the Serbian judicial authorities have failed to enforce domestic court decisions as a result of:

- failure of the enforcement court to proceed ex officio with other means of enforcement had any one of those proposed by parties already proved impossible;

- failure of the Central Bank to request the opening of the insolvency proceedings in respect of those corporations whose bank accounts have been “blocked” due to the outstanding debts within a specified time-period.

Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage to each applicant and ordered payment of the sums awarded under the domestic judgments.

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

General measures: The European Court rendered a similar judgment in the context of the socially-owned companies in the case of Vlahović (42619/04, Section 2.2). Beyond that, at least 150 such applications are currently pending before the European Court and the number of such applications is continuously growing.

• Information is thus awaited on measures taken or envisaged to honour fully and expeditiously outstanding salary arrears and employment benefits payable by the socially-owned companies under the domestic final judgments. In this regard, information is also awaited on measures taken or envisaged to remove the underlying causes of the non-enforcement of domestic judgments identified in this case.

In particular, information would be helpful on the measures taken or envisaged to ensure that the domestic enforcement courts proceed ex officio with other means of enforcement if any one of those proposed by the parties already proved impossible and the Central Bank request the opening of the insolvency proceedings in respect of those corporations whose bank accounts have been “blocked” due to the outstanding debts within a specified time-period.

c. Civil matters

37343/05 ZIT Company, judgment of 27/11/2007, final on 27/02/2008

14145/05 Bulović, judgment of 01/04/2008, final on 01/07/2008

These cases concern the violation of the applicants’ right to a fair trial as a result of the authorities’ failure to carry out effective enforcement proceedings in civil matters (violations of Article 6§1).

The case of ZIT Company also concerns the violation of the applicant’s right to the peaceful enjoyment of its possessions on this account (violation of Article 1 of Protocol No. 1) and the lack of en effective remedy to expedite the enforcement proceedings (violation of Article 13).

The European Court found in the case of Bulović that the Serbian judicial authorities have failed to conduct enforcement proceedings effectively as a result of prolonged misplacement of the case file (§52). It also noted in the case of ZIT Company in the context of the taking possession of a property that the applicant cannot be blamed for relying on the accuracy of the information contained in the respondent State’s own land registers (§60).

Individual measures:

1) ZIT Company: The European Court noted that the enforcement entitlements at issue in this case had yet to be fully executed and that the applicant might still request enforcement of the Municipal Court’s decision of 04/04/2006 (§§58 and 70). It further noted that the applicant did not request the enforcement of the Municipal Court’s decision of 04/04/2006 in accordance with the relevant law, but instead resorted to an apparently ineffective civil suit (§60). The European Court considered that the Serbian authorities cannot be held accountable for any subsequent delay (§61).

• Information provided by the Serbian authorities (letter of 10/04/2008): The applicant has not yet requested the enforcement of the decision at issue.

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

2) Bulović: The applicant submitted no claim in respect of just satisfaction. However, the European Court noted that the proceedings in question ended, not as a result of the succesful seizure carried out by the domestic court, but because of the applicant’s decision to withdraw her enforcement request in response to the debtor’s payment (§53)

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

General measures:

1) Non-enforcement of court decisions: See above under the commercial matters.

• Information is also awaited on the measures taken or envisaged to minimise misplacement of court files and thus reduce excessive length of proceedings in this regard.

2) Violation of the right to peaceful enjoyment of possessions (non-enforcement of court decisions): The above measures are also relevant in order to prevent similar violations under this head.

3) Lack of an effective remedy: See V.A.M. and Jevremović group of cases (Section 4.2).

d. Family-related matters

25959/06 Tomić, judgment of 26/06/07, final on 26/09/07

The case concerns the violation of the applicant’s right to a fair trial as a result of the authorities’ failure to take sufficient steps to execute a final custody judgment (violation of Article 6§1). The case also concerns the violation of the applicant’s right to respect for her family life as a result of the non-enforcement of the final custody judgment (violation of Article 8). The case finally concerns the lack of an effective remedy to expedite enforcement proceedings (violation of Article 13).

The European Court noted in this case that “the forcible transfer of custody, though unavoidable and attempted on several occasions, was never brought to a successful conclusion” (§104).

Individual measures: The European Court held that the child’s father ”was de facto allowed to use the judicial system to his advantage until the factual situation was sufficiently altered by the passage of time so as to allow for the reversal of the applicant’s custody right through a separate set of judicial proceedings” (§104).

• Information provided by the Serbian authorities (letter of 10/04/2008): The applicant has not so far requested the reopening of the second set of proceedings, even though on 13/11/2007 the authorities informed her in writing that such a possibility existed. The judgment granting visitation rights to the applicant and obliging her to pay maintenance is now final. The first meeting between the applicant and her child took place on 24/11/2007 in Krupanj in the premises of the local Social Care Centre. The second meeting took place on 27/12/2007. However, the meeting scheduled for 26/01/2008 was postponed at the applicant’s request. The Social Care Centre is not aware of any subsequent private contacts between the applicant and her child. In addition, on 26/11/2007 proceedings were initiated for the removal of the judge presiding over the enforcement proceedings due to judicial malfeasance in this case.

• Assessment: It appears that the applicant has established contact with her child. Therefore no other individual measure is required.

General measures:

1) Non-enforcement of court decisions: See V.A.M. (Section 4.2).

2) Violation of right to respect for family life (non-enforcement of a court decision): See V.A.M. (Section 4.2.). The European Court noted that under the 2005 Criminal Code anyone who obstructs the enforcement of a child custody decision shall be liable to a fine or a prison term of up to two years (§69).

3) Lack of an effective remedy: See V.A.M. (Section 4.2).

e. Administrative matters

30132/04 Ilić, judgment of 09/10/2007, final on 09/01/2008

This case concerns violation of the applicant’s right to the peaceful enjoyment of his possessions due to the authorities’ failure to enforce a final eviction order issued by a Belgrade municipality in administrative proceedings in the context of a special “protected tenancy regime”. The order provided for the applicant’s repossession of his flat. Domestic courts have themselves held that the municipality was not only under a legal obligation to enforce the order at issue but also had sufficient funds and available flats to provide the applicant’s protected tenant with adequate alternative accommodation. Lastly, the domestic courts noted that there were no legal means by which the applicant could have compelled the municipality to honour its own eviction order (§74) (violation of Article 1 of Protocol No.1).

The case also concerns the excessive length of civil proceedings with respect to a civil suit for damages resulting from the applicant’s inability to use his flat in the context of the special “protected tenancy regime” (violation of Article 6§1).

Finally, the case concerns a lack of an effective remedy to expedite the civil proceedings (violation of Article 13 taken together with Article 6§1).

Individual measures: The eviction order has been enforced and the applicant has regained possession of the apartment.

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

General measures:

1) Violation of the right to peaceful enjoyment of possessions (non-enforcement of an administrative decision): The issue of non-enforcement of final administrative decisions in respect of demolition of unauthorised construction is examined in the case of Kostić (41760/04, Section 2).

• Information is awaited on measures taken or envisaged to prevent any future non-enforcement of eviction orders by municipal authorities in the context of the “protected tenancy regime”.

2) Excessive length of civil proceedings: See V.A.M. and Jevremović group of cases (Section 4.2).

3) Lack of an effective remedy: See V.A.M. and Jevremović group of cases (Section 4.2).

• Publication and dissemination: The European Court’s judgments have been translated into Serbian and published in the Official Gazette as well as on the website of the Government Agent (www.zastupnik.gov.rs). The judgments were also published on a CD issued by the magazine Paragraf and on the Internet page of that magazine, with expert comments. The Government Agent forwarded the judgments to the Supreme Court of Serbia requesting its distribution to all courts in Serbia as well as to the High Commercial Court in the case of EVT Company. He also made several public statements relating to the judgments. The Office of the Government Agent published a book containing translations of judgments rendered by the European Court against Serbia.

- Cases of excessive length of judicial proceedings

a. Family-related proceedings

3150/05 Jevremović, judgment of 17/07/07, final on 17/10/07

This case concerns the excessive length of paternity and maintenance proceedings (violation of Article 6§1).

The applicant’s parentage was confirmed by a Supreme Court judgment but the question of maintenance payment was still pending when the European Court rendered its judgment. The European Court recalled that particular diligence is required in all cases concerning civil status and capacity (§81).

The case also concerns the violation of the first applicant's right to respect of her family life due to the excessive length of the paternity proceedings, leaving her in a state of prolonged uncertainty concerning her identity (violation of Article 8).

Finally, the case concerns the lack of an effective remedy in domestic law concerning the excessive length of civil proceedings (violation of Article 13).

Individual measures: None (the proceedings are closed).

General measures:

1) Excessive length of family-related proceedings: See V.A.M. (39177/05, Section 4.2).

2) Violation of right to respect of family life (excessive length of proceedings): See V.A.M. (Section 4.2).

3) Lack of an effective remedy: See V.A.M. (Section 4.2).

b. Commercial proceedings

28443/05 Samardžić and AD Plastika, judgment of 17/07/2007, final on 17/10/2007

The case concerns the excessive length of commercial proceedings (violation of Article 6§1).

The European Court noted that the length of the proceedings was also due in part to the staying of the initial proceedings following the opening of bankruptcy proceedings against the second applicant as well as to remittals of the case for re-examination and to a prolonged inactivity of the first instance of a year and a half (§§44-45). In this connection, the European Court recalled that the remittal of a case for re-examination is usually ordered as a result of errors committed by lower instances and may disclose a deficiency in the procedural system (§44).

Individual measures:

• Information provided by the Serbian authorities (letters of 07/11/2008, 05/03/2008, 17/04/2008, 22/10/2008 and 15/01/2009): The bankruptcy proceedings against the second applicant have been completed. The decision on distribution of assets became final on 05/01/2009. The civil proceedings involving the second applicant as plaintiff were closed on 16/12/2008 and the delivery of the first-instance judgment is awaited.

• Assessment: No further measure appears necessary.

General measures: See V.A.M. (Section 4.2) for excessive length of proceedings. The European Court noted that the 2005 Criminal Code incriminates “abuse of office”, “judicial malfeasance” and “official malfeasance” (§§18-19). Those offences may imply fines or prison terms for any official, including members of the judiciary, failing to act in the proceedings for long periods without justification.

• Information provided by the Serbian authorities (letters of 15/01/2009 and 17/03/2009): Pursuant to the provisions of Article 369 Section 2 and 3 of the new Civil Procedure Code, a second-instance court can remit the case only once. The new provisions apply to all proceedings initiated after 22/02/2005.

• Assessment: It appears that the new legislative provisions permitting remittal of the cases only once would contribute to the reduction of the length of proceedings. However, the application of the Criminal Code in respect of members of judiciary personally responsible for excessive length of proceedings might also help in preventing similar violations.

• Information is therefore awaited on the application of the 2005 Criminal Code with respect to “abuse of office”, “judicial malfeasance” and “official malfeasance” in the circumstances similar to the present case.

c. Civil proceedings

38350/04 Popović, judgment of 20/11/2007, final on 20/02/2008

9906/04 Čeh, 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 case of Čeh concerns the eviction proceedings in the context of a special “protected tenancy regime”.

Individual measures: None (the proceedings are closed).

General measures: Concerning the excessive length of civil proceedings: See V.A.M. (Section 4.2).

d. Labour proceedings

17271/04 Cvetković, judgment of 10/06/2008, final on 01/12/2008

2637/05 Jovićević, judgment of 27/11/2007, final on 27/02/2008

41513/05 Mikuljanac, Mališić and Šafar, judgment of 09/10/2007, final on 09/01/2008

26642/05 Stevanović, judgment of 09/10/2007, final on 09/01/2008

These cases concern the excessive length of labour proceedings and lack of an effective remedy to expedite them (violations of Article 6§1 and Article 13). Reasons cited for protracted duration of these proceedings were re-assignments to different judges and/or protracted periods of court inactivity (§41 in Mikuljanac, Mališić and Šafar, §§58, 60 in Stevanović, §51 in Cvetković).

The European Court noted in particular that “the subject matter of the litigation was of primary importance to the applicants and required that the proceedings be dealt with ‘expeditiously’. Indeed, this requirement is reinforced additionally if the domestic law provides that reinstatement cases must be resolved with particular urgency“ (§41 in Mikuljanac, Mališić and Šafar, §51 in Cvetković).

Individual measures: None (the proceedings are closed).

General measures:

1) Excessive length of proceedings: See V.A.M. (Section 4.2). The European Court noted that under the 2005 Labour Act, employment-related disputes were to be resolved by the courts within 6 months (§§16-17 in Mikuljanac, Mališić and Šafar). Additionally, under Serbian law a reinstatement case may be resolved by a state-appointed arbitrator. Such proceedings, however, may only be instituted with the consent of both parties and must be concluded within 30 days following to the initial hearing (§35 in Stevanović).

• Information provided by the Serbian authorities (letter of 17/03/2009): The Serbian authorities submitted a number of labour case files corroborating the fact that the courts normally resolve labour disputes within 6 months as required under Serbian law.

• Assessment: The information provided shows a positive trend concerning the reasonable length of labour proceedings. However, the Secretariat is unable at this stage to make an assessment on the basis of the available information as to whether the issue of excessive length of labour proceedings still persists in the Serbian legal system. In this regard, it is also noted that the European Court rendered another similar judgment in the case of Stanković (Section 2.2).

• Information is thus awaited on statistics concerning the length of labour proceedings (total number of such proceedings, average length of labour proceedings etc.).

2) Lack of an effective remedy: See V.A.M. (Section 4.2).

• Publication and dissemination in all these cases: The European Court’s judgments have been translated into Serbian and published in the Official Gazette as well as on the website of the Government Agent (www.zastupnik.sr.gov.yu). The judgments were also published on a CD issued by the magazine Paragraf and on the Internet page of that magazine, with expert comments. The Government Agent forwarded the judgments to the Supreme Court of Serbia requesting its distribution to all courts in Serbia as well as to the High Commercial Court in the case of Samardžić and AD Plastika. He also made several public statements relating to the judgments. The Office of the Government Agent has published a book containing translations of judgments rendered by the European Court against Serbia. Several articles were published in the local newspapers and websites on the European Court’s judgment in the case of Čeh.

39177/05 V.A.M., judgment of 13/03/2007, final on 13/06/2007

The case concerns the excessive length of proceedings initiated in 1999 by the applicant, who is HIV positive, before the Fourth Municipal Court of Belgrade seeking dissolution of her marriage, sole custody of her daughter, born in 1995, and child maintenance (violation of Article 6§1).

The European Court recalled that exceptional diligence was required in dealing with cases in which the plaintiff was HIV positive, as well in all matters where the proceedings concern child custody disputes (§§101, 105 and 106 of judgment).

The case also concerns the violation of the applicant's right to respect of her family life due to the non execution since 1999 of the domestic court's interim order providing the applicant's access to her daughter, as well as the excessive length of the civil proceedings (double violation of Article 8). The child has not seen the applicant since August 1998 and the interim access order has not been enforced due to the unco-operative attitude of the child's father and impossibility of serving court documents on him due to his repeated changes of addresses, including abroad in Montenegro.

Finally, the case concerns the lack of an effective remedy under domestic law concerning the excessive length of proceedings (violation of Article 13).

Individual measures: The European Court recalled the obligation of the respondent state to enforce, “by appropriate means”, the interim access order of 23/07/1999 and to “bring to a conclusion, with particular diligence, the ongoing civil proceedings” (§166 of judgment).

• Information provided by the Serbian authorities and the applicant:

1) Child custody and maintenance proceedings: The proceedings concerning the child custody and maintenance were closed on 14/12/2007 and the judgment was confirmed on appeal on 12/03/2008. It has thus become final and repealed the 1999 interim order. The judgment left custody to the father and confirmed the applicant's visitation rights.

2) Enforcement proceedings: On 02/06/2008 the court ordered enforcement of the judgment of 14/12/2007 and its decision was served on the child's father on 14/06/2008. However, the child's father has persisted in obstructing the applicant's access to her child as well as the payment of costs awarded to the applicant. So far no contact between the applicant and her child has been established. The court fined the father twice for failure to produce the child for the purpose of enforcing the interim access order and three times for non-compliance with the final judgment. On 20/08/2008, the court ordered the attachment and the public auction of the chattels belonging to the child's father in order to compel him to pay the fines imposed. It also awarded costs and expenses. According to the court, the father's non-compliance cannot be and is not in the best interest of the child and amounts to a threat to the psychological, physical and emotional development of the child. All set-off claims against the applicant and proposals raised by the child's father for rescheduling the enforcement to a later date were expeditiously dismissed. The decision of 20/08/2008 was appealed. However, on 28/08/2008 the bailiff listed certain chattels in the apartment of the child's father for attachment. Finally, on 02/12/2008, the court bailiff attached certain items belonging to the child’s father who eventually paid the costs and expenses awarded as well as the fines. In its latest ruling, whereby the child’s father was fined most recently on 26/01/2009, the court indicated that failure of the applicant to communicate with her child might have adverse consequences for the child’s development and therefore could not be in the child’s best interest.

3) Criminal proceedings:The Social Care Centre was ordered by the ministry in charge to take a number of legal steps. Pursuant to this order, the Social Care Centre filed a criminal complaint against the child's father on 21/07/2008 alleging abduction of the child and joined the applicant in her motion for enforcement of the judgment. On 08/10/2008 the public prosecutor filed a criminal indictment against the child's father before the court alleging abduction of a minor. The hearing scheduled for 21/01/2009 was adjourned to 25/02/2009 since the child’s father failed to appear before the court. The court ordered the police to bring him to the next hearing with use of force if necessary. The child’s father eventually appeared before the court and was heard on 23/03/2009. The court ordered an expertise of the child as to the fact whether the latter was under coercion or duress. The expertise was conducted on 06/04/2009 in the presence of the judge. The child’s father was excluded from the exercise. The next hearing in this matter was scheduled for 11/05/2009.

4) Proceedings for deprivation of parental rights initiated by the applicant: The Social Care Centre also submitted a report to the court in the proceedings for deprivation of parental rights, putting forward arguments for such deprivation and underlying that “there have been elements of emotional abuse” of the child by the father . At the hearing held on 15/09/2008, representatives of the Social Care Centre failed to attend and to respond to the court’s requests in writing. The judge informed the higher instances and ordered an expert report through the Belgrade School of Medicine concerning both parents and child in the context of the requested change of the custody decision. Upon the judge's request, the Social Care Centre on 14/10/2008 appointed a guardian to represent the interests of the minor child in these proceedings. At the hearing held on 15/10/2008, the child's father was heard. Since the expert report had not been completed, the judge imposed fines on the Belgrade School of Medicine for non-compliance should it be verified that the court document describing the expertise task was duly served on them. Since then three hearings have been adjourned because the Belgrade School of Medicine failed to produce the required expert report.

On 02/03/2009 a new judge was appointed to the case. At the hearing of 17/03/2009 the court ordered the Belgrade School of Medicine to try to summon the defiant child’s father with a view to completing the expertise report. At the same occasion, the Social Care Centre was ordered to submit a progress report in respect of the preparatory work with the child (see below). On 25/03/2009, the court ordered the applicant to make prepayment for costs and expenses of the expertise. The court warned the applicant on the consequences for further trial in case of failure to comply with this request.

5) Preparatory work: On 25/11/2008, in the context of the enforcement proceedings, the Belgrade Fourth Municipal Court ordered the head teacher of the child’s school to organise preparatory work with the child in co-operation with the Social Care Centre. The court also ordered the Social Care Centre to hold a meeting with the school to draw up a plan concerning the methods and the timetable of such preparatory work. The Social Care Centre was under an obligation to inform the court of the steps taken by 25/12/2008. The Social Care Centre held this meeting on 17/12/2008. The Social Care Centre briefed the school psychologist and provided relevant material in writing. It was agreed that the school psychologist should plan working with the child at least once a week and should regularly inform the Social Care Centre on further developments. Due to the school winter holidays, the school psychologist scheduled the first meeting with the child only for 18/02/2009. However, it did not take place because the child was sick. The interview with the child was eventually held on 24/02/2009. The child was told at that occasion that her mother was regularly coming at the designated time in the Social Care Centre to meet with her. Nonetheless, the child persistently refused to have any contact with her mother. In its report of 09/03/2009, the Social Care Centre stated that the school psychologist agreed with the child, her father and step mother on the schedule and the content of the future work. However, on 24/03/2009 the school psychologist submitted a report to the Government Agent indicating the firm unwillingness on the part of the child to see her mother. The school psychologist concluded that any further insisting on talking with the child would be unfeasible due to the child’s strong opposition in this matter.

6) Planning further actions: The Government Agent organised a meeting for all authorities involved in the present case on 07/10/2008, attended as well by the Deputy Minister of Justice. The attendees agreed upon the future measures to be taken by each of them in the next two months.

• Assessment: The Secretariat notes at the outset that the underlying child custody and maintenance proceedings have been brought to a conclusion as it was indicated by the European Court. It appears that the Serbian authorities did take many different steps available under domestic law and demonstrated commitment in their efforts to make the child's father comply with the court's decisions. However, the measures taken so far have not made it possible for the applicant to have access to her child. It appears that the child clearly demonstrated her unwillingness to make any contact with the applicant. In these circumstances, the Serbian authorities are expected to continue taking further steps within the framework of the ongoing proceedings and the preparatory work with the child.

• Information is therefore awaited on further measures taken to ensure that the applicant may exercise her access rights without further delay and on the outcome of the efforts made by the Serbian authorities in this context. Information is also awaited with regard to the acceleration of the enforcement proceedings, including the further developments in the preparatory work with the child, the ongoing criminal proceedings and the proceedings concerning the deprivation of parental rights initiated by the applicant.

General measures: The Serbian authorities provided the following information with respect to the general measures taken:

1) Excessive length of civil proceedings:

A. Measures taken so far

I. Legislative measures: The Serbian Constitution provides the right to a fair trial within reasonable time (Article 32). Similarly, the 2005 Civil Procedure Act prescribes that a court should decide on claims and motions of the parties within reasonable time (Article 10).

The Serbian authorities provided excerpts from a number of domestic case-files concerning family-law issues, including custody proceedings, corroborating the implementation in practice of this legislation as well as the 2005 Civil Procedure Act (§61 and 62 of the judgment) and the 2005 Family Law (§57 and 58 of the judgment) to avoid the excessive length of proceedings. The new measures introduced should help to tackle the problem of excessive length of proceedings. In particular, if normal service of documents is unsuccessful, documents should be posted on the court's own notice board and the service will be deemed duly accomplished. All family-related disputes involving children must be resolved urgently.

First-instance courts should conclude proceedings after no more than two hearings, and second-instance courts must decide on appeals within 30 days. Maintenance suits are particularly urgent: a first hearing must be scheduled within 8 days of the filing of the claim and second-instance courts must decide on appeal within 15 days.

The Serbian authorities provided a comprehensive and detailed report (04/06/2008) on various measures taken or envisaged to accelerate civil proceedings, including further legislation adopted to this effect.

Mediation was introduced in 2005 by the Mediation Act as an alternative means of dispute resolution to further alleviate the workload of the courts. In 2006 a special law on training and education of members of the judiciary was adopted. In 2008, a number of judiciary laws have been adopted with a view to implementing a comprehensive reform of the court system in Serbia and increase its efficiency. The Venice Commission adopted opinions with regard to some of those laws (see e.g. Opinion CDL-AD(2008)006 on the draft law on the High Judicial Council of Serbia and CDL-AD(2008)007 on the draft laws on judges and on the organisation of courts of Serbia).

II. National Strategy of Judiciary Reform and Action Plan: The 2006 National Strategy of Judiciary Reform and Action Plan for Implementation of the Strategy were adopted. They are based on four principles: independence, transparency, responsibility and efficiency. The Strategy set a 6-year period for its implementation (2006-2012).

III. Premises for the new courts: In accordance with the new court organisation, the Ministry of Justice secured sufficient funds for operation of the Appeals Courts and Administrative Court as from 01/01/2009. In particular, the new building where the supreme judiciary institutions will be housed should be completed in 2008 in Belgrade and should include 29 000 m² of space, with 500 offices and 40 courtrooms. Buildings are also secured for Appeals Courts in Novi Sad, Niš and Kragujevac.

B. Measures pending

I. Legislative measures: Amendments to the Civil Procedure Act are currently being drafted with a view to increasing the efficiency of judicial procedures and removing problems faced in practice when applying this law. The short-term priority includes the adoption of a set of laws concerning the judiciary, including draft laws on attorneys, public notaries, bar examinations, the National Judiciary Training Institute and free legal aid.

II. Backlogs: secondary legislation defines parameters for the number of cases to be resolved by a judge during a month. It is planned to introduce a weighting system in 2009 to measure better the efficiency of individual judges. The draft laws concerning the judiciary envisage that retired judges are hired in order to reduce the number of backlog cases. The number of pending cases has reached 700 823 in all jurisdictions. 142 554 of these have been pending over two years.

III. Training activities: The Judiciary Centre (www.pcsrbija.org.rs) will be transformed into the National Judiciary Training Centre. It is envisaged that continuous training would be a requirement for appointments of judges. Special attention is paid to training on the Convention. Since 2006 training on case-management has also been provided.

IV. Efficiency of court organisation: An analysis on workload of courts and public prosecutors is currently under preparation. It will enable drafting of proposals for rationalisation of the court and prosecution network.

V. IT infrastructure: The Ministry of Justice is investing special efforts in IT technologies. All commercial first instance courts have been automated, while all district courts were equipped with the most contemporary IT equipment. The IT communication judiciary network will be completed in all courts by 2012.

VI. Court Budget: The 2008 budget has allocated approximately 282 million euros for judiciary (approximately 253 million euros for courts). According to the judiciary-related draft laws, the High Judiciary Council should become direct administrator in the budget appropriations so far as salaries and operating costs of the courts are concerned.

C. Outstanding issues

Service of court documents: The Serbian authorities acknowledged (15/10/2008), however, that certain problems remain with regard to the widespread non-compliance with regulations concerning residence registration. Such practice is resulting in frequent inability to service court documents on the parties concerned.

•Assessment: It appears that the new legislative framework is capable of preventing length of proceedings. The detailed report provided by the Serbian authorities shows a positive trend and significant efforts to shorten the length of judiciary proceedings, including civil proceedings. The Strategy and Action Plan set forth a clear roadmap for increasing of efficiency in the judiciary sector. However, certain problems still persist, such as those related to service of court documents.

• Information is awaited on further developments in the implementation of the National Strategy of Judiciary Reform so far as the curbing of length of judiciary proceedings is concerned and on further progress in the adoption of a package of draft laws concerning the judiciary and the draft amendments to the Civil Procedure Act. Information would be helpful on the developments regarding the all ongoing measures.

• Information is also awaited on measures taken or envisaged to improve efficient service of documents in the context of the problems related to widespread non-compliance with residence regulations.

2) Violation of right to respect for family life (non-enforcement of a court decision): According to the 2004 Enforcement Procedure Act, courts must act urgently in all enforcement proceedings and decide on any enforcement application within 3 days. Any action by the court contrary to this provision shall be considered as “unprofessional conduct of a judge” within the meaning of the Judges' Act.

The 2004 Enforcement Procedure Act provides an initial period of 3 days for voluntary compliance with a child custody order. Beyond that, however, fines are imposed and, ultimately, if necessary, the child may be taken forcibly in co-operation with the social care authorities. Where, exceptionally, the life, health or proper development of a child is threatened, the child shall be removed and transferred to another person without laying down any period for voluntary enforcement or fining the party in default.

The Serbian authorities delivered to the Secretariat on 04/12/2007 excerpts from a number of domestic case- files evidencing application of the 2004 Enforcement Procedure Act and Criminal Code in child custody matters.

• Seminar: In co-operation with the Department for the Execution of Judgments of the European Court, the Serbian authorities organised a seminar in Belgrade on 25-26/09/2008 devoted to the application of Article 8 of the Convention in the context of the judgments of the European Court rendered in respect of Serbia. The seminar was attended by high-profile officials and members of various Serbian authorities concerned. At the end of the seminar, the participants agreed on a number of conclusions identifying the problems with respect to enforcement of domestic court decisions in family matters as well as setting out a number of proposals for further improvement. These conclusions are publicly available at the website of the Serbian Government Agent in Serbian (www.zastupnik.gov.rs).

• Follow-up: The Serbian authorities acknowledged in their submission of 15/10/2008 that certain problems have been detected in the application of the Family Law and Enforcement Procedure Act in the enforcement of court decisions concerning family matters as well as concerning lack of co-ordination, communication and supervision between various national bodies. In this regard, the Ministry of Labour and Social Policy drafted internal instructions concerning the powers of social care centres in accordance with the Family Act. These instructions will be distributed to all courts. It is also expected that the first drafting of amendments to the Enforcement Procedure Act would be finalised by the end of October 2008. The authorities will take into consideration the discussions made during the seminar for further measures to be taken. Furthermore, in their submission of 15/01/2009, the Serbian authorities indicated that in November 2008 a task group was established to develop the Special Protocol for Protection of Children against abuse and neglect which should be completed by April 2009.

• Information is awaited on further developments in the implementation of the measures announced, in particular with regard to the measures outlined in the conclusions.

3) Lack of an effective remedy: The Constitutional Court Act has been adopted in 2007. It provides the possibility to lodge a complaint before the Constitutional Court in case of breach of the right to a trial within reasonable time, even if the other legal remedies have not been exhausted. The law has not determined a term within which a decision must be taken upon constitutional complaints. However, it has limited the time-limit within which state and other authorities, legal entities and natural persons are obliged to respond, specifying that they all must act within the term set by the court, which cannot be less than 15 days. It is noted that the Constitutional Court adopted its Rules of Operation in February 2008 (Official Gazette, No. 24/08). Additional bylaws of the Constitutional Court adopted in May 2008 completed the legislative framework required for its operation.

The Constitutional Court Act further provides that if an individual complaint before the Constitutional Court is upheld, the complainant may submit a claim for damages to the special Damages Commission. The Damages Commission must make a decision on the claim within 30 days failing which the applicant will be entitled to file a claim for damages before a court of law. In March 2008, members of the Damages Commission were appointed by the Minister of Justice and its Rules of Operation adopted (Official Gazette, No. 27/08). No claim has been filed with the Damages Commission so far.

The Serbian authorities further submitted that in 2008 a total of 1 567 constitutional complaints were filed. The Constitutional Court has dismissed around 323 constitutional complaints for procedural reasons, while it decided on the merits under 32 constitutional complaints. The Constitutional Court drafted the Guide on How to Prepare a Constitutional Complaint and a form to be filed by the applicants. Both are available on the website of the Constitutional Court (www.ustavni.sud.sr.gov.yu).

The Council of Europe is currently implementing one-year program to support the Constitutional Court to effectively implement the European human rights standards. In particular, the program should help the Constitutional Court to develop its capacity to deal with individual complaints lodged under the constitutional appeal procedure in compliance with the Convention requirements. In 2008, a first introductory seminar was held in Belgrade and the study visit to the Council of Europe was organised for judges and legal assistants. In 2009, five in-depth seminars will be organised on those Convention issues most likely to be brought before the Constitutional Court. Finally, the European Court’s case-law relevant to the jurisdiction of the Constitutional Court will be translated and published within the framework of this assistance program.

• Assessment: Notwithstanding the fact that relevant legislation was introduced, no evidence has been provided concerning the availability in practice of an effective remedy in compliance with the Convention's standards. It is however expected that the program currently underway with the Constitutional Court should assist it in providing an effective remedy in respect of the constitutional complaints concerning excessive length of proceedings.

• Information is thus awaited on the implementation of the statutory provisions concerning complaints before Constitutional Court as well as their effectiveness in practice, including further information on the first experience of the Constitutional Court and Damages Commission in this regard.

In this respect, the authorities' attention is drawn to the Committee of Ministers' Recommendation Rec(2004)6 to member states on the improvement of domestic remedies and to measures adopted in this field by other countries (see e.g. Kudła against Poland, Interim Resolution ResDH(2007)28; Jóri against the Slovak Republic, Final Resolution ResDH(2005)67; Horvat against Croatia, Final Resolution ResDH(2005)60 and Lukenda against Slovenia (Section 4.2).

4) Dissemination: The State Agent promptly issued a press release on the European Court's judgment, which was widely reported in the Serbian press. He also forwarded the translation of the Court's judgment to the Supreme Court of Serbia with a request for further distribution to all domestic courts. During his visits to certain courts the State Agent delivered copies of the translated judgment to them. Finally, the judgment was distributed and discussed at a seminar organised on 14-15/06/2007 by the Department for Human and Minority Rights of the government and the State Agent in co-operation with the Council of Europe, attended by members of judiciary and state authorities.

5) Publication: The European Court's judgment was immediately translated and published in the Official Gazette of the Republic of Serbia No. 53 of 13/06/2007, as well as on the website of the State Agent (www.zastupnik.gov.rs). A commentary on the judgment by the State Agent was published in the specialised legal magazine Paragraf, including its Internet edition, and in the journal Selected Case- Law (Izbor sudske prakse) No. 5/2007.

The Deputies decided to resume consideration of this item

1. at their 1065th meeting (15‑16 September 2009) (DH), in the light of information to be provided on individual measures;

2. at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.

- 51 cases against the Slovak Republic

7510/04 Kontrová, judgment of 31/05/2007, final on 24/09/2007

This case concerns the authorities’ failure to take positive action to protect the life of the applicant’s two children (violation of Article 2).

Although the applicant’s family situation was known to the local police in view of her criminal complaint and her emergency calls concerning her husband’s threatening behaviour, the police did nothing to prevent him from shooting dead their two children on 31/12/2002. Ultimately the domestic courts found that the tragedy was a direct consequence of the failure of the police to act and on 14/03/2006 convicted the responsible officers of negligent dereliction of duty. However, the applicant’s complaint to the Constitutional Court seeking compensation for the non-pecuniary damage suffered was unsuccessful.

The European Court noted that in response to the applicant’s situation, under the applicable provisions of the Code of Criminal Procedure and service regulations, the police were obliged, among other things, to: register the applicant’s criminal complaint; launch an immediate criminal investigation and criminal proceedings against the applicant’s husband; keep a proper record of the emergency calls and advise the next shift of the situation and take action concerning the allegation that the applicant’s husband had a shotgun and had threatened to use it. In fact, however, one of the officers involved helped the applicant and her husband modify her criminal complaint of 02/11/2002 so that it could be treated as a minor offence calling for no further action. As found by the domestic courts, the direct consequence of those failures was the death of the applicant’s children (violation of Article 2).

Moreover, the European Court found that the applicant did not have an effective remedy to apply for compensation for the non-pecuniary damage suffered (violation of Article 13 taken together with Article 2).

Individual measures: The European Court awarded the applicant just satisfaction for the non-pecuniary damage suffered (25 000 euros).

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

General measures:

1) Violation of Article 2: The European Court observed that, under section 2 (1) (a) and (b) of the Police Corps Act of 1993, it was one of the main tasks of the police to protect fundamental rights and freedoms, life and health. In this case the police failed to comply with the obligations stemming from this law, the Code of Criminal Procedure.

• Information provided by the Slovak authorities on 12/02/2008: The judgment was published in the journal Justičná Revue No. 12/2007. On 31/01/2008 the judgment was circulated to all regional courts under cover of a letter from the government Agent. The presidents of the regional courts have been asked to notify the judgment to all judges in regional and district courts within their jurisdiction. Under cover of another letter from the government Agent, the judgment was also sent to the chief of police, who has been asked to notify the judgment to all directors of district police offices.

• Information is awaited on measures taken or envisaged (for example training or guidance for the police) to ensure that the police comply with their legal obligations in similar situations.

2) Violation of Article 13 taken together with Article 2: The European Court found that the action for protection of personal integrity under Articles 11 et seq. of the Civil Code did not provide the applicant with an effective remedy allowing her to obtain compensation for non-pecuniary damage. It noted that the development of the case-law relating to this protection dates from 2006 and concerns the decisions of courts at the lowest level of jurisdiction.

• Information provided by the Slovak authorities on 12/02/2008: Sections 46, 287 and 288 of the Criminal Code (Act No.301/2005 Coll), which came into force on 01/01/2006 provide a legal basis for claiming compensation for non-pecuniary damages against the perpetrator of a criminal offence. No court fees are payable when bringing such a claim (Act No.71/1992 Coll. on Court fees).

The government Agent has organised a number of seminars on the possibility of filing an action for protection of personal integrity under Section 11 of the Civil Code, in association with the European Legal Centre EUROIURIS, the Academy of Justice and the Slovak Bar Association.

The authorities also provided information on one of the domestic judgments referred to in paragraphs 33-35 of the judgment of the European Court on domestic law and practice: a judgment of the Nitra District Court of 14/05/2006 (file no.10C 142/2002) in which the domestic court had awarded damages for non-pecuniary damage following a criminal offence became final on 18/10/2006.

The authorities provided information on two further cases in which courts had awarded non-pecuniary damages for the protection of personal integrity: in a judgment of the Banská Bystrica District Court of 29/09/06, final on 02/08/06 (File No. 14C 172/05) and a judgment of the Košice Regional Court which was returned for re-examination by the Trebišov District Court (File No. 1Co 201/2005). In the latter case, the applicant was denied compensation by the Trebišov District Court but this was overturned on appeal to the Košice Regional Court.

• Information provided by the Slovak authorities on 18/03/2008: as from 01/07/2004 an applicant may also bring a claim for non-pecuniary damage against erroneous official conduct of public authorities (under Act 514/2003 Coll).

• Information provided on domestic case law is under assessment.

The Deputies decided to resume consideration of this item at their 1065th meeting (15‑16 September 2009) (DH) in the light of the information provided on the general measures.

54334/00 Lexa, judgment of 23/09/2008, final on 23/12/2008

This case concerns a violation of the right to liberty and security following the applicant’s unlawful detention (violation of Article 5§1).

The applicant, previously head of the Slovakian Intelligence Services, was suspected of involvement in the abduction of the Slovakian President’s son in 1995. Criminal prosecutions relating to the abduction were the subject of two amnesties promulgated by the President in 1998. Later that year, the then newly appointment Prime Minister published a revocation of those amnesties. In 1999 criminal charges were brought against the applicant and he was held in pre-trial detention from April-July 1999.

The European Court agreed with the national courts that the scope of the amnesties covered the offences for which the applicant had been prosecuted. The European Court noted that “the Constitution contains no provisions expressly permitting a presidential decision on amnesty to be quashed and there is no indication of any practice of the domestic courts or legal theory that could allow a different conclusion to be reached” (§133). The applicant’s subsequent prosecution was therefore not permissible under the domestic law and the applicant’s detention could not be considered in accordance with a procedure prescribed by law.

Individual measures: The European Court considered that the finding of the violation constituted sufficient just satisfaction.

The applicant’s unlawful detention was for a three-month period in 1999: the applicant is no longer detained.

• Assessment: no further individual measure appears necessary.

General measures:

• Information is awaited on the publication and dissemination of the judgment and any other measures taken or envisaged.

The Deputies decided to resume consideration of this item at their 1065th meeting (15‑16 September 2009) (DH), in the light of information to be provided on the individual and general measures.

8607/02 Cabala, judgment of 06/09/2007, final on 06/12/2007

14893/02 Haris, judgment of 06/09/2007, final on 06/12/2007

48666/99 Kučera, judgment of 17/07/2007, final on 17/10/2007

These cases concern the failure promptly to examine the applicants' requests for release from detention on remand lodged in 2001 in the Cabala and Haris cases and in 1998 in the Kučera case (violations of Article 5§4).

The Cabala case also concerns a violation of the right to adversarial proceedings in respect of the applicant's request for release (violation of Article 5§4) and the excessive length of criminal proceedings instituted against him in 1999 (violation of Article 6§1).

The Kučera case also concerns the excessive length of the applicant's detention on remand, between 1997 and 1999, as the reasons on which the domestic courts relied were not relevant and sufficient (violation of Article 5§3).

Moreover, the Kučera case concerns a violation of the applicant's right to respect for his home life due to the forcible entry of four armed and masked policemen into the applicant's apartment on 17/12/1997 in order to serve the applicant and his wife with a notice of indictment for extortion and to escort them to the police station. The European Court found that whether or not this measure was lawful, there was no indication that it was necessary for the fulfillment of the task and was accordingly disproportionate in the circumstances (violation of Article 8).

The Kučera case also concerns a violation of the applicant's right for his private and family life due to the refusal to allow the applicant to meet with his wife over a period of thirteen months during his detention on remand. The European Court found that this interference was not “necessary in a democratic society” (violation of Article 8).

Individual measures:

1) Cabala case: The applicant was released on 31/07/2002 and the European Court awarded him just satisfaction in respect of the non-pecuniary damage sustained. However, the criminal proceedings at issue were still pending when the European Court delivered its judgment (§ 20).

• Information provided by the Slovakian authorities (22/07/2008): The criminal proceedings against the applicant are still pending. The main hearing scheduled for 22/06/2008 had to be adjourned due to the applicant's challenge against the Nitra District Court for bias.

Information is awaited on the current state of the domestic proceedings and if need be, their acceleration.

2) Haris case: The applicant was released and submitted no claim for just satisfaction before the European Court.

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

3) Kučera case: The applicant was released on 19/12/1999. During his detention he was allowed to meet his wife for the first time on 29/01/1999. On 28/01/2000 they were both acquitted. The European Court noted that the applicant obtained appropriate reparation at domestic level as regards the loss of salary resulting from his detention (§ 138) and awarded him just satisfaction for non-pecuniary damage.

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

General measures:

1) Violations of Article 5§4 due to the lack of prompt examination: The European Court noted that the delays in examining the applicants' requests for release were due amongst others things to courts' failure to secure service of their decisions, procedural flaws which resulted in decisions' being quashed by higher courts, unjustified delays in deciding to dismiss requests. It emphasised that, according to the binding provisions of national law, the applicants were barred from submitting new applications for release, even if they relied on new facts, as long as their earlier applications were still pending.

• Information provided by the Slovak authorities on 26/02/2009: Section 2(6) of the Code of Criminal Procedure (301/2005) provides that the authorities are obliged to give priority to detention cases and deal with them quickly. Under Section 79(3) of the Code of Criminal Procedure, a detainee is entitled to apply for release at any time. The judge considering such applications shall rule on an application without delay.

The case-law of the Slovak Constitutional Court interprets the obligations under the Criminal Code and the Constitution in light of the Convention case-law and requires the relevant authorities to deal with a request for release from detention as speedily as possible.

The Slovak authorities consider that this violation arose due to the failure of the domestic courts to meet their obligations under not only the European Convention but also the Slovak Constitution, Code of Criminal Procedure and case-law of the Constitutional Court. All the domestic courts concerned were familiarised with the European Court’s judgment.

• Assessment: in light of the-case law of the Constitutional Court and the wide dissemination of the judgment, no further measures appear necessary.

2) Violation of Article 5§4 due to the lack of adversarial proceedings, in the case of Cabala: See the Nešták case (65559/01) Section 6.2.

3) Violation of Article 6§1 in the case of Cabala: see the Pavlík case (74827/01) (Section 6.2).

4) Violation of Article 5§3 in the case of Kučera: The violation was due to the lack of sufficient reasons presented by the courts which extended the applicant's detention on remand.

• Information provided by the Slovak authorities on 08/04/2009: Section 76(1) of the Code of Criminal Procedure (301/2005) provides that detention in pre-trial proceedings can only last for “a necessary period of time”. Under Section 76(1) as soon as the grounds for detention cease to apply, the detainee must be released. There is considerable case-law from the Slovak Constitutional Court from 2002 onwards which states that reasonable suspicion of commission of a criminal offence can only be a temporary ground for detention in the initial stage of a case. Prolonged detention requires further, significant reasons for detention and the authorities must proceed with special diligence when dealing with detention issues (see inter alia. III. US 295/05, IV. US 253/05, III. US 199/05). All courts in the Slovak Republic have been made familiar with the judgment of the European Court.

• Assessment: in light of the extensive jurisprudence of the Constitutional Court on this matter and the wide dissemination of the judgment, no further measures appear necessary.

5) Violations of Article 8 in the case of Kučera: As regards the right of respect for home, the European Court noted that the Police Corps Act of 1993 contains certain guarantees to avoid the abuse of authority in similar circumstances. However, these failed to prevent the violation from occurring (§122 of the judgment).

As regards the right to respect for private and family life, the interference was based on the Detention on Remand Act of 1993. However, the European Court found that it was not indispensable for achieving the aim of prevention of crimes and the protection of the rights of others.

• Information provided by the Slovak authorities on 26/02/2009: With regard to the forced entry by police into the applicant’s home, the authorities note that this was an isolated incident. The police authorities have been notified of the judgment and asked to ensure that such an incident never happens again. In relation to the refusal to allow the applicant to meet with his wife while in detention, the authorities also note that this was an isolated incident. Articles 19(1) and (2) of the Detention on Remand Act (221/2006) state that a person in custody is entitled to a visit of at least one hour every three weeks. More frequent visits may be permitted. A person detained on suspicion of complicity may receive visits with permission from the prison authority concerned. The relevant authorities were made familiar with the judgment.

• Assessment : Both violations appear to have arisen from a specific, isolated misapplication of the law. No further measures appear necessary.

6) Publication and dissemination:

• Information provided by the Slovak authorities on 18/03/2008: The judgments in Cabala and Haris were translated and published in Justičná Revue No 12/2007. The judgment in Kučera was translated and published in Justičná Revue No 10/2007. On 21/12/07, the judgments were sent out to all regional courts and to the Supreme Court by a circular letter from the Minister of Justice. The presidents of the regional courts and the President of the Criminal Division of the Supreme Court have been asked to notify the judgments to all judges in the regional, district courts and the Supreme Court dealing with criminal cases. On 24/07/08, the Kučera judgment was distributed to all regional courts and the Police Presidium by a letter from the Agent of the Slovak Republic before the European Court. The presidents of all the regional courts and the Police have been requested to notify the judgments to all courts within their jurisdiction and all district police officers.

- Cases of length of civil proceedings and lack of an effective remedy[108]

2015/02 Jakub, judgment of 28/02/2006, final on 28/05/2006

42774/04 Báňas, judgment of 12/02/2008, final on 12/05/2008

16988/02 Bohucký, judgment of 23/10/2007, final on 23/01/2008

65422/01 Dobál, judgment of 12/12/2006, final on 23/05/2007

21326/07 Eliáš, judgment of 18/03/2008, final on 18/06/2008

66083/01 Gažíková, judgment of 13/06/2006, final on 13/09/2006

2010/02 Hrobová, judgment of 08/06/2006, final on 08/09/2006

16126/05 Jakubička and Magyaricsová, judgment of 18/12/2007, final on 18/03/2008

70798/01 Jenčová, judgment of 04/05/2006, final on 04/08/2006

70985/01 Judt, judgment of 09/10/2007, final on 09/01/2008

56161/00 Komanický No.2, judgment of 02/10/2007, final on 02/01/2008

72092/01 Komanický No. 3, judgment of 17/06/2008, final on 17/09/2008

70494/01 Komanický No. 4, judgment of 22/07/2008, final on 22/10/2008

63959/00 Kuril, judgment of 03/10/2006, final on 03/01/2007

67039/01 Kvasnová, judgment of 13/06/2006, final on 13/09/2006

52443/99 L.R., judgment of 29/11/2005, final on 13/09/2006

77688/01 Lubina, judgment of 19/09/2006, final on 19/12/2006

44068/02 Magura, judgment of 13/06/2006, final on 13/09/2006

62187/00 Malejčík, judgment of 31/01/2006, final on 03/07/2006

33827/03 Matia, judgment of 27/11/2007, final on 27/02/2008

21302/02 Múčková, judgment of 13/06/2006, final on 13/09/2006

69484/01 Obluk, judgment of 20/06/2006, final on 20/09/2006

67035/01 Orel, judgment of 09/01/2007, final on 09/04/2007

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

45148/06 Pobijaková, judgment of 18/03/2008, final on 18/06/2008

54330/00 Preložník, judgment of 12/12/2006, final on 23/05/2007

25763/02 Rapoš, judgment of 20/05/2008, final on 20/08/2008

58174/00 Rišková, judgment of 22/08/2006, final on 22/11/2006

72019/01 Ščuryová, judgment of 31/10/2006, final on 31/01/2007

72237/01 Šedý, judgment of 19/12/2006, final on 19/03/2007

50224/99 Šidlová, judgment of 26/09/2006, final on 26/12/2006

26840/02 Sika No. 3, judgment of 23/10/2007, final on 23/01/2008

44508/04 Sika No. 4, judgment of 27/11/2007, final on 27/02/2008

2132/02 Sika, judgment of 13/06/2006, final on 13/09/2006

58708/00 Skurčák, judgment of 05/12/2006, final on 05/03/2007

23865/02 Šnegoň, judgment of 12/12/2006, final on 12/03/2007

77690/01 Solárová and others, judgment of 05/12/2006, final on 05/03/2007

39139/05 Španír, judgment of 18/12/2007, final on 07/07/2008

23846/02 Štefániková, judgment of 23/10/2007, final on 23/01/2008

77720/01 Teréni, judgment of 20/06/2006, final on 20/09/2006

17709/04 Tomláková, judgment of 05/12/2006, final on 05/03/2007

57986/00 Turek, judgment of 14/02/2006, final on 13/09/2006

3305/04 Vičanová, judgment of 18/12/2007, final on 07/07/2008

54826/00 Vozár, judgment of 14/11/2006, final on 14/02/2007

67036/01 Vujčík, judgment of 13/12/2005, final on 13/09/2006

28652/03 Weiss, judgment of 18/12/2007, final on 18/03/2008

- 2 cases against Slovenia

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

19611/04 Šubinski, judgment of 18/01/2007, final on 18/04/2007

28936/02 Acikgöz, judgment of 07/02/2008, final on 07/05/2008

These cases concern the excessive length of the criminal proceedings instituted against the applicants in 1998 and in 1987 respectively (violations of Article 6§1) and the lack of an effective remedy in this respect (violations of Article 13).

Individual measures: The domestic proceedings in the case of Šubinski were still pending before the Constitutional Court when the European Court delivered its judgment, while the domestic proceedings in the case of Acikgöz had been ended.

• Information provided by the Slovenian authorities in the case of Šubinski (14/01/2008): The proceedings before the Constitutional Court ended on 14/06/2007; the constitutional appeal filed by the applicant was rejected.

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

General measures:

1) Violation of Article 6§1: The issue of excessive length of criminal proceedings has already been examined in the context of the case of Majarič (judgment of 08/02/2000, Section 6.2), in which the European Court found a violation of Article 6§1 due to the excessive length of criminal proceedings. In the Majarič case, the Slovenian authorities adopted measures to accelerate criminal proceedings, i.e. wide dissemination and publication of the European Court’s judgment, 1998 amendments to the Criminal Procedures Act (introducing settlement procedures) and training of judges.

• Information provided by Slovenian authorities (letters of 22/04/2008 and 20/10/2008):

A. Statistics: The proportion of criminal cases before local courts examined within a year attained 57,8% in 2007 as compared to 36,7% in 2000. However, backlogs increased in criminal cases before district courts as compared to 2000. The proportion of criminal cases before district courts examined within a year decreased in 2007 to 40,6% as compared to 51,8% in 2000. As far as the higher courtsare concerned, they examined 58% and 53% of all criminal appeals within 3 months in 2006 and 2007 respectively. As of 30/06/2008, there were 4 701 backlog criminal cases before local courts and 1 912 such cases before district courts. There was no backlog in higher courts at that date. It is to be noted that in 2001 there were 7 055 backlog criminal cases before local courts, while in 2006 there were 2 469 such cases before district courts.

B. IT project: The modernisation of the IT infrastructure in the criminal justice sector is under way. It aims to provide real-time, IT-supported monitoring of criminal procedures, criminal investigations and criminal judicial proceedings at first-instance courts; to substitute manually administered documents by modern IT systems; to implement IT-based tools to support the work of judges and members of the courts’ staff. The project will be implemented by 2009.

• Assessment: The information provided by the Slovenian authorities points to certain problems concerning backlogs in criminal cases, in particular before district courts. It also points to trends in average length of criminal proceedings which could be further improved.

• Information is awaited on further developments in measures taken or envisaged to reduce the length of criminal proceedings and backlogs, including on the completion of the IT project. Information is also awaited on dissemination and publication of both judgments of the European Court.

2) Violation of Article 13: These cases present similarities to those of the Lukenda group (1072nd meeting, December 2009) in which information is awaited under this heading.

• In addition, information is awaited on functioning of the legal remedy introduced (see the Lukenda group,) in the context of the length of criminal proceedings and on the statistical data corroborating its efficiency in practice.

- 7 cases against Spain

423/03 Díaz Ochoa, judgment of 22/06/2006, final on 22/09/2006

41745/02 Lacárcel Menéndez, judgment of 15/06/2006, final on 11/12/2006

These cases concern violations of the applicants' right of access to a court (violations of Article 6§1).

In the Díaz Ochoa case, the applicant was not informed in 1992 of proceedings brought against him as co-defendant before Labour Tribunal No. 7 of Valencia, which resulted in his being ordered to pay certain sums. The applicant did not become aware of the proceedings until October 1998, when his wages were first attached in payment of the sums owed. He applied for an order setting aside the judgment against him on the ground that he had not been notified of the proceedings but his application was dismissed as being out of time. The applicant also applied for a review and lodged an amparo appeal, both without success.

The European Court drew attention to the highly unusual combination of events in this case insofar as the applicant had had no reason to suspect that proceedings had been brought against him, as his address was on the case file that had been before the judge on the merits. In addition, the courts seized to set aside the original order or at appeal had failed to remedy the situation caused by the applicant's absence from the main proceedings because of their unduly narrow construction of the law.

In the Lacarcel Menendez case, the applicant was owner of the flat in which she lived in Murcia, situated in an apartment block in multiple ownership. As she had not paid the joint maintenance costs, her co-owners took proceedings against her to obtain payment of a sum equivalent to 877 euros. In December 1995 the applicant was ordered to pay the amount due. In enforcement of this judgment, and at the co-owners' request, the applicant's apartment was seized and sold at auction.

In the intervening period, namely since 27/11/1995, two judges in Murcia, holding that the applicant was “presumed lacking in legal capacity”, authorised her detention in a psychiatric hospital and subsequently renewed that authorisation. In January 2000 the applicant was declared lacking in legal capacity and one of her sisters was appointed as her guardian. The sister applied for annulment of the proceedings which had resulted in the sale of the applicant's apartment. Her action was dismissed at first instance on the ground that, at the material time, the applicant had not been declared lacking in legal capacity by a final judgment. In addition, the Constitutional Court dismissed the amparo appeal submitted by the applicant's sister.

The European Court noted that, on account of her psychiatric state as “presumed lacking in legal capacity”, the applicant had been unable to suspect that proceedings were being brought against her. The manner in which the courts had examined her case had resulted in denying her effective access to a court. In addition, the courts which examined the action to have those proceedings declared void had failed to remedy this lack of participation in the main proceedings. The reasoning based on the non-retrospective nature of a declaration of incapacity seemed too formalistic and was incompatible with the applicant's placement, against her will, in a psychiatric hospital, on the orders of two other judges in the same city.

Individual measures: In both cases, the European Court awarded the applicants just satisfaction in respect of the non-pecuniary damages suffered.

1) Díaz Ochoa case:

The Spanish authorities indicated that the General Social Security Treasury, in whose favour partial seizure of the applicant’s salary had been ordered, decided on the 11/04/2008 to waive its right to do so (letter from the authorities dated 15/09/2008). Its decision was notified to the applicant on the 22/05/2008.

Later the Social Affairs Court decided not to enforce the initial decision of 1992 ordering the applicant to pay the sums in respect of which the attachment order had been issued. Furthermore, the competent department of the General Social Security Treasury issued an ordinance on 20/06/2008 indicating that once the Social Affairs Court’s decision became final, the necessary measures concerning reimbursement of the sums attached would automatically be taken.

• Information provided by the Spanish authorities (letter of 09/12/2008 and 24/02/2009): A decision was taken to this end on 07/10/2008 by the Provincial Directorate of the General Social Security Treasury, to reimburse 5.661,20 EUR, deposited on the applicant’s current account, to which the sum of 1.375,19 EUR was added, representing the interest calculated from the date of each distraint. The applicant’s counsel indicated that his client had appealed against the decision of the Provincial Directorate of the Treasury of 07/10/2008 before the General Social Security Treasury, as he claims this decision did not specify the interest on overdue payment owed and did not take into account the damages subsequent to the European Court’s judgment (letter of 08/01/2009.The authorities indicated that this appeal was rejected by a decision of 30/02/2009.The reimbursement of the sum of 7.036,39 EUR took place on 12/02/2009.

The applicant’s counsel indicated that his client’s request for review of the decision of Labour Tribunal’s No. 7 of Valencia in the main proceedings has been rejected. He also indicated that on 21/01/2009 another amparo appeal was lodged against this decision before the Constitutional Court in order to obtain its revision or annulment.

• Further information is awaited particularly concerning the outcome of the amparo appeal.

2) Lacárcel Menéndez case:

• Information is awaited on the applicant’s present situation and on measures which could be taken regarding her, if appropriate.

General measures: The problem of the excessively formalistic approach as regards the enforcement of procedural rules by Spanish courts has been raised in several previous cases which have been closed or are still under consideration by the Committee, in particular on the assumption that the Spanish courts will give direct effect to the European Court case-law (see Pérez de Rada Cavanilles against Spain, judgment of 28/10/1998, Resolution ResDH(2001)84, and Stone Court Shipping Company S.A. against Spain, 1059th meeting, June 2009).

However, the measures that have been adopted in those cases do not appear to redress the particular problems raised in the two present cases.

The Diaz Ochoa and Lacarel Menéndez cases have been published in the Ministry of Justice’s information bulletin (Boletin de Informacion, ministero de justicia) and sent by the Ministry to the courts and authorities concerned.

• Assessment by the Spanish authorities of the need to take further measures would be appreciated.

The Deputies decided to resume consideration of these items at the latest at their 1st DH meeting in 2010 in the light of further information to be provided on individual and general measures.

- 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

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 case of Barrenechea Atucha the Supreme Court rejected the applicant’s appeal on points of law as inadmissible in 2001 even though it had found it to be admissible almost six years earlier. 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 years later without explaining the change in case-law or without inviting the applicant to submit any 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.

Individual measures: The European Court awarded the applicants just satisfaction for the non-pecuniary damages except in De la Fuente Ariza, in which the applicants submit no claim. It would be useful if the government were to provide an assessment of the applicants’ individual situations so that the Committee of Ministers might assess the need for further possible individual measures.

• Information is awaited on the assessment of the situation of the applicants.

General measures:

• Information is awaited on examples of changes in the case-law of the Supreme Court or the Constitutional Court in response to the judgments of the European Court. Information on other possible measures taken or envisaged to prevent new, similar violations, including awareness-raising activities, would also be useful. 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.

- 1 case against Sweden

62332/00 Segersted-Wiberg and others, judgment of 06/06/2006, final on 06/09/2006[109]

- 1 case against Switzerland

39051/03 Emonet and others, judgment of 13/12/2007, final on 13/03/2008

This case concerns an infringement of the applicants' right to respect for their family life (violation of Article 8). When she was 19, the first applicant suffered from a serious illness, which left her in need of permanent care. It was decided, in agreement with her mother (the second applicant) and the mother's partner (the third applicant), that the third applicant would adopt the first applicant, in order that they could be considered a family in the eyes of the law. The biological father of the first applicant had died some years earlier. In 2001, the adoption became effective. However, this had the unintended consequence of terminating the legal parent-child relationship between the mother and daughter. Under Article 267 of the Swiss Civil Code, existing parent-child relationships are severed on adoption, save in respect of the spouse of the adoptive parent; the second and third applicants were cohabiting (they were not spouses).

The European Court found that this interference was based on a clear legislative provision but that the applicants should not be criticised for failing to take into account the extent of the consequences of the adoption. The “respect” for the applicants' family life required that biological and social reality be taken into account to avoid the blind, mechanical application of the provisions of the law to this very particular situation for which they were clearly not intended. Failure to take such considerations into account show complete disregard for the wishes of the persons concerned, without actually benefiting anybody. Lastly, the measure did not respond to any “pressing social need” nor was it “necessary in a democratic society.”

Individual measures: The European Court noted (paragraph 98) that the applicants will have the possibility, based on section 122 of the new Federal Tribunal Act of 17 June 2005, which entered into force on 1 January 2007, of applying for a revision of the impugned judgment delivered by the Federal Court on 28 May 2003 in order to have the mother-daughter relationship between the first two applicants restored without that severing the parental tie between the first and third applicants, which falls under the protection of Article 8 of the Convention since the adoption pronounced by the Court of Justice. The European Court also added that in spite of this possibility, the applicants have suffered frustrations from the time when they were informed of the disputed measure. The Court therefore awarded them just satisfaction for non pecuniary damage.

Following the European Court’s judgment, the applicants requested the revision of the judgment and the Federal Tribunal ruled in their favour in a judgment delivered on 18/07/ 2008. Applying the European Court's judgment directly, it held that the authorities could not end the legal child relationship between the mother and daughter without breaching Article 8 of the Convention. It confirmed that the Cantonal Registry Directorate (Direction cantonale de l’état civil) should re-establish the legal parent-child relationship between the mother and daughter.

General measures: Swiss law does not permit joint adoption for unmarried couples (paragraph 264 of the Civil Code). One of the effects of adoption is that the previous, legal, parental relationships are severed save in respect of the spouse of the adoptive parent (paragraph 267 of the Civil Code). Before the European Court, the government indicated that this difference in treatment between married and cohabiting couples is justified in particular in the travaux préparatoires for the Civil Code.

With respect to the interpretation of these provisions, the European Court stressed the importance of an evolving approach to the interpretation of the Convention, in the light of today's living conditions, to avoid excessive reliance on historical interpretations. The Court recognised a growing recognition in the Council of Europe's member States for adoptions such as that at the origin of this case.

The Swiss authorities have, as is their systematic practice, published the European Court’s judgment and sent it out to competent authorities. The judgment was presented in the quarterly bulletin of the Federal Ministry of Justice (Office fédéral de la justice) on the European Court's case-law, issue No. 1 of 2008 (www.bj.admin.ch/bj/fr/home/themen/staat_und_buerger/menschenrechte2.html, section « Convention européenne »). These quarterly bulletins are sent out to all Federal authorities concerned (Federal Tribunal, Administrative Federal Tribunal, Criminal Federal Tribunal, Office of the Parliament), as well as to all cantonal judicial authorities (in particular Courts of appeal and justice Departments).

A summary of the judgment was also published in the Annual Report of the Federal Council on the activities of Switzerland within the Council of Europe in 2007. Authorities informed of the judgment, in particular the courts, apply the Convention directly and, according to the authorities, are in a position to avoid new, similar violations. In this respect, the judgment delivered by the Federal Tribunal in the Emonet case on 18/07/2008 following the European Court’s judgment, would be of particular interest. Relying directly on the European Court’s judgment, the Federal Tribunal held that even if the Law excludes the adoption of the partner’s child, in exceptional circumstances such as those in the Emonet case, it may be necessary to avoid an automatic and blind application of the law by authorising the partner, just like the spouse, to adopt his partner’s child.

• the assessment of the information provided is ongoing.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of the ongoing bilateral contacts concerning general measures.

- 1 case against “the former Yugoslav Republic of Macedonia”

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 and 09/04/2009): 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 Court of First Instance of Skopje 2.

• Information is awaited on the developments in the domestic proceedings.

General measures:

1) Excessive length of enforcement proceedings: See Jankulovski group of cases (6906/03, 1065th meeting, September 2009).

• The national authorities submitted to the Secretariat the relevant information in this regard, which is currently being assessed.

2) Lack of an effective remedy

• Pursuant to the Committee of Ministers' practice since the adoption of Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of internal remedies, information is awaited concerning measures taken or envisaged to provide an effective remedy with respect to the excessive length of enforcement proceedings.

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.

- 233 cases against Turkey

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

The case concerns the killing of the applicants' husband and father, Petros Kakoulli, in 1996, by Turkish soldiers on guard duty along the cease-fire line in Cyprus and the lack of an effective and impartial investigation into this killing (violation of Article 2).

The European Court found that the killing of Mr Kakoulli was neither proportionate nor absolutely necessary for the purpose of “defending any person from unlawful violence” or “effecting a lawful arrest”: in fact Mr Kakoulli did not pose an imminent risk of death or serious harm to anyone since the fatal shot was fired several minutes after Mr Kakoulli had already been injured and neutralised; he therefore did not represent any longer a threat and it was thus possible to carry out an arrest. In this context, it could not be concluded that the use of fire-arms was in conformity with the rules of military engagement concerning the duty post in question (post Haşim 8) (see §120 of the judgment).

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

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

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

- these same authorities failed to inquire as to whether the victim, allegedly in possession of arms, could have posed a serious threat to the soldiers from a long distance or whether the soldiers could have avoided using excessive lethal force;

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

Individual measures:

• Information provided by the Turkish authorities: Following the European Court’s judgment, the question of a potential reopening of the investigation was examined promptly. A preliminary analysis of a possible reopening was carried out as early as July 2006 by the security forces, who examined in detail all the deficiencies identified by the European Court.

On the basis of this examination, the Prosecutor General, in a decision of 28/03/2007 completed with a letter of 21/05/2008, found that a new investigation was impossible at present, because some of the witnesses were Greek Cypriots, the persons working at the time for the United Nations in Cyprus have left the territory since, the body of Mr Petros Kakoulli was buried in the southern part of Cyprus and 12 years have passed since the facts of the case.

Moreover, it can be seen in the relevant legislation of “TRNC” that no period of limitations exists concerning the incriminated facts; certainly, a person convicted or previously acquitted cannot be judged twice for the same facts, but proceedings ended with a decision not to bring charges, as in the present case, might be reopened if the new facts were brought to the attention of the authorities..

• Assessment: The provided information concerning the decision adopted by the Prosecutor General not to reopen the investigation represents a detailed and thorough examination of all the main elements pointed out by the European Court as deficient in the initial investigation. It should be noted, however, that this analysis was based on the same investigation acts criticised by the European Court, giving rise to a violation of the procedural aspect of Article 2. In this connection, it suffices to emphasise that carrying out a new effective investigation would make it possible to establish, in the light of the conclusions of the European Court, whether or not the soldier in question had acted in compliance with relevant orders and instructions. This in turn would make it possible to establish responsibility for the killing of Mr. Kakoulli, an element of the concept of effective investigation.

However, from the information provided by the Turkish authorities on 21/05/2008 it seems that the authorities are not in a position to carry out an exhumation of, and perform an autopsy on, the body of Mr Petros Kakoulli, as it is buried in the southern part of Cyprus.

Now, the fact of performing another autopsy is crucial for determining the position of Mr Kakoulli’s body in relation to the soldiers on guard duty when the shots were fired, and ultimately for determining whether the soldier who shot could have avoided using excessive lethal force, and also if the rules of engagement laid down in the military instructions concerning the Haşim 8 Guard Post had been respected. Consequently, in the absence of a new autopsy, it would seem impossible at present to take action for effectively remedying the deficiencies of the initial investigation as concluded by the European Court.

• At their last examination of the case (1051st meeting, March 2009) the Committee of Ministers noted with interest the information provided by the Cypriot authorities concerning a possible further forensic investigation of Mr Kakoulli’s body.

• Additional information is awaited in this respect.

General measures: An article on the judgment had been published in the Turkish Cypriot Bar Association Review and the judgment had been sent out to all relevant authorities, including to the security forces and the “President of the TRNC”.

The Turkish authorities have further provided extensive information on the regulatory framework in the “TRNC” regarding the use of firearms by security forces. The information concerns both laws (statutory documents) applicable to all security forces and instructions (delegated legal acts or acts of application adopted by the executive) for security forces serving along the green line. Several laws contain provisions setting out the legal regime concerning punishment for unwarranted use of firearms, the cases in which the use of firearms is allowed, the obligation to give a warning before using a firearm, the responsibility of higher ranking officers, the standard training for security forces, investigations into incidents and the duty to follow orders and the exceptions to that duty. The general and specific instructions for the guards at the guard post at issue in the judgment contain the regulatory framework as to actions to be taken by guards in certain specific situations and as to the way firearms should be carried and used.

• Legislative provisions:

The relevant legislative provisions are:

- “Code No. 35/1986 on the Internal Functioning of the Security Forces of the Turkish Republic of Northern Cyprus” of 13/11/1986, as amended by “Code 57/2000”;

- “Code No. 29/1983 on Military Crimes and Punishments 15/05/1983”, as amended by “Codes 34/1995” and “50/2006”;

- “Code No: 34/1983 on the Establishment and Procedures of Security Forces Court and Security Forces Supreme Court” of 15/05/1983 as amended by “Codes 21/1984”, “27/1984”, “61/1987”, “24/1990”, “9/1991”, “13/2002” and “33/2004”;

- “Code No. 13/1979 on the Establishment of Disciplinary Courts, Disciplinary Misdemeanours and Punishments and Procedures” of 28/11/1979, as amended by “Codes 8/1991”, “18/1992”, and “19/2006”.

The provisions of the legal framework provided by the Turkish authorities may be summarised as follows:

- Responsibility for use of arms: no responsibility attaches to either a soldier who used arms, or to their commanders-in-chief, in cases when the arms have been used in conformity with the relevant legal provisions, in particular in Law 35/1986 on internal service of the security forces. The responsibility of both the soldier and his commander arises in cases of use of arms not in compliance with the law. In cases in which military personnel causes injury or death to another person because of a negligent or an illegal action, this person is liable in accordance with the Criminal Code. When a military officer intentionally does not take action against an offence committed by his subordinate, this is considered an offence punishable by imprisonment of up to 6 months. Military personnel must obey the orders of their superior officers, with whom lies the responsibility for orders issued as regards the application of laws and instructions.

- Use of arms: in cases where a serviceman is on duty, including when he exercises the function of maintaining public order, arms may be used: in order to repel an act of aggression, which may be manifested by physical resistance or dangerous threats; in order to achieve the submission of persons who disobey orders to abandon their arms or instruments of resistance; in order to arrest legally detained people attempting to escape and who do not stop when called to do so and when there is no other means for stopping such people; in order to stop any aggression towards a person or an object being guarded by the serviceman; in cases of legitimate defence.

Arms may only be used in the absence of any other means. Faced with unarmed persons manifesting aggression, resistance, violence or expressing a threat, military personnel are allowed to use arms only after giving a warning first and only to the extent necessary to have the person comply with the call.

- Training of military personnel: five weeks of initial training and two weeks of training specific to the service to which serviceman is assigned is provided. Personnel are trained both on general and specific instructions as regards the bearing and use of arms.

- Investigation: military or civilian persons may complain to superiors or the military prosecutor general of any offence they consider committed by a serviceman. Such complaints are processed immediately with a view to opening an investigation into the situation. The competent court in such cases is the Security Forces Tribunal.

- Victims’ rights: these are covered by pertinent provisions in the criminal and civil legislation.

• Instructions for use of arms:

- Use of arms: military personnel have the right to use fire-arms while respecting the rules of engagement. Such personnel may shoot immediately without warning when armed or unarmed enemy military personnel cross or intend to cross a cease-fire line.

- Training of security forces: since 1998, commanding and subordinate officers have undergone human rights training delivered by high-level trainers, not least as part of initial training. In addition, the High Command of the Security Forces provides two programmes of human rights training. First, in the framework of citizenship, members of the forces of order and in particular military personnel, have since 2004 received in-depth training in universal values, the respect of truth, the concepts of justice and equity, equality and humane behaviour irrespective of circumstances. Secondly, as regards the framework of rules to follow in armed conflict, both theoretical and practical training in human rights is delivered. This two-fold training is provided to the whole staff of the Security Forces High command, and more concretely, to the staff stationed or operating in the points of contact. The entire personnel of the Commandment of Security Forces has been informed that any action which results in a human rights violation constitutes either a criminal or disciplinary offence which will be prosecuted in accordance with the law. The trainers are 12 qualified military officers and the training sessions are organised 10 to 12 times a year. Training includes the European Convention and United Nations standards with a view to preventing in the future violations stemming from disproportionate use of force. In addition, specific courses are delivered on the use of fire arms placing emphasis on the need for such use to be in conformity with the principles of respect for human rights.

• Assessment: It should be noted that, in the presented texts on the legislative provisions and instructions, it is not explicitly apparent that arms should be used strictly proportionately to the situation, only in cases of imminent risk of death or serious harm to human beings and as a last resort. The authorities' views in this respect would be useful.

• As regards training of security forces, further concrete information would be useful to assess the training given to security forces to prevent excessive recourse to firearms.

The Deputies,

1. noted with interest the information presented during the debate by the Turkish authorities and the Cypriot authorities concerning the individual measures in the case of Kakoulli and considered that this information needs to be assessed;

2. invited the Turkish authorities also to provide information on any individual measures taken or envisaged in the cases of Isaak and Solomou;

3. noted furthermore with interest the information provided by the Turkish authorities on the general measures, in particular on the legislative provisions on the use of firearms and use of force and invited the Turkish authorities to provide this information in writing in order that it may be assessed;

4. recalled that information is also awaited in relation to the cases of Isaak and Solomou in particular on the regulatory framework governing the peaceful, parallel conduct of demonstrations and counter-demonstrations and measures to ensure the effective investigation of killings of civilians in the northern part of Cyprus;

5. decided to resume consideration of these items at the latest at their 1072nd meeting (December 2009) (DH), for examination of the individual and general measures.

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

These cases concern the killing in 1996 of the applicants’ relatives, Mr Anastasios Isaak and Mr Solomos Solomou, in the context of Greek-Cypriot demonstrations in the area of the UN buffer zone in Cyprus, and the lack of an effective investigation into their killing (violations of Article 2). Mr Isaak was beaten to death on 11/08/1996 in the UN buffer zone by a group of counter-demonstrators which, the European Court found, included Turkish or Turkish-Cypriot soldiers or policemen. Mr Solomou was shot dead by agents of the respondent government while he was climbing a flag post on the northern side of the UN buffer zone 3 days after the killing of Mr Isaak.

The European Court concluded that Mr Isaak and Mr Solomou were killed by agents of the respondent government and that the use of force was not justified by any of the exceptions laid down in paragraph 2 of Article 2 of the Convention. The Court emphasised in both cases that the use of force should be no more than “absolutely necessary” for the achievement of one or more of the aims set out in paragraph 2 of Article 2. It further reiterated in both cases that even a potential illegal or violent action by a group of persons could not, as such, justify the immediate killing of one or more individuals. The Court also concluded in the case of Isaak that the authorities had failed to take any preventive action to protect the victim’s life, and in the case of Solomou, that the victim had been killed by five bullets which was a fact hard to reconcile with the theory that his shooting was not intentional.

As regards the investigations into the killings, the Court found that the respondent government had failed to produce any evidence showing that an investigation had been carried out into the circumstances of the death either of Mr Isaak or of Mr Solomou. In addition, more than eleven years after both incidents, no substantial result had been achieved in the alleged inquiries into the facts: those responsible for the two killings had not been identified or brought before a domestic tribunal.

Individual measures:

• The Turkish authorities are invited to provide information as to whether, following the judgment of the European Court in these two cases, investigations into the killings have been opened, and is so of their results, as well as to keep the Committee of Ministers regularly abreast of subsequent progress.

General measures:

• Information is awaited on any measures taken or envisaged in light of the judgments. In particular, the following points appear relevant and any information on those points would be welcome.

1) Excessive use of force and fire-arms (violation of Article 2): the issue of the use of fire-arms by the security forces of the “TRNC” is examined within the framework of the Kakoulli case (38595/97, Section 4.2).

• The Turkish authorities are invited to provide information on the regulatory framework in the “TRNC” governing questions concerning the use of force and fire-arms in particular by police forces, and about the planning and control of police operations.

2) Lack of preventive measures by agents of the state to stop the killing in the Isaak case (violation of Article 2):

• The Turkish authorities are invited to provide information on the regulatory framework governing the positive obligations of authorities to take measures capable of ensuring the peaceful, parallel running of demonstrations and counter-demonstrations.

3) Lack of effective investigation into the killings in both cases (violation of Article 2):

• Information is awaited on the measures taken or envisaged to ensure that effective investigations are carried out into killings of civilians by and/or with the tacit agreement of members of the police or the security forces in the “TRNC”.

4) Publication, dissemination and training:

• The Turkish authorities are invited to ensure that the judgments of the European Court in both cases are published and sent out to all relevant authorities, including the police, and the security forces along the cease-fire line, accompanied by a circular emphasising the conclusions of the European Court as regards the need for the use of force to be “absolutely necessary” and as regards the need to carry out effective investigations.

• The Turkish authorities are also invited to provide information on whether specific human rights training is being delivered to the relevant authorities in the areas of excessive use of force and fire-arms, of preventive measures to protect people during demonstrations and of effective investigations.

The Deputies,

2. invited the Turkish authorities also to provide information on any individual measures taken or envisaged in the cases of Isaak and Solomou;

5. decided to resume consideration of these items at the latest at their 1072nd meeting (December 2009) (DH), for examination of the individual and general measures.

38187/97 Adalı, judgment of 31/03/2005, final on 12/10/2005[110]

40073/98 Bilgin Ihsan, judgment of 27/07/2006, final on 27/10/2006

This case concerns the failure on the part of the national authorities to protect the right to life of the applicant’s father in the planning and manner of execution of an armed operation carried out by village guards in the south-east of Turkey in 1994. A criminal investigation was initiated and the village guards were charged with manslaughter. Following a decision by the Administrative Council, the charges were dropped on the ground that the village guards should be considered as “civil servants” and that, therefore, no prosecution should be brought against them.

The European Court first noted that there appeared to be no indication of instructions, either written or oral, given to village guards in the context of their duties, particularly with regard to the arrest of suspects. It also noted that the village guards did not benefit from the necessary equipment, such as infra-red binoculars or walkie-talkies, to be able to identify the suspect without any doubts. The European Court thus found that, in the circumstances of the case, the use of force by the village guards was not absolutely necessary in self‑defence.

The case also concerns the inadequacy of the investigation. The European Court reiterated the principle that, for an investigation into an alleged unlawful killing by state agents to be effective, it was necessary for the persons in charge of the investigation to be independent of those implicated. In the present case, the investigator, who was a gendarmerie officer, was subordinated to the same local hierarchy as the guards whose conduct he was required to investigate (violation of Article 2).

Lastly, the case concerns the absence of any effective remedy at the applicant’s disposal, in particular as a result of the fact that the administrative councils could not be considered capable of carrying out effective investigations (violation of Article 13).

Individual measures: It may be noted that in accordance with the Committee of Ministers' well-established practice, the respondent state has a continuing obligation to conduct effective investigations, a fortiori in case of a finding of a violation of Article 2 (see in particular Interim Resolution ResDH(2005)20 in the case of McKerr and others against the United Kingdom, the case of Scavuzzo-Hager and others against Switzerland, the cases concerning the action of security forces in the Russian Federation).

• Information is awaited on measures taken or envisaged by the Turkish authorities to ensure a fresh investigation into the incidents in the light of the shortcomings identified by the European Court.

General measures: Turkish authorities have provided an action plan setting out the general measures taken in the framework of this case. The government recalled that it was no longer a prior condition to obtain an administrative authorisation to investigate accusations of torture or ill-treatment following the amendment in January 2003 of Law No. 4483 on the prosecution of state agents. It also emphasised that in any case, Village Guards, being subject to a provisional mandate within the general administration, were not considered to be state agents for the purposes of Law No. 442 (the “Village Law” or of Law No. 4483 on the prosecution of state agents, and thus the question of administrative authorisation does not arise in their case. Finally the authorities indicated that the European court’s judgment in this case had been translated into Turkish and placed on the website of the Ministry of Justice (www.inhak-bb.adalet.gov.tr/aihm/karar/ihsanbilgin.doc).

• Assessment: As regards the amendments made to Law No. 4483, the Committee of Ministers has underlined in the context of the general measures related to the actions of the security forces in Turkey (CM/ResDH(2008)69) that although the revised Turkish legislation had dispensed with the obligation to obtain an administrative authorisation to investigate allegations of torture or ill-treatment, such requirement still exists in relation to other serious offences. The Committee thus asked the Turkish authorities to enact legislative measures so that administrative authorisation is no longer required, not only to prosecute acts of torture and ill-treatment but any serious offence. In the present state of Turkish Law, the intentional homicide alleged against the village guards in this case seems nonetheless to require the authorisation of the competent authority for prosecution to take place.

As regards the status of village guards in the general administration and the question as to whether administrative authorisation is needed to bring criminal proceedings against them, the legislative provisions quoted above by the government were already in force at the material time, and did not prevent the authorities from demanding an administrative authorisation in order to prosecute the village guards. Nor has the government drawn attention to any change in case-law or in administrative practice which would tend to lift the requirement of authorisation to prosecute Village Guards for offences committed in the exercise of their functions.

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

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of the information provided on general measures as well as on information to be provided on individual measures to ensure a fresh investigation into the incidents at issue in the light of the shortcomings identified by the European Court.

45902/99 Kasa, judgment of 20/05/2008, final on 20/08/2008

The case concerns the ineffectiveness of the investigation of the circumstances of the death of the applicant’s son during a shoot-out with the police in a shopping mall in 1993 (procedural violation of Article 2).

Whilst acknowledging that the use of force by the police did not go beyond what was “absolutely necessary” for their own defence and in order to carry out a lawful arrest, the European Court nonetheless noted a number of shortcomings in the investigation. For example, it observed that the investigating authorities had only started questioning the police officers involved in killing the applicant’s son four months afterwards, some of the officers not, in fact, being questioned until more than a year later. The Turkish government gave no explanation for these delays.

As those officers had been the only eye-witnesses, questioning them should have been a priority. The Court concluded that this failing was sufficiently serious to render the whole investigation ineffective.

Individual measures: The Committee’s consistent position in this kind of cases is that there is a continuing obligation to conduct investigations where a (procedural) violation of Article 2 is found.

• Information is requested as to whether a fresh investigation is possible.

General measures:

• Information is awaited on measures taken or envisaged to prevent similar violations in the future. Information is also awaited on the translation and distribution of the judgment of the European Court to the relevant judicial authorities.

The Deputies decided to resume consideration of this item at the latest at their 1072nd DH meeting (1-3 and 4 (morning) December 2009), in the light of information to be provided on individual and general measures.

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

Interim Resolutions CM/Res/DH(2007)109 and CM/ResDH(2009)45

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

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

During that period he was also convicted on two occasions of desertion, because he had failed to rejoin his regiment. In total, the applicant served 701 days of imprisonment.

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

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

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

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

1) Events after the judgment of the European Court became final: On 12/07/2007 the applicant's representatives informed the Secretariat that the applicant had been summoned on 09/07/2007 to present himself in order to serve his outstanding sentence resulting from a previous conviction (This information was communicated to delegations on 03/08/2007, DD(2007)440). Several NGOs, both in and outside Turkey, have shown their interest and conveyed their concerns for the applicant's situation.In the meantime, the applicant's request for a stay of execution of his sentence was rejected by the Eskişehir Military Court on 27/07/2007. In its decision the court referred to the decision taken by the Committee at its 997th meeting (June 2007) and to the undertaking of the Turkish authorities at that meeting concerning the draft law that was under preparation in order to find a solution to the applicant's situation. However, according to the court, the undertaking of the Turkish authorities could not lead to a stay of execution of the applicant's sentence because the content of the law under preparation - including whether or not it contained provisions that would apply for or against the applicant's case - was unknown.

The court, therefore, sentenced the applicant to 17 months and 15 days' imprisonment on the basis of his previous convictions. The applicant lodged a petition of objection with the Military Court of Cassation on 03/08/2007. The case is still pending before that court.

2) Interim resolution adopted at the 1007th meeting (October 2007): In the absence of any information on individual measures taken, despite the declaration of the Turkish authorities that a draft law was being prepared which was intended to cover the individual measures necessary in this case (see below), the Committee decided to adopt Interim Resolution (CM/ResDH(2007)109) urging Turkey without further delay to take all necessary measures to put an end to the violation of the applicant's rights under the Convention and to adopt rapidly the legislative reform necessary to prevent similar violations of the Convention. The Committee further decided to examine the implementation of this judgment at each human rights meeting until the necessary urgent measures are adopted.

3) Decision adopted at the 1043rd meeting (December 2008): The Committee noted with grave concern that, despite the above-mentioned Interim Resolution and the Committee’s repeated calls on Turkey to take the necessary measures, the applicant’s situation remained unchanged and that he was still facing the risk of imprisonment on the basis of a previous conviction. The Committee decided therefore to resume consideration of this case at the 1051st meeting (March 2009) in the light of a second interim resolution unless the Turkish authorities provide information to the Committee on the measures required.

4) The second interim resolution adopted at the 1051st meeting (March 2009): Given that no information had been provided by the Turkish authorities, the Committee adopted a second interim resolution (CM/ResDH(2009)45) strongly urging “the Turkish authorities to take without further delay all necessary measures to put an end to the violations of the applicant’s rights under the Convention and to make the legislative changes necessary to prevent similar violations of the Convention”;

5) Decision adopted at the 1051st meeting (March 2009): At the same meeting the Committee also deeply deplored the fact that the Turkish authorities had provided no information to the Committee on the measures required in this case and strongly encouraged them to carry out bilateral contacts with the Secretariat aiming to bring to an end the continuing effects of the violation for the applicant. The Committee also decided to consider further action should Turkey fail to provide tangible information to the Committee before the 1059th meeting (June 2009) in response to the interim resolution.

General measures:

• Information provided by the Turkish authorities (997th meeting): A draft law was being prepared by the competent Turkish authorities aiming to prevent new violations of Article 3 similar to that found in the present case and that this draft law would be transmitted to the Prime Minister's Office for submission to Parliament. This law, once adopted, will prevent repetitive prosecutions and convictions of those who refuse to perform military service for conscientious or religious reasons on grounds of “persistent disobedience” of military orders. According to the Turkish authorities, this draft law is intended to remedy all negative consequences of the violation for the applicant.

The Turkish authorities also gave information on the publication and dissemination of the judgment to the relevant authorities. The judgment of the European Court also received wide media coverage.

At the same meeting the Committee invited the Turkish authorities to submit a copy of this draft law and encouraged them to take the necessary steps to ensure its rapid adoption by the Parliament. No information on the adoption of this law, including its draft, has been received so far.

The Deputies,

1. reiterated their grave concern that, despite the Committee’s repeated calls on Turkey and two interim resolutions already adopted, no tangible information has been provided by the Turkish authorities on the urgent measures required in this case;

2. deeply deplored that, despite the Committee’s invitation, the Turkish authorities have not had bilateral contact with the Secretariat to bring to an end the continuing effects of the violation for the applicant;

3. decided to invite the Chair of the Committee of Ministers to convey the preoccupation of the Committee through a letter to be addressed to his Turkish counterpart unless the Turkish authorities provide tangible information to the Committee before their 1065th meeting (September 2009);

4. decided to continue examining the implementation of the present judgment at each human rights meeting until the necessary urgent measures were adopted.

32597/96 Dinç Halit and others, judgment of 19/09/2006, final on 19/12/2006

The case concerns the killing of the applicants’ relative, a staff-sergeant, as a result of shots fired by a certain sergeant A.A during an illegal passage by a group of smugglers over the Turkish-Syrian border in 1994. The criminal proceedings initiated against A.A are still pending before the Military Courts.

The Court noted that the Military Court of Cassation had considered that there had been grounds for the order given by the regimental commander to open fire without warning in the context of guarding the frontier at night. It nonetheless considered that such an instruction offered no guarantee that death would not thereby be arbitrarily inflicted and that such a legal framework fell short the level of protection at the right to life called for both by the Convention and by modern, European democratic societies.

It concluded that the Turkish military had not at the time done all that could reasonably be expected to offer citizens the requisite degree of protection in case of resort to potentially lethal force and to counter the genuine threat to life caused by military action in the frontier zone (violation of Article 2).

The Court also found that the authorities had failed to carry out an effective investigation in that the deficiencies in the initial stage of the investigation made it impossible, after twelve years of proceedings, to identify beyond reasonable doubt those responsible for the death of the applicants’ relative. The Court lastly found that the applicants did not have any effective remedy for their grievances under the Convention (violations of Articles 2 and 13).

• Information provided by the Turkish authorities (letter of 15/12/2008): Having re-examined the case, the Adana Military Court acquitted Sergeant A.A. This decision was confirmed by the Military Court of Cassation on 29/04/2008. The authorities consider that they have thus fulfilled their obligation flowing from the Committee’s well-established practice, i.e. to conduct an effective investigation, particularly in cases of violation of Article 2 of the Convention.

• Assessment: Not having at its disposal the judgment of the Adana Military Court, given after the closure of proceedings before the European Court, the Secretariat is not in a position to indicate clearly whether or not a re-examination of the case sufficient to redress the shortcomings found by the European Court has taken place. For example, the Turkish authorities have given no information as to whether A.A.’s superiors, alleged to have given the order to open fire without warning, have been investigated at national level (§64 of the judgment); or whether a ballistic examination has been carried out on the assault rifles, the cartridge cases and the bullets used by the military during the operation at issue so as to establish beyond the shadow of a doubt who was responsible for the death of the applicant’s relative (§65).

• Information is awaited on measures taken or envisaged by the Turkish authorities to ensure a fresh investigation into the incident in the light of the shortcomings identified by the European Court.

General measures: The European Court’s judgment in this case has been published on the website of the Ministry of Justice (www.inhak-bb.adalet.gov.tr).

• Information is awaited on the measures taken or envisaged by the Turkish authorities with a view to preventing new, similar violations. At the outset, the publication and dissemination of the judgment to the relevant authorities appear necessary.

- Cases concerning the excessive use of force in quelling a prison riot and lack of an effective investigation

35962/97 Gömi and others, judgment of 21/12/2006, final on 21/03/2007

36672/97 Kurnaz and others, judgment of 24/07/2007, final on 24/10/2007

These cases concern the lack of an effective investigation into the death of the applicants' relatives in the case of Gömi and others (procedural violation of Article 2) and of injuries caused to a number of the applicants in 1995-96 following raids to quell prison riots and to rescue hostages from the rioters (procedural violation of Article 3). The Kurnaz and others case also concerns the injuries that Mr Kurnaz sustained during the raid (substantive violation of Article 3).

In the case of Gömi and others, the European Court found that it was not in a position to establish beyond reasonable doubt that the use of lethal force by the warders, gendarmes and police officers was disproportionate to the aim pursued, namely “quelling a riot” and/or “in defence of any person against violence”. However, as to the investigation into the deaths, the Court considered that the Turkish authorities had not acted with sufficient promptness and reasonable diligence. With regard to the alleged ill-treatment, the Court saw no grounds for criticising the authorities for the measures taken in this case. However, it held that there had been a violation of Article 3 in relation to some of the applicants on account of the lack of an effective investigation by the authorities to establish the facts.

In the case of Kurnaz and others, the European Court found that there was no proof in the case-file that the prison authorities had seriously attempted to restore order or that the operation had been properly organised or monitored so as to minimise the risk of serious bodily harm to the detainees. The Court therefore concluded that the force used against the applicant had been excessive. The Court further noted that the case-file did not refer to the outcome of the proceedings against the gendarmes and that the investigation carried out by administrative councils hierarchically dependent on the governors could not be regarded as independent.

Individual measures: In accordance with the Committee of Ministers' well-established practice, it is recalled that respondent states have a continuing obligation to conduct effective investigations, a fortiori in case of a finding of a violation of Article 2 (see in particular Interim Resolution ResDH(2005)20 in the case of McKerr and others against the United Kingdom, the case of Scavuzzo-Hager and others against Switzerland, the cases concerning the action of security forces in the Russian Federation).

• Information is awaited on measures taken or envisaged by the Turkish authorities to give proper redress to the applicants.

General measures: In a letter dated 11/09/2007, the Turkish authorities mentioned various legislative changes made in the context of the group of cases against Turkey concerning the actions of security forces. The provisions referred to included in particular Articles 94, 95 and 96 of the new Criminal Code No. 5237 regarding the crime of torture and ill-treatment, amended Article 2 of the Law No. 4483 on the prosecution of civil servants for crimes committed during the performance of their duties, and Article 161 of the new Code of Criminal Procedure regarding the authority of public prosecutors to launch proceedings against members of the security forces (for a detailed presentation of these measures, see Interim Resolution CM/ResDH(2008)69 adopted at the 1035th meeting (September 2008).

In addition, the authorities pointed out Article 85 of Law no. 5275, regulating the conditions that apply to prison visits and meetings with detained persons.

Finally, the authorities informed the Secretariat that on 20/08/2002 the Ministry of Justice (Prison Department) had addressed a circular to prosecutors recommending that they display diligence and vigilance in the application of the EU harmonisation laws.

• Assessment: The new legislative framework referred to by the authorities concerning, in particular, the crime of torture and ill-treatment is welcome. On the other hand, it may be noted that the disproportionate use of force in quelling a prison riot might call for specific measures, such as training of security forces on physical confrontation with incarcerated persons, among others.

• Therefore, information is awaited on general measures specifically designed to ensure that the force to be used in possible clashes with prison inmates are within the acceptable limits set by the requirements of the Convention.

On a separate note, both judgments have been translated and distributed to the relevant judicial authorities. Copies of them are also made available on the Ministry of Justice website at the following links:

www.inhak-bb.adalet.gov.tr/aihm/karar/kemalgomi20022008.doc;

www.inhak-bb.adalet.gov.tr/aihm/karar/kurnazvedigerleri.doc.

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures as well as general measures specifically designed to address the issue of proportionality of force used in quelling prison riots.

- Cases concerning the ineffectiveness of domestic proceedings brought following ill treatment inflicted by members of the security forces[111]

33097/96+ Batı and others, judgment of 03/06/2004, final on 03/09/2004

34592/97 Ağdaş, judgment of 27/07/2004, final on 27/10/2004

1249/03 Atalay, judgment of 18/09/2008, final on 18/12/2008

28433/02 Çamdereli, judgment of 17/07/2008, final on 01/12/2008

34491/97 Demir Ceyhan and others, judgment of 11/01/2005, final on 11/04/2005

72194/01 Doğan Nurgül, judgment of 08/07/2008, final on 08/10/2008

42942/02 Duran Ali and Ayşe, judgment of 08/04/2008, final on 08/07/2008

10301/03 Getiren, judgment of 22/07/2008, final on 22/10/2008

40262/98 H.Y. and Hü.Y., judgment of 06/10/2005, final on 06/01/2006

40803/02 Karabulut Mustafa, judgment of 20/11/2007, final on 20/02/2008

30009/03 Karademir Osman, judgment of 22/07/2008, final on 22/10/2008

8810/03 Karaduman and others, judgment of 17/06/2008, final on 17/09/2008

29766/03 Karatepe and Ulaş, judgment of 17/06/2008, final on 17/09/2008

32577/02 Kur Orhan, judgment of 03/06/2008, final on 29/09/2008

52067/99 Okkalı, judgment of 17/10/2006, final on 12/02/2007

74306/01 Öktem, judgment of 19/10/2006, final on 26/03/2007

45906/99 Özcan Zeynep, judgment of 20/02/2007, final on 20/05/2007

13903/02 Özgür and Çamlı, judgment of 04/12/2007, final on 04/03/2008

53147/99 Şahin Zülcihan and others, judgment of 03/02/2005, final on 03/05/2005

35072/97+ Şimşek and others, judgment of 26/07/2005, final on 26/10/2005

68881/01 Şimşek Hüseyin, judgment of 20/05/2008, final on 20/08/2008

43918/98 Sunal, judgment of 25/01/2005, final on 25/04/2005

19028/02 Tamer Fazıl Ahmet and others, judgment of 24/07/2007, final on 24/10/2007

8534/02 Tekin and others, judgment of 20/05/2008, final on 20/08/2008, rectified on 30/09/2008

11381/02 Tonka and others, judgment of 22/07/2008, final on 22/10/2008

33086/04 Türkan, judgment of 18/09/2008, final on 18/12/2008

43124/98 Türkmen, judgment of 19/12/2006, final on 19/03/2007

32446/96 Yaman Abdülsamet, judgment of 02/11/2004, final on 02/02/2005

34738/04 Yeşil and Sevim, judgment of 05/06/2007, final on 12/11/2007, rectified on 14/11/2007

17721/02 Yılmaz Hürriyet, judgment of 05/06/2007, final on 12/11/2007

63748/00 Taştan, judgment of 04/03/2008, final on 04/06/2008[112]

46827/99 Mamatkulov and Askarov, judgment of 04/02/2005 - Grand Chamber

16348/05 Mostafa and others, judgment of 15/01/2008, final on 15/04/2008

The case of Mamatkulov and Askarov concerns the applicants' extradition to Uzbekistan on 27/03/1999 following a decree issued by the Turkish Cabinet on 19/03/1999 despite the European Court's request for interim measures (Rule 39) indicating on 18/03/1999 to the government that “it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to extradite the applicants to Uzbekistan until the Court had had an opportunity to examine the application further at its forthcoming session on 23 March”. Both applicants, who were charged in Uzbekistan with murder and a terrorist bomb attack on the Uzbek President, were convicted by the Uzbek courts on 28/06/1999 and sentenced to 20 and 11 years' imprisonment respectively.

Pending their extradition, the applicants complained before the European Court that there were substantial grounds for believing that they would be subjected in Uzbekistan to treatment proscribed by Article 3. They further complained under Article 6 of the unfairness of the extradition proceedings in Turkey and of the criminal proceedings in Uzbekistan.

On 19/04/1999 the Turkish government informed the Court that it had received assurances from the Uzbek authorities that the applicants' property would not be liable to general confiscation and that the applicants would not be subjected to acts of torture or sentenced to capital punishment. The Uzbek authorities further noted that the Republic of Uzbekistan was a party to the United Nations Convention against Torture and accepted and reaffirmed its obligation to comply with the requirements of the provisions of that Convention.

The European Court, reiterating Contracting states' undertaking to refrain from any act or omission that might hinder the effective exercise of an individual applicant's right of application, found that a failure by a Contracting state to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant's complaint and as hindering the effective exercise of his or her right (violation of Article 34). The Court also found that, as a result of Turkey's failure to comply with its obligation under Article 34, it was prevented from assessing the applicants' complaints under Articles 3 and 6 of the Convention.

The case of Mostafa and others also concerns interference with the effective exercise of the applicants’ right of individual petition to challenge an extradition as a result of the authorities’ failure to comply with an interim measure indicated by the European Court under Rule 39 (violation of Article 34).

The applicant family, of Iraqi nationality, arrived in Turkey in 2000. After the United Nations High Commissioner for Refugees in Ankara denied them refugee status, the Ministry of the Interior decided to extradite them on 6/08/2005.

Having received a petition alleging potential violations of Articles 2 and 3 in the event of extradition, the European Court indicated to the authorities on 4/05/2005 that under Rule 39 it was desirable in the interests of the parties and the proper conduct of the proceedings not to extradite the applicants pending its decision on the case. However, on 11/05/2005 they were deported to northern Iraq where they currently live. In March and September 2007, the applicants corresponded with the Court’s Registry claiming that they had faced political and other problems after the extradition and solicited the Court’s assistance so as to be able to immigrate to Europe. The European Court found the applicants’ allegations manifestly ill-founded (§27 of the judgment). However, it held that the applicants’ removal to Iraq hampered the proper examination of their complaints.

Individual measures and payment of just satisfaction:

1) Mamatkulov and Askarov case: The Turkish authorities paid the amount of just satisfaction awarded by the Court into escrow because the applicants' representatives were unable to provide a valid power of attorney to the authorities (one applicant’s name was false as he used a counterfeit passport and the other applicant’s name was not spelled correctly).

In a letter of 09/03/2007 the applicants' representatives informed the Secretariat that they were unable to withdraw the just satisfaction from the escrow account because it was impossible for them to meet with their clients in Uzbekistan due to security concerns. On 30/10/2007, the Secretariat inquired whether the Turkish authorities could obtain declarations from the applicants designating persons who could either withdraw the amounts in escrow or give valid powers of attorney to the applicants’ representatives in Turkey who in turn could withdraw those amounts.

At the 1035th meeting (September 2007), the Turkish delegation informed the Committee of Ministers that they had followed the Secretariat’s suggestion and that the Turkish ambassador in Uzbekistan contacted Mr Mamatkulov’s wife. Mrs. Mamatkulov then tried to obtain such a declaration from her husband but her attempt proved unsuccessful because of the restrictions imposed by the prison authorities. The Turkish authorities could not contact the other applicant, Mr Askarov, and sending a notary directly to the prison was not a practicable option. The authorities are currently exploring other options.

• Information is awaited in writing as to any developments in this regard.

2) Mostafa and others case: The applicants did not submit any request in respect of just satisfaction.

General measures: It should be noted that failure to comply with an interim measure in the context of a deportation, constitutes an irreversible hindrance to the effective exercise of the right of individual petition of the deported applicants. For this reason, it is all the more important to implement general measures to prevent such future violations.

At the 1035th meeting (September 2008), the Turkish delegation informed the Committee of Ministers that all competent authorities had been duly notified and informed of their obligation under the Convention to abide by the Court’s decisions indicating interim measures. The Tuirkish authorities expressed that they had, ever since, complied with each and every interim measure indicated by the European Court under Rule 39, except for the unfortunate incident in the case of Mostafa and others. The measures implemented otherwise proved effective. The judgment was also published and widely disseminated to all relevant authorities.

• Assessment: The measures taken so far are welcome. Nevertheless, at the 1035th meeting, the Committee of Ministers invited the Turkish authorities to provide further information on additional measures envisaged to prevent similar violations in the future.

• Further information is therefore awaited.

28290/95 Güngör, judgment of 22/03/2005, final on 22/06/2005

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.

• Information is awaited concerning the outcome of the investigation carried out by the Parliamentary Commission.

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 reply of 22/11/2005 the Turkish authorities said that as the sole purpose of parliamentary immunity is to protect parliamentarians in respect of actions falling within their function, it does not prevent the investigatory authorities from carrying out criminal investigations concerning them. In any event, 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. The Secretariat notes that these 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.

• Information is awaited as to what measures the Turkish authorities envisage so that parliamentary immunity no longer operates in practice as an obstacle to carrying out criminal investigations.

• Information provided: The Secretariat is examining the information provided by the Turkish authorities both general and individual measures.

The Deputies decided to resume the consideration of this item at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of the examination of the information provided on general and individual measures.

48939/99 Ôneryıldız, judgment of 30/11/2004 - Grand Chamber

The case concerns a methane explosion which occurred in April 1993 in Ümraniye, Istanbul at a rubbish tip, causing a landslide and killing 9 close relatives of the applicant and destroying his house and movable property.

The applicant's house was situated in a slum quarter where dwellings had been built without authorisation on land surrounding the rubbish tip which had been used jointly by four district councils under the authority and responsibility of Istanbul City Council. An expert report drawn up in May 1991 drew the authorities' attention to, among other things, the fact that no measures had been taken at the tip in question to prevent an explosion of the methane generated by the decomposing refuse. However, no measures had been taken by the authorities.

After the explosion, criminal and administrative investigations had been carried out into the case and the mayors of Ümraniye and Istanbul were brought before the courts with the authorisation of the Administrative Council to prosecute. In April 1996 both mayors were convicted of "negligence in the performance of their duties" under Article 230 of the Criminal Code and were fined and sentenced to the minimum three-month term of imprisonment. Their sentences were subsequently commuted to fines, the enforcement of which was suspended. The applicant subsequently brought compensation proceedings, holding the authorities liable for the death of his relatives and the destruction of his property. In November 1995 the authorities were ordered to pay the applicant the equivalent at the material time of 2 077 euros and 208 euros for non-pecuniary and pecuniary damages. Those amounts have not been paid to the applicant.

As to the responsibility borne by the state for the deaths, the European Court found that the Turkish authorities knew or ought to have known that there was a real and immediate risk, at least after the notification of the report of May 1991, to a number of persons living near the Ümraniye municipal rubbish tip and that they had failed to take necessary and sufficient measures to protect the lives of those individuals (violation of Article 2).

As to the responsibility borne by the state as regards the nature of the investigation, the Court found that the national courts had failed to carry out an adequate investigation into the death of the applicant's close relatives capable of securing the full accountability of the authorities or the effective implementation of provisions of domestic law guaranteeing respect for the right to life, in particular the deterrent function of criminal law. In this respect, the Court criticised the fact that the Administrative Council dropped the charges against the Ministry of the Environment and the Government authorities and sought to limit the charge to "negligence" under Article 230 of the Criminal Code, which did not relate to life-endangering acts or to the protection of the right to life (violation of Article 2).

Having regard to the above reasons, the Court also found that the Turkish authorities had failed in their positive obligation to take the necessary steps to avoid the destruction of the applicant's house (violation of Article 1 of Protocol No. 1).

Lastly, the Court found that the administrative proceedings had not provided the applicant with an effective remedy either in respect of the state's failure to protect the lives of his relatives or the destruction of his household goods, since the amounts awarded by domestic courts had never been paid (violation of Article 13).

Individual measures: The damage caused by the violations, including the unpaid sums awarded by domestic courts, has been covered by the just satisfaction awarded by the European Court.

General measures: The Turkish authorities submitted the following information on 10/06/2005 and 08/04/08 in reply to the Secretariat's letter of 01/03/2005 requesting a plan of action for the execution of this judgment:

1. Following the explosion, the Ümraniye tip has been covered with earth by decision of the local council which has also installed air ducts on it. Furthermore, a rehabilitation project has been put into force by the Istanbul Metropolitan Municipality, which has planted trees on the area of the former site of the tip and has had a sport grounds laid down.

2. The new Criminal Code, which came into force on 01/06/2005, sanctions both intentional and unintentional disposal of hazardous substances in a way that might cause damage to the environment. Any person disposing such hazardous substances shall be liable to terms of imprisonment ranging from two months to two years. The Code also provides that the terms of imprisonment shall be increased if the disposal of hazardous substance leaves permanent damage to human health and to the environment.

3. Article 257 of the new Code provides that any public official acting contrary to the requirements of public duty in a way that might constitute damage to the public or cause damage to individuals shall be liable to a term of imprisonment from one year to three years'. If the public official neglects his or her duty or carries it out with delay, he or she shall be liable to a term of imprisonment from six months to two years.

4. The full text of the Regulation on Solid Waste of 1991 with subsequent amendments has been submitted to the Secretariat by the Turkish authorities.

5. A strategic plan for solid waste management in Istanbul, guided by the environmental regulations of the European Union, was prepared and put into practice.

6. With respect to the prevention of slums, Articles 154 and 184 of the new Penal Code which came into force on 1/06/2005 provides criminal penalties against those who occupy, use, alter, construct unauthorised buildings on, change the boundaries of, or prevent the use of places belonging to the public. Any person who encourages these activities by providing utilities to such illegal occupations shall also be criminally liable.

7. The judgment of the European Court was published and distributed. It is available on the websites of the Ministry of Justice and the Court of Cassation.

Regarding the violation of Article 13, the measures taken to ensure the executive’s respect for domestic court decisions are being examined within the Kılıç Ahmet group of cases (38473/02, section 4.2).

• Information awaited: Having regard to the Court's finding concerning the ineffectiveness of the investigation carried out at the domestic level following the explosion, the Turkish authorities are expected to clarify as to what measures they have taken or envisage taking so that a system of effective investigation capable of securing full accountability of state agents could be provided (including the issue of ensuring prosecutions even where administrative authorisations are required to prosecute).

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on the general measures concerning the provision of a system of effective investigation capable of securing full accountability of state agents (including the issue of the effectiveness of prosecutions even where administrative authorisations are required to prosecute).

70417/01 Avcı and others, judgment of 27/06/2006, final on 27/09/2006

2778/02 Yıldırım Hüseyin, judgment of 03/05/2007, final on 03/08/2007

These cases concern degrading treatment inflicted on the applicants during their detention in prison (violations of Article 3).

In the case of Avci and others, the applicants were attached to their beds by the ankle while in an intensive care unit in a coma. In view of the state of their health and the lack of any real risk of their absconding, the Court considered that the restraint measure had been disproportionate to the security requirements.

In the Yıldırım Hüseyin case, the applicant was suffering from paralysis during his detention. Despite the applicant’s physical incapacity and medical reports indicating that he was unsuited to incarceration, he was kept in detention on remand for almost three years (violation of Article 3).

The case of Avci and others also concerns the violation of the applicants’ right to an effective remedy in the face of the decision not to prosecute the responsible gendarmes (violation of Article 13).

Individual measures:

1) Avcı and others: The Turkish authorities responded on 11/05/2007 to the Secretariat's initial phase letter submitting that no investigation had been initiated by the Izmir Public Prosecutor.

2) Yıldırım Hüseyin: the applicant was pardoned on the basis of Art 104 b of Constitution in June 2004.

• Information is still awaited on measures that the Turkish authorities envisage to remedy the shortcomings in the investigations carried out against the allegedly responsible gendarmes.

General measures: The Turkish authorities first referred to the Regulation on the Administration of Prisons, Execution of Sentences and Security Measures. Secondly, they submitted information on a protocol signed between the Ministry of Interior and Ministry of Health on 30/10/2003 concerning the conditions of hospitalization of detainees in hospitals, the security measures to be taken in hospitals and the conditions for creating prison health units in hospitals. However, neither the regulation nor the protocol seems to contain any provisions on restraint measures.

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

26050/04 Gürbüz, judgment of 10/11/2005, final on 10/02/2006

24040/04 Kuruçay, judgment of 10/11/2005, final on 10/02/2006

7454/04 Uyan, judgment of 10/11/2005, final on 10/02/2006

22913/04 Yıldız Tekin, judgment of 10/11/2005, final on 10/02/2006

In all these cases, the European Court considered that there would be violations of Article 3 if the authorities decided to re-imprison the applicants, who had previously been freed for health reasons, unless there had been a significant change in their medical capacity to endure such hardship. All the applicants had initially been sentenced to various terms of imprisonment for membership of terrorist organisations. While serving their sentences, the applicants were diagnosed as suffering from Wernicke-Korsakoff Syndrome (encephalopathy consisting in the loss of certain cerebral functions, resulting from a deficiency of vitamin B1 (thiamine)) as a result of being on hunger-strike.

The European Court found that the initial diagnosis of Wernicke-Korsakoff Syndrome was confirmed by various medical tests, including the findings of a panel of experts appointed by the Court, and that the applicants’ condition was judged to be incompatible with detention. Moreover, the applicants presented major cerebellar impairment which could be considered irreversible.

In addition, in the case of Yıldız Tekin, the Court found that the applicant’s re-imprisonment between 21/11/2003 and 27/07/2004 had amounted to inhuman and degrading treatment in view of his state of health (violation of Article 3).

Individual measures:

• Information provided by the Turkish authorities (08/06/2006): All the applicants’ prison sentences were suspended: on 28/04/2004 in the Gürbüz case, on 11/03/2005 in the case of Yıldız Tekin and on 15/09/2004 in the Uyan case. The suspensions were issued for an unlimited period of time, to remain continuously valid unless the applicants were to recover from Wernicke-Korsakoff Syndrome (subject to forensic reports to that effect) and thus become fit to serve their sentences. Accordingly, there is no risk of the applicants’ being re-imprisoned for as long as they suffer from the syndrome. The applicant in the case of Günnaz Kuruçay is at large and the conviction against her is still valid.

The Turkish authorities further indicated on 24/07/2006 that following the entry into force of the new Criminal Code in June 2005, the applicants applied to domestic courts requesting the adjustment of their sentences in accordance with the new legislation which provides lower sentences for the crimes of which they had been convicted.

On 21/08/2007, the authorities also informed the Secretariat that the Istanbul 10th Assize Court had given a new decision on 21/02/2007 regarding the execution of Tekin Yıldız’s sentence. The court decided that, in view of the period already spent in detention, the applicant was considered to have served the entirety of his sentence. Accordingly, the applicant is no longer under threat of a potential arrest warrant.

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

General measures: In the light of the conclusions of the European Court’s fact-finding mission in Turkey concerning 53 other similar cases, the Court found it necessary to assist the government by indicating the measures that it considered appropriate to fulfil its obligations under Article 46 of the Convention. In the Court’s opinion, the main problem was related to the practice of judges in issuing “arrest warrants” for convicted persons while they were released provisionally for health reasons. It appeared from the case-files that the arrest warrants were issued in the following instances: (i) when a detainee is required to be re-examined by the Institute of Forensic Medicine (e.g. in the case of Uyan); (ii) when assessing the situation of a detainee after the expiry of the suspension of his sentence or (iii) when a decision to re-imprison a detainee has to be given following a negative opinion of the Institute of Forensic Medicine (e.g. in the case of Gürbüz). As far as the first two instances are concerned, the negative consequences of issuing arrest warrants and the re-imprisonment of detainees for failure to undergo a medical examination may be overcome by issuing of a “judicial invitation” or a “summons to appear”, which are possible under the Criminal Code.

In the third instance, the Court observes a procedural shortcoming on account of the impossibility for a detainee to challenge the findings of a negative report against him as a result of the application of Article 15 of Law No. 2659 on the Institute of Forensic Medicine.

• Information provided by the Turkish authorities (24/07/2006):

The Law on Execution of Sentences and of Security Measures (Law No. 5275) provides that prisoners who refuse nutrition for whatever reason shall be informed by prison doctors of the negative consequences, including the physical and psychological damage inherent in such a refusal. Social services shall ensure that prisoners are encouraged not to refuse nutrition. In case of persistent refusal, their diet shall be determined by prison doctors. Prisoners who persistently refuse nutrition and whose health deteriorates as a result, shall be given medical care in prisons or in hospitals (if necessary) whether or not they so wish, provided that their conditions pose a fatal threat to their health. In any event, all measures indicated aimed at the protection of the health of the prisoners shall be carried out under the supervision of the medical staff.

• Assessment: The information submitted by the Turkish authorities appears to be useful in showing that Turkish law now provides additional safeguards for the protection of the health of prisoners, in particular those who decide to go on hunger strike.

• Information is awaited, however, on whether or not the practice of issuing “arrest warrants” for convicted persons while provisionally released for health reasons is still applied.

29986/96 A.D., judgment of 22/12/2005, final on 22/03/2006

The case concerns the applicant's arrest, ordered by a lieutenant-colonel for disobeying military orders while the applicant was serving as a sergeant in the armed forces in 1994. The applicant's arrest and his detention for 21 days were based on Article 171 of the Military Criminal Code, which authorises lieutenant-colonels to order such disciplinary sanctions in cases of disobedience. The applicant’s request for appeal was rejected because according to Article 21 of Law on Supreme Military Administrative Court (Law No. 1602) disciplinary sanctions are not subject to judicial review.

The European Court noted that the applicant had been detained on the orders of his superior officer who, exercising his authority within the military hierarchy reported to other higher authorities and was thus not independent of them. Reiterating that the deprivation of a person's liberty should only be ordered by a competent court offering judicial guarantees, the Court found that disciplinary proceedings before a military superior did not provide the judicial guarantees required (violation of Article 5§1(a)).

General measures:

• Information provided by the Turkish authorities: In their reply of 27/09/2006 to the Secretariat’s initial- phase letter of 06/06/2006 the Turkish authorities gave the following information:

1. Article 171 of the Military Criminal Code was amended on 26/03/2006 to reduce the penalty for disobedience from 21 to 7 days’ detention.

2. The judgment of the European Court was translated into Turkish and sent out to the relevant authorities. The Turkish translation of the judgment is also available at the website of the Court of Cassation (http://www.yargitay.gov.tr/aihm/pdf/29986_96pdf).

At the 1013th meeting (December 2007) the Turkish authorities indicated that an amendment had been proposed to change Article 171 of the Military Criminal Code.

• Assessment: In its judgment of 22/12/2005, the European Court underlined that to be in conformity with Article 5§1, any custodial sentence, irrespective of whether the state’s internal legal order qualifies it as criminal or disciplinary, must be a judicial decision, i.e., pronounced by a competent court duly authorised to try the matter, independent from the executive and providing appropriate judicial guarantees. In this case, the violation of Article 5§1 is based on the fact that the applicant’s sentence was not imposed by a court but by his superior officer. It was thus the custodial nature of the sentence rather than its length which induced the Court to find a violation of Article 5§1 a.

The amendment to Article 171 of the Military Penal Code mentioned in the authorities’ letter of 27/09/2006 reduced the length of sentence (henceforth 7 days’ imprisonment) but did not modify the nature of the sentence, nor provide any means of judicial appeal against custodial disciplinary sanctions.

• Information is awaited on the progress achieved in the adoption of the draft law mentioned by the authorities at the 1013th meeting (December 2007)

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.

- Cases concerning the independence and impartiality of military disciplinary courts

39429/98 Bayrak, judgment of 03/05/2007, final on 24/09/2007

27341/02 Veyisoğlu, judgment of 26/06/2007, final on 26/09/2007

These cases concern the lack of independence and impartiality of military disciplinary courts in proceedings against the applicants under Articles 56 and 38 of Law No. 477 (violations of Article 6§1). The applicants were sentenced to 75 and 40 days' imprisonment respectively.

The European Court found that the members of the military disciplinary court were under the orders of the military hierarchy and their term of office was limited to 1 year. Furthermore the European Court noted in İrfan Bayrak judgment that the superior (appeal) court offered no appropriate guarantees to remedy these deficiencies.

Individual measures: The applicants are no longer detained.

General measures: On 13/02/2008, the Turkish authorities indicated that preparatory work was under way for the necessary measures to be adopted.

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

2036/04 Hamşioğlu, judgment of 19/02/2008, final on 19/05/2008

This case concerns the 6 day delay in the execution of a release order delivered in favour of the applicant (violation of Article 5§1) and the lack of a remedy allowing him to obtain compensation in this respect (violation of Article 5§5).

In 1991, the applicant was sentenced to life imprisonment. Further to which the Erzurum State Security Court ordered the release of the applicant for 6 months in accordance with the medico-legal report diagnosing that the applicant had the syndrome of Wernicke-Korsakoff. According to the government the delay resulted firstly from the administrative formalities to be completed and the geographical distance between the place where he was convicted and the place where he was serving his sentence and secondly from the fact that the applicant’s relative whose attendance was necessary for the applicant’s release was not present at the requested date. The European Court estimated firstly that the delay for releasing the applicant had only been provoked partially by the necessity of completing the administrative formalities related to his release, the delay should rather be explained by sending the applicant’s file by post to the competent public prosecutor’s office (§ 26 of the judgment) and secondly the authorities did not take the necessary arrangements to accelerate the arrival of the applicant’s relative whose presence was required by the circular n° 43765 of 18 July 2001, at the time of the release of the prisoner (§30 of judgment). Furthermore, this circular was abolished in 2006.

Individual Measures: The European Court granted just satisfaction for non-pecuniary damage to the applicant.

.Assessment: No further measure seems necessary.

General Measures:

1) Violation of Article 5§1

• Information is expected on the measures envisaged or taken to prevent similar violations. In this respect Information would be useful concerning the legal provisions governing the execution of the release orders. In any case information is expected on the dissemination of the judgment to the authorities in charge of the execution of the release orders.

2) Violation of Article 5§5

• Information is expected on the remedies available in the case of a delay in the execution of a release order.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) 2009) (DH), in the light of information to be provided on general measures.

18242/02 Değerli and others, judgment of 05/02/2008, final on 05/05/2008

This case concerns the continuation of the applicants’ detention pending trial during the hours following the release order (violation of Article 5§1).

The applicants were released only after a delay r anging between 18 hours and 50 minutes to 23 hours and 35 minutes. According to the government the delay was caused by the large number of prisoners to be released and the nature of the administrative formalities to be accomplished. It also maintains that the release order arrived out of working hours.

The European Court considered that in the absence of a strict hour by hour record of acts and formalities accomplished by the prison authorities, the argument according to which the applicants’ release was not subjected to delay can not be accepted. In conclusion, the Court stressed the importance of the obligation of the contracting States to take the necessary measures to allow the penitentiary staff to execute without delay, the release orders, including when it is a question of releasing a large number of prisoners.

Individual Measures: The applicants were released and the European Court awarded them just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measure seems necessary.

General Measures:

• Information is expected on the measures envisaged or taken to prevent similar violations.

1448/04 Zengin Hasan and Eylem, judgment of 09/10/2007, final on 09/01/2008

The case concerns the refusal of the authorities to exempt a state school pupil, whose family was of the Alevi faith, from mandatory lessons on religion and morals (violation of Article 2 of Protocol No. 1.

The applicants, Hasan Zengin and his daughter Eylem Zengin are followers of Alevism, a branch of Islam which has deep roots in Turkish society and history. Its religious practices differ from those of the Sunni schools in certain aspects such as prayer, fasting and pilgrimage. At the time the application was lodged, Eylem Zengin was a seventh grade pupil at a state school, and as such, she was obliged to attend classes in religious culture and ethics, which are compulsory subjects for Turkish primary and secondary schools under Article 24 of the Turkish Constitution and Article 12 of National Education Law No. 1739.

In 2001, Mr Zengin submitted requests to the Directorate of National Education and before the administrative courts for his daughter to be exempted from these lessons, pointing out in particular that no teaching was provided in those classes on his daughter’s faith. The requests for exemption were dismissed, most recently on appeal before the Supreme Administrative Court in April 2003.

In the course of the proceedings, the European Court examined the Ministry of Education’s guidelines for lessons in religious culture and ethics and the relevant school textbooks. This examination revealed that the syllabus in primary schools and the first cycle of secondary school as well as textbooks gave greater priority to knowledge of Islam than to that of other religions and philosophies. Although the Court explained that this in itself could not be viewed as indoctrination, it was appropriate to examine whether the information or knowledge was disseminated in an objective, critical and pluralist manner, given that attendance at these classes was likely to influence the minds of young children. The Court established that the Alevi faith had features distinct from the Sunni understanding of Islam which was taught in schools. In the “religious culture and morals” lessons, the religious diversity which prevailed in Turkish society was not taken into account. In particular, pupils received no teaching on the confessional or ritual specificities of the Alevi faith, although the proportion of the Turkish population belonging to it was very large. Certain information about the Alevis was taught in the 9th grade, but, in the absence of instruction in the basic elements of this faith in primary and secondary school, this was insufficient to compensate for the shortcomings in the teaching.

Accordingly, the instruction provided in these classes could not be considered to meet the criteria of objectivity and pluralism, enabling pupils to develop a critical mind with regard to religious matters, nor to respect the religious and philosophical convictions of the parent of a pupil who belonged to the Alevi faith, on the subject of which the syllabus was clearly lacking.

The Court further examined whether appropriate means existed in the Turkish education system to ensure respect for parents’ convictions. The class in question was a compulsory subject, but a possibility for exemption had existed since 1990 for children of Turkish nationality whose parents belonged to the Christian or Jewish religion, provided they affirmed their adherence to one of those religions. According to the government, this possibility for exemption could be extended to other convictions if such a request was submitted. Nonetheless, whatever the scope of this exemption, the fact that parents were obliged to inform the school authorities of their religious or philosophical convictions made this an inappropriate means of ensuring respect for their freedom of conviction. In the absence of any clear text, the school authorities always had the option of refusing such requests. In consequence, the exemption procedure was not an appropriate method and did not provide sufficient protection to those parents who could legitimately consider that the subject taught was likely to give rise in their children to a conflict of allegiance between the school and their own values. No possibility for an appropriate choice had been envisaged for the children of parents who had a religious or philosophical conviction other than that of Sunni Islam, where the procedure for exemption was likely to subject those parents to a heavy burden and to the necessity of disclosing their religious or philosophical convictions.

Individual measures: Ms Zengin is now of college age and no longer attends a state secondary school.

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

General measures: The Court concluded that, with regard to religious instruction, by failing to meet the requirements of objectivity and pluralism and to provide an appropriate method for ensuring respect for parents’ convictions, the Turkish educational system was inadequate. The violation found originated in a problem related to implementation of the syllabus for religious instruction in Turkey and the absence of appropriate methods for ensuring respect for parents’ convictions. In consequence, the Court considered that bringing the Turkish educational system and domestic legislation into conformity with Article 2 of Protocol No. 1 would represent an appropriate form of compensation.

• The Turkish authorities are invited to present an action plan for the execution of this judgment, taking into account the European Court’s specific indication of an appropriate general measure.

• Publication and dissemination of the European Court’s judgment to the relevant authorities are also expected, so as to draw their attention to their Convention requirements as they arise from the judgment.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information on the dissemination and publication of the judgment as well as an action plan to be provided by the Turkish authorities.

70516/01 Dağtekin and others, judgment of 13/12/2007, final on 13/03/2008, rectified on 21/05/2008

The case concerns the unfairness of civil proceedings brought by the applicants to complain of the fact that the Ministry of Agriculture had renounced the applicants’ leasehold of agricultural land situation in the South-East, a measure taken in 1997 following a security enquiry. The courts rejected the applicants’ appeal even though the Ministry refused to disclose the documents on the basis of which the lease had been renounced.

The European Court held that the conclusions of the security investigation were not revealed to the applicants or the courts, and that the applicants had been deprived of sufficient safeguards against any arbitrary action on the part of the authorities (violation of Article 6§1).

Individual measures:

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

General measures: Under the last sentence of Article 22§3 of Law no 2577 on administrative procedure, no defence submission by the administration is taken into account by the courts if it is based on information or documents withheld on grounds of national security or vital interests of the state.

• Assessment: This provision appears to be in line with the Convention’s requirements as it excludes this type of defence from administrative proceedings.

• Information is awaited on the publication and dissemination of the European Court’s judgment to the judicial authorities.

25321/02 Ülger, judgment of 26/06/2007, final on 26/09/2007

The case concerns a violation of the applicant’s rights of access to a court and to peaceful enjoyment of his possessions.

In March 2001, a labour court, in a dispute between the applicant and his employer, handed down a judgment favourable to the applicant and ordered the employing company to pay outstanding court fees, which it failed to do. In order to initiate enforcement proceedings, the applicant asked for the judgment to be served on him. However, the court informed him that under Article 28(a) of the Law on Charges, this was not possible until all outstanding court fees had been paid. The court thus invited the applicant to pay all the fees if he wished to obtain a copy of the judgment, explaining that he would later be reimbursed at the enforcement phase. The applicant could not do so as he lacked the necessary means at the time; therefore he was unable to obtain enforcement of the judgment.

The European Court found that by shifting to the applicant the full responsibility to deposit the court fees, the state failed in its positive obligation to organise an effective system of enforcement of judgments (violations of Article 6§1 and of Article 1 of Protocol No. 1.

Individual measures: The European Court awarded the applicant just satisfaction in respect of pecuniary damages equivalent to the amount due under the domestic judgment, as well as non-pecuniary damages and costs and expenses.

• Assessment: Under these circumstances, no other individual measure seems required.

General measures:

• Information is awaited on the possibility of amending Article 28(a) of the Law on Charges to bring it in line with the Convention’s requirements, or any other measure taken or envisaged by the authorities to prevent similar, future violations.

- 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

50939/99 Bakan, judgment of 12/06/2007, final on 12/09/2007

54179/00+ Amaç and Okkan, judgment of 20/11/2007, final on 20/02/2008

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

20400/03 Tunç, judgment of 21/02/2008, final on 07/07/2008

52658/99 Yiğit Mehmet and Suna, judgment of 17/07/2007, final on 17/10/2007

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) 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 <http://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.

- Cases mainly concerning the freedom of assembly and the use of force to break up illegal but peaceful demonstrations

74552/01 Ataman Oya, judgment of 05/12/2006, final on 05/03/2007

32124/02+ Aldemir Nurettin and others, judgment of 18/12/2007, final on 02/06/2008

25/02 Balçık and others, judgment of 29/11/2007, final on 29/02/2008

34027/03 Dur, judgment of 18/09/2008, final on 18/12/2008

68263/01 Şahin and others, judgment of 21/12/2006, final on 21/03/2007

42234/02 Ümit Erdem, judgment of 17/07/2008, final on 17/10/2008

These cases concern violations of the applicants’ right to freedom of assembly and excessive use of force to break up unlawful but peaceful demonstrations.

In the case of Oya Ataman concerns a violation of the applicant’s right to freedom of assembly in that in 2000 the authorities used force to break up, an unlawful but peaceful demonstration by 40-50 people, including the applicant. The applicant had organised the demonstration in Istanbul, in the form of a march followed by a statement to the press, to protest against a certain government plan. When the demonstrators refused to break up, the police dispersed them, thereby preventing the statement to the press from taking place.

The European Court established that the gathering was unlawful. However, it explained that an unlawful situation could not justify an infringement of freedom of assembly. The Court drew attention to the fact that there was no evidence to suggest that the demonstrators had represented any danger to public order, apart from possibly disrupting traffic. The rally had ended with the group's arrest within half an hour only. The Court was particularly struck by the authorities' impatience in seeking to end the demonstration organised under the authority of a human rights association. In the Court's view, where demonstrators did not engage in acts of violence it was important for the public authorities to show a degree of tolerance towards peaceful gatherings. In those circumstances, the Court considered that the police's forceful intervention had been disproportionate and had not been necessary for the prevention of disorder (violation of Article 11).

Likewise, in the case of Nurettin Aldemir and others, the European Court found a violation of the applicants’ right to freedom of assembly on the basis of similar facts (violation of Article 11).

The case of Şahin and others concerns excessive use of force by the police (violation of Article 3) and the ineffectiveness of investigation into the applicants' complaints against police officers (violation of Article 13). In 1998, an allegedly unlawful demonstration took place in Istanbul. When the security forces intervened to break it up, clashes occurred in which demonstrators attacked police officers with batons and stones, resulting in the arrest of 261 people (including the applicants) and the injury of 36 police officers.

The applicants complained to the prosecutor's office that they had sustained injuries due to excessive use of force by the police. Upon examination, the prosecutor's office decided to discontinue the investigation, ruling that the intervention was legitimate and that the applicants' injuries (various bruising) did not disclose disproportionate use of force. The applicants' appeal to an assize court was rejected on the same grounds.

The European Court found that there was domestic legal framework on dispersing demonstrations, laying down acceptable limits to the force that could be used. However, in this case, this framework had proved ineffective as the prosecutor was convinced that the police intervention was necessary and proportionate to the aim pursued.

In the case of Balçık and others the European Court found violations of Articles 3 and 11 on the basis of similar facts. The same applies to the cases of Mehmet Ümit Erdem and Dur, in which the excessive use of force in dispersing demonstrations impelled the European Court to find violations of Article 3.

Individual measures:

• Assessment: Given the circumstances of the cases of Oya Ataman and Nurettin Aldemir and others, no individual measure seems necessary in those cases.

• Information is awaited on any individual measure taken or envisaged by the authorities in the cases of Şahin and others, Balçık and others and Mehmet Ümit Erdem and Dur.

General measures:

• Information provided by the Turkish authorities (11/09/2007) in the context of Şahin and others: Concerning the amendments to the legislation applicable: Law No. 2911, in particular Articles 22, 23 and 24, governing public meetings and demonstrations now contains a detailed description of what constitutes “unlawful” public meetings or demonstrations. Among other things, these provisions include the carrying of firearms, explosives, batons or sharp or penetrative tools; the brandishing of posters, placards and signs associated with illegal organisations or groups; the holding of a public meeting or demonstration other than on the date and time or place notified. Should a public meeting or demonstration begin as legal but become unlawful (as in the cases listed above), Article 23 of the law now requires the police officer in charge to seek authorisation from the governor before taking action to disperse the gathering. In the case of resistance or aggression by demonstrators against the police or aggression against third parties, the police may intervene using force without further warning. If there are persons among the demonstrators who are carrying guns or other dangerous objects, they will be removed from the group, after which the public meeting or demonstration could continue. The police who intervene must try to strike a balance between individual rights to participate in a public meeting or demonstration, and the prevention of abuses of those rights.

Under Article 25 of the Regulation on police intervention by use of force, in order to disperse an unlawful public meeting or demonstration the police must first warn the group, using loud-speakers, that they must disperse peacefully and that otherwise force shall be used. The same article provides that the use of force must observe the principle of proportionality. Hence minimum force should be used, which then could be increased incrementally, if necessary. Article 4 of the same regulation contains a parallel provision of proportionality when describing “use of force”.

The Turkish authorities also confirmed that the judgment of the European Court has been translated and sent out to judicial authorities, as well as the Ministry of the Interior. The Turkish translation of the judgment is also available on the website of the Ministry of Justice at

<http://www.inhak-bb.adalet.gov.tr/aihm/karar/guzelsahinvedigerleri.doc>.

• Information provided by the Turkish authorities on 21/04/2008, in the context of the case of Oya Ataman on the law applicable to freedom of assembly and public demonstrations. The amendment to Article 16 of Law No; 2559 on the functions and competence of the police (2/06/2007) embodied the principle that firearms should be used progressively and proportionately to the nature and degree of resistance and aggression – with the aim of immobilising the offenders. Moreover, with a view to preventing the disproportionate use of force by the police, the authorities have on various occasions published circulars and adopted a number of general ordinances regarding the procedures and the behaviour to be adopted by the police when intervening in public meetings and demonstrations. These texts reportedly also contain provision for opening administrative or disciplinary proceedings against officers alleged to have used disproportionate force and underlined the need to use all possible techniques of dissuasion before having recourse to force, which should always be the last resort. Finally, courses and seminars have apparently been organised for officers responsible for intervening at meetings and demonstrations. According to the information provided by the government, 14 020 officers a year follow training courses organised by the Directorate General for Security in the framework of the security forces’ internal training programme.

The judgment of the European Court in the Oya Ataman case has been disseminated and published on the Ministry of Justice website at www.inhak-bb.adalet.gov.tr/aihm/karar/oyaataman10032008.doc as well as on the Court of Cassation website at www.yargitay.gov.tr/aihm/upload/74552-01.pdf.

• Assessment: Regarding the legislation on freedom of assembly and public demonstrations, the following observations may be made with reference to the Şahin and Oya Ataman cases:

1. Articles 22, 23, and 24 of Law No. 2911 on public meetings and demonstrations (see above) were already in force at the time of the facts at the origin of these two cases and have not apparently been amended since. The only amendment made, on 30/07/1998, to Article 23§b referred to the definition of an “unlawful demonstration” (i.e. one in which participants carry the emblems of proscribed organisations or in which the faces of demonstrators are wholly or partially obscured to avoid identification, etc.).

2. Likewise with Articles 4 and 25 of the Regulations on police interventions: these, too, were in force at the material time.

3. Regarding the 2/06/2007 amendment to Article 16 of Law No. 2559 on the functions and competence of the police, it is true that this amendment enshrines in law the principle of a progressive and proportionate response tailored to the nature and degree of demonstrators’ resistance. However, the same principle was already contained, at the material time, in Article 6§2 (annex) of the same Law – before the 2007 amendment. Other amended provisions introduced into Law No. 2559 in June 2007 concerned fingerprints (Article 5) or body-searches (Article 9) or identity check (Article 17) and have no specific bearing on the conduct of the police at public meetings and demonstrations.

4. Finally, the Turkish authorities mention the numerous circulars and ordinances adopted at various times, clearly circumscribing the limits applicable to the resort to force by the police and providing the possibility of proceedings against security officials having used excessive force during public demonstrations. More detailed information will be required to form an assessment of the scope of these circulars and ordinances.

In conclusion, the European Court’s constant case-law should be recalled, to the effect that an irregular circumstance occurring during a demonstration cannot, in the absence of other element such as the failure to preserve the peaceful nature of the demonstration, automatically justify a breach of the freedom of assembly guaranteed by Article 11 of the Convention (see, in particular, §39 of the judgment in Oya Ataman).

• Information is thus awaited on measures taken or envisaged to prevent new, similar violations, particularly on circulars and ordinances adopted subsequent to the European court’s judgments in these cases.

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH) in the light of information to be provided on individual measures and general measures.

74611/01+ Dilek and others, judgment of 17/07/2007, final on 30/01/2008, rectified on 28/04/2008

The case concerns the infringement of the applicants’ freedom of assembly and association, in that they were ordered by domestic courts to pay damages to the administration for taking part in a trade union action.

The applicants are civil servants working as toll-booth cashiers on the Bosphorus Bridge in Istanbul and are all members of a public-sector workers’ trade union. In March 1998 and February 1999, they left their work stations for a period of three hours as part of a “go-slow” protest, with the result that motorists were able to drive past the toll barriers without having to pay. The relevant administration brought actions against them for damages caused by lost tolls. Under Article 12§2 of Law No. 657, which provides that civil servants are liable for damages or losses they cause to the relevant administration intentionally or by negligence, the Turkish courts ordered the applicants to pay various amounts in damages.

The European Court noted that the legal basis for the application of Article 12§2 of Law No. 657 was Articles 26§2 and 27 of the same law, according to which it is forbidden for civil servants deliberately to resort to “go-slows” or to strike. Insofar as the measure had been intended to prevent disruption of the proper running of the public service, it pursued legitimate aims including the prevention of disorder. However, the following circumstances of the case did not justify a finding of tort or illegitimate action in the applicants’ trade union action. First, the go-slow protest had been agreed by the trade union and the authorities concerned had received advance warning. By taking part, the applicants had exercised their freedom of peaceful assembly. In addition, the decisions of the Turkish courts holding the applicants civilly liable had been given on account of their participation in the collective action organised by their trade union in order to defend their working conditions.

Lastly, the Turkish government did not offer an explanation as to how the trade union would have been able to defend civil servants’ rights by other peaceful means, given the blanket prohibition of collective action. In those circumstances, holding the applicants civilly liable had not been “necessary in a democratic society” (violation of Article 11).

Individual measures: The European Court awarded the applicants just satisfaction in respect of pecuniary damages in an amount corresponding to what they had been ordered to pay the administration.

• Assessment: given the circumstances of the case, it appears that no other consequence remains to be eliminated or remedied for the applicants.

General measures: The violation found in this case resulted from the domestic courts’ interpretation of Article 12§2 of Law No. 657 so as to characterise a peaceful trade union action with advance notice, as tort or illegitimate action. However, such interpretation may be changing, in line with the requirements of the Convention: the European Court noted that in December 2004, the Supreme Administrative Court of Turkey ruled that “the participation of a high-school teacher in a union activity, and his resulting absence without advance notice from his post at the school could not be subject to disciplinary punishment, nor withholding of 1/30th of his salary, on the grounds that this absence without notice could not be considered unjustified” (§36 of the judgment). This reasoning is particularly welcome as it departs from the judgments against the applicants in the present case.

• Information is awaited on more examples, if any, of domestic case-law in line with the Convention’s requirements regarding trade union actions. In addition, the publication and dissemination of the present judgment to the relevant administrative and judicial authorities are expected. Information on any other general measures taken or envisaged is also expected.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information in to be provided on general measures.

38406/97 Albayrak, judgment of 31/01/2008, final on 07/07/2008

The case concerns a violation of the applicant’s freedom of expression due to disciplinary measures imposed on him for reading a newspaper and watching a television channel related to an illegal armed organisation (violation of Article 10).

The applicant was a judge when the Ministry of Justice brought disciplinary proceedings against him for, among other things, reading PKK legal publications and watching a PKK-controlled television channel. In 1996, the Supreme Council of Judges and Public Prosecutors found the allegations against the applicant well founded and, as a sanction, transferred him to a lesser jurisdiction, under Article 68 of Law 2802 on judges and prosecutors. The Supreme Council subsequently refused to promote the applicant, given his previous disciplinary sanction.

The European Court found no reference to any known incident to suggest that the applicant’s conduct, including looking at PKK-related media, had had a bearing on his performance as a judge. Nor was there any evidence to demonstrate that he had associated himself with the PKK or behaved in a way which could call into question his capacity to deal impartially with related cases coming before him. Consequently, the Court concluded that, in deciding to discipline the applicant, the authorities had attached decisive weight to the mere fact that he looked at PKK-related media. Therefore, the authorities’ decision was not based on sufficient reasons that showed that the interference complained of was “necessary in a democratic society”.

Individual measures: The applicant unwillingly resigned from the judiciary and is now practicing as a lawyer. The European Court granted just satisfaction in respect of pecuniary damage resulting from the disciplinary penalty, which has now been erased from his file.

• Assessment: No individual measure is necessary.

General measures: Article 68 of Law 2802, at issue in this case, provides transfer to a lesser jurisdiction if a judge (i) undermines the dignity of the judiciary and respect for his/her own position as a judge; or (ii) gives the impression that he/she can no longer perform his/her duties in a proper and impartial manner. The European Court established that these provisions pursue a legitimate aim. It found however that the interference complained of was not necessary in a democratic society in the particular circumstances of this case.

• Information is therefore awaited on measures taken or envisaged to prevent new, similar cases, not least translation and dissemination of this judgment with an explanatory circular to the Supreme Council of Judges and Public Prosecutors to draw their attention to the jurisprudence of the European Court.

The Deputies decided to resume examination of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH) in the light of information to be provided on general measures.

- Case concerning freedom of expression – civil defamation proceedings

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 judicial actions against persons 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.

- Cases mainly concerning freedom of expression – military conviction for incitement to abstain from compulsory military service

47533/99 Ergin No. 6, judgment of 04/05/2006, final on 04/08/2006

56827/00 Düzgören, judgment of 09/11/2006, final on 09/02/2007

65344/01 Onaran, judgment of 05/06/2007, final on 05/09/2007

70335/01 Yurdatapan, judgment of 08/01/2008, final on 08/04/2008

The Ergin No. 6 case concerns a violation of the right to freedom of expression of the applicant, the editor-in-chief of a newspaper, in that he was fined in 1999, by a military court, under Article 155 of the former Criminal Code for having published statements which were considered to incite to abstention from military service, which is compulsory in Turkey. Similarly, the cases of Düzgören, Onaran and Yurdatapan concern the conviction of the applicants by military courts for distributing leaflets in support of a conscientious objector.

The European Court noted, that the actions concerned did not incite to hatred or violence nor aim to provoke immediate desertion and concluded that the convictions were not “necessary in a democratic society” (violations of Article 10).

The European Court also found that the military courts which tried the applicants, entirely composed of military judges, could not be regarded as independent and impartial jurisdictions (violation of Article 6§1).

Individual measures:

1) Case of Ergin No 6: Confirmation has been received that the applicant's conviction was erased from his criminal record.

2) Cases of Düzgören Onaran, and Yurdatapan:

• Confirmation is expected of the erasure of all consequences of the violation found, namely the removal of the applicants' convictions from their criminal records.

General measures: On 11/10/2006 the Secretariat addressed a letter to the Turkish authorities, inviting them to present an action plan for the execution of the case Ergin no. 6. The authorities submitted an action plan on 12/01/2007.

1) Violation of Article 10: a new Criminal Code was adopted in June 2005, but does not appear to have decriminalised non-violent expression of opinions on conscientious objection. Article 318 of the new Criminal Code still makes it a crime to incite to abstain from or discourage performance of military service although it now requires an active element, in that, to be a crime, the incitement or encouragement should be capable of accomplishing its aim. Nevertheless, this provision does not seem to require any of the elements that the European Court has referred to, i.e, “incitement to hatred or violence” or “aim to provoke immediate desertion”. Furthermore, §34 of the judgment underlined that the article concerned in the case of Ergin No. 6 was published in a newspaper and was intended for the public at large. This, according to the Court, was an indication that the article could not be considered an incitement to immediate desertion. The second paragraph of Article 318, on the contrary, makes it an aggravating factor to incite to abstention through the medium of press or other media.

• Accordingly, information is expected on the legislative changes or other general measures that the authorities have taken or envisage in order to bring the relevant provisions in conformity with the Convention.

The European Court 's judgments were translated and sent out with a circular to the judiciary, so that the relevant courts could take into account of the Convention's requirements when applying domestic law on incitement to abstention from military service.

2) Violation of Article 6: Law No. 4963, which entered into force in July 2003 (i.e. after the facts at the origin of these cases), provides that military courts no longer have jurisdiction over civilians accused under former Article 155 of the Criminal Code. A new Law (No. 5530), which entered into force on 5/07/2006, introduces further limits to the jurisdiction of military courts over civilians. It now appears that the only exception that remains is a “military” crime (one that is described as such under the Military Penal Code as opposed to the general Penal Code) committed by a civilian in conspiracy with a military person (Article 12 of Law No. 353 as amended by Law No. 5530.

• Assessment: With regard to the trial of civilians by military courts, the above measures appear sufficient.

56566/00 Kaplan Yaşar, judgment of 24/01/2006, final on 24/04/2006

This case concerns an unjustified interference with the freedom of expression of the applicant, a journalist, in that charges were brought against him in 1998, under Article 95 of the Military Criminal Code, for having published articles which were considered by the military court to undermine soldiers’ trust in their hierarchy.

Given the high level of protection to be given to political expressions and the fact that the applicant’s articles did not insult or criticise any specific person, the Court concluded that the criminal action against the applicant had been a disproportionate interference with his right to freedom of expression, the more so since he was also subjected to 42 days’ pre-trial detention (violation of Article 10).

Individual measures: By virtue of Law No. 4454 on the suspension of procedures and execution of sentences related to crimes committed through the press, which entered into force on 3/09/99, the applicant’s conviction was set aside on 31/12/2003. Any other consequence of the violation is covered by the just satisfaction awarded by the European Court.

General measures: The case presents some similarity with other cases against Turkey concerning violations of freedom of expression (see the Inçal group of cases, 22678/93, Section 4.2). It is, however, the first case dealing with the interpretation of the Military Criminal Code.

1) Legislative measures: The Turkish authorities have indicated that following the European Court’s judgment extensive amendments adopted on 5/07/2006 to the Code on the Establishment and Criminal Procedure of the Military courts. Article 4 of the amendments provides that most offences committed by civilians in time of peace – including that at the origin of the Yasar Kaplan case – shall be tried by civil courts. Furthermore, Article 53 of the amendments provides a right to a retrial in cases where the European Court finds that decisions of military courts violate the Convention.

• Assessment: The 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.

75510/01 Artun and Güvener, judgment of 26/06/2007, final on 26/09/2007, rectified on 12/11/2007

This case concerns a breach of the applicants’ freedom of expression through the press. The applicants, a journalist and the chief editor of the daily Milliyet, had been sentenced to a year and 4 months’ imprisonment, on the basis of Article 158 of the former Criminal Code, for having denigrated the President of Republic. The execution of the sentence of Meral Artun was stayed and the other applicant’s sentence was commuted to a fine of about 1 665 euros.

The European Court considered that the restrictions imposed on the applicants were not necessary in a democratic society (violation of Article 10).

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

• Information provided by the Turkish authorities: Ms. Artun’s conviction has been erased from her criminal record. However, the information provided with regard to Mr Güvener’s criminal record is unclear.

• Clarification is awaited concerning the erasure of Mr. Güvener’s conviction from his criminal record.

General measures:

• Information provided by the Turkish authorities (letter of 2/04/2008), in reply to the Secretariat’s initial-phase letter of 28/11/2007): Article 299 of the new Criminal Code, which corresponds to Article 158 of the former Criminal Code, provides that anyone who insults the President of the Republic shall be punished by a term of imprisonment of one to four years. The sentence shall be increased by one sixth if the offence is committed in public. Prosecution of this crime shall be subject to the authorisation of the Minister of Justice.

• Assessment: The provision at the origin of the violation in this case is no longer in force. However, it seems that the new provision, which replaced the old one, while phrased differently, is of the same substance as the previous one.

Considering that the European Court reiterated in the judgment, in particular, that the imposition of a prison sentence for a press offence was only compatible with journalists’ freedom of expression in exceptional circumstances, and that in the present case there had been no justification for sentencing the applicants to a term of imprisonment, further information on general measures to ensure compliance with the Convention requirements appears necessary.

• Information is awaited on general measures taken or envisaged to prevent similar violations and to ensure compliance with the Convention’s requirements. Information is also awaited on the publication and dissemination of the European Court’s judgment.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of the information to be provided on individual and general measures.

35839/97 Pakdemirli, judgment of 22/02/2005, final on 22/05/2005

The case concerns the disproportionate amount of the damages awarded against the applicant in defamation proceedings against him (violation of Article 10). The proceedings were brought against the applicant in 1995 (at the material time a Member of Parliament and the vice-president of the opposition party) by the President of the Republic on account of a speech he made in which he described the President, among other epithets, as a liar and slanderer. The President sought compensation for defamation and insults to him both in person and in his capacity as President of the Republic under Article 49 of the Code of Obligations. In July 1995 the Ankara Civil Court of First Instance ordered the applicant to pay the equivalent of approximately 55 000 euros in damages. Following the dismissal of his request for leave to appeal, the applicant paid the sums he had been ordered to pay, which corresponded at the time, with interest, to the equivalent of approximately 60 000 euros.

The European Court observed that, in determining the amount of the damages, the Turkish courts had applied the criterion of “the parties’ socio-economic status” laid down in Article 49 of the Code of Obligations in a way which departed from the normal practice and without taking into account the principle of proportionality laid down in Article 4 of the Civil Code, using it not to preserve a balance between the parties’ respective situations, but to fix the amount of damages to be awarded as high as possible. In addition, while fixing the amount of compensation, the domestic courts based themselves on the absence of the criminal proceedings which would have been applicable if the applicant had not been covered by parliamentary immunity and thus turned the damages awarded into a form of civil fine. Furthermore, the assessment of the civil penalty had been made not in the light of the wrong suffered by the claimant but by way of over-protecting the status of President of the Republic.

The European Court therefore concluded that the award that the applicant was ordered to pay could not be regarded as “necessary in a democratic society” and that it was not proportionate to the aim pursued by the national legislation.

Individual measures: The European Court awarded a global sum of 35 000 euros for both pecuniary and non-pecuniary damages, thus compensating the disproportionate nature of the penalties imposed by the domestic courts.

General measures: 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.

48176/99 Turhan, judgment of 19/05/2005, final on 19/08/2005, rectified on 30/03/2006

The case concerns civil defamation proceedings brought against the applicant in 1993 (resulting in a final decision in 1998) by the then Minister of State who claimed that certain remarks in the applicant’s book constituted an attack on his reputation.

The European Court noted that the contested remarks were value judgments on an issue of public interest, that their truthfulness was therefore not susceptible of proof and that they were based on information which was already known to the general public. Accordingly, the European Court found that the domestic courts had not convincingly established any pressing social need to subordinate the applicant’s right to freedom of expression to the protection of a public figure’s reputation. Neither has it appeared that the applicant’s statements had affected the Minister’s political career or his professional or private life (violation of Article 10).

Individual measures: The European Court awarded just satisfaction in respect of both pecuniary and non‑pecuniary damages, thus compensating the applicant for the damages imposed by the domestic courts.

General measures:

• Information is expectedon measures envisaged to remedy the problems highlighted by the European Court (i.e. interpretation of defamation provisions, including the distinction between value judgments and factual statements, in cases involving public figures). In any event the publication and wide dissemination of the judgment of the European Court would appear necessary.

- Cases concerning freedom of expression – broadcasting legislation

64178/00+ Özgür Radyo-Ses Radyo Televizyon Yayın Yapım Ve Tanıtım A.Ş. 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

These cases concern violations of the freedom of expression of the applicants, broadcasting companies, due to warnings and licence suspensions imposed in 1998, 1999 and 2000 by the Turkish broadcasting regulatory authority (RTÜK) under Articles 4 a), g) and j) of Broadcasting Law No. 3984, concerning defamation and incitement to violence and to separatism. Unlike the RTÜK and the Turkish administrative courts, the European Court considered that the statements at issue did not incite to violence or hate and covered questions of general interest. It furthermore took into account the fact that the applicant companies had quoted the sources of the statements, which had already been published by other media without being prosecuted. Furthermore, the Court considered that the penalties had been disproportionately severe and therefore not necessary in a democratic society (violation of Article 10).

Individual measures: In both of the Özgür Radyo cases, the Court awarded the applicant company just satisfaction in respect of the non-pecuniary damages sustained but not in respect of pecuniary damage, as the applicant company did not submit elements allowing such damage to be quantified. In the case of Nur Radyo, the Court did not award any damages.

• Assessment: No further individual measure appears to be needed.

General measures: These cases concern the Turkish broadcasting system and the interpretation given by RTÜK and administrative courts to Article 4 of Law 3984.

• In the light of the many significant legislative and other measures taken in the last few years to improve freedom of expression in Turkey (see the Inçal group, 22678/93, Section 4.2), information is needed on the impact, if any, of such measures on the current application of the provisions at the origin of this case.

• Information provided on the amendments to the broadcasting law as well as the provisions concerning sanctions introduced by Law No. 4756 in May 2002: In the light of these amendments, a suspension of licence is considered as a last resort. The first sanction available is a warning or the obligation of the broadcasting company to present apologies. If the broadcasting company continues to violate the provisions of the broadcasting law as stated in Article 4 of Law No. 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.

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.

- 82 cases mainly concerning freedom of expression

Interim Resolutions ResDH(2001)106 and ResDH(2004)38; CM/Inf(2003)43

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

CM/Inf/DH(2008)26

These cases all relate to unjustified interferences with the applicants' freedom of expression, in particular on account of their conviction by state security courts following the publication of articles and books or the preparation of messages addressed to a public audience (convictions under former Articles 159 and 312 of the Criminal Code and former Articles 6, 7 and 8 of Anti-terrorism Law).

In the Özgür Gündem case, the Court also concluded that the search operation conducted in the applicant newspaper's premises had not been necessary in a democratic society and that the respondent government had failed to comply with its positive obligation to protect the applicant newspaper in the exercise of its freedom of expression. Furthermore, the cases Alinak, Öztürk Ayşe and Çetin and others specifically concern the seizure of publications (violations of Article 10).[113] [114]

Individual measures: Since June 1998, the necessity of adopting individual measures has been repeatedly stressed in the Committee. On 23/07/2001, the Committee of Ministers adopted Interim Resolution ResDH(2001)106 (see CM/Inf/DH(2003)43). In addition, updated information on the current situation of the applicants and on the concrete follow-up given to Interim Resolution ResDH(2001)106 have been regularly requested.

• Measures taken: The Turkish authorities indicated (see also CM/Inf/DH(2003)43 and Interim Resolution ResDH(2004)38) that measures had been taken in order to ensure the erasure of convictions and of all their consequences :

- ex officio in cases concerning convictions under Article 8 of the Anti-terrorism Law No. 3713, following the abrogation of this provision on 19/07/2003 (by Law No. 4928), which also provided that any information on criminal records should be erased ex officio (in conformity with Article 8 of the Law on Criminal Records, as amended by Law No. 4778 of 2/01/2003), thereby automatically lifting any restrictions on applicants' civil and political rights.

- under certain conditions, in cases related to freedom of expression in general (Law No. 4809 2003 on suspension of proceedings and sentences concerning crimes committed through the press);

Furthermore, reopening of domestic proceedings is possible (on the basis of Law No. 4793 of 2003), in all cases which had already been decided by the European Court before 04/02/2003 and in all new cases brought before the European Court after that date. Re-opening is not possible in cases which were pending before the European Court on 04/02/2003, as well as for cases resulting in friendly settlements.

For a detailed assessment of the individual measures taken and outstanding issues in these cases, as well as for the list of cases in which confirmation of the erasure of any remaining consequences of the violations are expected, see CM/Inf/DH(2008)26 declassified at the 1028th meeting (June 2008).

General measures: The question has been raised since 1998 of the need to adapt Turkish law to the requirements of the Convention so as to avoid further violations similar to those found. In particular, attention has been drawn to the need to assess the proportionality of restrictions on freedom of expression in the light of the presence of an “incitement to violence”. Furthermore, since 1999, the Turkish authorities have been invited to introduce a general criterion of truth and public interest into the Anti-Terrorism Law and to amend or abrogate Article 6 of this law; to review minimum penalties in crimes related to freedom of expression; to adopt specific measures aimed at ensuring the protection of freedom of expression

• Measures taken: For a detailed assessment of the general measures taken and outstanding issues in these cases see CM/Inf/DH(2008)26.

On 17/09/2008 the Turkish authorities provided information on a number of decisions of public prosecutors not to bring prosecutions under the recently modified Article 301 of the Turkish Criminal Code. The Secretariat is currently studying these decisions.

- 9 Friendly settlements concerning freedom of expression and involving undertakings by the Turkish government

Interim Resolutions ResDH(2001)106 and ResDH(2004)38; CM/Inf(2003)43

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

CM/Inf/DH(2008)26

These cases all relate in particular to alleged unjustified interferences with the applicants’ freedom of expression, on account of their conviction by state security courts following public speeches or the publication of articles, drawings or books (complaints under Article 10 and 6§1).

The European Court took note of the Friendly settlements reached between the parties. The Turkish Government undertook to pay a sum of money to the applicants, to implement all necessary reform of domestic law and practice in order to bring the Turkish law into conformity with the requirements of the Convention in the area of freedom of expression and to adopt the individual measures set out in Interim Resolution ResDH(2001)106, adopted on 23/07/2001(appended to CM/Inf/DH(2003)43), in order rapidly and fully to erase the consequences of the applicants’ conviction. These cases are comparable with the “freedom of expression” cases against Turkey mentioned above.

Individual measures:

• Information is expected on the current situation of the applicants as well as on the measures envisaged, in conformity with the undertakings included in the friendly settlement, in order rapidly and fully to erase the consequences of their convictions.

The information available concerning the situation of the applicants’ criminal records is reproduced in Addendum 4

General Measures: See above (“freedom of expression” cases against Turkey).

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.

- 4 cases concerning non-enforcement of court decisions in cases of environmental protection

1) 46117/99 Taşkın and others, judgment of 10/11/2004, final on 30/03/2005, rectified on 01/02/2005

2) 46771/99 Öçkan and others, judgment of 28/03/2006, final on 13/09/2006

3) 17381/02 Lemke, judgment of 05/06/2007, final on 05/09/2007

4) 36220/97 Okyay Ahmet and others, judgment of 12/07/2005, final on 12/10/2005 - Interim Resolution CM/ResDH(2007)4

(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.

The Deputies:

1. invited the authorities, in the cases of Taşkın and others, Öçkan and others and Lemke, to take all necessary individual measures, taking into account:

- the outcome of the proceedings engaged for the annulment of the new operation permit of the gold mine, and stressing in this context the importance of bringing these pending proceedings to a rapid conclusion,

- the consequences flowing from the annulment of the urban plan for the area when the gold mine is located;

2. decided to resume consideration of these cases at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of further information to be provided on:

(a) individual measures, particularly in the light of the outcome of the appeal proceedings initiated against the decision of 12/12/07 of the Izmir Administrative Court (in the cases of Taşkın and others, Öçkan and others and Lemke);

(b) any possible additional general measures, in particular to prevent more effectively the non-enforcement of domestic court decisions in the area of environmental law (in all of these cases).

- Cases 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 17/07/2008, final on 17/10/2008

41296/04+ Karaduman and Tandoğan, judgment of 03/06/2008, final on 03/09/2008

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).

Individual measures: The Court considered that the finding of a violation constituted sufficient just satisfaction for the damages suffered.

• 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.

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) in the light of information to be provided on general measures.

- Cases concerning the monitoring of prisoners’ correspondence

6289/02 Tamer Fazıl Ahmet, judgment of 05/12/2006, final on 05/03/2007

77097/01 Ekinci and Akalın, judgment of 30/01/2007, final on 30/04/2007

73520/01 Kepeneklioğlu, judgment of 23/01/2007, final on 23/04/2007

39862/02 Koç Ali, judgment of 05/06/2007, final on 05/09/2007

4287/04 Özkartal, judgment of 24/06/2008, final on 24/09/2008

60123/00 Reyan No. 2, judgment of 23/09/2008, final on 23/12/2008

9460/03 Tan, judgment of 03/07/2007, final on 03/10/2007

These cases concern the violation of the applicants' right to respect for their private life due to the unjustified interference by the prison authorities with their correspondence during their imprisonment (violation of Article 8).

In the case of Tamer Fazıl Ahmet, the applicant sent several letters to his lawyer while in prison from December 2000 to May 2001. He complained that the prison authorities either refused to forward the letters or deleted passages from them. The prison authorities also destroyed a letter which the applicant had intended to send to a newspaper with a view to its publishing an article he had written to protest against F‑type prisons. In the other cases, the prison authorities similarly withheld or monitored the applicants’ letters.

Considering the extent to which the applicants' correspondence had been monitored and the lack of adequate and effective safeguards against abuse, the European Court considered that the interference with their right to respect for their correspondence was disproportionate and thus could not be regarded as “necessary in a democratic society”.

Individual measures: It is understood from the European Court's judgments in Tamer Fazıl Ahmet, Ekinci and Akalın, Kepeneklioğlu, Koç Ali and Tan, that the applicants are no longer in prison. Accordingly, no individual measure is necessary in those cases. It seems however that the applicants in Reyhan and Özkartal are still detained.

• Information is awaited on individual measures taken or envisaged in the Reyhan and Özkartal cases to guarantee the applicants’ freedom of correspondence.

General measures:

• Information is awaited on measures taken or envisaged to avoid new, similar violations. In any event, publication of the European Court's judgment and dissemination to all authorities concerned (in particular prison authorities) would seem appropriate.

- Cases concerning the lack of compensation following annulment of titles to plots of land in the framework of the coastal law regime

37451/97 N.A. and others, judgment of 11/10/2005, final on 15/02/2006 and of 09/01/2007, final on 23/05/2007

36166/02+ Asfuroğlu and others, judgment of 27/03/2007, final on 09/07/2007

35973/02+ Aslan and Özsoy, judgment of 30/01/2007, final on 30/04/2007

1262/02 Doğrusöz and Aslan, judgment of 30/05/2006, final on 23/10/2006

40/02+ Gümüşoğlu and others, judgment of 18/03/2008, final on 18/06/2008

16480/03+ Katayıfçı and others, judgment of 17/07/2007, final on 17/10/2007, rectified on 13/12/2007

1318/04 Kutluk and others, judgment of 03/06/2008, final on 03/09/2008

75606/01 Miçooğulları Mehmet Ali, judgment of 10/05/2007, final on 24/09/2007

40217/02+ Moğul, judgment of 09/01/2007, final on 09/04/2007

36531/02 Özdemir Adil, judgment of 10/05/2007, final on 10/08/2007

18367/04 Taci and Eroğlu, judgment of 10/05/2007, final on 10/08/2007, rectified on 13/11/2007

29128/03 Tozkoparan and others, judgment of 17/07/2007, final on 10/12/2007, rectified on 17/06/2008

1250/02 Tuncay, judgment of 12/12/2006, final on 23/05/2007

43/02 Uslu Edip, judgment of 20/05/2008, final on 20/08/2008

21850/03 Yurtöven, judgment of 17/07/2007, final on 17/10/2007

These cases concern the absence of compensation in proceedings brought by the Treasury for the annulment of the registration of property belonging to the applicants and in the N.A. case the demolition of the hotel that was being built on it, ordered by court decisions of June 1987 and December 1989 respectively. These decisions relied on that fact that the plots of land in question was located on the seashore and could not be privately acquired. The applicants had tried in vain to obtain damages for the loss of their property.

The European Court found that the decisions of the domestic courts as to the deprivation of ownership of the land, which was located on the shoreline and was thus part of the beach, a public area open to all, fulfilled a legitimate purpose. However, the fact that the applicants had not received any compensation for the transfer of their property to the Treasury and for the demolition of the hotel amounted to a violation of Article 1 of Protocol No. 1.

Individual measures: In all of these cases, the Court awarded just satisfaction in respect of pecuniary damages suffered by the applicants.

• Assessment: no further individual measure seem necessary.

General measures:

• Information provided by the Turkish authorities: In their reply of 27/09/2006 to the Secretariat's initial- phase letter of 06/06/2006, the Turkish authorities stated that a draft law amending the Coastal Law is currently being prepared and that the Committee will be duly informed of the relevant text when ready.

The judgment of the European Court in the precedent case of N.A. and others has been translated into Turkish and has been brought to the attention of the authorities.

On 06/03/08, the authorities stated that the preparatory work for the draft law was still under way.

• Information is awaited on the progress of the adoption of the draft law and on its contents.

- Cases concerning the 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

12146/02 Akıncı, judgment of 08/04/2008, final on 08/07/2008

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

38323/04 Kaçar and others, judgment of 22/07/2008, final on 22/10/2008

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

45559/04 Şahin Abidin, judgment of 18/12/2007, final on 18/03/2008

11912/04 Sakarya, judgment of 20/05/2008, final on 01/12/2008

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

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

These cases concern the violation of the applicants' right to a fair trial, as well as the right to the peaceful enjoyment of their possessions in certain cases, on account of the failure by administrative bodies to enforce judicial decisions awarding them compensation and other pecuniary awards (violations of Article 6§1 and Article 1 of Protocol No. 1).

The Kılıç Ahmet case also concerns the excessive length of the proceedings before administrative courts (violation of Article 6§1).

Individual measures:

1) Non-enforcement of domestic judgments: In the case of Kılıç Ahmet, the government provided a copy of a declaration signed by the applicant indicating that on 06/11/2006 he had received the full amount of compensation awarded by the domestic court, including interest. In the case of Yerebasmaz, the domestic judgment has been enforced: the relevant administration issued an order of payment and the full amount was made available to the applicant. Similarly, in the case of Çiçek and Öztemel and 6 other cases, confirmation was received on 11/02/2008 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, Sakarya and Sevgili the just satisfaction awarded by the European Court in respect of pecuniary damages were paid to the applicants. In the case of Selçuk Mehmet, the domestic judgment has been implemented. The sums awarded by the European Court in respect of non-pecuniary damage were paid on an escrow account and the applicant has been informed.

• Information is awaited on the enforcement of the domestic judgment in the cases of Aygün and others, Demirhan, Görsav and Çelik, Şahin Abidin, Akıncı, Kuş and Yerlikaya.

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 5.1).

- Cases concerning the inability of foreigners to inherit property in Turkey due to alleged lack of reciprocity requirement

45628/99 Apostolidi and others, judgment of 27/03/2007, final on 24/09/2007 and of 24/06/2008, final on 24/09/2008

19558/02+ Nacaryan and Deryan, judgment of 08/01/2008, final on 02/06/2008 and of 24/02/2009, possibly final on 24/05/2009

These cases concern the unlawfulness of the interference in the right to the peaceful enjoyment of possessions of the applicants, all Greek nationals.

In the case of Apostolidi and others, the applicants inherited a flat in Beyoğlu, Istanbul in 1990 from their aunt, a Turkish national. Relying on an inheritance certificate issued by a civil court, they registered the flat in their name in the land register. This inheritance certificate was annulled, however, in 2001 after another heir, of Turkish nationality, claimed title to the flat. The courts found that Turkish nationals could not acquire immovable property in Greece by inheritance and therefore the condition of reciprocity provided in Article 35 of the Land Code had not been met. Upon the annulment of the applicants' inheritance certificate, the plaintiff Turkish heir's claim to title was also granted and the flat was subsequently registered in his name.

Without questioning the condition of reciprocity as such, the European Court found that it had not been established that there was any restriction in Greece preventing Turkish nationals from acquiring real property by inheritance. Official documents, such as a 1995 report by the Turkish Ministry of Justice, showed that Turkish nationals had acquired immovable property in Greece by inheritance. Consequently, the interference was not sufficiently foreseeable (violation of Article 1 of Protocol No. 1).

The European Court also found that the civil proceedings concerned, which lasted 10 years, had been excessively long (violation of Article 6§1).

In the case of Nacaryan and Deryan, the European Court found a violation of Article 1 of Protocol No. 1 on the basis of similar facts to those in the Apostolidi case.

Individual measures:

1) Apostolidi and others case: The civil proceedings have ended.

In addition, in its judgment on just satisfaction, the European Court held that Turkey had to restore the applicants’ respective shares in the flat in question and have the property re-registered in their names in the land register within three months of the date on which the judgment became final.

Furthermore, having noted that contracting states party to a case are, in principle, free to chose how they will comply with the decision finding a violation, the European Court considered that if the Turkish authorities did not make such restitution, they would have to pay the applicant pecuniary damages, the amount of which would be based on the present worth of the property in question. In addition, the Court awarded the applicants just satisfaction in respect of the non-pecuniary damages sustained.

In a letter dated 9/01/2009, the authorities informed the Secretariat that the sums awarded in respect of pecuniary and non-pecuniary damages in this case had been paid.

• Assessment: In these circumstances no further individual measure seems necessary.

2) Nacaryan and Deryan case: The European Court delivered its judgment of just satisfaction. This judgment is not yet final.

General measures: The European Court did not hold that the reciprocity rule contained in Article 35 of the Land Code was as such incompatible with the Convention. However, the violation resulted from the domestic courts' mistaken characterisation of the Greek law to the effect that reciprocity had not existed.

• Information is therefore awaited on any general measures taken or envisaged by the authorities, in particular the publication and dissemination of the judgment to judicial authorities. An initial phase letter was sent to the Turkish authorities on 07/12/2007 on the general measures and on the possibility of preparing an action plan. No information has been received so far.

As regards the length of proceedings, general measures are examined in the context of the Ormancı group (43647/98, Section 5.1).

33663/02 Mörel, judgment of 14/06/2007, final on 14/09/2007

The case concerns a violation of the applicant’s right to the peaceful enjoyment of his possessions due to the courts’ dismissal of the applicant’s application for additional compensation for expropriation on the ground that it was filed out of time, although the expropriation was not properly notified.

In 1988, the authorities decided to expropriate the applicant’s property. However, they failed to identify its owner as the property tax declarations could not be located and that the title deed office records indicated its original owner and was thus outdated. As direct notification was not possible, the expropriation was announced in local newspapers as well as over loudspeakers throughout the town, pursuant to Article 10 of Law on Expropriation No. 2942. In 1996, when he became aware of the expropriation, the applicant lodged an additional compensation claim. He relied on a principle of Turkish law that a prescription period would not run in the absence of proper notification. However the courts held that the manner in which the expropriation was notified was justifiable and thus the prescription period had elapsed.

The European Court concluded that the authorities did not show due diligence in notifying the applicant of the expropriation of the land and that the courts should have entertained the exception that he invoked. The Court therefore held that the applicant had been deprived of his property without adequate compensation (violation of Article 1 of Protocol No. 1).

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

• Assessment: Under these circumstances, no other individual measure seems required.

General measures:

• Information is awaited on measures taken or envisaged by the authorities, in particular publication and dissemination of the Court’s judgment to the relevant authorities, to prevent similar, future violations.

40998/98 Islamic Republic Of Iran Shipping Lines, judgment of 13/12/2007, final on 13/03/2008

The case concerns the seizure in October 1991 of a ship flying the Cypriot flag as well as its cargo on suspicion of arms smuggling. The ship was chartered by the applicant, an Iranian shipping company.

The European Court noted that in December 1991, following an investigation into the matter, the Turkish Ministry of Foreign Affairs confirmed that in fact the cargo transported by the applicant belonged to Iran and that its seizure could not be justified by national security concerns. The Court therefore considered that it had been unjustified to impound the vessel until December 1992, when ship and cargo were restored. It also took the view that the refusal of national courts to compensate the applicant company for the damage sustained imposed a disproportionate burden upon it (violation of Article 1 of Protocol No. 1).

Individual measures: The vessel and its cargo were released and the European Court noted that the applicant received pecuniary damages in subsequent arbitration proceedings (§ 115 of the judgment).

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

General measures:

• Information is awaited on measures taken or envisaged by the authorities, in particular the publication and dissemination of the judgment to judicial authorities.

- 414 cases against Ukraine

32478/02 Shevchenko, judgment of 04/04/2006, final on 04/07/2006[115]

72286/01 Melnik, judgment of 28/03/2006, final on 28/06/2006[116]

40269/02 Koretskyy and others, judgment of 03/04/2008, final on 03/07/2008[117]

- 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[118]

38722/02 Afanasyev, judgment of 05/04/2005, final on 05/07/2005

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

32092/02 Yaremenko, judgment of 12/06/2008, final on 12/09/2008

- Cases mainly concerning inhuman and/or degrading treatment in detention resulting from overcrowding, unsatisfactory hygiene and sanitation conditions or inadequate medical care, as well as lack of an effective remedy[119]

54825/00 Nevmerzhitsky, judgment of 05/04/2005, final on 12/10/2005

72277/01 Dvoynykh, judgment of 12/10/2006, final on 12/02/2007

65550/01 Koval, judgment of 19/10/2006, final on 12/02/2007

2570/04 Kucheruk, judgment of 06/09/2007, final on 06/12/2007

39458/02 Tkachev, judgment of 13/12/2007, final on 13/03/2008

- Cases concerning the poor conditions of the applicants' detention[120]

39042/97 Kuznetsov, judgment of 29/04/03

41220/98 Aliev, judgment of 29/04/03, final on 29/07/03

40679/98 Dankevich, judgment of 29/04/03, final on 29/07/03

41707/98 Khokhlich, judgment of 29/04/03, final on 29/07/03

39483/98 Nazarenko, judgment of 29/04/03, final on 29/07/03

38812/97 Poltoratskiy, judgment of 29/04/03

15825/06 Yakovenko, judgment of 25/10/2007, final on 25/01/2008

61406/00 Gurepka, judgment of 06/09/2005, final on 06/12/2005[121]

23543/02 Volokhy, judgment of 02/11/2006, final on 02/02/2007[122]

7577/02 Bochan, judgment of 03/05/2007, final on 03/08/2007[123]

22750/02 Benderskiy, judgment of 15/11/2007, final on 15/02/2008[124]

29458/04+ Sokurenko and Strygun, judgment of 20/07/2006, final on 11/12/2006[125]

13156/02 Ponomarenko, judgment of 14/06/2007, final on 14/09/2007[126]

37878/02 Tserkva Sela Sosulivka, judgment of 28/02/2008, final on 28/05/2008[127]

34786/03 Balatskyy, judgment of 25/10/2007, final on 25/01/2008[128]

6725/03 Lizanets, judgment of 31/05/2007, final on 31/08/2007[129]

17988/02 Zhoglo, judgment of 24/04/2008, final on 24/07/2008[130]

7460/03 Nadtochiy, judgment of 15/05/2008, final on 15/08/2008[131]

- 300 cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

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

CM/Inf/DH(2007)30 (revised in English only) and CM/Inf/DH(2007)33

Interim Resolution CM/ResDH(2008)1

All these cases concern violations of the applicants' right to effective judicial protection due to the administration's failure or substantial delay in abiding by final judicial decisions in the applicants' favour (violations of Article 6§1).

In some of these cases the European Court also found consequent violations of the applicants' right to the peaceful enjoyment of their possessions (violations of Article 1 of Protocol No. 1) and/or violations of Article 13 due to the lack of an effective remedy allowing redress for damage created by delays in enforcement.

Individual measures: Urgent measures are necessary to ensure enforcement of the domestic judgments in the cases where this has not yet been done.

• Information is required in writing on the outstanding individual measures.

General measures:

a) Law on amendments to certain legal acts of Ukraine (on the protection of the right to pre-trial and trial proceedings and enforcement of court decisions within reasonable time): Following to a decision taken by the working group in charge, the 2005 draft law On pre-trial proceedings as well as enforcement of court decisions within reasonable time was modified and renamed On amendments to certain legal acts of Ukraine (on the protection of the right to pre-trial and trial proceedings and enforcement of court decisions within reasonable time). The modified draft set up a new remedy making it possible to complain to administrative courts about violation of the right to proceedings within reasonable time. It included compensation for delays and sanctions against those responsible. Since 2007 the draft law has been submitted to the Parliament, sent back to the drafters and re-submitted to the Parliament several times. No information has been provided as to the current situation with the adoption of the draft law.

• Assessment: A copy of the last official version of the draft is awaited

• Information is urgently awaited on the time-table envisaged for the adoption of the draft law.

b) Amendments to the Moratorium Law: On 23/05/2007, a draft law abolishing the moratorium on the forced sale of property in companies in which the state holdings exceed 25% has been submitted to the government for consideration. It appears that the government took a decision not to abolish the moratorium. In particular, in its decree 191/2009 dated 26/03/2009 the President of Ukraine entrusted the government with the drawing up the draft law extending the application of the moratorium on the forced sale of property to state companies in receivership.

• Information is urgently awaited on the current situation with the draft law abolishing the moratorium on the forced sale of property.

c) Inappropriate enforcement procedures: According to the Law on enforcement, decisions to seize funds from accounts, where the resources of the State Budget of Ukraine are concerned, shall be enforced by the State Treasury bodies under the procedure established by the Cabinet (Article 9). However, the government has adopted no procedure, which leads to non-execution of domestic court decision delivered against the state.

• Information is still awaited on measures taken or envisaged to set an appropriate procedure for execution of domestic court’s decisions delivered against the state, so as to avoid any legislative lacuna and confusion in this area as well as on appropriation of the relevant budgetary funds for execution of decisions.

At the 1007th meeting (October 2007), the authorities indicated that a draft law amending various legislative acts relating to enforcement procedures in order to increase their efficiency was submitted to the Parliament on 06/09/2007.

• More detailed information is still awaited on the improvements provided by the draft law together with the timetable envisaged for its adoption.

d) Enhancing criminal, material and other responsibility: A number of criminal proceedings have been opened against the top management of companies wilfully delaying the payment of salaries or against officials involved in the execution procedures.

• Information is still awaited on the outcome of the criminal proceedings concerned.

e) Sector-specific measures: A number of sector-specific measures were announced by the authorities in the education sector, the state mining sector, Atomspetsbud and other state companies.

• Detailed updated information is awaited on measures taken or envisaged to remedy special sector-specific problems in enforcement of court judgments.

f) Memorandum on the non-enforcement of domestic judicial decisions in Ukraine (CM/Inf/DH(2007)30-rev): This document was prepared by the Secretariat to assist the Committee of Ministers and the Ukrainian authorities in reflection on the underlying problems. The Memorandum was issued and declassified at the 997th meeting (June 2007). It revealed several important structural problems requiring urgent solution and proposed possible avenues to resolve the problems, including based on comparable experience of other countries.

▪ Information is still awaited on specific issues raised in the memorandum, in particular with regard to further developments and the outcome of the sector-specific measures.

g) Multilateral Round Table in Strasbourg: On 21 and 22 June 2007 a high-level Round Table was organised in Strasbourg by the Department for the Execution of Judgments of the European Court of Human Rights in the context of the Execution Assistance programme, which involved representatives of the Council of Europe and the authorities of different states confronted with this issue, to discuss solutions to the structural problems of non-enforcement of domestic court decisions. The constructive exchanges between different participants led to the adoption of Conclusions in which the main problems underlying non-enforcement were identified and a range of possible solutions to be envisaged by the authorities while elaborating their respective action plans were proposed. These Conclusions may be found on the following web site http://www.coe.int/t/e/human_rights/execution/ConclusionsRoundTableRussiaJune07.doc.

• Information is still awaited on the follow up given by the Ukrainian authorities to all aspects of the Conclusions of the Round Table.

h) Interim Resolution CM/ResDH(2008)1 on the execution of the judgments of the European Court of Human Rights in 232 cases against Ukraine relative to the failure or serious delay in abiding by final domestic judicial decisions delivered against the state and its entities as well as the absence of an effective remedy: In the Resolution adopted at the 1020th meeting (March 2008) the Committee of Ministers underlined the systemic character of the problem of non-execution of domestic judicial decisions. It called upon the authorities to set up an effective national policy, co-ordinated at the highest governmental level, with a view to effectively implementing the package of measures necessary to tackle the problem of non-execution. The Committee urged the authorities to adopt as a matter of priority the announced draft laws, in particular the law on amendments to Certain Legal Acts of Ukraine (on the protection of the right to pre-trial and trial proceedings and enforcement of court decisions within reasonable time).

• Information is awaited on the adoption of measures announced, in particular on the adoption of the announced draft law.

The Deputies,

1. recalled that, as acknowledged by the Committee of Ministers in its Interim Resolution CM/ResDH(2008)1, the non-enforcement of domestic judicial decisions constitutes a structural problem in Ukraine;

2. noted that there are still a number of cases in which domestic court decisions remain unenforced despite the judgments of the European Court;

3. noted with concern that, notwithstanding the efforts made by the Ukrainian authorities in adopting interim measures, the structural problem underlying the violations has not been solved;

4. observed that failure to adopt all necessary measures, including previously announced legislative measures, has resulted in a steady increase in the number of new applications lodged with the European Court concerning non-enforcement of domestic judicial decisions;

5. noted with concern in this context that priority has not been given to setting up a domestic remedy in case of non-enforcement or delayed enforcement of domestic judicial decisions, despite the Committee’s repeated calls to this effect;

6. called upon the Ukrainian authorities once again to take rapidly the necessary action to ensure Ukraine’s compliance with its obligations under the Convention, and in particular to reconsider the various proposal for reforms made during the examination of these cases (see, in particular, CM/Inf/DH(2007)30-rev and CM/Inf/DH(2007)33);

7. decided to resume consideration of these items at the latest at their 1072nd meeting (December 2009) (DH), possibly in light of a draft interim resolution taking stock of the general and individual measures adopted by then and other outstanding issues if any.

47148/99 Novoseletskiy, judgment of 22/02/2005, final on 22/05/2005[132]

77703/01 Svyato-Mykhaylivska Parafiya, judgment of 14/06/2007, final on 14/09/2007[133]

11901/02 Panteleyenko, judgment of 29/06/2006, final on 12/02/2007[134]

15007/02 Ivanov, judgment of 07/12/2006, final on 07/03/2007[135]

803/02 Intersplav, judgment of 09/01/2007, final on 23/05/2007

The case concerns the violation of the applicant company's right to the peaceful enjoyment of its possessions due to systematic delays, from 1998 onwards, in payment of VAT refunds. The Sverdlovsk Town Tax Administration failed to confirm the amounts involved and to issue certificates for VAT refunds in due time. In addition, compensation for delayed refund of VAT was denied to the applicant company in more than 140 sets of proceedings brought before the Lugansk Commercial Court (violation of Article 1 of Protocol No. 1).

The European Court found that the tax administration’s practice of groundlessly refusing to confirm the applicant’s entitlement to VAT refunds constituted a violation of the applicant company's right to the peaceful enjoyment of its possessions. This practice forced the applicant continually to seek judicial review of its claims to validate the company’s eligibility for a refund, as well as compensation for the delayed refund of VAT.

The European Court further noted that in the circumstances of the present case the most appropriate form of redress would in principle be the elimination of this administrative practice found contrary to Article 1 of Protocol No. 1

Individual and general measures:

• Information provided by the Ukrainian authorities (27/09/2007): The new rules for VAT refund became effective on 01/06/2005. According to the authorities, the new rules abolished automatic refunding on the basis of the tax return and introduced an obligation on the tax authorities to check the correctness of amounts claimed. As the new refund procedure has not been subjected to the European Court's review, the authorities do not consider it necessary to take further measures in the case.

• Applicant's submissions: The applicant company provided the Secretariat with numerous submissions claiming a number of individual and general measures to be adopted by the authorities.

• This information is being assessed by the Secretariat.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1‑3 and 4 (morning) December 2009) (DH), in the light of an assessment of the information provided.

17707/02 Melnychenko, judgment of 19/10/2004, définitif le 30/03/2005[136]

39424/02 Kovach, judgment of 07/02/2008, final on 07/05/2008[137]

33089/02 Romanova, judgment of 13/12/2007, final on 13/03/2008[138]

15123/03 Volovik, judgment of 06/12/2007, final on 31/03/2008, rectified on 03/03/2008[139]

- 61 cases mainly concerning the length of civil proceedings and the lack of an effective remedy[140]

(See Appendix for the list of cases in the Naumenko Svetlana group)

- Cases of length of criminal proceedings and of absence of an effective remedy[141]

66561/01 Merit, judgment of 30/03/2004, final on 30/06/2004

14183/02 Antonenkov and others, judgment of 22/11/2005, final on 22/02/2006

1282/03 Artsybashev, judgment of 12/06/2008, final on 12/09/2008

31585/02 Benyaminson, judgment of 26/07/2007, final on 26/10/2007

17277/03 Fedko, judgment of 12/06/2008, final on 12/09/2008

25444/03 Kalinichenko, judgment of 26/07/2007, final on 26/10/2007

7324/02 Kobtsev, judgment of 04/04/2006, final on 04/07/2006

25821/02 Lugovoy, judgment of 12/06/2008, final on 12/09/2008

14809/03 Mazurenko, judgment of 11/01/2007, final on 11/04/2007

26277/02 Nosalskiy, judgment of 12/07/2007, final on 12/10/2007

35312/02 Ryshkevich, judgment of 12/06/2008, final on 12/09/2008

31580/03 Safyannikova, judgment of 26/07/2007, final on 26/10/2007

35184/02 Solaz, judgment of 12/06/2008, final on 12/09/2008

11336/02 Yurtayev, judgment of 31/01/2006, final on 01/05/2006

- 6 cases against the United Kingdom

19009/04 McCann, judgment of 13/05/2008, final on 13/08/2008

This case concerns disproportionate interference with the applicant’s right to respect for his home following his eviction pursuant to the service of a common-law “notice to quit” signed by his wife (violation of Article 8).

In July 1998 the applicant and his wife became joint tenants of a property owned by the local council. In early 2001 following incidents of domestic violence, the applicant was ordered to leave the property. His wife and children subsequently moved out to another property, leaving the property vacant. Later that year, the applicant moved back into the property, although his residence was unlawful. The applicant and his wife were reconciled though they continued living separately and in early 2002, she supported his application to exchange the property for a smaller one. The applicant’s wife was advised by the local council that in order to enable this exchange, she should sign a notice to quit. Under the common law, a notice to quit may be signed by either tenant. The effect is to end the tenancy and give the landlord a right to immediate possession. Although the wife was unaware of it, the effect of her signature of the notice to quit was to extinguish the applicant’s right to live in the property without his being offered any right to exchange it with another. Following unsuccessful appeals before the domestic courts, which applied the House of Lord’s judgment in Qazi v London Borough of Harrow ([2003 UKHL 43}) finding that Article 8 was not available as a defence in possession proceedings, the applicant was evicted on 22/03/05.

The European Court found that although the applicant had been residing in the property unlawfully, it was his home under Article 8. It considered that the notice to quit and the action to repossess brought by the local authority were both legal and followed a legitimate aim, but that the applicant had been deprived of his home without the benefit of any judicial guarantee enabling him to obtain an examination of the proportionality of this interference.

Individual measures: The applicant was awarded just satisfaction in respect of non-pecuniary damage. On 25/09/2008 the applicant’s lawyer confirmed that the applicant was living with friends.

On 14/10/2008 the UK authorities confirmed that no further individual measures would be taken in light of the fact that the case related only to a procedural violation of Article 8.

• As the violation relates to a procedural violation of Article 8 where the applicant was unable to challenge the decision to refuse him housing in an independent tribunal, information would be welcome on when the applicant was notified of the decision by the United Kingdom authorities not to take any further action and whether such a decision may be reviewed by an independent tribunal.

General measures: The applicant could not challenge the decision to evict him on Article 8 grounds before the County Court following the House of Lords judgment in Qazi v London Borough of Harrow. As the landlord was a local authority, the applicant was able to bring judicial review proceedings of the decision to evict him but these failed as the court considered that the local authority acted lawfully.

• House of Lords decision following the judgment in this case: On 14/10/2008, the United Kingdom authorities stated that the House of Lords’ judgment in the case of Doherty and others v Birmingham City Council [2008] UKHL 57, given shortly after the judgment in this case, implements the decision of the European Court. According to the United Kingdom authorities, the judgment in Doherty proposed an expansion of the scope of judicial review to include proportionality and in so doing, takes the judgment of the European Court in this case into account.

However, the European Court questioned whether judicial review was an effective forum at all in this context. It noted at paragraph 53 that “the ‘procedural safeguards’ required by Article 8 for the assessment of the proportionality of the interference were not met by the possibility for the applicant to apply for judicial review. Judicial Review procedure is not well adapted for the resolution of sensitive factual questions, which are better left to the County Court responsible for ordering possession.”

The application of Doherty and others in the national courts has had varied results (see inter alia Doran v Liverpool City Council [B5/2007/1565] 03.03.09 Court of Appeal).

• Submission under Rule 9 from Civil Society: On 27.03.09 a United Kingdom NGO, the Housing Law Practitioners Association (HLPA) made a submission to the Committee of Ministers. HLPA is an organisation of lawyers who have a particular interest in housing law. The submission highlighted the following points: -

- Only legislative change will implement the European Court’s decision (§3)

- In the past, the House of Lords has repeatedly rejected the argument that the proportionality of an eviction should be considered by a court or independent tribunal (§4)

- An eviction decision can be challenged by way of judicial review, but this process only reviews the decision making procedure of the authority it does not review whether it was proportionate to make the possession order (§4)

- The House of Lords judgment in Doherty is a clear rejection of the European Court’s decision in this case (§6)

- The UK courts cannot now follow the European Court’s judgment in light of the rule of precedent (§10)

- Even if the decision in Doherty has widened the scope of the defence in judicial review, then the grounds of the new defence are unclear (§7)

The United Kingdom responded to the submission on 30/04/2009. Both documents were circulated to the Committee of Ministers and are available from the Secretariat.

• Case of Kay and others against the United Kingdom (37341/06): The question of whether people who have been evicted have had the opportunity to have the proportionality of their evictions determined before an independent tribunal in light of Article 8 and the judgment in this case, is currently before the court in Kay and others.

Pending the outcome of Kay and others v UK, information is awaited on any other measures taken or envisaged.

45508/99 H.L., judgment of 05/10/2004, final on 05/01/2005

The case concerns the 1997 detention in a psychiatric institution of the applicant – who was compliant but, suffering from autism, did not have legal capacity to consent to his admission and stay in hospital – as an “informal patient” under s131(1) of the Mental Health Act 1983, itself based on the common law doctrine of necessity.

The Court observed that as a result of the lack of procedural regulation and limits applicable to informal patients, the hospital's health care professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit: this left effective and unqualified control in their hands. While the Court did not question the good faith of those professionals or that they acted in what they considered to be the applicant's best interests, it found that the absence of procedural safeguards surrounding the admission and detention of compliant incapacitated persons failed to protect against arbitrary deprivations of liberty on grounds of necessity and, consequently, failed to comply with the essential purpose of Article 5§1 of the Convention (violation of Article 5§1).

The Court further concluded that it had not been demonstrated that the applicant had had available to him at the relevant time a procedure for the review of his continued detention that complied with the requirements of Article 5§4. Judicial review, even based on the expanded (“super-Wednesbury”) principles applicable in human rights cases prior to the entry into force of the Human Rights Act 1998, would not have allowed an adequate examination of the merits of the clinical views as to the persistence of mental illness justifying detention; nor had it been shown that the other possibilities referred to by the Government would have allowed for such an examination (violation of Article 5§4).

Individual measures: None: the applicant was discharged from hospital on 12/12/1997.

General measures:

1) Legislative change: On 23/03/2005, in response to the judgment of the European Court, the Department of Health published a consultation document with a view to bringing forward proposals for appropriate safeguards. The preferred approach in the document was the one of “preventive care”, involving a new system of admission/detention procedures for persons who have to be deprived of their liberty so that care and treatment can be provided in their best interests. Under such a system, the power to deprive a person of liberty would be exercisable by specified persons or bodies, in defined circumstances, on the basis of objective medical evidence. It would incorporate guarantees such as requirements to specify the reason for deprivation of liberty, limits on the length of time, involvement of relatives, carers and advocates, provision for regular reviews and access to court for review of the lawfulness of detention

- England and Wales:

• Information provided by the United Kingdom authorities (09/10/2008): The Mental Health Act 2007 came into force on 19/07/2007. The measures relevant to this case are the Deprivation of Liberty Safeguards (DOLS). These are set out in Section 50 and Schedules 7, 8 and 9 to the Mental Health Act 2007. The Mental Health Act 2007 was used to insert the DOLS into the Metal Capacity Act 2005 and it is intended that the DOLS will come into force in April 2009. There is also a DOLS code of practice, which is a supplement to the Mental Capacity Act 2005 and which came into force on 03/01/2008.

• Information provided by the United Kingdom authorities (03/03/2009): The DOLS came into force on 1/04/2009. 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: 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.

• Assessment: in light the above, no further measure appears necessary for England, Scotland and Wales.

- Northern Ireland:

• Information provided by the United Kingdom authorities on (09/10/2008): The review in Northern Ireland is called the Bamford Review. The review was put back to June 2008 and has now gone out to consultation. The consultation closed on 03/10/2008. Subsequently, following analysis, a document will be produced to outline the way forward on reforming and modernising mental health and learning disability services in Northern Ireland.It is acknowledged that legislative reform is required in respect of mental health and mental capacity legislation. In the light of consultation responses, further consideration is now being given to how best this might be achieved (including the time-frame), recognising the potential interrelationship between mental capacity and mental health legislation. Any changes in legislation arising from the European Court’s judgment will be considered as part of this process. At present the common-law doctrine of necessity still applies in Northern Ireland.

The earliest legislative reform could be enacted is spring 2011. The United Kingdom authorities state that implementation of the judgment is only possible with this legislative reform and passing any interim legislation would delay the progress of the reform already under way.

2) Guidance: On 10/12/2005, the Department of Health issued advice to local authorities and those responsible for the provision of health care in England and Wales, setting out steps that should be taken in the interim to avoid further breaches of the Convention.

On 30/03/2007, the Scottish Executive issued the document: Guidance for Local Authorities: Provision of Community Care Services to Adults with Incapacity.

3) Publication: The judgment of the European Court was published in the European Human Rights Reports (2005) 40 E.H.R.R. 32; Butterworths Human Rights Cases: 17 B.H.R.C 418; (2005) Lloyd's Rep. Med. 169; Butterworths Medico-legal Reports: (2005) 81 B.M.L.R 131; and in The Times on 19/10/2004.

• Information is required on the process of legislative change is underway in Northern Ireland, where the doctrine of necessity still applies. This will not change until 2011 at the earliest. Information on any guidance given to Northern Irish authorities during this interim period following the European Court’s judgment would be welcome.

26494/95 J.T., judgment of 30/03/00 - Friendly settlement

The applicant, who was forcibly detained in a psychiatric institution until 1996, complained of the legislation (Mental Health Act 1983) under which she was unable to change the person appointed “nearest relative” - in her case her mother with whom she was in conflict (complaint under Article 8).

Individual measures: The applicant was discharged from the psychiatric institution in 1996. There was no undertaking by the government in respect of individual measures.

General measures: Under the terms of the friendly settlement, the government committed itself to undertaking legislative reform to amend the legislation at issue in this case (Mental Health Act 1983), with a view to allowing committed psychiatric patients to contest the status of "nearest relative" before a court if the patient submits reasonable objections to a person acting in such capacity.

- England and Wales: The Mental Health Bill was adopted by Parliament on 04/07/2007 and received Royal Assent on 19/07/2007. Sections 23 to 26 of the Mental Health Act 2007 are relevant to the J.T. case. In particular, section 24 enables patients to apply to a court to discharge or vary an order appointing a person as “nearest relative”. The court must be of the opinion that the person appointed is a “suitable person”.

- Scotland: Scotland has its own legislation in this area (The Adults with Incapacity (Scotland) Act 2000 and the Adult Support and Protection (Scotland) Act 2007). According to the Secretariat's assessment, it would not appear to give rise to circumstances similar to those in the J.T. case.

• Assessment: no further measure appears necessary for England, Scotland and Wales.

- Northern Ireland: Under Articles 36-37 of the Mental Health (Northern Ireland) Order 1986, which mirror the wording of sections 29-30 of the Mental Health Act 1983, a patient cannot apply to a court to change the person appointed as “nearest relative”.

Following the Review of Mental Health and Learning Disability, a report was published on 16/08/2007. This report will be submitted to the Department of Health, Social Services and Public Safety for their consideration.

The section relevant to the J.T. case is “A Comprehensive Legal Framework for Mental Health and Learning Disability”, which states that the proposed legislative framework should include the introduction of a “nominated person” to replace the “nearest relative” (§ 6.6), and that a person should be capable of refusing the involvement of a previous carer, and that in such situations, the appointment of another “nominated person” should be facilitated (§ 6.35).

In the light of consultation responses, further consideration is now being given to how best this might be achieved (including the time-frame), recognising the potential interrelationship between mental capacity and mental health legislation. Any changes in legislation arising from the European Court’s judgment will be considered as part of this process. At present the common-law doctrine of necessity still applies in Northern Ireland.

• Information provided by the United Kingdom authorities (03/03/2009): The United Kingdom authorities recognise the delay in taking measures for Northern Ireland. However, the Northern Ireland authorities held a further consultation, which closed on 31/03/2009. They have now committed to a legislative timetable and aim to put draft legislation before the Northern Ireland Assembly in 2010. The earliest legislative reform could be enacted is spring 2011. The United Kingdom authorities state that implementation of the judgment is only possible with this legislative reform and passing any interim legislation would delay the progress of the reform already under way.

• Further information is awaited on the progress of the legislative changes in Northern Ireland. It is noted that the process for legislative change is underway in Northern Ireland. However, the soonest any changes could be adopted would be in 2011, some 11 years after the friendly settlement. In light of this, information on guidance to authorities on how to apply the current case law would be welcome.

74025/01 Hirst No. 2, judgment of 06/10/2005 - Grand Chamber

The case concerns the fact that the applicant, who was serving a prison sentence following a criminal conviction, was barred from voting (violation of Article 3 of Protocol No. 1).

The European Court noted in particular that the ban imposed by the Representation of the People Act 1983 applied automatically to convicted prisoners irrespective of the length of their sentence, the nature or gravity of their offence or their individual circumstances. The European Court considered that the ban affected a significant number of people (around 48 000 at the time of the judgment) and it included a wide range of offenders and sentences from one day to life. When “sentencing, the criminal courts made no reference to disenfranchisement … so there was no direct link between the facts of a case and the loss of the right to vote” (§77). Lastly, there was “no evidence that Parliament had ever sought to weigh the competing interests or assess the proportionality of a blanket ban” (§79). The Court therefore concluded that “such a general restriction on a vitally important right had to be seen as falling outside the wide margin of appreciation allowed to contracting states in this field, and so was incompatible with the Convention” (§82).

Regarding the existence or not of any consensus among contracting states on the subject, the Court noted that there remained a minority of states in which a blanket restriction on the right of convicted prisoners to vote was imposed or in which there was no provision allowing prisoners to vote.

Individual measures: The applicant was released from prison on licence.

General measures: At the time of the judgment, there were around 48 000 convicted and detained prisoners in England and Wales. Since then, the prison population has increased. According to the United Kingdom authorities, in February 2009 there were 63 600 serving prisoners in the United Kingdom (excluding Scotland). In Scotland, the prison population is estimated to be 7500 - 7600 for 2008-2009 (see Scottish Government Statistics Publication Notice <http://www.scotland.gov.uk/Publications/2008/11/21110618/1>).

Under United Kingdom law, the next general election must be held by June 2010 at the latest.

1) Measures adopted

a) The Action Plan: On 07/04/2006, the United Kingdom authorities presented an action plan for the execution of the case. The authorities committed themselves to undertaking a consultation to determine the measures required to implement the judgment (written ministerial declaration of 02/02/2006).

b) The revised Action Plan: A revised Action Plan was provided along with a revised timetable anticipating the introduction of draft legislation by May 2008. The plan anticipated a two stage consultation.

- The First stage Consultation: The First Stage Consultation Paper was published on 01/12/2006. The consultation paper did not set out full enfranchisement as a realistic option, as the government is opposed to it. Proposals were made specifically concerning prisoners found guilty of election offences and convicted offenders and non-offenders detained in mental hospitals.

The first stage of consultation ended on 07/03/2007.

- The Second Stage Consultation: The Second Stage Consultation Paper was published on 08/04/2009. It refers to the responses of the First Stage Consultation and consults on proposals to enfranchise prisoners sentenced to four years or less. The consultation is available at http://www.justice.gov.uk/consultations/prisoners-voting-rights.htm. The consultation period will close on 29/09/2009. Following the consultation, the United Kingdom authorities will consider the next steps to implement the judgment through legislation.

• Information is required on a regular basis on the progress made in the consultation process and the follow-up to that process.

It is noted that in the Second Stage Consultation the United Kingdom authorities have decided that a limited enfranchisement of convicted prisoners in custody with a system of enfranchisement based on sentence length is appropriate. However, responses to the First Stage Consultation show that this approach was only favoured by 4 out of 88 respondents. The majority of responses (47%) favoured full enfranchisement of prisoners. The United Kingdom’s comments on this approach would be welcome, particularly in light of the Grand Chamber’s criticism of the fact that the current policy has never been the subject of parliamentary debate in the context of modern penal policy and current human rights standards (§79).

2) Legal challenges in Scotland: On 24/01/2007, the Court of Session (the highest civil court in Scotland) ruled that following the judgment of the European Court, Section 3(1) of the Representation of the People Act 1983 was incompatible with the European Convention and made a Declaration of Incompatibility under the Human Rights Act 1998 to this effect (see Smith v Scott 2007 S.L.T. 137).

On 20/04/2007 the Court of Session again considered their Declaration of Incompatibility, being asked to make a second declaration in light of the then imminent 2007 Scottish Parliamentary Elections. The case considered an Order made under the Scotland Act setting out voting arrangements for those elections, which reflected the provisions of Section 3 of the Representation of the People Act 1983. The Court of Session again recognised the incompatibility between the Representation of the People Act with the European Convention noting the consequent disenfranchisement of around 7,000 people in the Scottish Parliamentary elections, but considered that the Order was valid as the despite the rulings from the European Court and Court of Session, the Representation of the People Act 1983 remained in force (see Traynor & Anor, Re Judicial Review [2007] ScotCS CSOH_78 (20 April 2007)).

3) Opinion of the Joint Committee of Human Rights: In its annual report (Monitoring the Government's Response to Human Rights Judgments: Annual Report 2008) the United Kingdom Parliament's Joint Committee of Human Rights (JCHR) criticised the delay in implementing this case (see §§62 and 63 of the report). The Joint Committee stated that any further delay may result in the next election taking place in a way that fails to comply with the Convention (the election must be held in June 2010 at the latest).

In its scrutiny of the Political Parties and Elections Bill on 27/01/2009 the JCHR drew attention to a comment made by the Secretary of State for Justice on 20/01/2009 indicating that Members of Parliament were not “willing to accept” the European Court's judgment. The JCHR noted in response that despite the possible political difficulties “it remains for the government to take the initiative and to propose a solution for parliamentarians to scrutinise”.

4) Comment from civil society:

a) Rule 9 submissions to the Committee of Ministers following the First Stage Consultation:

• Communication from the AIRE Centre: the communication noted that despite the government's indication that it would engage in a proper debate, it stated in the Consultation Paper that it remains wholly opposed to full enfranchisement. Although the Consultation Paper offered the option of retaining the blanket ban (and welcomed receiving the views of those who agreed with this position), it excluded from consideration the possible option of abolishing disenfranchisement of prisoners altogether.

The United Kingdom government recalled that the (First Stage) Consultation Paper did state that views on total disenfranchisement were welcome but nonetheless made it clear, as noted above, that retaining the total ban was outside the margin of appreciation given by the Convention, and was therefore not an actual proposal. When expressing its belief that a offence serious enough to warrant a term in prison should entail a loss of voting rights while in prison, the government was simply repeating what its position was prior to and throughout the Court proceedings in this case.

• Communication from the Prison Reform Trust: The submission states that the current position is unacceptable and to date, the United Kingdom has done nothing to execute the judgment. The problem of future violations in underlined in light of the upcoming general election in June 2010. In response, the United Kingdom makes reference to the Second Stage Consultation.

b) Rule 9 submissions to the Committee of Ministers following the Second Stage Consultation: Rule 9 submissions have been received from the applicant, his legal representatives, The Howard League for Penal Reform, Unlock, Penal Reform International, the National Council of Civil Liberties and a further submission from the Prison Reform Trust. All the submissions highlight the fact that the United Kingdom has not yet taken any concrete steps to implement this judgment and stress the concern of imminent similar violations if legislation is not passed before the 2010 general election. In this context, UNLOCK refers to public statements made by the authorities that no legislation will be passed before the general election. The Prison Reform Trust and UNLOCK criticise the Second Stage Consultation for pursing a limited approach that does not reflect responses from the public to the First Stage Consultation. The Prison Reform Trust also states that the consultation period is excessively long and effectively means that there is no possibility of passing legislation before the general election.

All submissions have been circulated to the Committee of Ministers along with the response of the United Kingdom authorities and are available from the Secretariat.

The Deputies,

1. noted the action plan of the United Kingdom authorities and the recently published second-stage public consultation which will be followed by draft legislation;

2. expressed concern about the significant delay in implementing the action plan and recognised the pressing need to take concrete steps to implement the judgment particularly in light of upcoming United Kingdom elections which must take place by June 2010 at the latest;

3. noted that the second stage of the consultation will close in September 2009 and stressed the need to take the procedural steps following the consultation without delay in order to adopt the measures necessary to implement the judgment;

4. decided to resume consideration of this case at the latest at their 1072nd meeting (December 2009) (DH) in light of an interim resolution to be prepared by the Secretariat, if necessary.

66746/01 Connors, judgment of 27/05/2004, final on 27/08/2004

The case concerns a breach of the applicant's right to respect for his private and family life and his home on account of the eviction of the applicant and his family from a local authority gypsy caravan site in August 2000. The European Court found that their eviction was not attended by the requisite procedural safeguards, in that there was no requirement for the local authority to establish proper justification for the serious interference with the applicant's rights. The eviction therefore could not be regarded as justified by a “pressing social need” or proportionate to the legitimate aim being pursued (violation of Article 8).

Individual measures: The European Court awarded just satisfaction to the applicant in respect of non-pecuniary damages consequent upon the denial of the opportunity to obtain a ruling on the merits of his claims that the eviction was unreasonable or unjustified.

• Assessment: under the circumstances, no further additional measure appears necessary.

General measures: The government intends to implement the Connors judgment by legislation, i.e. the Housing and Regeneration Bill.

1) Legislation: On 15/09/2008 the United Kingdom authorities confirmed that the Housing and Regeneration Bill is now an Act, having received Royal Assent on 22/07/2008. The Act provides changes to the Mobile Homes Act 1983 extending the provisions and protections in that Act to Gypsy and Traveller sites. The amendments to the Mobile Homes Act will be brought into force via secondary legislation.

On 25/09/08 the United Kingdom authorities published a consultation paper (at http://www.communities.gov.uk/publications/housing/implementingmobilehomesact). The consultation paper relates to proposals for consequential amendments to the Mobile Homes Act 1983 in respect of local authority Gypsy and Traveller sites, and transitional provisions. The consultation was completed on 19/12/2008.

On 07/04/09 the United Kingdom authorities confirmed that following the consultation, they are in the process of drafting the legislation which will make the necessary changes to the 1983 Act. It is intended that the legislation will be approved in July and come into force later in 2009.

2) Interim guidance: On 17/05/2007 the government published for consultation a draft guidance on management of gypsy and traveller sites, including interim guidance to local authorities on summary possession and the implementation of the Connors judgment. The consultation period ended on 22/08/2007. The draft recommends that authorities avoid asserting a right to summary possession, and encourages them to provide additional protection to licensees.

3) Other relevant measures: In addition to these measures, the United Kingdom authorities drew attention first, to the Housing Act 2004, which allows judges to suspend eviction orders against residents of local authority sites on certain terms (for example on condition that there is no further anti-social behaviour). Second, they indicated that the nature of judicial review has changed since the Human Rights Act came into force. In R (Wilkinson) v Broadmoor Hospital RMO [2002] 1 WLR 419, the Court of Appeal held that there should be cross-examination of witnesses to determine the factual matters at issue and that, on this basis, the judicial review procedure would be compatible with Article 6 of the Convention.

4) Publication: The judgment of the European Court was published in the European Human Rights Reports at (2005) 40 EHRR 9.

• Information is awaited on the progress of the secondary legislation to be made pursuant to the Housing and Regeneration Act in England and Wales.

30562/04+ S. and Marper, judgment of 04/12/2008 – Grand Chamber

This case concerns unjustified interference in the applicants’ right to respect for their private life due to the indefinite retention of fingerprints and DNA samples taken from them (violation of Article 8).

Both applicants had their fingerprints and DNA samples taken by the police under the Police and Criminal Evidence Act 2001 (PACE) in relation to criminal incidents. The fingerprints and samples were to be retained indefinitely under Section 64 of PACE. The first applicant (a minor) was tried and acquitted. The charges against the second applicant were dropped.

Both applicants requested that their samples be destroyed, however this was refused. The applicants challenged that refusal in the domestic courts. Their claim was ultimately dismissed on appeal to the House of Lords on 22/07/04.

The European Court found that the blanket and indiscriminate nature of the powers of indefinite retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences failed to strike a fair balance between the public and private interests.

Individual measures: The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction.

On 05/12/2008 the applicants’ lawyer confirmed that the applicants had contacted the relevant government departments to request the destruction of their fingerprints and DNA samples.

• Information provided by the United Kingdom authorities (19/01/2009): The responsible police authority has destroyed the applicants’ fingerprints and DNA samples and profiles.

• Assessment: no further individual measures appear necessary.

General measures: The European Court noted in particular “the blanket and indiscriminate nature of the power of retention” (§119). Observing: “ … material may be retained irrespective of the nature or gravity of the offence … or of the age of the suspected offender …[and] the material is retained indefinitely.” (§119). The European Court also noted that there are “limited possibilities … to have the data removed from the nationwide database [and] … no provision for independent review of the justification for the retention according to defined criteria” (§119).

The European Court also made reference to the provisions and principles in a number of other Council of Europe texts applying to retention of personal data including:

- Recommendation R(92)1 of the Committee of Ministers on the use of analysis of DNA within the framework of the criminal justice system

- Recommendation R(87)15 of the Committee of Ministers regulating the use of personal data in the police sector

- Article 7 of the Data Protection Convention

1) The DNA database: The United Kingdom authorities confirmed that steps have been taken to remove the samples and profiles for children under the age of 10 from the National DNA database (10 being the age of criminal responsibility in the UK).

• Information from the House of Commons Library - Standard Note SN/HA/40409 of 09/04/2009: As at 01/01/2009 there were 5 140 940 profiles on the National DNA database for an estimated 4 457 195 individuals. Of those, 96 profiles belonging to children aged under 10 were deleted. As at 05/03/2009 there were no profiles of children under 10 on the database.

As at 31/03/2008, 857,366 people with profiles on the National DNA database had no record of a criminal conviction according to police records.

2) Public consultation: The United Kingdom authorities confirmed that they will hold a public consultation on the measures and options available to implement the European Court’s judgment. The consultation will be open for three months during the summer of 2009.

The government has established an Implementation Group to consider the measures required to implement the judgment, the options available and the impact of those options. The Group consists of representatives from the Home Office, the Ministry of Justice, the Northern Ireland Office, the Attorney General’s Office, the Crown Prosecution Service, the Scottish Government, the Association of Chief Police Officers, the Police Federation, the National Policing Improvement Agency and the Association of Police Authorities. The Group will report their findings to government ministers for consideration in relation to the content of the public consultation.

• Information is awaited on the progress of the consultation.

3) Policing and Crime Bill: The Policing and Crime Bill was debated in the House of Commons, in Committee (a select group of MPs) on 26/02/2009. The Bill is not yet law. In that debate, the government proposed the inclusion of three new clauses which would amend the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to give the Secretary of State the power to make regulations governing the retention of fingerprints and DNA. These clauses will be the legal basis for any regulations that the government makes following the public consultation. During the debate, the clauses were strongly criticised by MPs as the powers they create mean that any regulations made following the consultation will be passed as secondary legislation under the “affirmative resolution procedure”. This means that parliament will not be able to debate the content of the regulations but only vote to adopt or reject them in their entirety without time allocated for a full parliamentary debate.

• Information is awaited: on the progress of the relevant clauses in the Policing and Crime Bill.

4) Publication and dissemination: The judgment was 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 disseminated to chief police officers and to chief crown prosecutors.

[1] Those items marked with an asterisk * were added after approval of the draft Agenda (Preliminary list of items for consideration at the 1059th meeting) in accordance with the Rules adopted by the Committee of Ministers for the application of Article 46 of the European Convention on Human Rights.

[2] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[3] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[4] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[5] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[6] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[7] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[8] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[9] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[10] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[11] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[12] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[13] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[14] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[15] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[16] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[17] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[18] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[19] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[20] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[21] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[22] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[23] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[24] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[25] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[26] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[27] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[28] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[29] The Deputies decided to postpone consideration of this case to the 1st meeting in 2010 (DH).

[30] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[31] The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

[32] The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

[33] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[34] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[35] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[36] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[37] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[38] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[39] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[40] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[41] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[42] The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

[43] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[44] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[45] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[46] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[47] The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

[48] The Deputies decided to postpone consideration of these cases to the 1065th meeting (15-16 September 2009) (DH).

[49] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[50] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[51] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[52] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[53] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[54] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[55] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[56] The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

[57] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[58] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[59] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[60] The clearance rate, expressed as a percentage, is obtained when the number of resolved cases is divided by the number of incoming cases and the result is multiplied by 100. A clearance rate equal to 100% indicates the ability of the court or of a judicial system to resolve cases received within the given time period. A clearance rate above 100% indicates the ability of the system to resolve more cases than received, thus reducing any backlog. When a clearance rate goes below 100%, the received cases are not resolved within the given period and the number of unresolved cases at the end of the year (backlog) will rise. The clearance rate, in substance, shows how the judicial system is coping with the in-flow of cases.

[61] The Deputies decided to postpone consideration of this case to the 1st meeting in 2010 (DH).

[62] The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

[63] The Deputies decided to postpone consideration of these cases to the 1st meeting in 2010 (DH).

[64] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[65] The Deputies decided to postpone consideration of these cases to the 1065th meeting (15-16 September 2009) (DH).

[66] The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

[67] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[68] The Deputies decided to postpone consideration of this case to the 1st meeting in 2010 (DH).

[69] The Deputies decided to postpone consideration of this case to the 1st meeting in 2010 (DH).

[70] The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

[71] The Deputies decided to postpone consideration of this case to the 1st meeting in 2010 (DH).

[72] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[73] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[74] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[75] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[76] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[77] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[78] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[79] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[80] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[81] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[82] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[83] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[84] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[85] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[86] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[87] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[88] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[89] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[90] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[91] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[92] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[93] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[94] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[95] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[96] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[97] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[98] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[99] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[100] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[101] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[102] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[103] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[104] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[105] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[106] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[107] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[108] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[109] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[110] The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

[111] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[112] The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

[113] Some of these cases also concern the independence and impartiality of State Security Courts (violations of Article 6§1) and measures have already been adopted in order to solve this problem, thus preventing new similar violations (see Resolution DH(99)255 adopted in the case of Çıraklar).

[114] Some of these cases also concern the non-communication of opinion of the Principal Public Prosecutor at the Court of Cassation (violations of Article 6§1). See Göç group of cases, 36590/97, under Section 6.2.

[115] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[116] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[117] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[118] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[119] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[120] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[121] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[122] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[123] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[124] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[125] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[126] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[127] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[128] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[129] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[130] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[131] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[132] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[133] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[134] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[135] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[136] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[137] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[138] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[139] The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

[140] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

[141] The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).